Transunion Auto Information Solutions (Pty) Ltd v Autobid (Pty) Ltd (6494/2011) [2012] ZAKZDHC 22 (14 March 2012)

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[2012] ZAKZDHC 22
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Transunion Auto Information Solutions (Pty) Ltd v Autobid (Pty) Ltd (6494/2011) [2012] ZAKZDHC 22 (14 March 2012)

IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE NO: 6494/2011
NOT REPORTABLE
In the matter between:-
TRANSUNION AUTO
INFORMATION SOLUTIONS (PTY) LIMITED
…....................................
Applicant
and
AUTOBID (PTY) LIMITED
…...............................................................
Respondent
JUDGMENT
KISSOON SINGH AJ:
INTRODUCTION:
On 9 June 2011,
TRANSUNION AUTO INFORMATION SOLUTIONS (PTY)
LIMITED
(hereinafter referred to as “the Applicant”),
instituted these proceedings in this Court, against
AUTOBID (PTY)
LIMITED
(hereinafter referred to as “the Respondent”).
RELIEF CLAIMED:
In this application, the Applicant sought the relief set out, in
detail, in paragraphs 1 to 6 of the Notice of Motion. It is
unnecessary
for me to repeat herein the precise relief claimed.
Suffice to say that before me the Applicant sought, in the main,
declarations
that certain copyrights of the Applicant had been
infringed by the Respondent and pursuant to such declarations, final
interdictory
relief, thereby preventing future infringements of same
by the Respondent.
THE HEARINGS:
The matter came before me on 13 September 2011, in consequence of a
preferential allocation of dates, by which stage the application

itself (apart from Heads of Argument) had grown to some five hundred
and twenty six (526) pages, dealing
in
extenso
with the
complaints of the Applicant and the defences thereto by the
Respondent.
At the hearing of the opposed application, the Applicant was
represented by
MR. SALMON
and the Respondent was represented
by
MR. PAMMENTER
SC
, assisted by
MR. STYLIANOU
.
The matter was argued on the merits and save for additional argument
on two aspects to which I will allude hereunder, the argument
for
both sides was completed on that day.
During the course of the hearing, I requested both parties to address
me on:-
whether the Court’s jurisdiction to determine the matter had
been ousted by the provisions of Section 65 (2) of the Competition

Act 89 of 1998 (hereinafter referred to as “the
Competition
Act&rdquo
;); and
in the event of the jurisdiction of the Court not being ousted,
whether the Court should, in the exercise of its discretion,
given
that, inter alia, the Respondent had already instituted proceedings
before both the Competition Tribunal and the Competition
Commission
(being fora established in terms of the
Competition Act) decline
to
deal further with the matter, pending the outcome of either or both
of the said proceedings.
In consequence,
MR. SALMON
requested an opportunity to
consider the matters raised by me and it was subsequently agreed
between Counsel that Supplementary
(written) Heads of Argument,
dealing only with the abovementioned two aspects I had raised would
be delivered to me by 23 September
2011 and, if necessary, argument
on only those two aspects would proceed on a date to be subsequently
arranged.
Pursuant thereto, further argument was indeed heard by me on 24
October 2011 and at the conclusion thereof, I granted leave to
the
parties to supplement such argument in writing, should they desire to
do so, by no later than 9:00 a.m on 31 October 2011.
As no further
Heads of Argument were delivered, I assumed that the parties had
elected not to deliver the same and thereby supplement
their
respective submissions.
In consequence, I prepared a detailed Judgment, in excess of forty
one pages, and handed the same over to the Honourable Judge
President
of this Division, for him to make arrangements for the Judgment to be
handed down in the Motion Court on a date to be
nominated. Shortly
prior to the Judgment being handed down, I received communication
from the Applicant’s Legal Representatives,
who informed me
that a new development which they believed would be germane to my
decision (of which neither party was aware, as
the Judgment had not
been handed down) had just come to light and they requested me to
intervene and request the Honourable Judge
President to direct that
the Judgment I had prepared not be handed down. I acceded to such
request. Representations were apparently
subsequently made to the
Honourable Judge President to allow me to entertain an interlocutory
application for the introduction
of new material and he assented
thereto. In consequence, an interlocutory application dealing with
new matter was prepared and
the Affidavits therein were complete by 8
December 2011. By arrangement, the application was moved before me on
30 January 2012
and the application was granted. I should mention
that communications from both the Applicant’s Attorneys and the
Respondent’s
Attorneys disclosed that the Respondent had no
objection to such an interlocutory application being pursued,
provided that the
Respondent was afforded an opportunity of dealing
with the new material which was intended to be introduced. Indeed,
the Respondent
did have such an opportunity. At the hearing of the
interlocutory application on 30 January 2012, only the Applicant was
represented
as, I was informed, the Respondent had elected not to be
represented at that hearing. Both parties also indicated to me that
it
would be unnecessary for further argument to be delivered in
respect of the new material and I was requested to consider the same

and, if necessary, to modify my Judgment which had been prepared but
not handed down, in such manner as I considered appropriate.
I mention the aforegoing as the application had initially proceeded
before me in September 2011, in consequence of a preferential

allocation of dates and the Judgment in this matter is being
delivered during March 2012. It will be appreciated that there was
no
undue delay on my part in this Judgment being prepared and delivered.
I will deal with the new matter which was introduced before
me at a
later stage in this Judgment. It does indeed have a bearing on my
decision.
It is obvious that both parties have had a full opportunity of
raising such issues as they considered appropriate and making
submissions
thereon and they have also had a full opportunity to
address me.
THE APPLICANT’S BUSINESS:
It emerges from the application papers that the Applicant provides
“information”, in particular to the retail motor
industry
in South Africa. Such information pertains to most forms of used
motorised vehicles (hereinafter referred to as “vehicles”)

in this Country and includes valuations of vehicles. This it does
through five “Dealers Guides”, each of which is
published/distributed in printed book format, in electronic format,
through a stand alone windows application, through web-based
online
use and through handheld electronic devices (called PDA’s).
From the allegations set out in its founding papers, which are
largely unchallenged, it is obvious that the Applicant has been

conducting such business under one name or another, for many years.
Whilst there are other entities in this Country providing similar

information, the Applicant is clearly the dominant entity in this
Country providing such information, which it does on a monthly
basis.
According to the Applicant’s founding papers, there are over
sixteen thousand different models of vehicles available in the

vehicle market in this Country and every month, approximately sixty
thousand vehicles are traded. In consequence, traders, financiers
and
insurers, amongst others, have a need for updated information
relating to the trade and retail values of such vehicles. In
the
AUTO
DEALERS GUIDE
(a compilation of the Applicant dealing with
passenger vehicles of up to and including ten years of age) alone,
there are in excess
of sixty vehicle brands and more than two
thousand two hundred different derivatives.
The Applicant collects and collates raw data arising from the sales
of vehicles from approximately one thousand two hundred motor
vehicle
dealers Country wide (through approximately forty thousand individual
dealer return forms), including information such
as how many vehicles
each dealer bought and sold, the prices paid by the dealers for the
vehicles, the costs of reconditioning
the vehicles, the prices at
which the vehicles were sold and whether such sales were wholesale or
retail. Having collected the
data, the Applicant then processes the
same through its Automated Vehicle Value Adjustment system and
derives what it regards as
being reliable monthly trade and retail
valuations for the vehicles concerned, which it then
publishes/distributes only for use
by its customers.
Each of the vehicles in its guides has a unique eight digit code and
the combination of the eight digits therein represents the
make,
model and variant of the vehicle concerned, in appropriate order. In
order to create such a vehicle code, the Applicant collects

information from the manufacturer including various applicable
masses, the kilowatt output, the number of doors, the number of

wheels and the body style.
No purpose is served, in my view, in setting out further information
as to how the Applicant compiles its publications, as considerable

detail in connection therewith has been set forth in the founding
papers in this matter and the information set forth above suffices
to
explain how the Applicant prepares its publications.
It is, of course, relevant to note that the work undertaken by the
Applicant, in particular in compiling vehicle codes and vehicle

valuations, is performed by employees of the Applicant, acting in the
course and scope of their respective employment, all of whom
are
citizens or residents of this Country performing their work whilst
such. I note that these employees have all delivered Confirmatory

