Technical systems v Feed Chain Industries and Others (7235/2017) [2024] ZAWCHC 204 (29 July 2024)

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IN THE HIGH COURT OF SOUTH AFRCA
[WESTERN CAPE DIVISION, CAPE TOWN]
Case no: 7235/2017

In the matter between:

TECHNICAL SYSTEMS Plaintiff

and

FEED CHAIN INDUSTRIES First Defendant

CHRISTIAAN ARNOLDUS KURZ Second Defendant

CQUIPTECH (PTY) LTD Third Defendant

CGC INDUSTRIES (PTY) LTD Fourth Defendant

CARL WILLIAM RICHTER Fifth Defendant


JUDGMENT DELIVERED (VIA EMAIL) ON 29 JULY 2024
___________________________________________________________________

SHER, J:
1. This is an action in which the plaintiff, Technical Systems (Pty) Ltd (‘TS’), a major
manufacturer and global supplier of livestock and poultry feed -conveying
products which include auger (a form of spiral wire) and ‘feed chain ’, seeks
interdictory orders and damages, together with ancillary relief.

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2. It has sued the defendants on two bases. It claims that the y have made
themselves guilty of competing unlawfully with it (claim A) in that , via the 2 nd
defendant they wrongfully misappropriated and acquired confidential information
and technological ‘know-how’ belonging to it, pertaining to its set-up and process
for the manufacturing of feed chain, as well as other trade secrets, in order that
they could set about manufacturing the same product in unlawful competition with
it. In doing so they allegedly infringed the copyright which the plaintiff enjoyed in
certain protected technical drawings of the production process and works of
craftsmanship, which constitute component parts of it , by wrongfully copying,
adapting and/or reproducing these drawings and parts (claim B). As a result, the
design, set-up and material specifications of the manufacturing process which is
utilized by the defendants in the ir production of feed chain is the same, or
substantially the same, as that which is employed by the plaintiff.
3. TS was previously embroiled in similar litigation against the defendants in relation
to the production of auger, which culminated in a judgment in its favour in which
the defendants were held to have acted unlawfully and were interdicted.
4. It is common cause that the 2 nd defendant (who is referred to herein as ‘CK’ or
‘Kurtz’) was employed by the plaintiff as a plant engineer from 2001 to 2009, when
he resigned, and that he trades under the name and style of the 1 st defendant
Feed Chain Industries (‘FCI’), as does the 3 rd defendant CQuiptech (Pty) Ltd, a
company of which 2nd defendant is the sole director and a joint shareholder with
5th defendant Carl William Richter, a friend and business partner with whom he
has a long-standing relationship. The 4th defendant CGC industries (Pty) Ltd is an
entity which was established by 2nd defendant and the 5th defendant. ‘CGC’ is an
acronym which represents the 1st letter of the 1st names of the 2nd defendant, one
Gary Colenbrander (who was previously employed by the plaintiff as a sales
representative), and the 4 th defendant. Second and 5 th defendants are directors
of the 4th defendant.
5. The matter has had a long and tortuous history. From the time when s ummons
was issued in 2017 every step of the litigation process has been heavily
contested. On 19 June 2020 an order was made that there should be a separation
of issues and the matter consequently proceeded in relation to the merits of the
claims (i.e. the liability issues) only, with the quantum issues standing over for
later determination.
6. The trial took place in batches over some 60 days , during a period of
approximately 3.5 years. The flow of the proceedings was constantly interrupted
by objections and interlocutory and ancillary applications. A total of 23 witnesses,
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which included several mechanical, process and design engineers, draughtsmen,
toolsetters and toolmakers, testified: 16 for the plaintiff and 7 for the defendants.
Some of the witnesses were recalled for further testimony, or cross-examination,
on several occasions. The transcript of the evidence runs to over 7000 pages.
Given the extent of the evidence that was led , what follows is an attempt to
provide only a summary of the material and salient testimony of the witnesses
whose evidence is directly relevant and essential to a determination of the issues
that require adjudication . It is impossible and impractical to do otherwise. The
complete record, which includes the pleadings, affidavits filed in terms of s 26 of
the Copyright Act1, and the voluminous trial bundles (which contain hundreds of
technical drawings) is in the order of some 10 000 pages plus. In addition to the
documentary exhibits contained in the trial bundles several physical exhibits,
comprising various iterations of pa rts used by the parties in their manufacturing
processes, and samples of chain which was produced by them, were handed into
evidence. Several videos pertaining to the production process were also handed
into evidence. In one of these the plaintiff demonstrated how, using the latest
iteration of a linking part known as part 128, which was being used at the time by
the defendant in its ‘progression’ press or ‘tool (which came to light at a very late
stage of the proceedings, and which with adjustments was ins erted into the
plaintiff’s progression press in place of the plaintiff’s similar part 2002), the plaintiff
was able to produce feed chain of an acceptable quality.
7. Given the technical nature of the evidence a brief explanatory outline of the
processes which the plaintiff follows in the production of its feed chain may be
useful, for the purpose of understanding what follows . A strip of flat steel is fed
into a complex, mechanized press, which was referred to in evidence as a so -
called ‘progression tool’, where it is punched, cut, shaped and formed into links
which are joined together to form a chain, which is then subjected to two types of
heat treatment i.e. induction heating and a second, conventional heating process.
In the first stage of heating the chain is raised to a very high temperature by being
subjected to high frequency electro -magnetic flux, when passing through two
water-cooled copper coils. On exiting these induction furnaces the chain is then
rapidly cooled before being subjected to a second, convection heat process in an
oven, at a much lower temperature, which is known as tempering. Although the
processes of induction heating and tempering are common i n metallurgical
applications, the plaintiff contends that the form, design and set -up of its

1 Act 98 of 1978.
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application of these processes to the feed chain it produces, is original, particular
and confidential to it. Likewise, it contends that its process for the production of
chain in its progression tool , and the components of that tool, are original,
particular and confidential to it, and are the product of many years of development
at considerable expense and effort.
The evidence
A) The plaintiff’s witnesses:
Mattheus ‘Theuns’ Kuhn (‘TK’)
8. TK is a mechanical engineer with an honours degree in industrial manufacturing.
He established the plaintiff (TS) in 1988 with a university friend. TS manufactures
conveyor-driven feed systems for poultry and other livestock. These consist
principally of two products: poultry feed chain and a spiral wire product known as
auger. The chain is used as a conveyor belt to transport feed to battery chickens
in a trough. The production line for the feed chain conveyor system is more
complicated than the one used to make auger. TS expended considerable effort,
time and money to develop and perfect its feed chain production line, by way of
painstaking trial and error, over more than 20 years.
9. TS is one of 6 manufacturers, which include McAuley Inc (USA), VDL Agrotech
(Holland), SKA (Italy), CASP (Brazil) and a company in Beijing, that supply the
entire world market for feed chain. VDL and CASP are also customers of TS. TS
is by far the largest of these manufacturers per volume and supplies more than
40-50% of the world market. It exports approximately 98% of the feed chain it
produces, of which approximately 40% goes to Europe, 5% to the USA, 15% to
the South Americas (mainly Brazil), 15% to the Middle East and about 20% to
China.
10. TK first started imported food grading machines to SA , but with the ever-
weakening currency it became increasingly expensive to do so. In 1988 he was
approached by a local farmer who asked if he could source and supply feed chain.
The imported feed chain which was available in SA at the time was very
expensive. TK sought to import the equipment to manufacture feed chain locally
but was unsuccessful . At the time f oreigners had disinvested from the South
African economy and to encourage and promote local industry and manufacturing
the government had introduced a general export incentive scheme which placed
an emphasis on the addition of value to locally sourced raw materials. T K saw
this as an opportunity to manufacture chain locally, by developing and assembling
the necessary equipment to produce it . At the time there was no other entity
manufacturing feed chain in South Africa.
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11. The feed chain that was being supplied to local farmers was manufactured by a
Dutch company, Heesen Technocom (‘Heesen’). VDL Agrotech acquired Heesen
in 1989. T K had approached Heesen to obtain information in relation to the
technology with a view to manufacturing feed chain in South Africa, but Heesen
declined to assist. However, after VDL acquired Heesen it sent TK four individual,
archaic hand tools which had originally been used by Heesen to manufacture feed
chain.
12. The tools were used to produce chain manually in 4 individual steps, which
involved cutting, forming and linking pieces of steel. The first of the tools was used
to cut or punch the raw metal which was inserted into it, the second was used to
form a ‘blank’ link from the cut out, the third to form a connecting piece or linkage
known as the ‘knuckle’ of the link, by bending and rounding it, whereafter it would
be placed into the last tool where it would be bent further to link it to another pre-
formed link, thereby forming chain. The VDL tools required the user to remove
pieces of chain from each of the tools manually, upon completion of the function
which each tool was assigned to perform, and to manually link each piece in the
chain, using the last tool. The manufacturing process using these tools w as
cumbersome, complicated, and uneconomical. By the time VDL sent these tools
to TS they had already long developed their own fully automated progression line.
13. TS used the se tools to make sample, untreated chain during 1990 , in 10m
lengths. To harden the chain TS subcontracted its heat treatment to two
companies, PH Treatment and Turbo Heat Treatment. They used gas furnaces in
which they heated the chain to a temperature of about 860 degrees. They then
‘quenched’ it in oil, before subjecting it to tempering in an electric furnace. In 1992
it cost roughly 78 cents per kg/per metre, to harden and temper the chain which
TS made. The chain was not of acceptable quality, as the heat treatment process
was not satisfactory.
14. By 1991 TS was in financial difficulty and the bank had called up its overdraft. TK
and his partner decided to part ways. He sold his house in Bryanston to settle the
bank and pay out his partner. This almost bankrupted him. After the termination
of their business relationship TK decided to focus on the manufacture and
production of feed chain. As it was important to use the correct grade of steel he
consulted Iscor for advice. He was aware that VDL was using SAE (Society of
Automotive Engineers) 1030 grade material. Iscor recommended that steel with
a SAE 4130 grade i.e. higher grade be used.
15. Having decided upon the steel which was to be used, TS envisaged converting
the manual process using the VDL tools, into an automated one, by developing a
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full progression tool. This would allow TS to process raw strips of metal through
a mechanized press, where it would be cut, formed, bent and linked into a chain,
in a continuous process.
16. TK consulted several engineering firms on the East Rand for this purpose,
including Erosion Technology (“Erosion”). In 1991 TS provided Erosion with the
VDL tools, a sample of chain produced by a supplier (Big Dutchman ) and a
sample of TS chain, and commissioned it to develop a progression tool, and for
this purpose concluded a confidentiality agreement with it. Erosion worked on the
development of a progression tool until August 1992, at which time it provided TS
with a ‘die set’, which consisted of a ‘die master’ and several parts, and sketches
of them. TS could not produce feed chain using these parts.
17. The ‘die master ’ was a strip of steel which depicted the individual steps which
were to take place in the envisaged continuous progression process. In the first
step the steel strip was to be ‘blanked’ as it was fed into the ‘tool’. The second
step was a so-called ‘idler’ step. Nothing was done to the strip, in this step, other
than to progress it to the third step, in which the ‘knuckle’ for a chain link was to
be formed by cutting away the centre of the strip and bending it. During the fourth
and fifth steps the knuckle was to be bent further backwards, so that it could close
and form a link up with the strip. In t he final step the formed link was to be
separated from the link which was being formed behind it. Thus, the progression
tool envisaged a continuous process of cutting, forming, linking and connecting
feed chain, link by link.
18. Using the base tool developed by Erosion, with modifications which were made
to it during a further period of development, TS was able to produce some feed
chain from the 3rd quarter of 1993, at an initial rate of 60 links per minute. (With
the continuous developments and refinements over the course of the years since
then it was able to double that rate by 2020). The capital outlay for the production
line in 1993, which consisted of the progression tool and a C -frame press, was
approximately R110 000.00.
19. After TK moved to Cape Town he looked for a new entity which could assist with
the ongoing development of the progression tool. He found Schuurman
Engineering (“Schuurman”) in Bellville . He worked with Schuurman on the
progression tool from July 1992 to March 1994. Schuurman did not change the
basic design of the tool but assisted TS to modify and refine parts of it.
20. The progression tool produced by Erosion and Schuurman ’s efforts was not
properly operational. Some feed chain was produced using it, about a year after
TS worked with Schuurman. The first export order for chain made using the tool
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was produced in November 1993. It took about three months to produce a
container of chain. Production was erratic, and the quality was inconsistent , as
the stripper plate in the press used to get stuck from time to time and the linking
functions were not satisfactory. Also, a t the time TS had not yet properly
developed its own heat treatment processes.
21. The linking component, which was referred to throughout the trial as ‘ part 2002’
(after its model/iteration number) , is an extremely complex part which TS spent
many years developing and refining, so that it could function properly. Part 2002
has a two-step working configuration, whereby, as it forms, bends and closes a
link it joins it to the one that follows behind it. To get the part to process connected
chain links in this manner, at a speed of two links per second, took several
iterations over many years and a lot of money.
22. Schuurman found working with TS too demanding and TS was compelled to
engage another engineering firm, Precise Tool and Die (“Precise”), to assist it with
the ongoing development of the tool. Schuurman provided TS with a floppy disc
containing digital drawings of components of the progression tool . Between
March and August 1994 Precise started making drawings of parts of the tool on
paper, in A1 format, which could serve as assembly drawings for the manufacture
of the tool’s constituent parts . The drawings were reproductions of the digital
drawings provided by Schuurman . Precise did not make or create any original
drawings or works.
23. As Precise found the progression tool to be very complicated it advised TK to
engage Nicolaas T Broekhuizen (“NTB”) , a highly skilled mechanical engineer
who specializes in machine design, who had done work for it, to make drawings
of the tool parts. Between August and November 1994 NTB produced a full set of
assembly drawings for the progression tool, including each of its component
parts.
24. TS was then able to use the drawings which had been created by NTB to
commission the manufacture of those parts, by Precise. NTB continued to work
for TS , designing and drawing modifications and improvements to various
components of the tool. TS also employed Gaffie le Roux temporarily in 1995 to
assist with this and in 1997, he became a fulltime employee. Le Roux and Alfred
James Smidt (“AJS”), an independent contractor who was engaged by TS ,
continued tweaking the drawings on part 2002 until they left the service of TS.
AJS was a highly skilled individual who was responsible for several important
innovations and modifications to the TS production process.
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25. That then as far as the progression tool is concerned. TK testified about several
other parts of the production line which were developed by TS over the course of
time, which included ‘bobbins’ i.e. reels on which the chain is wound and
conveyed from the progression tool to the induction oven for induction heating,
and from there to the temper oven for tempering. The bobbins are based on the
concept of a reel but have a peculiar design which specifically caters for the
tempering process. TK first made a rough design drawing for the bobbins in 1993.
26. From 1992 onwards TS spent a considerable amount of time and effort in
developing an induction oven for the hardening heat treatment part of the
operation. Until that time, it had been outsourcing the heat treatment of the chain.
27. Induction heating is a method of raising the temperature in an electrically
conducive metal by subjecting it to a high frequency electromagnetic field, which
is generated through a water -cooled coil which surrounds the metal. Alternating
current which flows through and from the coil induc es molecular disturbance in
the metal, causing it to heat up. Induction heating is widely used in metallurgical
applications, to rapidly heat metal to a very high temperature , which causes
expansionary changes to its molecular structure. When the heated metal is then
‘quenched’ i.e. rapidly cooled, a contractionary molecular rearrangement takes
place in the metal, which results in it being hardened.
28. TK met with Dave Thomas of Solid State Induction Heating in Johannesburg, and
they discussed the development of an appropriate and specific ally designed
induction oven for the feed chain. TS bought its first high-frequency generator and
a 1m long induction coil for this purpose from Solid State in 1993.
29. The development of the dimensions of the induction coil and its shape and setup,
was attended to by Solid State and AJS. The configuration of the third-generation
induction oven, which was installed in 1995, was developed by a team of people
which included TK, AJS, Jose de Nobrega and Nicol van Zyl.
30. TS’ induction heating process was developed over years of experimentation, in
its quest to improve the heat treatment process. After TS used a basic coil design
and an initial generator it had obtained from Solid State, it realized that it needed
to make modifications to the process, as the heat treatment was not uniform or
reliable, and was not of the standard required. To that end, it acquired a second
generator from Solid State and built a second coil, which i t referred to as the
‘soaking’ coil, which was 2 m in length. TS ’ induction heating process thus
consisted of a 1m direct induction heating coil oven which was positioned above
a 2m indirect heating ‘soaking’ coil oven. (It later replaced this with a longer, 4m
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‘soaking’ coil). AJS was heavily involved in the design, set-up and construction of
the 1st and 2nd induction furnaces and their components.
31. The plaintiff’s heat treatment process takes place as follows. As the chain exits
the progression tool it is coiled by a motorized coiler onto a bobbin (which can
carry chain of 100’s of metres in length), which is transported to the induction
ovens via a forklift. The chain is then unspooled i.e. uncoiled from the bobbin and
pulled up to the entrance at the top of the 1st coil/oven (a height of some 8m), by
a decoiler, from where it is drop fed through the middle of the coil, by means of a
sprocket-driven system and a so-called ‘hakie’ i.e. a hook, which was designed
and built by AJS. As the chain falls through the 1st coil, it is heated by direct
induction i.e. the magnetic flux heats the chain directly.
32. In 1993, the 1st coil was cast into a refractory (with dimensions of about 30 cm x
1 m). The heating process was uneven and problematic . I f the feed chain
accidentally made contact with the coil an electrical short would occur , which
would burn through the coil. This required the coil to be recast, which resulted in
an interruption in the heat treatment process for up to 3 days.
33. Because of the constant shorting and burning, during 1994 AJS devised a unique,
inner isolator which was covered in a ceramic cloth liner, through which the chain
could travel, as it passed through the coil. The isolator prevented the chain from
touching the coil and causing a short. AJS also designed a mold in which to cast
the isolator. The use of an isolator simultaneously solved the problem of oil
burning off the chain and clogging up the coil, thereby creating a fire hazard. The
isolator allowed the oil on the chain to burn off harmlessly whilst the chain moved
through it without clogging the coil, and the fumes could be extracted from the top
of it.
34. The second stage of the plaintiff’s induction heating process involves a ‘soaking’
coil, which heats the feed chain indirectly as it progresses through it. This is done
by causing the magnetic flux to heat up a metal susceptor pipe through which the
chain passes, thereby heating the chain, as it passes, via thermo-radiation.
35. Each link in the chain takes approximately 40 second s to travel through the 2
induction ovens. During this process, the chain is heated to 860 degrees Celsius,
and the heat is distributed evenly through each link. As the chain exits the bottom
of the soaking coil it is ‘quenched’ in a tank of water, which allows it to cool rapidly.
This causes the metal in the chain to harden into a martensitic state. Although the
rapid submergence causes agitation of the water, there is no steam and thus very
little evaporation.
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36. After the chain exits the water tank, it is pulled across a table where it is air-dried,
and then recoiled onto a bobbin , before it is taken to the temper oven for the
tempering process. Tempering involves reheating the chain to a lower
temperature, in a temper oven, which operates like a standard convection oven,
whereby the hot air c reated by a heated element in the oven is circulated .
Tempering is necessary because the induction heating and quenching process
causes the chain to harden and become brittle, and it needs to be ‘tempered’ i.e.
reheated, to soften it and give it some flexibility.
37. The very first temper oven that TS used was built for the purpose by Thermopower
Furnaces. It was a round, cylindrical oven which was installed in a vertical, “eye-
to-the-sky” position, with a lid which swung sideways. A bobbin with feed chain on
it would be hoisted vertically above the oven and then lowered into it. Heat was
then distributed through the oven from the bottom upwards, by means of a fan,
which was situated at the bottom of it.
38. The cylindrical oven produced inconsistent tempering of the feed chain and the
chain remained brittle in places, because the oven did not allow for the even
circulation and penetration of heat through the coiled chain on the bobbin . The
other problem with the cylindrical oven was that sometimes, when the bobbin was
hoisted into a vertical position to be placed into the oven, the chain would uncoil.
It would then have to be completely de-coiled and re-coiled onto the bobbin for
being lowered into the oven.
39. With a view to solving these problems TS contracted Thermopower Furnaces to
design and build a tempering oven that worked horizontally . This resulted in
several fundamental changes to the tempering process. In the first place, instead
of having a cylindrical shape the temper oven became rectangular or chest-like,
and the lid opening mechanism was altered from a horizontal , sideways
movement to a vertical, flip-top one. This allowed the bobbin to be lowered into
the oven in a horizontal position, without the chain decoiling. In the second place,
several innovations and modifications were effected which were aimed at
improving the flow of hot air in the oven and throughout the chain on the bobbin.
One side of the bobbin stem was opened, and t he opening was aligned to fit
against an articulating valve on the inside of the oven, through which hot air was
circulated into the oven. Holes were also made in the stem of the bobbin, which
was covered in mesh. This allowed the hot air that came into the bobbin from the
valve to flow into the bobbin reel and to spread evenly throughout and around the
coiled chain. via the holes. These innovations resulted in consistent tempering of
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the chain . AJS in conjunction with Thermopower were responsible for these
innovations and AJS built the bobbins.
40. Towards the end of 2018 TK discovered, from electronic information that was
obtained during Anton Piller proceedings (notably email communications that
were found on 2 nd defendant’s private HP laptop computer and his former TS
Mecer work computer) that a group, which he referred to as a ‘syndicate’,
comprising 2nd and 5 th defendants, Colenbrander and one Fei Zhuang (a TS
employee stationed in China), had conspired to appropriate confidential
information and trade secrets of the plaintiff including its manufacturing know-
how, pricing, customer lists and thousands of drawings in which it held the
copyright, and were attempting to compete unlawfully with it, in the production of
auger. The group also discussed competing unlawfully with TS in the production
of feed chain. The syndicate had gained access to the plaintiff’s confidential
information by hacking into its e -mail servers from September 2009 ( as
Colenbrander left his employment with TS), to October 2018.
41. During his evidence TK referred to numerous emails which members of the group
exchanged, including emails where the y had targeted 3 of the plaintiff’s
established customers: Rexnord, Agromarau and CASP.
42. In an e -mail from CK to 5th defendant and Colenbrander, CK had expressed
concerns about their operations in South Africa and suggested they should
possibly consider moving their auger production plant offshore to China or Brazil,
to avoid detection by TS.
43. In 2013 Colenbrander had reached out to Mr Moradi, the owner/CEO of an Iranian
company, Arsamkar, an existing customer of the plaintiff, and had made various
proposals to it on behalf of the ‘syndicate’ (trading as RTS) which included offering
to produce auger and feed chain for it, to supply it with ‘high-quality’ drawings
(which would have been drawings of various components of the plaintiff’s
production line) which would enable Arsamkar to set up its own plant for the
production of chain, or to supply it with a complete , ready -made feed chain
production line, for $234 million. The various component parts of the production
line would be manufactured in SA by 2nd and 5th defendants and exported to Iran,
where they would be assembled and commissioned by CK . RTS also offered to
provide pricing and contacts for customers in the Middle East, including Turkey,
Yemen, Syria, Iran, Iraq, Egypt and Dubai. These customers were existing clients
of the plaintiff and represented 15% of its sales. RTS held out that it had the
necessary expertise in the manufacture of feed chain and owned the designs and
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know-how for the chain manufacturing process . Moradi expresse d interest in
acquiring a feed chain production line from RTS, for $19 million.
44. Similar proposals were also prepared by the syndicate for Plasson , a French
manufacturer and supplier of livestock equipment. In an e-mail to it Colenbrander
said that the group had the necessary know -how and capacity for the
manufacturing and proper heat treatment of feed chain and pointed out that
whereas some entities had succeeded in manufacturing chain they had ultimately
failed because the chain had been of a poor quality , as they had lacked the
requisite know-how pertaining to a proper heat treatment and tempering process.
45. TK was of the view that TS’ mastering of the heat treatment processes of induction
heating and tempering at an economical cost to it was one of the principal reasons
for its commercial success and strength over many of its competitors.
46. Aside from these instances of unlawful competition it transpired that the syndicate
had sought to divert customer orders which were meant for TS to itself and had
used TS’ confidential pricing and customer information to undercut its prices. The
first such misappropriation of a corporate opportunity occurred whilst
Colenbrander was still employed by TS, approximately 4 months after CK had left
its employ. Zhuang diverted an order from a company in China for a container of
auger at a value of $38 million. Fortunately, TS discovered what Zhuang was up
to before the order could be executed and his services were terminated.
47. During cross -examination of TK several common themes emerged. By way of
summary these were that , firstly, much of the plaintiff’s production process was
not private and confidential to it, but was either in the public domain, or accessible
to the public. In this regard reference was made to a promotional video which the
plaintiff had commissioned, which it was contended depicted the manufacturing
of chain by means of its progressive press and its heat treatment by way of
induction heating, as well as a photograph of part 2002 on the website of TDK
Coating, an entity which was responsible for a coating treatment. It was also put
that any person walking past the plaintiff’s factory would be able to see the
progression press and induction coils as well as its bobbins. In the 2 nd place it
was contended that the principles and processes which were applied in the
production of chain were ‘common knowledge’ in the field of engineering and as
such also in the public domain and accordingly open for exploitation for anyone,
and inasmuch as whatever chain was to be produced by a competitor had to be
in conformity with the market standard chain produced by Mc Auley, it was
inevitable that the dimensions of the chain and its function, would determine its
form and its production . Thus, so it was contended, the process for the
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manufacturing of chain would always be more or less the same , or substantially
similar, to that followed by the plaintiff. Lastly, it was contended that the production
line and process which the defendants set up was the product of their own
independent and original effort and thought, with assistance from experts such as
Peter Feltham, a toolmaker.
48. In response TK disputed that the plaintiff’s production process was openly
depicted in its promotional value video. He pointed out that, whilst the progression
press was visible in the video only the outside of the machine could be seen and
not its inner workings. Thus all that an observer would be able to see was a strip
of metal entering the press and exiting it in the form of a chain. Likewise as far as
the plaintiff’s heat treatment was concerned the configuration, and specifications
of the plaintiff’s induction coils could not be seen or deduced by an observer, nor
would an observer be able to see the inner workings such as the isolator in the
1st coil or the susceptor pipe in the 2nd. So too, an observer would not be able to
see the inside of the plaintiff’s temper ovens in the video.
49. As for the contention that form followed function and that the process of
manufacturing chain would inevitably be the same or substantially similar ,
amongst competitors, TK reiterated that the plaintiff’s process was unique and
special in its set -up and heat treatment, and it was not inevitable that the
progressive press tool would look the same or be substantially similar. He
contended that the steps which were to be affected to the metal strips on their
progression through the progression tool need not ne cessarily and inevitably
have to be the same. In this regard he pointed out that even on the defendant’s
die master it was evident that more steps had been included then those adopted
by the plaintiff, in that there were more idler steps involved. In addition, he
contended that the intricate and complex interlinking process which the plaintiff
had adopted in developing part 2002 was one that need not have been copied by
the defendant, and it could have developed its own, particular and less complex
and expe nsive part. Instead, it was evident from a comparison of the parties ’
linking parts (parts 2002 and 128) that the defendant had essentially copied the
plaintiff’s solution to the point where it was virtually identical, save for minor
differences in certain dimensions.
50. As for the contention that the defendants ’ process and production line was the
product of independent, original effort and thought TK pointed out that there were
several idiosyncrasies and design flaws in the plaintiff’s production process, which
served no material purpose, and which had nonetheless been copied by the
defendants, which gave the lie to this averment. In this regard he pointed out ,
14

firstly, that at their induction furnaces the defendants had placed a temperature
probe at the exact height and position as that which the plaintiff had adopted,
even though the defendants ’ coils were not as high and the concentration of
windings on the upper 3 rd of its one coil was not the same , and there was no
logical, functional reason to place the temperature probe in the exact same spot.
In similar vein, the defendants made use of wooden meranti blocks to support
their coils, just as the plaintiff had done, even though the use of such blocks
constituted a fire hazard. And as far as the induction coils were concerned the
defendants had likewise copied the shapes of the roundings of the coils, and one
coil was round whilst the other was oblong. He pointed out that ideally, to provide
even, penetrative heating through an object which is being subjected to induction
heating, the coils should follow its shape. If it is not possible to have the coils
mimic its shape, then a round coil would offer the best all-round through heating.
The construction of an oblong-shaped coil for the plaintiff’s 2 nd coil had been an
arbitrary accident in design, and there was no reason why the 2nd coil should not
also have been round. Had it been round it would probably have offered optimal
heating. Similarly, he pointed to the evident and marked similarities between the
construction, dimensions, shape and configuration of the plaintiff’s inner isolator
and the mould which i t used, and those of the defendants, as well as i n the
tempering processes and ovens which the defendants had constructed, none of
which had to have been the same or substantially the same as those of the
plaintiff.
51. He pointed out that it was evident from the Anton Piller search that the 2 nd
defendant had transferred approximately 34,000 electronic files from his Mecer
(ex-TS) work computer to his personal HP and/or Dell laptops and to other hard
drives. These files largely contained drawings which belong ed to the plaintiff, of
its confidential production processes and machinery, which 2nd defendant had no
right to have in his possession after leaving the plaintiff’s employ, and there was
evidence that he had deleted hundreds if not thousands of other such files, as he
had unlawful access to TK’s emails and was monitoring them and in doing so
became aware that the Anton Piller proceedings had been launched . It was
evident from an examination of these files that the drawings which he had in his
possession did not only pertain to the production of auger but also to the
production of feed chain.
52. In re-examination he pointed out that there were instances where 2 nd defendant
had made drawings using a TS template which he had forwarded to the 1 st
defendant, and he reiterated that 2nd defendant had misappropriated drawings of
15

parts or processes pertaining to the plaintiff’s production of feed chain. In
response to a proposition that whilst CK may have used a TS template he had
not used the content of any of its drawings TK pointed out that not only had he
used the TS template but he had also adapted its drawings using CAD software,
hand then deleted the TS logo from the adapted drawing and had saved it in a file
under a new file name, but had left the date the drawing had been made. He had
likewise in a similar fashion wrongfully adapted and used a TS drawing of the top
plate drive assembly which he had forwarded to 5th defendant.
53. He also referred to a sprocket drawing which was found on 2nd defendant’s
personal computer. This was a drawing w hich had been done by AJS and NTB
after 2nd defendant had already left the employ of TS. This was a further indication
that 2nd defendant had participated in the wholesale misappropriation of drawings
belonging to the plaintiff, in which it enjoyed copyright. He pointed out that
although 2nd defendant had worked closely with NTB and L e Roux and had on
occasion been asked to work on packs of drawings which had been provided to
him by them, he had not been supplied with, and was not supposed to have in his
possession, drawings pertaining to the plaintiff’s entire auger and ‘flat wire ’
production line.
54. In a further response to the contention that the defendants ’ processes were the
result of independent and original effort and thought , TK pointed out that in an
affidavit which the 2 nd defendant filed he had claimed that he had designed his
factory ‘from scratch’ and had not copied any part of the plaintiff’s plant layout.
This was clearly untrue if one had regard for the substantial similarity in the layout
of the parties’ plants, which was evident from the photographs which were
submitted in evidence, which were taken during an inspection of the defendants’
premises. In the self-same affidavit 2nd defendant had alleged that the designs
which had been adopted by the defendants were the product of original and
independent thought and were quite ‘straightforward’ given his training and
experience, and he had not been in possession of a copy of the plaintiff’s drawings
pertaining to the production of chain. This contention was belied by the fact that
2nd defendant was able to produce the Arsamkar strip drawing, which was
modelled on the plaintiff’s strip, and had commissioned Feltham to assist him in
the development and design of the progressive press tooling. TK pointed out that,
in this regard, it was evident that despite Feltham’s skills, exper ience and efforts
he had been unable to produce a design for the linking part, using his own
endeavours and sophisticated software, and was only able to do so after he was
provided by 2nd defendant with a photograph of the plaintiff’s linking part, which
16