Affidavits in this matter.
In consequence, the Applicant alleges that it is the owner of the
copyright in the vehicle codes, the vehicle valuations and in
the
five dealers guides referred to above. It goes without saying that
the information supplied by the Applicant to its customers,
in one or
more or all of the forms in which it supplies the same, is clearly of
considerable importance to the trade. Persons who
wish to have access
to any of the formats in which the Applicant supplies information,
take out a subscription with the Applicant
and pay a fee therefor.
THE RESPONDENT’S BUSINESS:
The Respondent has been a customer of the Applicant and has obtained
information pertaining to vehicles from it since 2001. Due
to
sophistication in its business practices, the Respondent has now
developed a computer software programme which it sells to its
own
customers and this software programme assists such customers,
considerably, in their purchases and sales of vehicles in the
manner
set out below. In a nutshell, the Respondent delivers a handheld
cellular device to its customer and this is utilised for
the taking
of a photograph of a vehicle which is sought to be traded by that
customer. After including certain relevant details,
such as the make,
model and colour of the vehicle, the information is transmitted to
the Respondent’s computer system. The
Respondent’s
computer system (until fairly recently – amplified below) then
accesses the Applicant’s database
online and obtains trade and
retail valuations for the vehicle, determined by the Applicant,
together with the relevant vehicle
code in question and the
Respondent’s computer system then returns such valuations to
the Respondent’s customer.
In addition, the Respondent’s customer can select colleagues in
the industry, to whom the photograph and other relevant information

(including the vehicle codes and valuations) is relayed. A recipient
thereof is allowed, by use of the Respondent’s software,
to
insert a suggested purchase price at which the vehicle can be
purchased by it, which information is relayed by the Respondent’s

computer system to the original customer. This may then result in a
suitable trade of the vehicle concerned.
In simpler terms, a vehicle dealer who is a customer of the
Respondent, upon being approached by a member of the public who
wishes
to sell a vehicle, utilises the Respondent’s computer
system to obtain valuations and codes of the vehicle determined by
the Applicant, to distribute the same to prospective purchasers of
that vehicle and to receive an answer as to which of the persons
so
circulated is prepared to purchase the vehicle and at what price.
This enables the Respondent’s initial customer to speedily

offer a purchase price to the person approaching it for the sale of
the vehicle, knowing full well that there is a ready and willing

buyer, in turn and with the reasonable confidence that it will thus
not be left with a vehicle which it cannot itself resell.
THE APPLICANT’S COMPLAINTS:
It would, I think, be appropriate to summarise the complaints of the
Applicant in this matter:
The Respondent is still a customer of the Applicant, albeit only
through a subscription for the book guide, the relationship for

online access having been terminated by the Applicant in April 2011,
in consequence of the Applicant requiring a much higher sum
as a
subscription for online access than the Respondent is willing to pay.
Notwithstanding such termination, the Respondent still
accesses the
Applicant’s data base online and as mentioned above, until
recently obtained valuations of various vehicles
therefrom. During
the course of argument,
MR. PAMMENTER
advised me that the
Respondent no longer obtains valuations from the Applicant’s
data base, online, and that these valuations
are obtained by its
customers, all of whom are also customers of the Applicant. However,
what is clear from Annexures to the papers
and indeed is common cause
in this application, is that the Respondent still obtains and
utilises at least the Applicant’s
vehicle codes when it deals
with its own customers.
Speaking for myself, I harbour doubts about whether the Respondent
indeed does not still obtain valuations through the Applicant’s

online system but, for the purpose of this Judgment, it matters not
whether it does so, as in my understanding the Respondent still

checks that the valuations inserted by its customers are the same as
those determined by the Applicant. It is also common cause
that the
Respondent continues to publish information to its customers
containing not only the vehicle codes, but also the retail
and trade
valuations which emanate from the Applicant’s data base. This
it does in circumstances where it is not a subscriber
to the
Applicant’s online service and more importantly, nor does it
have any authority or licence from the Applicant to do
so.
The Applicant has accordingly approached this Court alleging that
copyright subsists in the works in question (that is to say the

Dealer Guides aforesaid, the vehicle codes and the valuations), that
it owns such copyright and that the Respondent is reproducing
such
copyrighted works or important portions thereof without permission.
The Applicant complains that the Respondent will not cease
such
allegedly unlawful conduct unless ordered by the Court to do so and
accordingly claims appropriate interdictory relief.
THE COPYRIGHT ACT:
Various sections of the Copyright Act 98 of 1978 (hereinafter
referred to as “the
Copyright Act&rdquo
;) are, in my view, of
relevance in this matter. I have considered them and I shall refer to
the same, very briefly hereunder.
Section 1
of the
Copyright Act defines
a “literary work”
to include tables and compilations, including tables and compilations
of data stored or embodied
in a computer or a medium used in
conjunction with a computer.
Section 2
of the
Copyright Act makes
provision that if
literary works are original they are eligible for copyright.
Section 3
of the
Copyright Act provides
that copyright is
conferred on every work eligible for copyright of which the author
(or in the case of joint authorship, any one
of the authors) is at
the time of the creation of the work a qualified person, that is to
say, is a South African citizen or is
domiciled or resident in this
Country.
Section 6
of the
Copyright Act vests
the owner of copyrighted
works with the exclusive right to do or to authorise the reproducing
of the work in any manner or form.
Section 12
of the
Copyright Act provides
for certain general
exceptions to infringement, in the case of literary works.
Section 21
of the
Copyright Act provides
, in circumstances
where an author makes a work during the course of his employment by
another person under a contract of service,
that such other person is
the owner of the copyright in the work in question.
Section 22
of the
Copyright Act provides
for assignments of
copyright and licences in respect of copyright.
Section 23
of the
Copyright Act deals
with various instances
of infringement of copyright.
Section 24
of the
Copyright Act makes
provision for various
forms of remedies available to the owner of copyright, for
infringement thereof, and this includes interdictory
relief.
REQUIREMENTS FOR COPYRIGHT INFRINGEMENT:
In
this
matter, given that it is common cause that the
Respondent has reproduced information in the form of vehicle codes
and vehicle valuations
which is precisely that which has been
compiled and furnished by the Applicant and in which the Applicant
claims copyright, the
issues insofar as copyright infringements are
concerned are: firstly, whether copyright subsists in the Applicant’s
said
information; secondly, whether if such copyright subsists, the
Applicant is the owner of that copyright; and thirdly, whether the

Respondent has reproduced the said information without the
Applicant’s consent.
I now proceed to analyse each of these issues.
DOES COPYRIGHT SUBSIST?
In the matter of,
PAYEN COMPONENTS SA LIMITED v BOVIC CC AND OTHERS
[1995] ZASCA 57
;
1995 (4) SA 441
(A)
five digit codes produced for the purpose of the identification of
certain gaskets were endorsed by the then Appellate Division
to
constitute literary works eligible for copyright.
During the course of argument,
MR. PAMMENTER
did not take
issue with the finding in the
PAYEN COMPONENTS
case (supra)
and conceded that the vehicle codes of the Applicant constituted
original works which were eligible for copyright.
I understood him to
make the same concession insofar as the vehicle valuations were
concerned, given the manner in which they are
compiled.
IS THE APPLICANT THE OWNER OF THE COPYRIGHTED WORKS?
No issue was raised about the authorship of the copyright in the
vehicle codes or the vehicle valuations and there was no challenge
to
ownership of the copyright therein by the Applicant, which is hardly
surprising given the Applicant’s assertions, which
were
confirmed under oath by its employees.
IS THERE UNLAWFUL REPRODUCTION
OF THE COPYRIGHTED WORKS?
It next falls to be considered whether the Respondent has reproduced
the Applicant’s copyrighted works without the Applicant’s

consent. In my view, there is no dispute about this fact on the
papers. The Respondent, itself, admits that the Applicant terminated

its online access to vehicle codes and valuations and asserts that
this prompted the Respondent to institute proceedings before
the
Competition Commission and before the Competition Tribunal (for an
urgent interim order for online access).
I am not, of course, unmindful of the fact that the Respondent is a
subscriber to the book form of the Applicant’s guide,
but that
takes the matter no further as it is not that guide from which the
Respondent produces vehicle codes and (on its version)
confirms the
valuations submitted to it by its customers, but from online access
to the Applicant’s data base.
Further and perhaps more importantly, it is also common cause that
the Applicant, as owner of the copyright in question, is in
terms of
Section 6
of the
Copyright Act vested
with the exclusive right to do
or to authorise reproduction of the said works in any manner or form.
It has not given authority
or a licence to any person (including the
Respondent) to reproduce the same. Indeed, it says that it precludes
its customers from
disseminating such information as, if that were
the position, the Applicant could suffer considerable financial
prejudice.
MR. PAMMENTER
in opposition to the assertion of unlawful
conduct in reproducing the works, submitted:
Insofar as the valuations (which have the Applicant’s name
prefixed thereto) are concerned, all the Respondent is doing
by
reproducing the same is pointing out/confirming/asserting to the
reader of such information that the valuations are those
allocated
to the vehicle in question by the Applicant and that such valuations
can be found in the Applicant’s guides.
Insofar as both the vehicle codes and the valuations are concerned,
that the Respondent was merely a conduit, relaying information
from
one of the Applicant’s customers to another of the Applicant’s
customers – given that the Respondent contends
that all its
own customers (to whom it supplies its software programme) are
obliged to be customers of the Applicant as well.
In consequence, so it was submitted, there was no infringement. The
submissions of course, do not take into account the express