was taken from the TDK Coating website, and instructions and prompts which
were given by 2 nd defendant in numerous emails, with great precision and
specificity in relations to dimensions and functionality.
55. In this regard, it was put to TK that Feltham was given a piece of Mc Auley chain
and a drawing of a strip ( the so-called Arsamkar strip ) which Feltham used to
reverse engineer the die master strip layout. TK denied that it would have been
possible for Feltham to have produced the defendants’ die master or its linking
part, utilizing only the piece of McAuley chain and the Arsamkar drawing. He said
this would be like saying that someone was able to write a particular story,
because they had been provided with MS Word.
56. During further cross-examination and re -examination TK testified that with the
entry of the defendants in the market in or about 2017-2018 TS suffered a loss of
millions of rands in gross profit, because it had to reduce its price of chain per
metre (initially b y 10c and later by 2 0c) to remain competitive. On average, th e
loss which had been suffered annually since then was in the region of
approximately R20 million.
57. Finally, during a further recall TK gave evidence pertaining to the assignment of
copyright by AJS and his close corporation BTM. In April 2019 TS had concluded
an agreement with AJS and BTM whereby copyright in the ‘works’ produced by
them for TS, were assigned to TS. The agreement however mistakenly only
referred to copyright in technical drawings and failed to refer to copyright in the
other ‘works’ which had been produced, as defined in the Copyright Act, in which
copyright subsisted, such as works of c raftsmanship. As the agreement d id not
correctly reflect the parties’ intention, on 24 May 2022 an agreement to rectify it
was concluded between them. In terms of this agreement the definition of works
was amended to include all works (in two- or three -dimensional format ), or
adaptations thereto which were created and/or owned by any or both of the
assignors (AJS and BTM), in relation to parts, ovens, equipment, machinery, tools
and the like, used in or otherwise related to the production of feed chain or the
parts, equipment, machinery, tools and the like, used in or otherwise related t o
the production of feed chain equipment.
58. TK further pointed out that on the advice of his attorneys, in 2022 he concluded a
further agreement with AJS and BTM in terms of which he acquired AJS’
member’s interest in BTM , and it was recorded that insofar as any right to
copyright had accrued to BTM, it was assigned to TS.
Nicolaas Theodorus Broekhuizen (‘NTB’)
17

59. NTB is a mechanical engineer with approximately 30 years of experience. He is
a South African citizen and has resided in SA since birth . He worked for
Liebenberg & Stander Consulting Engineers, Prokura Diesel Services and
Stelkon before establishing his own close corporation which trades as NTB
Technical Services CC, which specialises in custom-made machine designs and
drawings. He first acquired his skills when he worked for the arms manufacturer
Denel, where fine tolerances and precision work was required.
60. From October 1994 onwards he was the author of a multitude of drawings and
revisions thereto pertaining to the plaintiff’s progression tool and its constituent
parts, as well as parts of its production line, after he was commissioned to do so
pursuant to a referral from Precise Engineering. Amongst these were drawings of
components in both the top and bottom parts of the progression t ool, including
the l ink-forming pin of the top part of the tool and the die for the link -forming
bottom part of the tool (Part 2002), as well as of the oven moulds and the sprocket
assembly drive. He gave detailed technical evidence about these drawings. It was
understood that, in compiling these drawings for TS copyright thereof would vest
in it. On 21 February 2017 copyright in the drawings was formally assigned to it
by NTB/NTB Technical Services CC.
61. TS commissioned these drawings as it was not possible for it to manufacture the
constituent parts of the progression tool from the drawings which had been
provided by Precise . To produce manufacturing drawings for each
component/part of the progression tool NTB had to interpret and make sense of
the assembly drawings which had been supplied by Precise and the intended
functioning of every component and its interface with others. This required him to
identify each component in the assembly drawings, and then to "pull it out" i.e. to
extract it individually from the drawings. Although the assembly drawings were to
scale, very few dimensions were reflected on them, with the result tha t the only
way to obtain these was to conduct measurements , either on the assembly
drawings, if this was possible, or on h and-drawn sketches he made , utilizing
Vernier callipers and other precision instruments. Once this was done, he had to
calculate the tolerances required, including functional and cutting clearances for
the punches and dies , to ensure no ne of the components would interfere with
each other . Utilizing CAD software he was then able to produce detailed
manufacturing drawing s (complete with dimensions , tolerances and notes) for
each component in the progression tool. In doing so he used his specialist
engineering and draughting skills. A considerable amount of time and effort was
involved in producing these drawings, over the course of several months.
18

Thereafter he worked on revisions to the drawings following modifications which
were made to the parts from time to time , to improve or refine production or to
update any discrepancies that were found in detail component drawings . Each
change/modification to the drawing of a component meant that the assembly
drawings had to be ‘re-assembled’ and redrawn to reflect the modifications or
revisions. A lay person without the necessary specialist engineering and
draughting skills would not have been able to produce manufacturing drawings of
the component parts of the progression tool from a simple consideration of the
assembly drawings which had been provided by Precise.
62. AJS was the source of the designs of the oven moulds and was responsible for
their manufacture. In 2002 NTB was asked to compile as -built drawings of the
existing moulds, because no drawings existed of them, and a data pack of the ir
specifications was required for record, maintenance and manufacturing purposes.
NTB made hand -drawn, rough sketches of the mo uld components , then
measured them to obtain their dimensions, which he recorded onto the sketches,
and then used this information to produce assembly and manufacturing drawings
utilizing CAD software. Further drawings and revisions of drawings, of the oven
moulds, were made in 2007. As in the case of the progression tool, in doing so
parts lists which specified the components required to build a complete oven
mould were created and part numbers were allocated to each part or component.
63. NTB was present at inspections that were held at the plaintiff’s and defendants’
premises on 6 and 7 November 2019, at which photographs of various aspects
of the parties’ respective feed chain production lines were taken. He used the
photographs and the observations he made during the inspections, to make a
comparison of the parties’ progression presses and their oven moulds . In doing
so he prepared illustrative drawings for comparative purposes and compiled a
report in this regard, which was contained in his expert summary. He made
extensive reference to the photographs and drawings during his evidence. He
also examined and compared drawings of TS’s revision 9 of its linking part 2002
and 1st defendant’s (‘FCI’s’) revision 11 of its linking part 128.
64. By way of introduction, he made the following general comments about the
parties’ progression tools. The TS progressi on tool has fewer components than
the FCI tool and is a bit shorter than it, due to the extra idler steps that have been
provided for in the FCI tool. This does not in any way impact upon the processes
which are performed by the tools, as the length, width and breadth dimensions of
the tools are non -functional differences. The difference in length is because the
19

die configuration of the two tools differs: the TS tool ends with the link -forming
die, whereas the FCI tool has an extra die at the end.
65. The top parts of the tools do not look the same but fulfil the same function . The
bottom parts of both tools perform the same function and essentially follow the
same progression, and the process of shaping and forming links is materially the
same in both. Both are also visually similar in that they have link-forming dies
which are mounted on a bottom die set by means of four socket head cap screws
and have four spring loaded pillars on them. Although the two stripper plates are
visually slightly different, and the TS plate has fewer components, they both fulfil
the same function of lifting the chain over the link-forming die for the formation of
the next link. Both plates are situated between the top and bottom parts of the
tools.
66. As far as the link-forming component of the tools i.e. plaintiff’s part 2002 and the
defendants’ part 128 is concerned, both serve the same function viz the formation
and closure of links in the chain . As is evident from the photographs both parts
combine the two operations of link -forming and link -joining and closing, in one.
From a tool design point of view these operations need not have been contained
in a single component and could have been separated into two separate parts,
which would probably have resulted in lower manufacturing costs. TS’ process of
combining the tools in one part, was successful, but not essential for the end -
product. TS’ linking part is extremely complex and was the most difficult part in its
production line to conceive, design and make properly and optimally functional.
67. The two linking parts are substantially similar in design, shape and form. Both
have a half cylindrical shape from the side elevation, with a radius on the edges
of both sides. The shape of the final, link-forming aspect or ‘face’ of both parts is
substantially similar and presents as two radii connected with a flat surface. Both
linking parts have slotted counterbored slots for forward and backward
movement, to adjust and obtain the correct pitch of the chain in its final form. As
was the case in respect of the link-forming and closing functions, if this part of the
component was split into two sections, only one of these would have had to be
slotted, thereby reducing manufacturing costs and allowing for easier adjustment
of the pitch. Both linking parts also use a dowel pin as a hooking mechanism ,
which is substantially similar . This is but one of several mechanisms that could
have been used for this purpose.
68. NTB prepared a drawing (annexure 36) in which he further compared the linking
parts, with reference to the parties’ drawings thereof (i.e. plaintiff’s drawing of
linking part 2002 (revision 9) marked annexure 34 and FCI’s drawing of its linking
20

part 128 (revision 11) marked annexure 35). When later comparing revision 11
and 12 of part 128 he noted that that there were only slight dimensional
differences between them and when comparing revision 12 of part 128 with TS’s
part 2002 he testified that they were ‘visually similar’ and the only di fference
between them was in the slots, which were cut open. He also noted that revision
13 of FCI’s part 128 was produced by MTD and was not produced pursuant to a
drawing from Feltham.
69. In his comparison on Annexure 36 he numbered certain corresponding aspects
of each respective part on his drawing, to provide comment thereon. From this
exercise it was also apparent that, save for minor, non-functional differences in
dimensions the parties’ linking parts were substantially the same . The three -
dimensional shape of exhibit 19 (FCI’s part 128), was a three -dimensional
representation of FCI’s drawing and was substantially similar to the plaintiff’s
drawing of its linking part . Visually there are striking similarities between the
drawings of the two parts, and the parts exhibit a similar design, shape and form.
70. From measurements which were performed o n the drawings it was evident that
both parts had a forming body width of 25mm. There was no technical or design-
related reason why the width needed to be 25mm, and a technician designing the
linking part from first principles would not necessarily settle on such a dimension.
The two wear areas on the part had a width of approximately 12mm and 14mm
respectively. As the actual working area of the part needed only to be more than
the wear surface a forming body width of anything more than 20mm would have
been sufficient.
71. NTB also highlighted several similarities in certain radii which he measured. Thus,
both drawings depicted supportive, rear radii of 8mm in the final forming stage,
and an exit radius of 2mm . There was no objective reason for a n independent
designer to have selected a rear radius of 8mm, given that the radius of the chain
was not equal to 8mm. There was also no functional reason for an exit radius of
2mm, and any other radius, or no radius at all, would have the same effect on the
production of the end link. If the exit radius were to be omitted or a chamfer were
to be used, it would result in a lower cost of manufacture.
72. Similarly, there is a radius of 10mm in the round, bending section of the link -
forming stage of FCI part 128, which corresponds exactly with the radius used by
TS in part 2002. There is no functional or design reason for selecting this exact ,
same radius. Both parts also have an exit angle of 45° . This angle serves no
function during the forming process and could be of any value. Finally, according
21

to the drawings/specifications b oth parts use TD coating, and similar hardening
parameters of between 60 and 62 ‘HRC’.
73. In his opinion, the similarities between FCI part 128 and TS’ part 2002 cannot be
explained on the basis of design practice or the functional requirements of the
progression tool or the feed chain which is to be produced by it , and the chance
that two manufacturers working independently would produce link-forming dies
which were so similar was highly unlikely, and FCI’s part 128 must have been
developed with information and knowledge which was taken from TS’s drawings,
documents and parts and was modelled on , and was a copy of, plaintiff’s part
2002.
74. As far as he was aware, the only information which was publicly available in
relation to the inner working processes of the progression tool were the strip size
of the steel which was inserted into it, and images or pieces of completed TS
chain. Those items would , in themselves, not be sufficient for an independent
manufacturer to arrive at the substantial similarity in the design of the FCI linking
part.
75. Although reference was made to the photograph of the plaintiff’s linking part which
was available on TDC’s website (until TK requested that it be taken down), even
a close and studied inspection thereof could not have resulted in the numerous,
material design commonalities and similarities which were evident in the two
parts.
76. It was most unlikely that any technician, draftsman or designer would remember
the fine dimensions of TS’ part 2002, or any of the other interfacing components
of the progression tool which he/she may have seen, so that they could reproduce
that level and degree of substantial similarity in detail, function and dimension as
was evident in a comparison of the two linking parts , including the numerous
identical or very similar non-functional dimensions which are reproduced in them.
77. As regards the photo graph of part 2002 that was displayed on TDK Coating’s
website, one would not be able to obtain the dimensions of the part from the photo
and you would not be able to measure it. One would also not be able to design
this part from the photograph, as it does not indicate any dimension or the
direction of the forming process, or that the back is the flattening aspect, and the
front the linking.
78. Given the complexity and sophistication of the workings of the plaintiff’s linking
part, it was evident that it was not possible to design or reverse-engineer it, simply
by looking at the chain only. It is a part which, if produced independently, would
require years of trial and error and ‘tweaking’.
22

79. A chain strip ‘die master’ drawing depicts the steps and arrangement of dies
required in the manufacturing process and a tool designer who is required to
develop a progression tool based on a die master strip drawing will have been
given the ‘recipe’ which is to be followed, which defines the steps needed to
produce the product, resulting in drastically reduced development time. TS’ die
order was developed over a period of 20 years, during which time the
configuration of its strip underwent various changes and was slowly refined. In
contrast to this FCI’s entire design and production process, according to the 2 nd
defendant’s affidavit, took place within a period of 6 months. No independent
designer, working from scratch, without a die master strip or d rawing of it, would
be able to design, develop and build a progression tool which resembled a
competitor’s one, in such a short period of time, unless they had copied or made
extensive reference to the competitor’s die master strip layout in doing so.
80. Without being given a die master or a drawing of one, a tool designer w ould
arrange the various intermediate production steps and dies in the progression
press in his or her own way, which c ould be expected to differ from designer to
designer. It was not inevitable that independent tool designers who were required
to design a progression tool would set out a process that was identical i.e. that
followed the exact same steps. Thus, when NTB provided Jan Marais with a
drawing and 3D model of a chain link and requested it to prepare a die master
strip layout for a progression tool, the sequence of cutting, shaping, forming and
linking that he produced using AutoForm was one that was completely different
to that of TS. In the progression which AutoForm proposed the links remain ed
joined in the strip, to the end, by means of a ‘lacing’ along the sides, whereas in
TS’ progression the links are cut from the strip before they are formed, not after.
This is a much more diffi cult and complex way of produc ing links of chain.
Likewise, i n his initial design for the die master strip layout Feltham also first
proposed the forming and then the cutting steps, but later changed this layout to
allow the cutting to take place before the forming process, after CK instructed him
to do so. As a result, the sequence of cutting and forming steps in the FCI
progression is the same as that which TS has adopted. The probability of two
designers working independently and arriving at this same sequence of dies, is
very slim.
81. Save that the FCI strip has three idler steps where as the TS strip only has one ,
the productive steps in the FCI strip follow the same sequence as those in the TS
strip, and for all practical steps and purposes the strips are the same. It was
evident from the emails which CK and Feltham exchanged over several months
23

that CK provided detailed instructions to Feltham regarding the progression steps
and their sequence. From a conspectus of the emails it was evident that CK
played a crucial , guiding role in every material step of the design of the FCI
progression tool, and at every step of the way advised Feltham how to resolve
problems that arose, for which he had no solution. The instructions and solutions
which CK provided Feltham resulted in the FCI tool mimick ing the TS tool and
being a replica of it, particularly in relation to the linking part.
82. It was evident from his emails that despite his best and considerable skills and
efforts as a toolmaker, Feltham was unable to figure out how to do the final linking
stage in the progression, and CK provided him with the solution, which was that
which was followed in the TS tool. To achieve this he provided Feltham with, or
alerted him to , a copy of the photo of plaintiff’s part 2002 on the TDK Coating
website.
83. Then, he advised Feltham that a stripper plate was required an d on 16 October
2015 informed him that locator pins were needed for downward movement. In
November 2015 he instructed Feltham that, on exiting the forming process, the
chain needed an arc of 1.25 degrees. TS’s chain has an arc of 1.25 degrees.
Such an arc or curvature is not necessary for the functioning of the tool. The
radius of the arc is not determined by the function of the tool, or the chain, and
there was no technical reason for the angle of the arc in the FCI tool to have been
set at 1.25 degrees. TS developed its linking part to produce this arc because its
heat-treatment caused the chain to deform, so it introduced an arc to compensate
for this , by causing the chain to ‘ pre-bend’ in the forming process . A s econd
reason for doing so was that , providing a bend or curvature in the chain allowed
it to run on its edges in the feeding trough, thereby reducing wear and tear on it.
CK instructed Feltham to use the same degree of arc or curvature as TS used,
when it did not need to be the same. Similarly, in May 2016 CK informed Feltham
that the linking part should be able to slide from left to right, to adjust the pitch of
the chain, in the same way that plaintiff’s part 2002 does.
84. As he did in the case of the linking part, NTB also performed a comparison
between the TS oven mould and that used by FCI. Once again, there was a
striking similarity between the two in design, shape and appearance. Both mould
holders were rectangular in shape with a tapered rectangular cut -out in the
bottom, and both had holes drilled in their side plates to provide for the attachment
of the holder s to the mould s by means of bolts . Both had substantially similar
angular alignment profiles, with a flat bott om, top cut-outs and protrusions. The
halves of the FCI mould mirrored those of TS and had a radius at the entry of the
24

mould, the appearance of which was also the same or substantially similar. The
FCI mould halves were joined by bolts as were the TS moulds initially. (Currently
the Ts moulds are joined by hinges and clamps). There was no need for the shape
of the FCI mould to replicate that of TS. Its profile and radii did not need to be
identical or substantially the same . Because of the almost identical appearance
of the respective moulds, the inner insulation cores which were produced by them,
were likewise substantially identical in shape, form and appearance . Both were
elliptical in shape and had an elliptical hole through their centre, and a rectangular,
tapered end. In effect, the FCI mould and isolation core are reproductions of those
of TS. It is most unlikely that two different designers, working independently,
would have arrived at such an identical or substantially similar outcome.
85. NTB found 6 TS drawings of different elevations of its oven mould on CK’s Mecer
computer and 4 drawings of FCI’s oven moulds on CK’s HP and Dell computers.
On comparing the TS drawings with those of FCI he found there were many
corresponding aspects or dimensions that were exactly the same. Both mould
drawings had identical entrance radii of 20mm. There is no technical reason why
an entrance radius of 20mm had to be used and any radius or even a chamfer
(which is cheaper and easier to machine) would have performed the same
function. Both indicate Ø11 holes for M10 bolts. There was no technical reason
for holes with this diameter, and these could have been Ø 10.5 for M1O bolts as
per ISO 273. There was also no technical reason for using M10 bolts as no
pressure is exerted on the mould. If a Ø 10.5 mm hole was used to position the
mould the tapered nudges would not be required and M6 bolts would have been
adequate. From the drawings it is evident that b oth moulds use similarly shaped
tapered nudges for alignment purposes , when tapered nudges were not
necessary and other methods could have been used e.g. d owel pins .
Alternatively, the mould could have been designed with a simple square nudge
on its one side, or clamps could have been used, as TS now does. Likewise, the
bottom holders for the moulds look the same: both have a bottom plate with a
tapered hole, which has an angle of 70° which matches the 20° angle of the centre
mould used by TS, as per the drawings which NTB compiled. It was not necessary
for these exact same angles to be used and various other combinations of angles
were possible.
86. Although the use of moulds is common and t he process of making an insulation
core is well -known, various mould designs could have been used to produce
similar or practically identical insulation cores. The dimensions referred to, which
25

NTB found on the two sets of drawings, were substantially identical. None of those
dimensions were a technical or functional necessity.
87. NTB compiled a list of 197 TS drawings pertaining to its chain manufacturing plant
which he found in AutoCAD files on CK’s Mecer computer. He was able to
determine that these were TS drawings because he recognised the filenames
from the drawing titles and the name ‘Technical Systems’, and the TS logo, which
appeared on the drawings.
88. During cross-examination NTB conceded that CK had knowledge of the TS strip
and progression tool but doubted that he could have drawn the strip he provided
to Feltham from memory . He conceded that after CK received iterations of part
128 from Clive Coenraad of MTD , he made physical alterations to it, without
drawings, on a trial-and-error basis. He pointed out that Feltham was pointed to
the solution for the linking component, as CK referred him to the p hoto of part
2002 on the MTD website.
89. He conceded that there were numerous dimensional differences between part
128 and 2002 which he had not set out in his comparison between the two parts.
In doing the comparison he looked for the identical dimensions they shared and
analyzed them, and if there was no technical reason for the m to be identical, he
listed them, and these commonalities substantiated his opinion that part 128 was
substantially similar to part 2002.
90. It was put to him that the identical crossway radius of 10mm on both parts had to
be this dimension for the chain that was produced by TS and FCI to be compatible
with other chain, such as that of McAuley, and it was therefore a functional
requirement for a standard specification of the trade. He maintained that the
radius did not have to be exactly 10mm, and that it could have been 9.5mm to be
compatible; and there was no engineering reason for it to be 10 mm. It was then
put that because there was not a precision fit, there was a tolerance on the
dimension, and that the radius accordingly could not be 9.5, as that would result
in chain which might be too small. NTB disputed this by explaining that dimension
tolerances can vary and can either be indicated on the drawing as z ero or up to
a 0.5mm tolerance, which would have prevented the dimension from being too
small.
91. The VDL type progression tool would be considerably different, had it to be built.
It would be bigger, longer, and contain more steps , but would be cheaper to
design and manufacture as it would save a considerable amount of time, delay
and money. It would form its chain in a different direction . Its linking would be
formed from the top, not from the bottom , and it would not make use of a dowel
26

pin, and its side punches would be smaller . It would only cut the chain from the
strip at the end of the process and would have a lacing or carrier edge, as was
proposed by Jan Marais when he used AutoForm. As a result, its final stage would
not have the two concave shapes of part 128 and 2002, In his view the
progression envisaged in the VDL tool would be more conventional.
92. In similar vein, whilst he conceded that there were dimensional differences
between the FCI mould and the TS one he pointed out that none of these
differences were functional, and the FCI mould was clearly designed with the TS
mould as a reference. In response , defendants’ counsel agreed that FCI had
replicated the concept of the TS mould and its mould was a copy of the TS mould,
albeit not an identical one.
93. During his second round of testimony NTB said that the pitch of 44.45mm in the
defendants’ tool, which is the same as that of the plaintiff’s, cannot be measured
off a strip of chain. From an engineering point of view, one would have expected
a pitch of 44.5 mm to have been specified and this was also the pitch
measurement which appeared on the Arsamkar drawing, which was found on
Ck’s HP computer. The pitch measurement listed on the McAuley website is less,
at 42.352mm.
94. NTB also gave evidence, with reference to a video that was taken, of the exercise
that occurred on 7 October 2020, when the latest iteration of the defendants’ part
128 was inserted into the plaintiff’s progression tool in place of its part 2002, and
chain was produced with it. This exercise involved taking part 2002 out of the tool,
making a few minor adjustments and then inserting part 128 in its place. P art
2002 was taken out of the progression tool by loosening the few bolts that held it
in place, whereafter small ‘shims’ i.e. spacers of a few millimeters were inserted
to compensate for the height difference in part 128 , which was then bolted in
place. The pitch was adjusted by loosening the bolts and moving part 128 a few
millimeters as necessary, whereafter the progression tool was re-assembled. No
machining was required. In the circumstances NTB did not agree that ‘numerous’’,
major adjustments had to be made to the TS tool to get part 128 to work in it. Part
128 was clearly interchangeable with part 2002, and it worked inside the plaintiff’s
progression tool without any material, structural modifications having to be made
to it, or the progression tool.
Alfred James Smidt (‘AJS’)
95. AJS is a qualified toolmaker by trade. He has an N6 qualification and many years
of experience in the design and manufacture of custom-made machines and their
modification. He has built machines for use in the paint, print, agricultural and
27

chain industries. He has worked with high frequency generators and induction
heating.
96. After working in the powder metallurgy sector for 8 years, he started working in
the machine-building field. He traded for his own account and name and later via
BTM Engineering CC , a close corporation he established and of which he was
the sole and managing member . BTM assisted TS in various aspects of the
establishment of its feed chain production plant. BTM concluded a cession of
copyright in favour of TS.
97. AJS also gave evidence on more than one occasion, during which he referred
extensively to, and confirmed the contents of, an expert report he filed and a
report he prepared pertaining to an inspection he conducted in November 2019,
of the parties’ respective production plants. During his evidence he compared the
design, construction and assembly of the parties’ induction and temper ovens,
their coilers and de-coilers, bobbins, sprocket assembly and ‘hakies’. He testified
that he was intimately involved in, and was largely responsible for, the design and
manufacture of such items for the plaintiff. In broad terms, and by way of
summary, he testified that the corresponding machines, parts and components
he compared were either substantially similar or even replicas of one another.
While AJS did make made drawings of the components and parts of the
production process that he designed and/or built, these were done after he built
them. Several of these drawings were lost over the course of time. At a stage NTB
was employed to produce assembly and/or manufacturing drawings of
components and parts. During his evidence AJS referred to several of the
drawings which either he or NTB prepared, including those pertaining to the oven
moulds, bobbins and coilers and the sprocket assembly and the photographs
which depicted them.
98. AJS first came to work for TS during or about 1992/1993, when TK engaged him
to build a frame for an induction oven TS intended installing. AJS was involved in
the initial design, set up and manufacture of the TS induction -heating facility.
Dave Thomas of Solid State provided the power/generation calculation and
advised on the number of coils needed for a 50 -kw generator single oven. AJS
then built the coils to the specification provided. They were cast in a cement block
with a thick liner. They were made of very thin copper piping through which water
was run to cool the m. The coils ran from top to bottom and were fixed into a
cement block of about a metre in length. The first coils were not effective. The
diameter of the copper piping was too small and when the current travelled
through it, it only reached about a third of the length of the coil before the water
28

would evaporate. As a result, the bottom part of the coil would burn out because
of the volume of steam that was moving through the coil. The solution which AJS
devised for this was to divide the piping into smaller sections with a water outlet
at the end of each section and a water inlet at the start of the next. This proved to
be an effective cooling solution. The inductive heating of this set-up was not good
because of the small size of the generator and the coils. As a result, t he rate at
which the feed chain was heated was quite slow, and the heat treatment was not
economical.
99. Because of the inadequacy of the first induction coil and single generator a 2nd
induction oven was built that was substantially larger, and a second generator
was acquired. The initial platform used for the single stage coil and generator was
about 3m long by 6 m high, with the generator situated on the floor , next to the
quenching bath. Th is caused problems as water would splash around the bath
and onto the generator. A large platform was then built above the water tank,
which could accommodate the two generators. This ensured that the electricity
supply was not located near the coils.
100. TS used a second generator with a so -called ‘soaking coil’ to provide the extra,
sustained heat that was required. The induction heating process thus occurred in
two phases. The new generator that was acquired was used in the first , pre-
heating phase and the existing generator was used for the second, soaking
phase. The first phase made use of the coil which was embedded in concrete and
the second phase comprised a new coil with a ‘soaking’ pipe.
101. The feed chain moved over the sprocket into the middle of the cast cement block
of the 1st coil. Over the course of time this caused the cement layer in which the
coil was encased, which was about 5 mm thick, to wear out. If the chain touched
the coil, it would cause a short and burn through it. The whole cement block with
the coil in it would then have to be taken down and disposed of, as there was no
way of recovering the undamaged sections of copper coil from inside the cement
cast. A new coil had to be built and recast in cement.
102. Because of the cost and downtime which accompanied the constant re-
manufacturing of the top coil each time it shorted , AJS thought of developing a
loose, inner isolator that could be placed inside the coil. The feed chain would
then travel inside the isolator and would not be able to touch the coil and short it.
AJS made rough drawings of what he envisaged and bought a quantity of nylon,
which he provided to Schuurman Engineering, for them to machine a mould in
which the isolator could be cast. Initially, the opening at the entrance to the isolator
29

had a bar-shaped profile. As it was difficult to pull chain out of the mouth of the
isolator AJS changed its shape by giving it rounded edges.
103. The mould which was developed by AJS made provision for bolts on the edges.
The bolt holes are still visible on the mould . The first mould that AJS made was
ceramic and was cast in cement. As AJS did not have a refractory mat to put
around it, the inner broke when the mould was separated from it. AJS then tried
placing a fibre mat into the mould and casting the inner inside the mat. Although
this was an improvement, if the mould was left too long before the inner was taken
out of the casting the fibre became too brittle.
104. After a further, lengthy process of trial and error an inner isolator was made by
using a metal shaft that was placed into the centre of the mould. Non-conductive
fire cement was then cast around it, as a sleeve. Woven fibre matting was placed
inside the mould to strength the inner and fire cement was then cast into the
mould, which seeped into the fibre matting as it expanded in the mould. The inner
was then lowered into the coil. The bottom of the inner protruded past the bottom
of the coil.
105. The i nside of the isolator is an oxygen -poor environment. When the chain is
heated up, the oil on it burns off. The burning produces smoke which is extracted
at the top i.e. at the mouth of the isolator, by an extractor fan. The inline extractor
fan which was initially used to extract the oil fumes was not effective, as the fumes
would collect on and around its motor, causing it to catch fire . To solve this
problem AJS suggested installing a fan which was separate from its motor, and
procured one which was used to extract woodchips/sawdust from a planer or saw.
After this fan was installed, there were no longer any instances where the fan
caught alight.
106. AJS was responsible for designing and manufacturing the susceptor pipe which
is used by TS in its soaking coil. It is made by bending two stainless steel sheets
into an L -shape which is sealed by welding their edges together. From a
comparison which AJS carried out, and as he also demonstrated on photographs
which were displayed in court, FCI makes use of a susceptor pipe which has the
same design and appearance, and which is made in the same way, as the one
which AJS designed and made for TS.
107. At the time when AJS made the TS susceptor pipe, it was not possible to obtain
a ready-made, manufactured pipe with the correct grade of stainless steel from a
supplier. Such a pipe is however available now. As in the case of many other
aspects of the plaintiff’s production process, there was a process of trial and error
and experimentation before the correct grade of steel for the pipe was found.
30