provisions of
Section 6
of the
Copyright Act, which
vests the
Applicant with the exclusive right to do or to authorise the
reproducing of the work in any manner or form and the factual

position that the Applicant has not so authorised such reproduction
of the works by the Respondent.
Even if a case could have been made that the Applicant was aware of
the actions of the Respondent in acting as a conduit and that
it took
no steps to prevent the same, thereby giving rise to an implied
authority to do so, it seems clear to me that once the
Applicant
objected to such conduct and gave notice to the Respondent that it
should cease to conduct itself in that fashion and
once the
Respondent was precluded by the Applicant from having access to its
data base, online, any such implied authority (if
it existed at all)
ceased.
Neither of those submissions thus find favour with me.
I am also not persuaded that any of the general exceptions provided
for in
Section 12
of the
Copyright Act, are
applicable in the instant
case.
In the circumstances, I must hold that the Respondent has reproduced
the Applicant’s copyrighted works without the Applicant’s

consent.
REQUIREMENTS FOR INFRINGEMENT SATISIFED:
In all the circumstances, there is no doubt in my mind that copyright
subsists in the Applicant’s vehicle codes and in the

Applicant’s valuations and that the Applicant is the owner of
that copyright. I also have no doubt that the Respondent has

reproduced the copyrighted works without the Applicant’s
consent.
I hold accordingly.
The actions of the Respondent in dealing with the vehicle codes and
the vehicle valuations thus constitute infringement of such

copyright, being contrary to the provisions of
Section 23
of the
Copyright Act.
INTERDICTORY
RELIEF:
The requirements for the granting of interdictory relief in South
African Law are trite. In the case of a final interdict, an Applicant

must prove a clear right; an injury actually committed or reasonably
apprehended or an actual or threatened invasion of that right;
and
the absence of similar protection by any other ordinary or suitable
legal remedy. In the case of an interim interdict, an Applicant
must
prove a prima facie right even though that right may be open to some
doubt; a well grounded apprehension of irreparable harm
if the
interim relief is not granted; a balance of convenience in its
favour; and the lack of another remedy which is adequate
in the
circumstances.
Section 24
of the
Copyright Act makes
provisions for interdictory
relief to be granted as one of the remedies for infringement.
Regard being had to the facts of this matter found proven and the
fact that the Respondent continues to reproduce the Applicant’s

vehicle codes and valuations and has not suggested that it will
refrain from doing so, I am satisfied that in the ordinary course
of
events, the Applicant would have satisfied the requirements for a
final interdict and I would ordinarily have had no hesitation
in
granting it the interdictory relief it seeks in this matter.
However, the matter is not that simple. There are two other aspects
which must be considered. These are the two aspects which I
have
referred to at an earlier stage in this Judgment and on which I
required additional argument. I deal with them hereunder.
OUSTER OF JURISDICTION:
Section 65
(2) of the
Competition Act, provides
:
“
If,
in any action in a civil court, a party raises an issue concerning
conduct that its prohibited in terms of this Act, that court
must not
consider that issue on its merits, and –
(a) …
(b) otherwise, the court must
refer that issue to the Tribunal to be considered on its merits, if
the court is satisfied that –
(i) the issue has not been
raised in a frivolous or vexatious manner; and
(ii) the resolution of that
issue is required to determine the final outcome of the action.”
That sub-section, in my view, provides for an ouster of the
jurisdiction of this Court if certain requirements, specified in that

section, are all extant. These are:
Conduct which is prohibited in terms of the
Competition Act must
be
raised as an issue;
The issue must not have been raised in a frivolous or vexatious
manner;
Resolution of that issue must be required to determine the final
outcome of the action.
If all the aforesaid requirements are met, this Court has no
alternative but to refer the issue to the Competition Tribunal to
be
considered on its merits and it may not consider that issue on its
merits. Although a Court is not keen to concede that its
jurisdiction
is ousted (and indeed there is authority to the effect that a
presumption exists against the ouster of the jurisdiction
of the High
Court) it is so that if there is a statutory ouster of jurisdiction,
the High Court cannot entertain the matter any
further.
In this regard the High Court, in the matter of -
SEAGRAM AFRICA (PTY) LIMITED v
STELLENBOSCH FARMERS’ WINERY GROUP LIMITED AND OTHERS
2001 (2) SA 1129
(C),
whilst dealing with the now repealed Section 65 (3) of the
Competitions Act, commented (at page 1141 J to page 1142 A of its
Judgment)
that its view that the Legislature had a clear intention of
excluding the jurisdiction of the High Court in certain competition

matters, was fortified by the provisions of Section 65 (2) (b) of the
Competitions Act, which directed civil courts to refer all
issues
concerning conduct prohibited in terms of the Competitions Act which
might arise during the hearing of a civil matter, to
be referred to
the Competition Tribunal for consideration. I am in respectful
agreement with such comment and am of the view that
if all the
requirements I have identified above are present, the jurisdiction of
this Court is ousted. As will also be seen later
in this Judgment,
the Supreme Court of Appeal has also confirmed that
Section 65
(2)
(b) of the
Competition Act provides
for an ouster of jurisdiction.
I must then, of necessity, determine whether the aforesaid three
requirements are present
in casu
. In doing so, it is relevant
for me to record that in the present matter a somewhat unusual
situation arose after the Applicant
terminated the Respondent’s
online access to its data base.
Ordinarily, one would have expected an Applicant, in circumstances
where a Respondent persisted in refusing to desist from unlawful

conduct, to immediately approach the Court for interdictory relief.
However, from the papers in this matter it appears that pursuant to
the dispute over pricing between the parties, on 12 April 2011,
the
Applicant terminated the Respondent’s online access and the
Respondent’s reaction to the aforegoing (apart from
persisting
in its conduct) was to approach the Competition Commission in terms
of a complaint based on alleged anti-competitive
conduct of the
Applicant against it. At the same time it approached the Competition
Tribunal for an (urgent) interim order for
online access. Both the
aforesaid proceedings were launched on 14 April 2011.
The founding papers in the proceedings for the interim relief claimed
from the Competition Tribunal appear as a part of Annexure
“MVH11”
to the Founding Affidavit of the Applicant in this matter. In the
proceedings in the Competition Tribunal the
Respondent (as Applicant
therein) seeks an interim order that the Applicant (as Respondent
therein), pending a determination by
the Competition Commission of
the allegedly anti-competitive conduct of the Applicant, immediately
allow the Respondent online
access to its information, known as the
Mead’s Valuations (which includes the vehicle codes and
valuations that are the subject
of this application) and a further
order that such online access should be continuous and endure until
the complaint lodged at
the Competition Commission has been finalised
and a ruling in respect of the Applicant’s conduct has been
issued.
The Applicant’s Founding Affidavit in this matter (in
paragraphs 105 to 108) discloses that various events transpired
pursuant
to the launching of the proceedings in the Competition
Tribunal and with the parties in those proceedings being unable to
reach
any agreement on an interim basis, a Supplementary Founding
Affidavit was delivered by the Applicant on 20 May 2011. Although
answering
papers in the proceedings before the Competition Tribunal
were delivered towards the end of June 2011, the Respondent (as
Applicant
in those proceedings) did not deliver its replying papers
timeously and indeed, as at 13 September 2011 (when the matter was
first
argued before me) had not yet done so. During the course of the
argument on that day,
MR. SALMON
urged me, if I was
disinclined to grant interim relief on that day, to direct the
Respondent to deliver its replying papers in
the Competition Tribunal
proceedings. I declined to do so as such an issue was not one raised
on the papers before me and
MR. PAMMENTER
, quite justifiably,
indicated that he was not in a position to indicate when the
Respondent would be in a position to deliver such
papers and why it
had not done so in the interim. Suffice to say that by the time the
matter resumed before me on 24 October 2011
(almost six weeks after
the non-delivery of such replying papers was raised pertinently in
argument before me) the Respondent had
still not delivered the same,
although
MR. PAMMENTER
indicated from the Bar that such papers
had been prepared and were in the process of being delivered. I will
deal further with
this later, as it forms a part of the new material
introduced into this application on 30 January 2012.
The Applicant in these proceedings only instituted this application
on 9 June 2011. That is almost two months after the Respondent
had
instituted its proceedings in the Competition Commission and the
Competition Tribunal. The allegedly anti competitive conduct
of the
Applicant has thus not been raised for the first time in this
application, as a reaction to the Applicant’s complaints,
but
has been raised by the Respondent long before this application was
launched.
During the course of argument in this matter,
MR. SALMON
urged me to hold that:-
a determination of whether copyright subsists and whether it has
been infringed is a matter falling within the exclusive jurisdiction