Initially Grade 304 stainless steel was used, then Grade 316 and eventually
Grade 310.
108. Round-shaped pipe coils were initially used. TS later started using a square-
shaped pipe coil in the 1 st phase, as it was thicker than the round one, and
prolonged the life of the coil. Round pipes are still used by TS in the soaking coil.
109. The supports that are used for the 2 induction ovens are made of wood. Brass
screws are used to attach the coils to the wooden supports, and to separate them
so that they do not touch each other. Wood was used to support the coils because
it is a non -conductive material and is cheap. There are other suitable, non -
inflammable materials available, such as bakelite.
110. TK requested AJS to produce bobbins for TS, per a drawing that he supplied,
which AJS used as a reference. At first these bobbins were made with a round
pipe stem with two flanges on the sides. Both sides of the stem (pipe) were open.
At the time TS was making use of a round ‘eye-to-the-sky’, vertically positioned
tempering oven. The feed chain would uncoil and become entangled when the
bobbin was hoisted and lowered into it. The oven did not allow an even and proper
circulation of heat, from the bottom to the top of the bobbin. As a result chain that
was higher up the bobbin w as not properly heat-treated. To sort these problems
out it was necessary to design a rectangular oven , where the bobbin could be
lowered into it in a horizontal position. The first ‘box’ oven was built by
Thermopower in 1997. Thermopower produced drawings for the box oven when
it received an order for a second one, relying on photographs and drawings which
were provided to it.
111. Although the box oven provided for a better distribution of heat through the bobbin
it was still uneven, because although the hot air flowed around the bobbin, it could
not penetrate to the centre of it. This resulted in the feed chain in the centre of the
bobbin remaining brittle and weak. AJS then came up with the idea of cutting
holes into the bobbin stem. This allowed the hot air to penetrate more evenly into
the chain, but still did not result in the chain being heated uniformly. AJS then
proposed forcing the air to go through the bobbin and the feed chain , by closing
one end of the stem and positioning the other, open end, against the side of the
oven through which the hot air that was blown into it could enter. He made holes
in the stem so that the air which entered from the side could then permeate the
chain via the holes, before being recirculated.
112. As the bobbin could not be placed snugly enough against the opening in the oven,
AJS mounted pipes on the bottom on which the bobbin could be centred and
made an articulating valve for the opening on the side through which the hot air
31

entered the oven. This required a consideration of the size of the opening of the
entrance of the fan, and AJS had to shop around for the right size pipes that could
slide inside one another to create a valve. He then cut and welded a valve ring
onto the end of the outer pipe, so that it would fit snugly over the end of the bobbin
stem, to close over and around it. He also devised and made a mechanical lever
which could be used to open and close the valve from outside the oven. The open
end of the bobbin could then be pushed up tightly against the valve and when the
valve was closed there would be an airtight seal, which allowed the hot air that
was introduced into the oven to flow directly into the bobbin stem and through the
chain via the holes in the stem, which were covered with mesh to allow for better
permeation and circulation. These innovations and improvements were
introduced by AJS over a period. Drawings of these bobbin were made by Mr
Strauss who is deceased.
113. AJS also designed and built the motorized de-coilers and coilers which are used
to pull the chain onto and off the bobb ins. The size of the coil ers and decoilers
was determined by the size of the bobbin s and the length of chain that could be
loaded onto them. The coilers had to start and stop as the feed chain was being
produced. The feed rate at which the chain was fed onto the bobbin s was
important as it was necessary to reduce tangling of the chain when it was de -
coiled. The bobbin s sit on rubber wheels that can drive or turn it in a specific
direction. There is a feeder on top of the coilers i.e. a protrusion through which
the feed chain is fed, which directs the chain evenly across the bobbins, so that it
can be loaded evenly on them. Once again, these innovative ideas were
developed by AJS by means of trial and error, over a period of time.
114. AJS also gave detailed evidence pertaining to the design and working of the
sprocket assembly and the ‘hook’ or ‘hakie’ which he designed and made . The
first part of the coiled feed chain is rolled off by hand and fed manually into a
sprocket, which is used to pull the chain to the top of the induction ovens. The de-
coiling of the chain into the induction furnace was problematic as t he sprocket
set-up required a lot of force to pull the chain off the bobbin. There was insufficient
grip between the bobbin and the chain, and the chain slipped off. To solve this
difficulty, AJS placed a 2nd sprocket below the existing one and the chain then ran
over the top sprocket and around an idler below it and from there to the top of the
2nd sprocket, which guided it into the middle of the coil.
115. The sprockets are driven by an electric motor with inter-connected gearboxes
which have the same one -to-one drive and pull ratio, to ensure an even feed of
the chain through the assembly. The sprockets have a diameter of about 260mm.
32

There is no engineering or functional reason why they had to have that diameter,
and it could have been smaller or bigger. They turned out to be that size because
this was the diameter of the steel cut-outs which AJS made to the sides of the
bobbins (to form flanges for the tempering process), which he then used to make
the sprockets. At a later stage, to make cheaper and more durable sprockets, he
had them laser cut from steel plates. The teeth of the sprockets had to be carefully
placed at the correct pitch to engage and drive the feed chain around them. This
too involved careful, ongoing experimentation and trial and error.
116. The “hakie” is used to hook and pull the chain through the induction oven and ,
after the heat treatment, through the painting plant. TS had trouble with the
painting process because the chain ran at a rapid rate from the bobbin, through
the painting plant , and on to the next coiler. To ensure a steady progression of
chain through the painting plant the last link of the preceding roll of chain was
joined manually to the first link of the next roll of chain which was due to enter the
painting process. This process was time-intensive and laborious as it involved
manually opening the connecting link , joining it to the next one and then
hammering or knocking it closed . In 1997 Gaffie le Roux came up with the idea
of using a hook or ‘ hakie’’ instead of this and together with AJS made a rough
drawing for it which was given to Schuurman Engineering, for manufacturing of a
prototype. The ‘hakie’ was initially made from mild steel. In due course it also
came to be used in the induction heating process, at which time it was made from
stainless steel. The size, form and dimensions of the ‘hakie’ was determined by
the size of the chain link and had to be such that it could travel over the sprockets.
The pitch was therefore critical. AJS was responsible for the ultimate design and
shape of the ‘hakie’ to account for these functional requirements . He made a
‘hakie’ by cutting it out of a piece of steel, using a milling machine, and bending it
to the shape required. Over the course of time certain changes were made to it,
to improve its functioning. Le Roux made drawing of the ‘hakie’ using CADKey.
The drawings are no longer available.
117. During the inspection of the parties’ respective facilities which was conducted in
November 2019, AJS examined and compared the TS ‘hakie’ with that which was
being used by the defendants. H e found that its shape was similar and its
measurements were virtually the same: the width was identical, and the thickness
differed by a half a millimetre or so. A linking hook such as the ‘hakie’ could have
another shape and thickness and does not have to have the same shape and
thickness as the one that was devised.
33

118. AJS also inspected the defendants’ induction and temper ovens, bobbins, coilers
and decoilers, and sprocket assembly, and concluded that they were substantially
the same, or similar, to those of the plaintiff. The steel structure supporting the
induction ovens is substantially similar in appearance and form. The height of the
generator platform is about the same. Both set-ups have quenching baths below
the platform at the bottom, both have air blowers to dry the chain, both have
control panels situated on the right -hand side and a temperature probe at the
same height, both have the same sprockets and gearboxes and shafts to convey
the chain, and the two coils are substantially similar. Both their set-ups employ
two-phase induction heating (the first preheat phase and a second soaking
phase), both employ wooden strips to separate the coils from touching each other,
and both use soaking coils which are set up in the same manner. The FCI soaking
coil mirrors the TS coil in shape and form. (There is a difference in the length of
the coils).
119. AJS built the TS quench water tank, the platform for the generators and the control
box for its induction ovens. To set up the entire induction heating facility and to
get it to the stage where it worked optimally i.e. to address all of the problems
which TS had to deal with from the outset, and to make the necessary changes
and modifications to the induction heating process, took AJS and TS the best part
of seven years if not longer.
120. AJS further confirmed, with reference to a drawing of part 2002, that he was
responsible for certain alterations/modifications to the part, whereby the forming
aspect was made more concave. The modification was aimed at increasing the
strength of the linking of the feed chain. He did not make the first drawings of the
progression tool or any part thereof. During the time that he was based at TS, he
often discussed functional issues pertaining to the progression tool and
particularly the linking part 2002, with Gaffie le Roux and Nicol van Zyl, whereafter
changes would, from time to time, be made to the drawings, if required, to address
these issues and to achieve better functionality. He confirmed that he was the
author of certain drawings and revisions thereto, pertaining to part 2002 . When
making drawings, he would insert his initials and the date in the title block.
121. In designing and building the various works referred to in his evidence and his
s26(12) affidavit, he used his own, original skill and effort, through an extensive
process of trial and error, and innovative thinking. These works were the product
of his own, independent effort and he did not copy anyone else’s works.
122. The plaintiff’s feed chain manufacturing plant was set up without having access
to the manner and form in which competitors’ plants were set up. At the time there
34

were no other poultry feed chain manufacturing plants in South Africa. While there
were a few other manufacturers in the world, TS did not know how they structured
themselves or how their manufacturing plants were set up . Consequently, the
designs and set-up of the plaintiff’s induction ovens (including its inner isolator
and its mould and the susceptor pipe) , as well as of its temper ovens (including
the articulating valve and bobbins ) were specific and unique solutions which the
plaintiff devised, which were not publicly available.
123. During cross-examination AJS pointed out that although Dave Thomas gave input
on the number of coils to be used in the induction oven for a specific frequency
generator, he did not provide a design for the coil. The idea of using a soaking
coil oven emanated from Mr Thomas and he provided information as to the
number of coils that were needed, but the construction of the piping and its casing
was designed, developed and built by TS.
124. AJS reaffirmed that the idea of using a loose inner isolator was one that he came
up with. Whilst it may be that a separate inner is used elsewhere, at the time
neither he nor any of the other employees of TS were aware of this.
125. AJS was involved in the construction and development of three induction furnaces
at TS. The first one was scrapped. The second oven is still in use. The third one
was called the “China oven”. It was not welded together. AJS was not involved in
building subsequent induction furnaces for TS.
126. It was put to AJS that the s et-up of the parties’ induction ovens is very similar
because they perform identical functions and therefore they will look similar. AJS
disputed this. He denied that the set-ups of the ovens will necessarily have to look
the same . He said there were many ways of setting up the induction heating
facility. For example the two generators could be placed next to one another on
one part of the frame, and it was not necessary to put them on either side of the
frame. The platform also did not need to be the same and could be designed
according to preference. Similarly, the height of the induction oven frame could
be much taller. He had chosen to use a height of 6m because it was convenient,
as it was the length of the steel supports that were used for the construction of
the frames. He used half of 6 m as the height at which to construct the platform.
As for the construction of the induction furnace, he pointed out similarly that
although it will require a tower, it does not necessarily have to be in the centre of
the structure. Whilst it was common to harden chain using induction heating , in
many/most instances only one coil (i.e. one phase) would be used and not two.
127. AJS also reiterated that the sprockets need not have been built in the same way
as those of TS, and that instead of using sprockets to drive and pull the feed chain
35

it was possible to use other methods, such as chains and cambelts , as a drive
mechanism and it was not necessary to use shafts and gearboxes.
128. Likewise, although the coils must be fixed with brass screws, they need not be
fixed to a wooden frame and it. was possible to use bakelite or non -conductive
plastic. The induction furnace does not have to look the same to make the same
chain or similar-looking chain.
129. Whilst it was conceded that the FCI soaking coil bore a strong resemblance to
the TS soaking coiI it was similarly suggested that the resemblance was
attributable to the fact that they are used for the same purpose.
130. In response to the proposition that the mechanism on the coiler which is used to
level the chain when it is wound onto the bobbin is typical AJS said that (save for
the defendants’ coilers) he had not come across a coiling machine with such a
feature, that was similar to the one on the TS coil ers. It was conceded by
defendants’ counsel that there were substantial similarities between the parties’
coilers, and their overall design and workings were essentially the same, but there
were differences in their dimensions. Likewise, it was conceded that the parties’
bobbins are substantially similar, although TS’ bobbin has a larger circumference
and is shorter. It was also put that whilst the FCI quench tank was smaller, its
overall design and function was substantially similar to the plaintiff’s.
131. As to the plaintiff’s application for a further amendment to its particulars of claim,
AJS confirmed that in his s 26(12) affidavit he had stated that he intended to make
over all copyright which he and BTM held in respect of the work which was done
for TS. To this end the intention of the 15 April 2019 ‘Copyright Cession and
Assignment’ agreement’ was that he and BTM would assign all their rights to TS.
He confirmed the evidence which was given by TK on this aspect.
132. AJS also concluded an agreement whereby he sold his member’s interest in BTM
to TS. After the sale had occurred an agreement to rectify and amend the
Copyright Cession and Assignment agreement was concluded between AJS,
BTM and TS. This agreement was erroneously signed on behalf of BTM by AJS
although he was no longer its member . Following the plaintiff’s attention being
drawn thereto by the defendants’ attorneys, the error was corrected by having the
agreement re-signed by TK (on behalf of TS and BTM) on 24 May 2022. AJS
confirmed that clause 3.1.1 of th e agreement correctly reflect ed the common ,
continuing intention of the parties that all copyright which was held by himself and
BTM was to be transferred to TS.
Derek & William Oldnall (‘The Oldnalls’)
36

133. The Oldnalls Snr and Jnr (Derek and William) are a father and son team and
directors of Thermopower Furnaces. Thermopower specialises in the
manufacture of thermal heat and supply furnaces, which are used in a variety of
industries including mining. Thermopower has a long-standing relationship with
TS, since the 90’s, and has built various convection ovens for it, which it has used
for tempering its chain.
134. The first oven was a cylindrically shaped vertical unit with a fan at the bottom. TS
then requested Thermopower to build an oven in which they could load spools of
chain in a horizontal position. Thermopower designed a box-shaped oven for this
purpose. Over the course of time T S requested a number of modifications and
alterations to be made to the oven. During July 2007 CK gave instructions by
email to Thermopower on details of modifications to the articulating valve , that
were to be incorporated in the nex t oven that Thermopower was to build for TS.
included in the e-mail were photographs pertaining to the proposed modifications.
135. Olnall Snr did the design work and specifications for the box oven (including the
power distribution, speed of the fans, size of the impellers, quantity of elements
and their power ratings, theoretical calculations and mechanical design) from
photographs and instructions that were given by employees at TS, including CK.
136. Draughtsmen in the full -time employ of Thermopower made the engineering
drawings of the oven. Thermopower has not made another temper oven that
contains the same inner configuration and specifications as the TS oven. TS’s
design solution for its convection oven was ‘novel’ and unique to it. The manner
in which the circulation of hot air is carried out in the TS temper ovens via a
plenum plate at the back of the oven and through an articulating valve around the
sidewalls of the oven and over the heating elements, to distribute the airflow, are
key components of the TS oven.
137. In December 2018 Thermopower concluded an agreement of cession and
assignment to TS of the copyright which vested in the drawings and works it had
done. An addendum thereto was entered into in September 2020.
138. At a stage, photographs of certain of the ovens which Thermopower had made
for TS were posted on Thermopower’s Facebook page, as a promotional and
marketing exercise. They were taken down immediately when TS became aware
of them and complained. The images that were published were of the exteriors of
the ovens, from which no ne of the key design criteria unique to the TS set -up
were visible. Thermopower is very careful about the images it posts on its
Facebook page, to ensure that it does not publish its intellectual property and
‘trade secrets’, or those of its clients, in the public domain. Consequently, photos
37