of a High Court and not the Competition Tribunal or the Competition
Commission and no issue prohibited by the Competitions Act
has been
raised in the papers before me, in that the complaint in both those
fora relate to whether the Applicant’s conduct
is
anti-competitive or not and not to whether copyright subsists or has
been infringed;
the Respondent has furthermore not set forth sufficient evidence in
its papers to justify a conclusion by this Court that an
issue is
being raised by the Respondent which concerns conduct which is
prohibited in terms of the
Competition Act;
>
in any event, the Respondent, by its dilatory conduct in not
delivering its replying papers and proceeding expeditiously before

the Competition Tribunal, is acting frivolously and consequently if
it is held that the Respondent has raised an issue pertaining
to
conduct allegedly prohibited in terms of the
Competition Act, such
has been raised in a frivolous or vexatious manner in this Court.
Further, the issues of anti competitive conduct which have
been
raised, upon proper scrutiny, have no merit at all and thus have for
that reason been raised frivolously or vexatiously
in this Court.
For one or more or all of the aforegoing reasons,
MR. SALMON
submitted, I should find that all three requisites for an ouster of
jurisdiction are not present. I should thus not hold, he submitted,

that there has been an ouster of jurisdiction and I should proceed to
grant final interdictory relief.
I shall (as I am obliged to) deal with the aforegoing submissions of
MR. SALMON
hereunder, although I do not necessarily
examine them
seriatim
.
I accept that a finding on whether copyright subsists and whether
there have been copyright infringements are matters that must
be
determined by this Court, as a perusal of the relevant sections of
the
Competition Act discloses
that such are not matters capable of
being considered in terms thereof.
I was referred, in particular, to the un-reported Judgment of the
Supreme Court of Appeal in the matter of –
PLATINUM HOLDINGS (PTY) LIMITED AND OTHERS v
VICTORIA AND ALFRED WATERFRONT (PTY) LIMITED AND ANOTHER
SCA Case Number 428/2003
Judgment dated 28 May 2004
by
MR. SALMON
, as authority for the proposition that no order
of the Competition Tribunal was required to determine the final
outcome of these
proceedings in the light of the relief claimed,
which he submitted could only be determined by the High Court. It is,
of course,
noteworthy that the Supreme Court of Appeal in the said
Judgment affirmed the ouster of jurisdiction provided for in terms of
Section 65
(2) (b) of the
Competition Act, provided
the prescribed
requisites are present. In paragraph 16 of that Judgment, the Supreme
Court of Appeal stated that the prohibition
against the consideration
of the merits of a competition issue did not mean that no
consideration to the issue could be given at
all by a Court. It
simply meant that the Court may not attempt to resolve that issue. It
also stated that the question of whether
the competition issue was
frivolous or vexatious was a matter for decision by the Court and not
for the Competition Tribunal. I
am mindful of those directions from
the Supreme Court of Appeal and take them into account in my
determination of the matter before
me.
In dealing with whether the issue has been raised frivolously or
vexatiously before me (or even before the Competition Tribunal)
I am
also mindful of the content of paragraph 26 of the said Judgment of
the Supreme Court of Appeal, where that Court held that
one who
conducts a hopeless case acts frivolously. One of the crisp questions
for decision before me then is whether in my view
the Respondent has
a hopeless case before the Competition Tribunal.
That the Respondent occupies a dominant position in this particular
industry in South Africa, I do not believe can be challenged.
Such
must be the inescapable conclusion from a proper reading of the
Applicant’s papers in this matter and this is supplemented
by
allegations made in the Affidavits by the Respondent before the
Competition Tribunal. Thus, for example, in the Respondent’s

Supplementary Founding Affidavit (as Applicant) in the Competition
Tribunal proceedings, the dominance of the Applicant is dealt
with in
paragraph 2 (page 340 and page 341 of these papers) as well as in
paragraph 3.2 (at page 342 of these papers) and in paragraph
4 (at
page 342 and page 343 of these papers). In paragraph 92.1 (at page
265 of these papers) the Respondent in its Answering Affidavit
in
these proceedings, makes out the case that one of the Applicant’s
large clients obtains information from the Applicant
at a cost of
R10 000.00 per month and that another client of the Applicant,
who apparently uses the information far less,
pays approximately
R4 000.00 per month for the same information. The Applicant
requires the Respondent to pay an amount of
approximately R40 000.00
per month which, in the tenor of its allegations, the Respondent
claims to be unreasonable and to
cause prejudice and which the
Respondent also says is an endeavour to prevent the Respondent from
entering the market as a competitor
and furnishing similar
information to that which the Applicant furnishes - a stated
intention of the Respondent for the future.
In the Respondent’s
Supplementary Founding Affidavit (as Applicant) in the Competition
Tribunal proceedings, the Respondent
makes out a similar case in
paragraph 11 (at page 350 of these papers), albeit the figures
utilised therein are different.
In paragraphs 64 and 65 (at pages 310 to 312 of these papers) of the
founding papers of the Respondent (as Applicant) in the proceedings

before the Competition Tribunal, the Respondent sets out various
aspects of the Applicant’s conduct which it alleges is contrary

to the provisions of the Competitions Act. Included therein is an
assertion in sub-paragraph 65.2.5 (at page 312 of these papers)
that
the Applicant, being a dominant firm, is abusing its position as a
dominant firm to refuse to give a competitor access to
an essential
facility when it is economically feasible to do so. Reliance is
placed on the provisions of Section 7 and
Section 8
of the
Competition Act.
As
mentioned,
MR. SALMON
urged me to hold that the papers
before me were deficient in setting out particularity of the conduct
which was allegedly in contravention
of the provisions of the
Competition Act. Despite
such urging, I cannot make such a finding.
Both parties annexed copies of the papers in the proceedings before
the Competition
Tribunal to their papers in this matter and I must,
perforce, have regard thereto. There is, in my view just sufficient
particularity
set out in those papers (as supplemented by what is
alleged in the papers before me) to refuse to conclude that the
Respondent
has merely relied upon a recitation of various sections of
the
Competition Act for
its allegations of unlawful conduct
prohibited by that Act. What is clear from all the papers is that the
Respondent alleges that
the Applicant is a dominant firm; that it
previously supplied information to it at a much lower price than it
is now demanding;
that the Respondent is prepared to pay a higher sum
than it was previously paying but not anywhere as high as that
demanded by
the Applicant; that the Applicant provides other
customers with such information at a much lower charge than it is
requiring from
the Respondent; that in consequence of the refusal by
the Respondent to pay the amount demanded by the Applicant, the
Applicant
has cut off its online access to its data base. That, in my
view, although somewhat lacking in detail, is just enough to show
that
the complaint had been raised with sufficient particularity for
it to have been considered on its merits by the Competition Tribunal.

As that information is before me through a combination of the
allegations made in the Affidavits in this matter and the Annexures

thereto (which include the papers before the Competition Tribunal) I
hold that whilst it would have been preferable for additional

information to have been set out, sufficient particularity has in
fact been set out in the papers before me and that the issue
had thus
not, for that reason, been raised frivolously or vexatiously before
me. Of course, in so holding I make no finding that
the Respondent’s
assertions which I have set out above are correct.
Subject to what I state below and until the new material was
introduced, whilst the Respondent might have been dilatory in the

proceedings before the Competition Tribunal (which conduct is to be
deprecated), I did not consider that such dilatory conduct
in those
other proceedings warranted me holding that the Respondent was
pursuing such proceedings with a lack of seriousness. If
what
MR. PAMMENTER
stated from the Bar on 24 October 2011 was
correct, the long outstanding Replying Affidavit ought to have been
delivered and the
matter could have proceeded in that forum.
Nor did I initially consider such dilatory conduct as being
indicative of an intention of raising the allegedly anti competitive

conduct of the Applicant in these proceedings in a manner lacking
seriousness from which I could have drawn the conclusion that
it was
being raised frivolously or vexatiously. The more so as such was
raised by the Respondent (in the Competition Tribunal)
long before
these proceedings commenced and the Respondent seemed intent on
pursuing same.
Can I then have held that the proceedings before the Competition
Tribunal were hopeless, with the result that the Respondent had
to be
found to have been acting frivolously or vexatiously?
MR.
PAMMENTER
during the course of argument
(whilst not abandoning any assertions that other sections of the
Competition Act have
been breached by the Applicant) submitted that
in terms of
Section 8
(b) of the
Competition Act it
is prohibited for
a dominant form (which the Applicant clearly is) to refuse to give a
competitor access to an essential facility
when it is economically
feasible to do so. I cannot accept such submission. In the first
place, there is insufficient information
before me to hold that the
Applicant’s publications are the only means of obtaining the
information utilised by the Respondent
thereby rendering them an
essential facility required by the Respondent to conduct its
business. On the contrary, it appears from
the papers that there are
other entities which provide similar information. Further, I do not
believe that the Respondent is a
competitor of the Applicant. It is
true that it avows that it intends to disseminate similar information
in the future, but that
simply means that it is intending to be a
competitor in the future and in my view the provisions of
Section 8
(b) of the
Competition Act refer
to a current competitor.
However,
MR. PAMMENTER
also referred to the prohibition
contained in
Section 8
(a) of the
Competition Act, where
a dominant
firm is prohibited from charging an excessive price to the detriment
of consumers. In this regard, I was referred to
the prices which the
Applicant charges other customers and the price it is demanding from
the Respondent (which I have alluded
to at an earlier stage in this
Judgment).
Prima facie
there does appear to be something to be
said for that submission. To demand approximately R40 000.00 (or
R32 000.00 as
the case might be, depending on which Affidavit
one has regard to) seems excessive when other customers are alleged
to be charged
a much lower sum. That must obviously be to the
detriment of consumers. One of such consumers would be the Respondent
itself. Other
consumers would, in my view, be customers of the
Respondent who would be prejudiced. Common sense dictates that if the
Respondent
is to pay an inflated price, it will be obliged to pass on
such increase to its customers, in turn. Whether there is in fact an

excessive price being charged is a matter I believe the Competition
Tribunal would have been enjoined to investigate and rule upon.
Section 8
of the
Competition Act falls
under Chapter 2 of that Act
and in terms of
Section 27
of the
Competition Act, the
Competition
Tribunal has the power to adjudicate on any conduct prohibited in
terms of Chapter 2, to determine whether prohibited
conduct has
occurred and if so, to impose any remedy provided for in terms of the
Competition Act.
All
things being considered, I find that the aforegoing is an issue
which has just been sufficiently raised before me and that it
concerns
conduct that is prohibited in terms of the
Competition Act.
There
may be other such issues but it is unnecessary for me to make
any findings thereon.
I must now determine whether the resolution of the abovementioned
issue is required to determine the final outcome of the proceedings

before me. During the course of argument on 24 October 2011,
MR.
SALMON
handed up a suggested draft order which provides in
paragraphs 1 and 3 for declarations that the Respondent has infringed
the Applicant’s
copyright as contemplated by
Sections 23
(1)
and
23
(2) of the
Copyright Act (respectively
) and which provides for
interdicts in paragraphs 2 and 4 thereof. In paragraph 5 of that
suggested draft order, a referral to an
enquiry to determine damages
or a royalty is provided for and in paragraph 6, costs of the
proceedings are provided for.
In support of the claim for the interdictory relief,
MR. SALMON
urged me to consider granting interdicts in which provision could be
made for the interdicts to fall away in consequence of any
ruling by
the Competition Tribunal (or the Competition Commission) in favour of
the Respondent. There would be no infringement
from that time onwards
so the argument went, and any order which I made would not be
affected by such a ruling or rulings as the
interdict would only
prohibit infringement and if the Competition Commission or the
Competition Tribunal ruled in favour of the
Respondent, it was
obvious that from that time onwards the Respondent could continue its
conduct without any infringement as envisaged
by
Section 23
of the
Copyright Act. I
was tempted to grant such interdictory relief. It
had a certain allure to it.
However, even though it might have been more relevant at the level of
a discretion which should guide the granting of interdictory
relief,
I had to consider the submission of
MR. PAMMENTER
that
one should not assume that the Competition Commission or the
Competition Tribunal (as the case might be) could not issue a
ruling
in favour of the Respondent with retrospective effect, that is to say
from a date earlier than the ruling was actually made,
which could be
as far back as the date that the proceedings were launched before
those fora, being 14 April 2011.
MR. PAMMENTER
also submitted
that one should be mindful of the fact that an interdict issued by
this Court might result in a conflict if the
Competition Tribunal
were to grant relief claimed from it by the Respondent in the urgent
proceedings before the Competition Tribunal.
What, he questioned,
would be the position if I permanently interdicted the Respondent
from infringing the Applicant’s copyright
and the Competition
Tribunal granted an order giving access of the Applicant’s
information to the Respondent to enable it
to continue its business,
pending a final determination by the Competition Commission?
Then again and more pertinent to a finding on this leg of the
argument, if the Competition Tribunal held that
Section 8
(a) of the
Competition Act had
been contravened in that the Applicant, as a
dominant firm, had charged an excessive price to the detriment of
consumers, could
a final interdict have been granted by this Court?
Was a resolution of that issue not required to determine the final
outcome of
these proceedings? That is to say whether a final
interdict should be granted? I thought it was.
In my view, the granting of a final interdict (which is what the
Applicant seeks in these proceedings) would have been the final

outcome of these proceedings.
Until the introduction of the new material, I believed it was
essential for the Competition Tribunal to have made a ruling on
whether such conduct was prohibited by the
Competition Act, before
a
final interdict was granted. It seemed obvious to me that if the
Competition Tribunal ruled that such conduct had indeed taken
place,
a final interdict could not be granted.
The advent of the
Competition Act, in
my view, provides additional
defences, in circumstances such as that prevailing in the matter
before me, to those contained in
the
Copyright Act, provided
all the
requirements for same are present. Each case must, of course, be
considered on its own merits to ascertain whether such
defences are
available to a person wishing to adopt the same and findings such as
I make and opinions I hold in this matter are
obviously not of
general application.
I pause to mention that during the course of argument I enquired from
MR. SALMON
whether I could consider granting temporary or
interim interdicts and he submitted in response to my enquiry that he
did not believe
I could do so, as, if all the requirements for an
ouster of jurisdiction were present neither interim or final
interdicts could
be granted. On reflection, I believe he is correct.
THE INTERLOCUTORY APPLICATION TO INTRODUCE NEW MATERIAL:
As has already been alluded to, the Applicant brought an
interlocutory application to submit new material, which was granted.
In essence, the new material which the Applicant sought to place
before the Court can be summarised as follows:
When the matter was first argued before me, it was raised during the
course of argument (and it caused me some concern) that
the Replying
Affidavit of the Respondent (as Applicant) in the Competition
Tribunal proceedings for urgent interim relief, had
not been
delivered. During October 2011, when the matter was heard again, I
was specifically informed by the Respondent’s
Counsel that the
Replying Affidavit, although not yet delivered, was in the process
of being delivered as it was with DHL (a
courier business) and was
expected to be served shortly.
At that time, the Respondent’s Counsel had received direct
instructions from the Respondent’s Attorney (who was present

at the hearing) and the matter was a pertinent issue which went
directly to the root of whether the Respondent was pursuing these

proceedings frivolously or vexatiously.
Unbeknown to the Applicant, but known to the Respondent’s
Attorney, a notice of non-referral dated 19 September 2011, from
the
Competition Commission, had been served on the Respondent’s
Attorney. This meant that the initial complaint by the
Respondent to
the Competition Commission, was no longer pending at a stage when I
was told that the Replying Affidavit in the
Competition Tribunal
proceedings had been prepared and was shortly to be delivered.
Regard being had to the relief claimed in the Competition Tribunal
Interdictory proceedings, such proceedings, of necessity,
fell away
as the relief claimed in those interdictory proceedings was pending
a decision of the Competition Commission complaint.
As there was no
longer a Competition Commission complaint, it followed that the
interdictory proceedings would also fall away.
The information given to me by the Respondent’s Counsel, was
false and was intended to mislead the Court.
The Respondent had not taken proper steps, timeously, to “appeal”
the non-referral decision by the Competition Commission
to the
Competition Tribunal and was barred from doing so, the time period
for such an “appeal” as prescribed by
Section 51
(1) of
the
Competition Act, read
with Competition Tribunal
Rule 14
(1) (b)
having expired.
No steps have been taken by the Respondent to apply for condonation
for the late delivery of an “appeal” against
the
non-referral decision by the Competition Commission and no such
“appeal” or application for condonation was pending.
Although a Replying Affidavit in the interdictory proceedings before
the Competition Tribunal had been delivered, together with
an
application for condonation for the late delivery thereof, such
could not, in effect, take the matter any further as the proceedings