of the TS ovens were scrutinised to ensure that confidential aspects of their
design and functionality were not revealed to the public.
Forrester de Beer (‘FDB’)
139. FDB is a qualified mechanical engineer specializing in process engineering . He
gave detailed evidence pertaining to the plaintiff’s manufacturing process for the
production of chain. Given the extensive evidence that was provided on this by
the previous witnesses, in order not to burden the judgment with unnecessary
repetition his testimony on this aspect will not be repeated, save where necessary.
140. FDB concluded that a significant amount of effort, time and development had
gone into the plaintiff’s manufacturing process , which he described as a ‘batch’
manufacturing process which was continuous in parts. The stainless steel which
the plaintiff uses is manufactured locally. It is not a high alloy steel and is used
generally in making tools and agricultural implements. There are other grades of
stainless steel, or higher alloy steels, that could have been used, but there would
be a trade -off between cost and manufacturing requirements and the process
would have to be adjusted to suit the material.
141. The chain is formed by a progression tool, which is essentially an ‘eccentric’ press
which has a very large cam , which exerts 80 tonne pressure. The press
progressively cuts, shapes, forms and links the raw material. The progressive
forming of the chain starts in the press, where each punch cycle forms an element
of the shape which is required, before the final link -forming and closing is done.
The TS progressive tool has six steps. The critical part in the progression tool is
the linking part/component part 2002, which is used to form a tang in the links,
which shapes the steel from one link to the other. T he linking part/component is
a very innovative and unique tool. It would have taken a lot of money, time and
effort, to develop it to the point that it was properly operational and reliable so that
it formed chain to the correct specifications. The linking part would have been
developed by first making drawings of the tooling, then machining a very
expensive block of steel and working on it incrementally over a period of time, to
the point where it punched and formed chain links to the requisite specification.
This would not have been a simple process and would have taken a lot of
development. The forming and linking process it is to carry out is complex and
requires several steps, each of which had to be carefully designed and
engineered. The ‘horn’ of the linking part is polished so that the steel can slide
over it smoothly and with the least amount of stress on the tang as possible,
because if the steel is stressed the material will be extruded which will result in a
weak chain. Neither part 2002 nor the horn is in the public domain. Its three-
38

dimensional shape is quite unusual and is not something that can simply be
designed on a CAD system. To arrive at the part would require a trial-and-error
process of punching, fiddling, filling, hacking , bashing and machining until the
toolmaker g ot it right, at which time the part could be reverse-engineered for
drawings to be made, for the future production of the part. It would have required
a lot of effort, experience and hard work to produce the particular shape and
dimensions which the part has . Given its complex and undulating shape,
measuring its dimensions using instruments such as a vernier or micrometer
would be near impossible and a 3D measuring system would have to be used to
reproduce them.
142. The induction heating technology used by TS is dated. The new technologies that
could be used in its place would i nclude laser heat treatments and other non-
contact heating technologies. Induction heating is probably more economical than
flame-hardening or conventional radiation heating by means of an electrical
element. The specific induction heating process and set-up developed by TS is
not generally available and is unique. TS would have spent quite a bit of time and
money developing its induction oven s, which are not ovens that one can buy off
a shelf. After preparing an assembly drawing one would have made a prototype,
tested it, fiddled with it, tweaked it and spent a lot of effort, time and money getting
it optimised for the manufacture of properly hardened feed chain. While induction
heating is not a unique process, the application of induction heating in this
instance is quite innovative. A chain of unusual shape and complexity is carefully
heated, homogenously, in such a manner that the outer extremities or wings are
not over -heated at the expense of the tang . The inner isolator mould was
particularly developed for this process and is not available in the public domain.
143. Equally, to get the chain to temper properly and evenly whilst it is coiled on a
bobbin, was not easy. TS came up with the innovation of driving warm air through
the stem of the bobbin and the chain on it to speed up the tempering process .
The tempering oven has a fan and articulating valve which are used to drive hot
air through the bobbin as efficiently as possible. This solution also would have
taken some development and tinkering. While the tempering process is well -
known, the unique solution which TS arrived at is not in the public domain.
Commonly, tempering is done in a large, walk-in convection oven with a door, with
the material which is to be heat -treated placed in a basket in the middle of it.
Where large objects which are difficult to move must be tempered, large ovens
are placed over the m. Dropping objects into an oven through the top is not a
39

standard way of tempering. The manner in which TS tempers its chain is not the
only way to do it and was a specific and unique solution for it.
144. In cross-examination it was put to FDB that the general process flows of the TS
and FCI plants are logical and were determined by the nature of the raw and end-
products. Whilst he agreed with this statement as a general principle, he pointed
out that the process flow would vary and would not be the same, depending on
how components of the production process were made. It was also put to him that
his conclusion as to the improbability of another designer producing a facility that
was the same as a competitor , was predicated on the assumption that the
designer had no experience in the industry, and this was not the case in this
matter, as CK had been employed by TS for over 10 years, so ‘he did not have to
reinvent the wheel’. Likewise, it was also put that someone with inside knowledge
of the principles of the processes involved would have easily been able to design
aspects thereof from looking at the TS promotional video (which was shown at
trade fairs), a nd from looking at the photographs of the TS temper ovens that
Thermopower placed on Facebook. He agreed that such a person would be ‘well-
armed’, but pointed out that if they did not have inside knowledge of TS’ set -up
and know-how, they would not be able to replicate its processes and would still
have to do a lot of trial-and-error work to get the ovens to work optimally, and it
would not be an easy task.
145. He was not aware that decoilers were off-the-shelf items that c ould be bought
from engineering suppliers . (As is apparent from what is set out above, the TS
decoilers were not bought off the shelf and were designed and custom made by
AJS, after considering a number of specific factors , which were particular to the
plaintiff’s production process ). He agreed that, whilst an eccentric press was a
standard industry item, what distinguishes one production line from another was
dependent on what was inside it and how its workings were configured.
146. In similar vein, he agreed that the use of a reel or bobbin was common when
dealing with materials such as cables, cords, and chains and that the parties’
respective bobbins were substantially the same, but not identical in every
dimension.
147. As regards part 2002, it was put to him that it was necessary to have it to produce
the shape of the chain links. FDB was of the view that there were other ways of
doing it, but he did not have another simple solution in mind.
148. Regarding the inner isolator it was put that one c ould buy refractory liners or
refractory mouldings from suppliers. FDB did not dispute this but doubt ed that if
40

one bought such ready -made items they would be in the shape of the plaintiff’s
isolators or moulds, and he had never seen any that looked like that.
149. Likewise, whilst he agreed that there might be suppliers who would be able to
supply induction coils like the ones used by TS, these would not be off-the-shelf
items and would have to be built to specifications that were provided.
150. In re-examination, FDB was referred to the averment in CK’s affidavit that he did
not copy the TS production line and the design of FCI’s plant was the result of
independent thought and innovation. He disputed this and maintained that in his
opinion it was not the result of independent and original work and effort, as there
were so many material similarities or commonalities in the processes, equipment
and material . In his view, original thought and independent effort would have
resulted in a different outcome.
Burger Coetzee (‘Coetzee’)
151. Coetzee has been employed a s a design engineer at TS since March 2016. He
was present on 7 October 2020 when the FCI linking part 128 was inserted into
the TS progression press , in place of its part 2002, and took a video of the
exercise.
152. During September 2020 he was given a folder of the drawings that were found on
CK’s Mecer, HP and Dell computers during the Anton Piller search , and was
asked to consider the Arsamkar Tehran (Moradi) strip drawing (A9-2988) that was
found on the HP and compare it with the plaintiff’s strip. To do this an ‘expanded’
drawing of the Arsamkar strip was made (A9-2986) and he also made a drawing
of the plaintiff’s strip on 10 September 2020 (A9-2987), from a top view
perspective of the bottom part of the TS tool. He used Solid Edge software to do
this. To make his comparison he performed certain measurements on the
Arsamkar and TS drawings and marked 16 corresponding points on them, in
respect of which he compiled a table in which he set out the dimensions they
represented. Based on this comparative exercise he arrived at the opinion that
the Arsamkar and TS drawings were substantially ‘identical.’
153. Coetzee also confirmed that he was asked to examine and compare a drawing
that CK provided to Feltham (A3-921), with the drawing of the Asamkar Strip (as
expanded), that was found on CK’s HP computer. In his opinion the drawings
were also substantially identical.
Joseph Johannes Du Toit (‘Du Toit’)
154. Du Toit is employed by TS as its sales manager. He is responsible for all aspects
of sales, including orders, prices and issues pertaining to competition, and
communication between the production and sales departments. He knows TS’s
41

customers and regularly liaises with them, both at international trade shows and
when he meets them for sales and marketing purposes.
155. In January 2016 he was informed by Peter Kinnear from Reliance Poultry, a
customer of TS, that FCI had solicited business from it, in competition with TS.
Over the course of time It became apparent that FCI’ activities were not confined
to only this customer, and they had approached several others and had offered
to sell them chain at prices that were lower than those offered by TS and were
doing business with them on that basis. The impact of FCI’s entry into the market
caused a reduction in TS’s market share and effected its profits.
156. Also in 2016, while Du Toit and TK were at a trade show in Hanover, Germany,
representatives from Jiade, one of TS’s Chinese customers, showed them an FCI
business card which had been given to them by the defendants, in an attempt to
solicit their business. A few months later Jiade asked Du Toit to provide a
competing quote, in USD, for a container of feed chain. Jiade was unwilling to
reveal the identity of TS’ competitor but after some to and fro it reluctantly
provided Du Toit with a copy of their quote, from which he was able to determine
that it emanated from FCI, as its logo was on it . The price which was quoted by
FCI for feed chain was between 6% - 8% less than TS’s price. TS had to lower its
price accordingly to retain Jiade as a customer.
157. In August the following year it came to light that another customer Mr Baiyin had
been approached by CK/FCI and was doing business with it. From one of the
emails which were disclosed by Baiyin, which he had received from CK, it
appeared that CK had told him he could offer chain at a price of $1.90 per metre,
compared to the $2.02 per metre that TS was charging. Thus, it was evident that
CK were competing unlawfully with TS by ‘stealing’ its customers and
undercutting its prices. In a further email to him CK claimed that TS was lowering
its prices because it knew that FCI offered a better-quality product.
158. Du Toit gave detailed evidence pertaining to the average price for feed chain
which was charged by TS over several years, which showed how it had to
consistently lower its price per metre in respect of certain customers from a high
of $2.39 in 2015 to as low as $1.72 in 2020 and $1.79 in 2021, to compete with
FCI and prevent it from stealing its business. It also had to constantly monitor and
re-engage customers whose volume of repeat orders decreased because they
were doing business with FCI and had to reduce prices to retain them. The
wrongful actions of the defendants caused TS to suffer c onsiderable harm and
loss, in financial terms.
B) The defendants’ witnesses
42

Helmut Charles Bowles (‘Bowles’)
159. Bowles has a bachelor’s and master’s degree in mechanical engineering from the
University of Cape Town. His evidence mainly concerned the processes used by
TS and FCI in manufacturing chain and the principal components by means of
which they did so, including the parties’ linking parts, sprockets, inner isolator s
and their moulds, their induction and temper ovens and quench baths, and their
bobbins and coilers/decoilers . Given the evidence that the previous witnesses
gave in this regard, it is not necessary to recite it.
160. He attended the inspection of the parties’ manufacturing plants in November
2019. His evidence in chief was largely a repetition of the contents of his report,
in which he confirmed that the components referred to were substantially the
same/similar, but the re were certain (non-functional) differences, principally
pertaining to their dimensions i.e. their height, width and length. As a result, in his
view because of these differences they were not copies. It was thus apparent from
his evidence that he understood a copy to be an exact replica.
161. Nonetheless, he confirmed that 1) the overall manufacturing process used by TS
and FCI were substantially the same 2) FCI’s plant incorporated the same
‘technical solutions’ as those utilized by TS 2) FCI’s parts and components were
substantially the same/similar to those of TS.
162. In his report he expressed the opinion that it was probable that an independent
designer, having no prior knowledge of either facility, would arrive at a
substantially similar, if not identical process flow and overall solution given the
processes they wer e using. Thus, not only would the components of the plants
be substantially the same at a high level, but it would be expected that even at
the level of relatively fine detail, the plants would inevitably show striking
similarities. So, insofar as the TS and FCI’s induction furnaces were substantially
the same, this was to be expected because they performed the same function.
163. During his evidence he conceded that he ha d never seen any other feed chain
manufacturing facility, a side from those of the parties. He also conceded that
aspects of the process need not have to be the same or substantially similar.
Thus, he conceded that the most efficient way for FCI to have set up its second
induction furnace would have been to have an oval-shaped coil, and the fact that
CK used round coils shows that he didn’t apply any independent thought, but
simply followed TS’s ‘recipe’. Likewise, h e conceded during cross - examination
that tempering by way of induction would have been the optimal way to maximize
production, instead of having separate induction heating and convection heating
ovens. Contrary to his report and earlier evidence, during cross-examination he
43

conceded that it was not probable that two independent people, without prior
knowledge of either the plaintiff or the defendants’ facility, would produce
substantially similar, or identical progressi on tools to make chain . He also
conceded that part 128 did not have to replicate part 2002 but sought to justify its
mimicking of part 2002 on the basis that CK did not have to ‘reinvent the wheel’
when it came to the part, as he knew the solution from working at TS. Whilst this
may be the most likely and logical explanation for why CK sought to replicate the
plaintiff’s linking part it does not mean that, as a matter of law, he was entitled to
do so.
164. Bowles also conceded that TS’ bobbins served as a design reference for FCI’s
bobbins. Finally, although in his report he stated that there were substantial
differences between the moulds for the inner isolator, he agreed that the overall
impression was that they were substantially the same/similar, as were the inner
isolators and the soaking pipes.
Roelof Johan Mostert (‘Prof Mostert’)
165. Prof Mostert is a metallurgical engineer and Head of the Dept of Material Science
& Metallurgical Engineering at the University of Pretoria. He was previously
employed as head of the heat treatment & surface engineering section of Littleton
Engineering, a division of arms manufacturer Denel, and before that was a
research officer for Iscor.
166. He gave evidence on the general principles applicable to the heat treatment of
strip steel , to harden and temper it, using the processes of induction and
convection heating. Given the extensive coverage which these aspects enjoyed
in the testimony of the previous witnesses it is not necessary to repeat his
evidence in this regard.
167. During his testimony i t transpired that Prof Mostert and the 2 nd defendant have
known each other for several years and Prof Mostert did consulting work for FCI/
2nd defendant in 2015 in relation to the auger dispute. He was later also asked to
analyse some of FCI’s chain links that had fractured during testing.
168. In 2018 he appointed 2nd defendant to be an external examiner for one of the
modules which his students were doing, which required them to do a research
project to develop an improved design for the manu facturing of feed chain .
Clearly, the topic was one which would have been of interest to 2 nd defendant at
the time, and the results would have been of use or benefit to him, so he had a
clear interest in the project. In the report which the students prepared which is
date 7 June 2018 they compared the TS and FCI chain markets (an area involving
44