before the Competition Tribunal would fall away if there was no
decision by the Competition Tribunal on an “appeal”

against the non-referral decision of the Competition Commission.
The Applicant submitted further that in consequence of the aforegoing
and whilst not detracting from its original submission that
there was
no competition issue before me in any event, even if there was such
an issue, the decision not to refer the matter to
the Competition
Tribunal by the Competition Commission and the absence of an “appeal”
against such a decision put an
end to any concerns I might have about
there being a completion issue which had to be referred for decision
by the Competition
Tribunal. Although it may not have been expressly
so stated, it is obvious that a further alternative contended for was
that the
proceedings before the Competition Tribunal were, in the
circumstances, hopeless and thus frivolous and consequently the
raising
of the same before me in the prevailing circumstances was
likewise frivolous.
The Respondent, of course, opposed the aforegoing submissions. In a
nutshell, the Respondent asserted that its previous Attorney,
had
never communicated to it the decision of non-referral by the
Competition Commission. The Respondent added that given the vigour

with which it has pursued the opposition to the interdictory relief
claimed before me and given the voluminous documents filed
in the
proceedings before both the Competition Commission and the
Competition Tribunal, it had every intention of pursuing appropriate

relief before the Competition Tribunal and that it was not conducting
itself frivolously or vexatiously. It submitted further that
even
thought it might itself not have referred the decision of
non-referral to the Competition Tribunal, that did not preclude
me
from doing so if I was satisfied that there was a competition issue
which required to be determined by the Competition Tribunal
and that
indeed, in terms of the
Competition Act, I
was obliged to do so.
I will now deal with how the introduction of the new material plays a
role in the final decision I have come to in these proceedings.

Before doing so, it is important for me to record that whilst it
might be that I was furnished with false information by the
Respondent’s
Counsel at the hearing in October 2011 (it is
common cause that as at that date no Replying Affidavit in the
Competition Tribunal
proceedings had even been prepared, let alone
signed) I do not hold that against
MR. PAMMENTER
in anyway
whatever. Indeed, the integrity of
MR. PAMMENTER
is without
question. I myself overheard
MR. PAMMENTER
requesting
instructions from the Respondent’s then Attorney and I
overheard the direct instruction given by the Respondent’s
then
Attorney to
MR.
PAMMENTER
, which was in turn
conveyed to me. In those circumstances, no blame whatsoever attaches
to
MR. PAMMENTER
and the mere fact that he was an unfortunate
conduit of false information must not be held against his integrity
in anyway whatever.
It is now necessary for me to indicate that had the new material
referred to above not been placed before me, I would have refused
the
interdictory relief requested by the Applicant and I would have
referred the matter to the Competition Tribunal as I was of
the view
that there was a competition issue which had to be decided by the
Competition Tribunal before any interdictory relief
was pursued. The
Judgment I had prepared was along those lines.
Has the position now changed? I have carefully considered the impact
of the new material introduced in this application on the
Judgment I
had previously prepared. My views are as follows:
The fact that the Competition Commission considered there to be no
complaint worthy of being referred to the Competition Tribunal
and
issued a notice of non-referral does not impact on my view as to
whether there was a competition issue. The members of the

Competition Commission were, entitled to make their own decision on
the aspects which they perceived as being placed before them
and
this Court is entitled to make its own. It is noteworthy that in
terms of
Section 65
(2) of the
Competition Act, if
the Court comes
to the conclusion that there should be a referral of a competition
issue prohibited in terms of the Act, such
an issue must be referred
to the Competition Tribunal to be considered. It is not to be
referred to the Competition Commission.
In terms of the
Competition
Act, the
Competition Commission is a body of lower status than the
Competition Tribunal which is entitled to deal with appeals from
decisions
of the Competition Commission.
Accordingly, the fact that the Competition Commission found no merit
in the complaint to it does not affect the position that
I believe
that conduct prohibited in terms of the
Competition Act has
been
perpetrated and that is an issue which in terms of
Section 65
(2)
falls to be referred to the Competition Tribunal for decision
provided I am satisfied that the issue has not been raised
in a
frivolous or vexatious manner and the resolution of that issue is
required to determine the final outcome of the proceedings
before
me.
I disagree with many of the submissions and assertions made by the
Applicant in the interlocutory proceedings which relate to
an
absence of entitlement on the part of the Respondent to pursue
proceedings before the Competition Tribunal, because the time
period
prescribed by
Section 51
(1) of the
Competition Act read
with
Rule
14
(1) (b) of the Rules for Conduct of Proceedings in the
Competition Tribunal (“the Rules”) (twenty business days
after
notice of non-referral by the Commission has been issued to a
complainant) has expired.
Whilst it is true that the complainant (in this case the Respondent)
had twenty business days after the notice of non-referral
was issued
to refer the matter to the Competition Tribunal it is not forever
barred from doing so when it is in default. The
time period of
twenty business days is provided for in terms of the Rules.
Rule 54
(1) of the Rules specifically provides for a party to apply to the
Competition Tribunal for condonation for the late filing of
a
document, or to request an extension or reduction of the time for
filing of a document, by the filing of a request in form
CT6. The
Respondent is obviously aware of such provision having itself
utilised the same to seek condonation for the late delivery
of its
Replying Affidavit (Annexure “LGM8” to the Answering
Affidavit in the interlocutory proceedings deposed to
by
Ms L.G.
MARTIN
refers).
In terms of
Rule 54
(2) of the Rules, once a request for condonation
is received the Registrar of the Competition Tribunal must set the
matter down
for hearing at the earliest convenient date after
consulting the parties. No doubt, at the hearing, the merits of the
application
for condonation must be canvassed and adjudicated upon
by the Competition Tribunal.
Having made findings already alluded to in this Judgment, namely
that in my view an issue concerning conduct that is prohibited
in
terms of the
Competition Act has
been raised, I am precluded from
considering that issue on its merits and such an issue must be
referred to the Competition Tribunal
for consideration on its merits
given that the resolution of that issue, in my view, is required to
determine the final outcome
of the action.
It remains only for me to revisit the proviso set out in
Section 65
(2) (b) (i), namely, whether the issue has been raised in a
frivolous or vexatious manner. I thus turn my attention to this
aspect as it is now, in my view the central point around which my
decision hinges:
I have referred, at an earlier stage of this Judgment, to paragraph
26 of the Judgment of the Supreme Court of Appeal in the
PLATINUM
HOLDINGS
case. It was stated there that one who conducts a
hopeless case acts frivolously. Until the introduction of the new
material,
I was of the view that the Respondent in the present
matter was not acting frivolously (or vexatiously).
(ii) There are a number of factors which appear from the
interlocutory application, which have to be analysed by me in order
that
I can determine whether my view has changed. I deal with them
hereunder, in no particular order.
Whilst it is so that I remarked upon the fact that the proceedings
in the Competition Commission and Competition Tribunal
(respectively)
had been instituted before this application for an
interdict and thus the raising of the issues herein was not a
“knee-jerk”
reaction to the bringing of these
proceedings, so to speak, the issue I must also concentrate on is
whether the Respondent (as
Applicant in the Competition Tribunal)
has any prospect of succeeding in those proceedings, as matters
presently stand.
On the papers before me I cannot find, as a fact, that the
Respondent’s erstwhile Attorney had communicated the decision

of non-referral by the Competition Commission to the Respondent. In
the founding papers in the interlocutory application, the

Applicant’s Deponent repeatedly made assertions to the effect
that the then Attorney of the Respondent must have notified
the
Respondent of the Notice of Non-Referral by the Competition
Commission. In the Answering Affidavit of the Respondent, the

Deponent
Ms MARTIN
, being a director of the Respondent
(although not the sole director, as from paragraph 15 of her said
Affidavit there is mention
of another director) states that she was
never informed by the erstwhile Attorney about the Notice of
Non-Referral. Whilst it
is true that she denies that the Respondent
was aware of that non-referral, she sets forth no information
whatever as to what
enquiries she made with other directors or
shareholders of the Respondent, or indeed with other personnel of
the Respondent,
to determine whether the erstwhile Attorney had
notified anybody connected with the Respondent about the notice of
non-referral.
She does not even go so far as to indicate that a
search of communications between the erstwhile Attorney’s
offices and
the Respondent’s offices discloses no such
communications. At a later stage in her Affidavit, she states that
she was not
aware of what the former Attorney was doing but, once
again, does not indicate that responsible persons connected with the
Respondent
were not so aware. In my view, the Applicant rightly
criticises this approach in its Replying Affidavit. Further,
Ms MARTIN
sets forth no information whatever as to the
steps taken by the Respondent (or herself for that matter) to
ascertain what had
happened about the proceedings in the Competition
Commission and the Competition Tribunal. One would have expected
someone from
the Respondent to have made enquiries of the Attorney,
given that the matter is obviously of crucial importance to the
Respondent
and given that it was pursuing urgent relief in the
Competition Tribunal since April 2011. Whilst some allowance can be
made
for the fact that these proceedings intervened, I do not
believe that there is any excuse which can be proffered as to why no
diligent enquiries were pursued with the Respondent’s
erstwhile Attorneys and if they were, why
Ms
MARTIN
failed to disclose the same in the Answering Affidavit in the
interlocutory proceedings. The overall impression gained is that
the
Respondent was quite content to allow the proceedings in the
Competition fora to continue as they were, without pressing
for a
resolution thereof, with the inescapable conclusion that it sought
to benefit from delaying a decision on issues as between
itself and
the Respondent. However, although dissatisfied in the respects I
have mentioned, I would not have changed my views
on this issue
alone.
What is clear is that by early November 2011, after the former
Attorney had apparently absconded, the current Attorney of the

Respondent took charge of the matter. The current Attorney
apparently prepared the Replying Affidavit in the Competition
Tribunal
matter and the appropriate application for condonation
thereof. What I do not understand is what purpose the preparation of
and
the delivery of the Replying Affidavit in the Competition
Tribunal proceeding serves in the absence of the non-referral
decision
by the Competition Commission being appealed to the
Competition Tribunal. It is clear from the relief claimed in the
Notice of
Motion in the proceedings for urgent relief in the
Competition Tribunal (page 142 of these proceedings before me
refers) that
the order sought is to immediately allow online access
and it is to endure until the complaint lodged at the Competition
Commission
has been finalised and a ruling in respect of the conduct
complained of has been issued. I have already mentioned at an
earlier
stage in this Judgment that the Rules provide for
condonation and there is no reason why the twenty business day
period for the
“appeal” to the Competition Tribunal has
not been the subject of an application for condonation. As was
correctly
pointed out in the Applicant’s Replying Affidavit in
the interlocutory proceedings, the substratum for the urgent
interdictory
proceedings in the Competition Tribunal has fallen
away.
That being so, in my view, the application for condonation and the
delivery of the Replying Affidavit in the urgent proceedings
in the
Competition Tribunal cannot avail the Respondent. Even if the
Competition Tribunal were to grant it condonation and accept
the
Replying Affidavit, what will be the outcome thereof. No urgent
relief can be granted in my view. It would, of course, have
been
different if there was an application for condonation for a late
referral to the Competition Tribunal of the decision by
the
Competition Commission.
I am well aware that the separate proceedings in the Competition
Tribunal (and the Competition Commission for that matter) are

extraneous to these proceedings and have no bearing upon my
decision. I am perfectly entitled, independently thereof, to refer

the matter to the Competition Tribunal if in my view the
requirements of
Section 65
(2) of the
Competition Act are
met.
Whether the Respondent is in default in either of those proceedings
does not preclude me from referring the matter to the
Competition
Tribunal if I find that the Respondent is not litigating
frivolously.
Unfortunately for the Respondent I can no longer continue to believe
that it is not proceeding frivolously before me. The position
which
has now unfolded is that the complaint of the Respondent to the
Competition Commission has been rejected. The Respondent
has not
timeously “appealed” that decision by referring the same
to the Competition Tribunal. The Respondent has
not sought
condonation for not timeously referring that decision to the
Competition Tribunal. The Respondent has been considerably
out of
time in delivering a Replying Affidavit in its Competition Tribunal
proceedings and although it has sought condonation
for such late
delivery, I do not believe that there will be any success in the
same given that the substratum for those proceedings
have now fallen
away (in the absence of any application for condonation).
That being so, there is a direct impact on the proceedings before me
in my view. It is the very same issue which the Respondent
has
sought to be adjudicated upon in the competition fora, which is
before me. That too, not in specific terms, but in the general
terms
in just sufficient particularity to which I have referred at an
earlier stage in this Judgment. Even so, I would have been
prepared
to find that the issue was not being pursued frivolously before me
if I was satisfied that the Respondent had taken
all appropriate
steps to have its complaint properly and seriously ventilated before
the appropriate competition authority. This
it has clearly not done.
There comes a stage when the Court has to say that a litigant can
only place so much of blame on its
Legal Representatives and avoid
the consequences of negligence. Beyond that, it takes the risk of
the negligence of the Legal
Representatives it chooses. I believe
this is one of such cases. Whilst it might be that the Respondent
can complain bitterly
about the conduct of its former Attorney, it
now has the services of a different Attorney and it has had the
services of both
Senior and Junior Counsel to advise it. If it is
not pursuing the relief which it wanted adjudicated upon properly
and seriously
and in my view now has a hopeless case for interim
relief in the Competition Tribunal (the substratum for such relief
has now
fallen away) without any request for the Competition
Tribunal to make a new determination about the rejection of the
complaint
to the Competition Commission, how can I come to the
conclusion that it is not raising the same issue before me in a
frivolous
fashion? How can it be that the Respondent does not wish
to pursue relief in its own right yet expects me to come to its
assistance
by deciding that it has not been frivolous in the way it
is conducting itself and to refer the matter to the Competition
Tribunal.
It should have done so itself and if it had, I would no
doubt have been persuaded that it was serious in its submissions in
this
Court and that it wished seriously to pursue remedies available
to it. By 30 January 2012 – the day when I last entertained

this matter - (some three months after it became aware of the
wrongdoings against it by its former Attorney and almost two months

after issues of condonation had been raised in the interlocutory
application) no application for condonation had been made to
the
Competition Tribunal relating to the rejection of the complaint by
the Competition Commission. Such an application was essential
yet
not pursued.
For the aforegoing reasons, at least, I must come to the reluctant
conclusion that the Respondent is conducting the litigation
before
me in a frivolous manner, making submissions that my jurisdiction is
ousted in consequence of a prohibited practice in
terms of the
Competition Act, when
it has not pursued that very prohibited
practice it complains of in the appropriate fora although it
instituted proceedings in
such fora at an earlier stage. I cannot
hold that it is serious in its submissions before me on this aspect.
The end result of my aforegoing deliberations is that I do not
believe that my jurisdiction has been ousted by the provisions of
Section 65
(2) of the
Competition Act
.
DISCRETION:
In view of my findings as set out in this Judgment, I do not believe
that there is any need for me to deal in any detail with the
issue of
discretion. In the circumstances prevailing, the Applicant is now, in
my view, entitled to interdictory relief and any
discretion not to
grant interdictory relief cannot be exercised in favour of the
Respondent.
EXPEDITED HEARING IN THE COMPETITION TRIBUNAL:
At this point, I pause to record, perhaps gratuitously, some
observations I have made when perusing the provisions of the
Competition Act and
the Rules. I do so because of the repeated
assertions of the Applicant that proceedings in the Competition
Tribunal would take
a lengthy period of time and would thus occasion
undue prejudice. Needless to say I do not agree with those
assertions. Further,
these observations might be of some assistance
to the Respondent if it wishes to continue to pursue relief before
the Competition
Tribunal, given the order I now intend to grant in
the matter. If it successfully pursues relief in the Competition
Tribunal it
may be assisted in overcoming the restraints I intend to
place upon it.
In terms of
Section 58
of the
Competition Act, amongst
other powers
it may have in terms of the
Competition Act, the
Competition Tribunal
may make an appropriate order in relation to a prohibited practice
including interdicting such prohibited
practice and ordering a party
to supply or distribute goods or services to another party on terms
reasonably required to end a
prohibited practice. In terms of
Rule 28
(3) of the Rules which deals with hearings for interim relief, the
Competition Tribunal, in urgent circumstances, may on good cause

shown, shorten any time period or dispense with any formalities
provided for. In terms of
Rule 28
(1) of the Rules, the provisions of
Rule 22
of the Rules, read with any change required by context is
made applicable to pre-hearing procedures in an interim relief
application
and in terms of
Rule 22
(1) (c), an assigned member of
the Competition Tribunal may, at a pre-hearing conference, give
directions in respect of, inter
alia, a date, time and schedule for
the hearing. That being so, there appears to me to be no impediment
in the path of a party
in seeking to obtain a pre-hearing conference
in proceedings already instituted in the Competition Tribunal and to
make representations
for a hearing of an application therein as a
matter of urgency (and in the present matter, more particularly in
the light of my
findings that the Applicant’s copyright has
been infringed). The more so if condonation for the late filing of
the “appeal”
concerning the rejection of the complaint by
the Competition Commission is requested in terms of
Rule 54.
Of
course I cannot opine on how the Competition Tribunal will deal with
the matter and even if it does not grant interim relief,
the
Respondent might still be successful in its complaint in the main
which will then ameliorate the position it now finds itself
in.
Had I referred the matter to the Competition Tribunal, there would
thereafter have been no impediment, either, in my view, to the