confidential commercial information) and commented that FCI was aiming to take
15% of TS’ global market from it. This information must have come from FCI.
169. In their report the students proposed a heat treatment solution which differed from
that which TS had adopted . They proposed a single, continuous ‘in-line’ heat
treatment whereby the chain was subjected to induction heating and tempering,
in one and the same induction furnace, and none of the particular features of the
TS induction or temper ovens were suggested as part of this solution. The
treatment proposed by the students was vertical induction heating in a coil using
a generator which produced a working frequency of 100 KHz for hardening,
without a second stage soaking coil, and thereafter a tempering process at a
frequency lower than 100 KHz to achieve a penetration depth of at least 1.2 mm
at 200 degrees C, with the chain being unloaded into a box or onto a pallet,
thereby doing away with the need for transportation of the chain on bobbins, to
and from separate induction furnaces and temper ovens. During cross -
examination Prof Mostert agreed that an EFD video which was shown proposed
a similar solution (using two induction heaters), and both of these solutions (that
proposed by the students and that proposed in the EFD video) were feasible i.e.
viable.
Alan Grant (“Grant”)
170. Alan Grant of LH Power is a specialist in heat treatment solutions, including
induction heating systems. TK approached LH Power to devise an induction
heating system, for which it had to do a series of calculations and experiment with
several ‘dummy’ coils before eventually coming up with a solution that worked for
the plaintiff. It also had to assist the plaintiff to commission its induction furnaces.
171. The optimal shape coil for the heat treatment of feed chain is one that
approximates its shape, as closely as possible, because the closer the chain is to
the coil the more uniform and even its subjection to the heat which is generated
by the coil, as it passes through. Given the shape of the feed chain an oval
shaped-coil would therefore be better than a r ound- shaped one. The other
variables that determine the dimensions and design of the coil are the induction
power supply/KW frequency output of the gene rator, and the rate at which the
chain is passed through the coil.
172. The 2nd defendant also approached Grant and asked him to manufacture two
induction coils, with very specific dimensions and specifications, which were to be
used for the two-phase heat treatment of feed chain. The design of the coils which
2nd defendant submitted, and their set up, mirrored those of TS, even to the extent
45

of having oval-shaped coils for the first stage furnace and circular-shaped coils
for the second.
173. During cross-examination Grant agreed that with the current technology that is
available both the hardening and tempering processes can be done by way of
induction furnaces and there is no longer a need for separate tempering ovens.
Thus, the continuous, single inline heating solution which was proposed/referred
to by FDB and Prof Mostert was not unreasonable. Such a solution would obviate
the need for a second, soaking coil and separate temper ovens.
Peter Feltham (‘Feltham’)
174. Feltham is an expert toolmaker with many years’ experience, who operates from
Port Elizabeth under the name and style of Tool & Die Solutions . It is common
cause that in July 2015 the 2nd defendant, Kurtz, requested him to assist with the
design of a progression tool, which could be used to cut, shape, stamp, and form
connected links for feed chain from 70 mm wide stainless-steel strips. Feltham
uses CAD and Autoform software to design tooling and dies.
175. Over the course of the 10 months that followed, Feltham and Kurtz corresponded
in respect of the project, by way of hundreds of email communications. A large
volume of the emails that they exchanged was traversed, in the most excruciating
and unnecessary detail, during days of evidence. It is not practical or feasible to
do the same here, and an attempt will be made to lift out only the most salient
features of their communications.
176. At the outset Kurtz sought an assurance from Feltham that the work which he did
would be subject to confidentiality, which was duly given. The 2nd defendant was
also concerned about the protection of copyright in the drawings that were to be
produced for him by Feltham. Peculiarly however, he asked that Feltham refrain
from the standard practise of including the name of the author and the dates of
the creation of the drawings on them, although he wanted the copyright symbol
to be in place to indicate copyright protection.
177. During a visit to Feltham he provided samples of links of chain, which Feltham
then scanned. Feltham then turned to working on the first step in the design
process viz. the conceptual and schematic lay -out of a progression strip, which
would set out each of the proposed steps that would be taken in the process of
manufacturing, including stamping, cutting, sh aping and link -forming. The
progression strip would then be used to design each of the components of the
progression tool that were needed, to perform the steps on the strip. To assist him
with this task 2 nd defendant provided Feltham with a metal sample strip and a
conceptual 2D strip layout drawing in PDF (A3-921), which by the defendants’
46

own admission was ‘modelled’ on the plaintiff’s strip progression. He also
provided Feltham with a pitch dimension that was required, of 44.45mm.
178. The commonalities and similarities between the A3-921 strip and that which
Feltham subsequently produced for the defendants were canvassed during cross-
examination. Despite this, he was seemingly reluctant to concede these and to
concede that by providing him with A3-921 Kurtz had in effect asked him to design
a progression strip which copied or ‘modelled’ that of the plaintiff. Even when it
was put to him that he used A3-921 as his reference point and made some
adjustments to it, he answered that he used it simply as a ‘basic starting point ’
and denied that it had a ‘definite influence’ on his design. When asked to point out
the differences between the progression strip he made for th e defendants and
that of the plaintiff, other than an extra idler at step s 2 and 8, and slightly more
bend in forming the lip of the link at step 7/8, Feltham was unable to identify any
others. Despite the clear and obvious substantial similarity between the A3-921
strip, the plaintiff’s strip, and the strip which he made for the defendants Feltham
tried to suggest that the defendants’ strip looked like the VDL strip, with the only
difference being in the lacing which it had. However, when pressed he eventually
conceded that they were different, and the progression which he set out for the
defendants’ strip does not allow for lacing, as the link is severed from the strip
before it is formed, unlike that of VDL.
179. Despite the use of sophisticated software and notwithstanding his evident skills
as a toolmaker, he could not conceptualize and design the link curling/forming
and closing part of the progression , which seemingly confounded him, and he
struggled with it. Even after spending some time on it he said in emails to the 2nd
defendant that he still did not understand ‘100%’ the linking and cutting operation
he was required to design. On 10 September 2015 he told 2nd defendant that he
was still trying to get his he ad around the work. By early 2016 he had produced
several iterations which were still not workable. It is evident from the emails that
to move him towards a solution 2nd defendant constantly guided him. The emails
reflect that the assistance which he gave throughout their interaction was not just
at a conceptual level but went down to the nitty-gritty i.e. to the point of giving fine
dimensions.
180. But even with this assistance Feltham was still unable to fully conceptualize what
was required by the linking part. At this point he was referred by Kurtz to the
photograph of the plaintiff’s linking part 2002, which was on the TD Coating
website. According to Feltham he was ‘directed’ to the part and instructed that he
‘needed to create something similar’ to it. During cross-examination he conceded
47

that in fact he was required to replicate the plaintiff’s part ‘as closely as possible’.
However, even with this assistance he was unable to produce a properly workable
linking part, and in April -May 2016 the 2nd defendant approached MTD for help.
When asked on what basis he thought he was entitled to copy the plaintiff’s part
he said he thought he could do so as the photograph of it was on a public website
and thus, as he understood it, the part was therefore in the public domain. He was
visibly shocked when plaintiff’s counsel informed him that his understanding was
not legally correct and the fact that a photograph of the plaintiff’s part appeared
on a website did not mean that the plaintiff no longer enjoyed intellectual property
rights in it.
181. During cross -examination Feltham maintained t hat parts 2002 and 128 were
‘completely’ different in shape and appearance, whilst also conceding that they
looked the same and were very similar, albeit not identical. In fact he said they
were so visually alike that he could have confused them. As Bowles did, he also
maintained they would logically be very similar as they were require d to perform
the same function and to produce the same product.
Christiaan Arnoldus Kurtz (‘CK’ or ‘Kurtz’’)
182. When Mr Kurtz commenced employment with TS in 2001, he had completed the
theoretical portion of his mechanical engineering diploma . Hi s practical
examinations were still outstanding. He had some general engineering
experience. After completing a project at TS under supervision he obtained his
diploma in December 2001. He was first employed by TS as a technician and
from 2005 onwards as a plant engineer. He was involved in the flat wire, auger
and feed chain production lines.
183. Over time, he worked with the plaintiff’s progression tool, bobbins and
coilers/decoilers, induction heating furnaces and temper ovens. He learned how
each of these worked and about their different components. He attended to break-
downs in the plant and assisted the artisans with repairs. He also had to arrange
spares for all the machines in the plant. He worked daily with drawings for these
machines and their components. He had to check details on the drawings,
including tolerances, sizes and dimensions of the parts depicted on them. He
worked on AutoCAD on a desktop PC he was provided with . He also worked at
home on his personal laptop. NTB provided him with packs of hardcopy drawings
as well as a disc on which they could be stored, from which he could transfer the
drawings onto his desktop computer.
48

184. He had unfettered access to the entire factory, which was open to all. He was not
restricted or prohibited from working with any component or any part of the plant.
He became familiar with every machine, and every part of every machine.
185. During 2005 he signed a confidentiality agreement with TS, which included a 3-
year restraint of trade clause in it. It is common cause that the agreement
specified the confidential information of the plaintiff as including its know -how
pertaining to its manufacturing process which was unique and confidential to it as
well as its drawings and designs.
186. When he was promoted to plant engineer, he became responsible overall for the
machines in the auger and feed chain production plants. He was entrusted with
ensuring that there was maximum ‘uptime’ and worked on the continuous process
of improvement and upgrading of the machines to get them to run faster and more
reliably. Apart from this his duties included obtaining quotes, negotiating prices
and placing orders for machine parts, making technical drawings on AutoCAD
and ensuring that technical drawings were configured in compliance with
international standards, and maintaining plant and equipment.
187. During his tenure with TS he ordered two complete press production lines from
Reef Engineering. The components included a 160-ton eccentric press, a strip
decoiler, a flattener and a strip feeding unit, which is the same as the one currently
being used by the defendants. These items are standard items that can be
acquired ready-made, save for the levellers or flatteners, which are custom made
for the strip steel industry.
188. TS made its own bobbin coiler. There were no drawings for it because it was
‘simple’ to manufacture. The artisans simply needed to measure the width and
the length of the bobbin, add rubber rollers, and weld the components together
189. TS fabricated some machine parts and outsourced others. Most of the machine
parts for the feed chain plant were manufactured in its own workshop including
the larger components of the tool and the dies. MTD made some of the smaller
parts for the tooling. It was Kurtz’ job to get quotations for the parts that were not
manufactured inhouse and to provide drawings of them to the engineering
companies who were responsible for their manufacture.
190. When Kurtz started at TS there were two vertical induction furnaces i.e. coils. The
first, top coil was used for the first stage pre-heating. Once the feed chain exited
the inner isolator or ‘liner’ of the 1st coil, it entered a susceptor pipe in the 2nd coil
which was made by welding together two L -shaped st -921ainless-steel grade
3.10 sheets. Both induction heaters operated at a medium frequency. In about
2008 he, together with artisans who reported to him, added a third induction coil
49

oven above the existing two. It was a high frequency induction heater. This was
done so that more chain could be heat treated, to increase the output from about
104 links per minute to about 130 links per minute. The feed chain travelled up
and over a sprocket at the top of the ovens and into the high frequency induction
heater, and then proceeded through the other two medium frequency induction
heaters.
191. Regarding the essential attributes required for feed chain, Kurtz noted that (1) it
had to be 70 mm wide because the trough that it travels in is 80-90 mm wide (2)
it had to be 2.5 mm thick to be strong enough (3) the pitch of the chain i.e the
distance from one link to another, had be 42.4 mm to accommodate the sprocket
that drives the feed chain in the conveying trough, which has a certain pitch and
(4) the area where the links join with one another requires a 12.5 mm radius. In
addition the chain must have a hardness rating of 48-50 Rockwell C, which is the
same rating which the McAuley chain has. To obtain such a hardness rating it is
necessary to heat the chain, which is made locally from SAE 1030 grade steel, to
between 860 and 900 degrees Celsius, and to quench it in water. Kurtz obtained
the dimensions referred to from a sample of McAuley chain , which he was able
to measure and test for hardness.
192. Kurtz left TS at the end of February 2009 as he had decided to go into a business
venture with 5th defendant and Colenbrander, which was to be carried out via the
4th defendant CGC Industries (Pty) Ltd (‘CGC’), which was an acronym for their
first names Carl, Gary and Chris. CGC had been registered the year before and
traded under the name ‘RTS’, which stood for ‘rod to spiral’. RTS used steel rod
to manufacture spiral auger. The idea was to import flat wire from China where it
could be purchased cheaply and make auger with it. However the sample flat wire
they obtained from China was too soft and they had to source it from elsewhere.
193. For him and Colenbrander to operate outside their restraint area , they intended
to build the auger manufacturing equipment in SA and transport it to Windhoek,
Namibia. They developed , tested and set -up auger machines in SA and
researched the cost of transporting the raw materials to Windhoek. They also paid
a deposit on a building they had secured outside of Windhoek. However, a few
weeks before they were supposed to move to Namibia they decided not to do so
and to stay in SA, and around August/September 2009 started manufacturing and
selling auger in SA. Colenbrander was responsible for marketing and sales, 5 th
defendant was the financier and Kurtz was responsible for manufacturing.
Although Colenbrander immigrated to Australia in August/September 2009, he
still handled sales and marketing for CGC and attended several trade shows in
50

different countries to market its product . Over the course of time K urtz learned
more about marketing and sales and got to know the customers.
194. After becoming aware of CGC ’s activities, TS and its holding company Lavirco
Beleggings (Pty) Ltd instituted proceedings against it in 2014 , whereby they
sought an order interdicting it from making use of the confidential auger
manufacturing processes of TS and the auger works and drawings in which it had
copyright.
195. It is common cause that this application, which was referred to as the ‘auger’
matter, was settled in 2015 in terms of an agreed order whereby TS was granted
far-ranging interdictory relief and CGC was directed to deliver up the infringing
works and drawings and the equipment and machines used to produce them. To
this end the order made provision for the appointment of an expert who would
inspect the machinery and equipment and determine whether it infringed the
plaintiff’s rights and/or the terms of the order. Consequent to the obtaining of the
order some of the CGC machines had to be seized and removed. According to
Kurtz, i nstead of an inspection process being carried out by a suitable,
independent expert, TK attended at the premises of CGC with NTB and a team
of TS employees and purported to act as the expert and to point out certain items
of machinery that were removed. No report was filed as to this, as was required
by the order. When this happened Kurtz told TK that he would now have to make
feed chain.
196. In fact already after the 2015 order had been obtained against them 5th defendant
had suggested that they should start manufacturing feed chain. In 2018 Kurtz
visited VDL, a feed chain manufacturer in the Netherlands . They ‘opened’ their
VDL tools for him to see what they looked like.
197. During his evidence he was referred to several of his emails which were dated
earlier than emails they had been sent in response to. H e explained that the
reason for this was that he had used a trial version of AutoCAD which was only
available for use for a certain period and, in order be able to continue using it after
that, he had set the operating date back on the BIOS of his Mecer laptop, by two
years.
198. He admitted that he had used the template title block frames which TS used on
its technical drawings, and some of their ‘tolerances’ i.e dimensions on AutoCAD,
for the auger and flat wire plant he set up. He also admitted that TK’s emails had
been unlawfully monitored and intercepted after Colenbrander had obtained TK’s
password from an IT technician at Lavirco.
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199. Her confirmed that already in 2013 various offers were made by CGC t/a RTS to
Mr Moradi of Arsamkar, a customer of TS in Tehran, which included an offer that
CGC would supply it with the know-how to manufacture feed chain and provide
the necessary expertise to set it up, in exchange for commission on sales.
200. After they decided they were going to make feed chain, Kurtz went about looking
for a second-hand eccentric press which they could acquire and in due course he
made contact with Feltham, an expert toolmaker who traded from Port Elizabeth
under the name and style of Tool & Die Solutions. He asked Feltham if he could
make a progressive die for a 2.5 m m thick by 70 m m wide stainless-steel strip,
which had to be punched and formed into interlinking links of a chain. He e-mailed
Mr Feltham a photo of a McAuley chain link and sent him a sketch AutoCAD
drawing of a piece of Mc Auley chain, which he had taken from its website and
adapted, by adding certain measurements and dimensions which he had
obtained by measuring Mc Auley chain which he had in his possession. He also
sent Feltham an image of some parts laced together.
201. Regarding the drawing at p921 of trial bundle A3, which he made using AutoCAD
and which he had sent to Feltham , Kurtz testified that it was based on the strip
which he had seen at TS because that was the only chain company for which he
had worked. When asked to explain how he arrived at the drawing he said that
he ‘just drew it’ because he knew the different steps that were required. He knew
that one had to end up with a chain link and, to get the chain link one had to side
punch, slot punch, crop the lip off and bend it into a radius of 10 degrees at the
bottom and a radius of 12 degrees at the top; then bend the S -profile into the
chain link; and chop the link off. Having worked at TS for 8 years he knew exactly
what steps to follow in the progression.
202. He agreed that t he drawing shows similar progressive steps in the manufacture
of chain, as he had seen at TS. It took him a couple of hours to draw and measure
it up. As regards the dimensions he incorporated into the drawing: (1) the 70 mm
width dimension he knew from when he worked at TS and could measure its chain
(2) the same goes for the thickness width of 2.5 mm which, although it was not
reflected on the drawing can also be measured from the chain (3) the 12.5 radius
he suggested for the ‘bearing surface’ of the chain was the same as that of the
McAuley chain. He claimed that he used a combination of TS and McAuley chain
links for the drawing save that he made the knuckle curl a bit wider to make the
chain stronger. To this end the slot dimension of 5.9mm was slightly narrower than
both the McAuley and the TS slots, which resulted in the middle part of the link
being wider and thus stronger tha n either of the others . Other dimensions were
52