Applicant speedily approaching this Court, on these papers
supplemented insofar as might have been necessary, or in another
application
(given how voluminous this application already is and
that much of what is stated in these papers would have become
irrelevant
– suggesting to me that a fresh application would
have been preferable), for suitable interdictory relief and a
referral
for an enquiry for a determination of damages or of a
royalty to be paid and other appropriate relief, should the
Competition Tribunal
not have found in favour of the Respondent. In
granting such interdictory relief at that stage, this Court would
have been applying
the determination of the Competition Tribunal, in
accordance with the provisions of
Section 65
(2) (a) of the
Competition Act.
CONCLUSION:
In the light of my findings in this matter, I propose to grant
suitable declarations concerning infringements of the Applicant’s

copyright by the Respondent which in my view have caused prejudice to
the Applicant. I do so as I am of the view that these are
not matters
in which the Competition Tribunal (or the Competition Commission) has
any jurisdiction and the provisions of
Section 65
(2) (b) of the
Competition Act do
not apply to same. Such declarations can only
extend to 30 January 2012, being the date on which this matter was
last before this
Court. I do not know what has happened since that
time but it is clear that such unlawful conduct continued until at
least that
date. I also intend to afford to the Applicant the
opportunity to claim damages or a royalty for the period 31 January
2012 to
the date of the handing down of this order, from which date
the Respondent will be interdicted from infringing the Applicant’s

copyright, assuming it can prove that such infringements occurred
during that period.
I also intend to grant appropriate interdictory relief to the
Applicant. Such interdicts will extend beyond the declarations as
to
infringement of copyright and where the interdictory relief does so,
it is on the basis that I believe the Respondent requires
to be
restrained in possibly pursuing unlawful conduct as against the
Applicant in relation to other publications of the Applicant
even
though the Respondent has not necessarily been proven at this point
in time to have infringed such copyrights. I believe that
the conduct
of the Respondent has been demonstrated to be such that there is a
reasonable apprehension on the part of the Applicant
that such
unlawful conduct may be pursued at a later stage. Should the
Respondent not be so restrained and it then conducts itself

unlawfully in respect of the Applicant’s copyrights, the
inevitable result will be another voluminous application for
interdictory
relief in this Court. On the other hand, if the
Respondent has no intention of conducting itself unlawfully in those
respects,
the granting of the interdictory relief cannot affect it.
I also intend to grant appropriate relief insofar as a referral on
the question of damages, or a royalty, to be paid is concerned
and
directions in respect of pleadings in that regard and finally an
appropriate order for costs, which will include the costs
of the
application for the introduction of the new material as it is a
portion of that new material which has changed the outcome
of this
decision. In so doing I must remark that I did not find the tenor of
the Applicant’s Founding and Replying Affidavits
in the
interlocutory application to be in good taste and the Applicant
should take heed of this remark as a Court does not take
kindly to
being given a lecture by litigants before it. Notwithstanding, I do
not intend to deprive the Applicant of its costs
in that application.
In formulating the declarations which I intend to make and the other
relief which I intend to grant, I have taken into account
the wording
of the suggested draft order handed in to me by
MR. SALMON
on 24 October 2011.
ORDER:
In the result I make the following order:
5.
It is declared that the Respondent has, as contemplated by the
provisions of
Section 23
(1), read with
Section 6
of the
Copyright
Act 98 of 1978
, infringed the Applicant’s copyright from 12
April 2011, by, without a licence from the Applicant, reproducing
portions of
the
TRANSUNION AUTO DEALERS GUIDE
, comprising
vehicle codes and vehicle valuations, such being literary works, the
copyright in which is owned by the Applicant,
and that it has also
from 12 April 2011, infringed the Applicant’s copyright in the
aforesaid literary works, as contemplated
by the provisions of
Section 23
(2), read with
Section 6
of the
Copyright Act 98 of 1978
,
in that it, without a licence from the Applicant, distributed for the
purposes of trade, to the prejudice of the Applicant, certain

information reports containing the aforementioned vehicle codes and
vehicle valuations, such having been incorporated and published
by
the Applicant in each publication of the
TRANSUNION AUTO DEALERS
GUIDE
from 12 April 2011 to 30 January 2012.
5.
An interdict is granted restraining the Respondent from, without the
Applicant’s licence (whether such licence is the result
of a
ruling or a directive of the Competition Tribunal which might take
place in the future, or otherwise) in any way reproducing
the vehicle
codes and vehicle valuations (or substantial parts thereof)
incorporated and/or published in each publication of:-
4.5. the
TRANSUNION AUTO-DEALERS GUIDE
;
4.5. the
TRANSUNION COMMERCIAL VEHICLE DEALERS GUIDE
;
4.5. the
TRANSUNION CAR AND COMMERCIAL OVER TEN YEARS OLD GUIDE
;
4.5. the
TRANSUNION MOTOR CYCLE DEALERS GUIDE
;
4.5. the
TRANSUNION AGRICULTURAL MACHINERY DEALERS GUIDE
.
5.
An interdict is granted restraining the Respondent from, without the
Applicant’s licence (whether such licence is the result
of a
ruling or a directive of the Competition Tribunal which might take
place in the future, or otherwise) selling, by way of trade
offering
or exposing for sale, or distributing for the purposes of trade, the
vehicle codes and/or vehicle valuations (or substantial
parts
thereof) incorporated and/or published in each publication of:-
4.5. the
TRANSUNION AUTO-DEALERS GUIDE
;
4.5. the
TRANSUNION COMMERCIAL VEHICLE DEALERS GUIDE
;
4.5. the
TRANSUNION CAR AND COMMERCIAL OVER TEN YEARS OLD GUIDE
;
4.5. the
TRANSUNION MOTOR CYCLE DEALERS GUIDE
;
4.5. the
TRANSUNION AGRICULTURAL MACHINERY DEALERS GUIDE
.
5.
The question of damages, or a royalty, to be paid to the Applicant as
a result of the Respondent’s infringements referred
to in
paragraph 1 above is referred to an enquiry as contemplated by
Section 24
(1B) of the
Copyright Act, 1978
and in this regard:-
4.5. the Applicant’s notice of motion in these proceedings
dated 7 June 2011 shall serve as a summons in the aforesaid enquiry;
4.5. the Respondent’s notice of intention to oppose dated 21
June 2011 shall serve as a notice to defend in such enquiry;
4.5. the Applicant is directed to deliver its declaration in the
aforesaid enquiry, within twenty days of the date on which this
order
is handed down and failing such delivery, this paragraph of this
order shall no longer apply;
4.5. the Applicant shall be entitled to pursue a claim for damages,
or a royalty, for the period 31 January 2012 to the date of
the
handing down of this order, in the said declaration, but in so doing
it shall be required to prove infringements of its copyrights
by the
Respondent during that period;
4.5. in the event of the Applicant delivering its aforesaid envisaged
declaration, the Uniform Rules of this Court relating to
action
proceedings shall thenceforth apply to the enquiry proceedings.
5.
The Respondent is hereby directed to pay the Applicant’s costs
to date, such costs to include those costs consequent upon
the
employment by the Applicant of two Counsel where such occurred and
such costs are also to include the costs occasioned by the

interlocutory application to submit further evidence which was
instituted by the notice dated 22 November 2011.
14 March 2012
______________________­­­­_
A.K. KISSOON SINGH AJ
APPLICANT’S COUNSEL: MR. O. SALMON
RESPONDENT’S COUNSEL: MR. C.J. PAMMENTER SC
assisted by
MR. X. STYLIANOU
APPLICANT’S ATTORNEYS:
BOWMAN GILFILLAN ATTORNEYS
JOHANNESBURG
Ref: MR. J. SAHLI
Care of:
BARKERS ATTORNEYS
DURBAN
Ref: N. HARTMAN
RESPONDENT’S ATTORNEYS:
JOHN ISABELLE ATTORNEYS
JOHANNESBURG
Ref: MR. ISABELLE
Care of:
MOONEY FORD ATTORNEYS
DURBAN
Ref: E VAN HUYSTEEN