made and inserted into the drawing by AutoCAD which automatically provides
dimensions when one clicks on two points in a drawing, provided it is to scale.
203. He disputed NTB’s assertion that the only way in which he could have made the
drawing would be if he had made use of a physical TS strip or die master or a
drawing thereof. He said that no evidence had been tendered of any such drawing
and no such drawing had been discovered by the plaintiff.
204. As to the pitch dimension of 44.45 mm, which he gave to Feltham, he recalled
that at TS they had programmed this dimension into the server feeding units,
which feed the steel strip into the progressive tool. Th e pitch dimension is the
distance that the steel strip must proceed in the tool for each progressive st ep,
per cycle. At TS, they used to put in 44.5 mm and sometimes 44.48 mm or
44.52mm depending on the amount of wear on the roller. It was possible to make
such small adjustments on the amount of strip being fed into the progressive tool.
He also knew that this was the pitch used by McAuley, from its original patent,
which is expressed in imperial terms as one-and-three-quarter inch , which is
44.45mm when converted into millimetres.
205. He and Mr Feltham underwent an iterative process in the design of the
progression tool. They were constantly ‘changing’ the parts and their profiles and
shapes to get to the result and shape that he wanted . They made use of
TeamViewer so that Feltham could show Kurtz his designs. Later Feltham asked
him to download 3D.xml, so that he could send him three-dimensional designs.
Using it Kurtz was able to view the designs from different angles and perspectives
but could not edit them. He was taken, at some leng th, through a host of emails
which he exchanged with Feltham, where he provided him with detailed
instructions, measurements and dimensions. On one of these, which contained
a sketch he made of the front view profile of a chain link , he had set out the arc
of the curvature and certain radii required. He admitted also that he had directed
Feltham to a photograph of the plaintiff’s linking part 2002, which was on the TD
Coating website, to assist him.
206. At the end of the process Feltham provided digital three-dimensional drawings for
the various components of the progression tool , via Dropbox. Kurtz asked for a
set of two-dimensional drawings to also be provided, as he wanted to be able to
work on and make revisions to them. Special software was required to work on
the three-dimensional drawings, which Kurtz did not have. He only had a version
of AutoCAD which could work with two-dimensional drawings.
207. When the drawings necessary for manufacture were complete, he commissioned
Correct Engineering in Uitenhage , via 3 rd defendant, to manufacture the first
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progression tool, using Feltham’s 3D files. By April 2016 a prototype had been
received from Correct Engineering. They ultimately produced about 3 or 4
iterations of it. The prototype was not able to produce acceptable chain, as the
gap between the links and the lip of the knuckle was still too big and not round
enough, and the sides of the back of the chain w ere being damaged by the tool.
In an attempt to fix the problems relating to the gap between the chain link and
the lip of the knuckle, additional material was welded to part 128, which was then
ground to shape using an angle grinder as well as a pencil grinder for the fine
work. But the part still did not function as it should and the shape of the finished
knuckle it was producing was not like that of either the McAuley chai n or that of
TS. Kurtz then asked Feltham to make modifications to the design of sub -parts
123 and 223, which were responsible for forming the lip, to get the arc of the chain
as close to the McAuley chain as possible.
208. In May 2016, Kurtz approached MTD to work in parallel with Correct Engineering
on refinements to parts of the tool, including part 128, and to make certain parts.
He had various iterations of part 128 and thought that if Correct and MTD worked
in tandem, they would get a quicker result. He approached MTD because there
were a lot of parts that needed modifications or had to be redesigned and built
from scratch, and he needed someone that was able to do precision work, and
not the rough work that he was doing by welding up and grinding down. He
contacted Clive Coenraad of MTD , who he knew from the time when he was at
TS, when MTD had done work for TS. He took several of the parts that required
work to MTD and explained to Coenraad what was required to be done on them.
He marked areas on the parts that needed to be removed. Some of the parts that
MTD made (such as part 128 in particular), were sent to TDK Coating, where a
special coating was applied to them under heat. This could only be done in the
final iteration of the part. According to Kurtz, t he FCI progression tool is
‘completely different’ (sic) to that used by TS. It is longer, has more parts and
works ‘on a different principle’; the FCI tool works on five horizontal levels whilst
the TS tool works on three.
209. The chain which was first produced in the second half of 2016 using the
progression tool was not of an acceptable quality, as they experienced problems
with heat treatment. By the end of 2016, beginning 2017 these had been resolved
and FCI was able to make its first sales of feed chain of an acceptable quality.
210. Because of the poor financial status that CGC was in at the time, it was decided
to use the 3rd defendant, C Quiptech for the feed chain manufacturing operations.
The 5 th defendant agreed to fund it. It trades under the name ‘Feed Chain
54

Industries’. Kurtz is its sole director and he and 5 th defendant are equal
shareholders in it. Colenbrander does not have any involvement in C Quiptech.
211. With reference to the remain ing components of the defendants’ production line
Kurtz gave the following evidence. The defendants acquired a second-hand strip
decoiler with a ballerina arm from Erin Machine Tools. Kurtz designed a strip
feeder for it (which includes rollers, the plates that hold them and the cover that
goes over the timing belt together with the pneumatic cylinders on the top of it).
ElectroMechanica built the control panel and supplied the electronics for the
server motor, which is used to feed the strip into the progressive tool . Whereas
TS makes use of levellers in-between the strip decoiler and its server feeder, FCI
does not.
212. As regard the bobbins, Kurtz admitted that he adopted the same solution as that
which is in use by TS. As in the case of the TS bobbin the FCI bobbin has a hollow
core stem which has holes in it, which is wrapped in mesh, and one side of the
bobbin is open and fits against an articulating valve, like the TS bobbin . When
asked why he chose this manner of dealing with the bobbin, he said that it was a
good practical solution and ‘he knew how to do it’, so he did it. The holes are there
to ensure that the air flows through the chain when the chain is tempered, and
the metal mesh is to prevent the chain from going into the holes.
213. He designed the bobbin coiler, and it was built at 5th defendant’s workshop at
Quarry Tech. According to him it is a very ‘simple’ machine. One could probably
purchase the steel for it from any steel shop and weld the machine together. It
consists of two shafts, four rollers, four pieces of angle iron and four plumber’s
blocks.
214. He was also responsible for the design of the supporting frame for FCI’s induction
ovens. As in the case of the plaintiff it was made from channel iron of 6m in length,
and the platform was built at a height which was half of that. He settled on
induction heating as a solution for hardening chain because he knew from his
experience at TS that it was a good solution, so he did the same. The orange-
coloured induction generator which is visible on the photographs was built and
designed by Paul Lutchman from Johannesburg, who he also knew from his time
at TS.
215. As in the case of the plaintiff FCI also makes use of a preheating, or first stage
induction coil and a second, ‘soaking’ coil. He found a 100kw induction generator
for sale which he purchased and asked Alan Grant of LH Power to quote for a
1.6m induction coil for it, and to build it. They used this coil and generator for the
preheat phase. Lutchman designed and manufactured the soaking coil for the
55

second stage, using drawings which Kurtz provided him of what was envisaged.
He asked Lutchman to make the coil pipes for the 2nd coil round like the TS coil
pipes.
216. He engaged G K Ceramics to build the inner liner or isolator and provided them
with its specifications and the other information they required, including the length
of the coil and its diameter. The liners that GK Ceramics produced were not
satisfactory. They often broke or cracked whist being transported from
Johannesburg. Kurtz decided that they would cast their own liners and designed
a steel plate mould, but when it was manufactured it was not straight enough, so
he opted to use a nylon mould (TS also uses a nylon mould) and revised the
drawings accordingly. The tapered core of the mould was made of mild steel.
217. The FCI liner is made with a cement -like material which is covered in fibreglass
cloth, as is the TS liner. When he was asked where the idea came from he
acknowledged that TS uses the same concept. The FCI liner has a ‘head stop’
which allows the liner to be gripped and to be removed from the induction coil
when it must be replaced . It also prevents the chain from piling onto the coil if it
gets stuck . The FCI preheat coil also has an extractor pipe at its entrance to
extract the smoke produced by the heating of the chain in the induction furnace ,
similar to that of TS.
218. He was referred to a series of drawings he had made, including drawings of the
soaking pipe used by FCI in its second coil, which as in the case of the plaintiff’s
susceptor/soaking pipe is made from two L-shaped pieces of grade 310 steel
welded together. He gave these drawings to Lutchman and requested that he
design the induction coil according to the size of the soaking pipe. He pointed out
to him that the coil could not be longer 3.45m, as the roof of the building did not
allow for it to be longer. As a result the FCI preheat coil is slightly shorter than the
TS one.
219. He also designed the quench bath and the sprockets and their side plates, which
are used to prevent the chain from falling off it. The sprocket must have the same
pitch as the chain, otherwise it would not be able to drive it. Thus, the chain
determines the shape of the sprocket.
220. Likewise, t he temper oven was also designed by him and was built at 5 th
defendant’s workshop. It also has an articulating valve with two rings which is
used to seal the bobbin and is controlled hydraulically by means of a lever. He
conceded, with reference to photographs in the trial bundle that TS’ temper oven
is very similar to the FCI oven. The size of the temper oven is determined by the
56

size of the bobbin which goes inside it. The bobbin coiler and decoiler are also
built around the size of the bobbin.
221. Kurtz identified drawings for the following components that were designed and
made by him , which w ere included in the trial bundle : the defendants’ ‘hakie’,
bobbin, the frame and components of the temper oven and its assembly. He said
he did not copy these from TS drawings or its components and produced them
from his experience and know -how. He admitted that in most instances he had
adopted the same design and technical solutions as those of TS, but nonetheless
claimed his des igns were his ‘own’. He agreed that he was 12 years old at the
time when TK had started the process of trying to make chain.
222. As clear as Kurtz’s evidence appeared to be in chief, the opposite appeared to be
the case in cross-examination. At the outset he was reluctant to concede that TS
placed considerable value on the protection of its know-how and confidential
information pertaining to its manufacturing process for the production of chain.
When asked whether FCI placed considerable value on the protection of its know-
how and confidential information pertaining to its manufacturing process, he did
not provide a straight answer, at first , so too when he was asked whether he
considered FCI to be in a competitive position with other manufacturers. He said
this was so in respect of the manufacturing of auger and flat wire. When it was
pointed out that the question had been phrase d in general terms and not with
reference to the production of auger and flat wire he struggled to give a coherent
answer. He said the question was ‘very difficult to answer clearly and correctly ’.
He said he could not say whether FCI was in a competitive position in relation to
the manufacture of chain because he had not been to the plants of ‘ all other ’
manufacturers of chain.
223. His style of not answering questions directly, and of frequently providing oblique
and obfuscatory responses continued. Thus, w hen asked whether he had
respected the restraint of trade clause in the confidentiality agreement he said he
had in relation to the chain business. When asked whether he then conceded he
had not done so in relation to the manufacture of auger he claimed that he did not
know what the terms of the agreement meant, despite their clear language. When
it was put to him that he set up a competing auger business whilst working for TS
he would not concede to this . He was pointed to the clause in the confidentiality
agreement (paragraph 5) that barred him from becoming involved, directly or
indirectly, in any competing business with the plaintiff whilst employed by it.
Unable to deflect any longer he said he thought the clause was unreasonable and
didn’t agree with it, and that it only applied once he started ‘trading’ and not whilst
57

he was ‘setting up ’ the auger business. When it was put to him that he had
therefore not been truthful and honest in his resignation letter to TK when he had
said he was ‘totally committed ’ to TS, as he had set up an auger plant in
competition with it whilst still in its employ , he was silent for some time, before
eventually conceding that this was the case. Much later in cross-examination he
conceded that he had set up his auger manufacturing facility in competition with
the plaintiff, utilizing c onfidential information pert aining to its manufacturing
process. From his evidence it was evident that he had no scruples whatsoever in
disregarding the restraint of trade clause and his duty not to compete unlawfully
with TS, when he set up an auger plant in competition with it.
224. He admitted he had taken drawings of TS parts pertaining to the production of
auger, which he had altered or adapted and supplied to 3 rd parties including a
company in Thailand, as if they were his drawings. He conceded also that in an
email exchange he and his partners had said that they needed to change the
drawings so that their equipment ‘ could not be seen as stolen’ and in another
email in November 2011 he had spoken about ‘laundering’ drawings and moving
‘laundered’ equipment. He blamed the use of this word on something he had read
in an article and not as an indication of any act of dishonesty. He acknowledged
that in one of his emails he had said that if TK ‘got his hands’ on what they were
planning to do via the ‘Beiji ng Pipe Company’ and found their ‘ many similar
designs of parts and machines’ he would probably sue them. His evidence on
whether he tried to use this ‘company’ as a cover for what he was doing was
difficult to follow. Although he denied initially that he had tried to use it as a front
later in cross-examination he conceded that he had.
225. He was asked several questions about the discovery which he had made and the
affidavit which he had filed opposing a request for further and better discovery ,
and it was put to him that he had been dishonest in this regard insofar as he had
stated that certain drawings did not exist, when in fact they did, as he had supplied
them to C T Engineering for the production of auger . Here to o he was
disingenuous: he said he had not discovered these drawings as he did not have
the ‘originals’, which he had supplied to CT, because when he made revisions to
drawings, he deleted their previous iteration. When pressed on why he had then
failed to discover the revision drawings he said: ‘this thing about copying is quite
complicated and there are different legs to it’.
226. He agreed that he had no option but to settle the auger case after auger-related
drawings were found on his computer and were produced by 3 rd parties under
subpoena, and effectively admitted that he had unlawfully breached the plaintiff’s
58

copyright in its auger works and drawings. Once again however, instead of owning
up to his actions he attempted instead to justify them, saying that he did not know
how copyright ‘worked’ and had ‘made a mistake’. When asked on what basis he
had supplied copyright drawings of the plaintiff to 3rd parties, given the contents
of the confidential ity agreement, he said that he understood that a ‘ 30%
adaptation’ of another person’s drawings was ‘okay’ because it was not a physical,
hard ‘copy’ of the original work. He claimed also that, as he understood it, whereas
TS’ drawings were ‘confidential’ to it i.e. protected, if he made a drawing of its
drawings, it was ‘ok’ i.e. not a breach of its copyright. In similar vein , whilst h e
admitted that he had ‘adapted’ TS drawings he claimed he had only done so by
altering the frames of the title block templates on them and not the contents of
the ‘actual’ drawings (sic) themselves. He admitted that before he left TS he had
‘taken’ a set of the plaintiff’s auger drawings, although he was not sure if it was a
‘complete’ set but conceded that what he took was enough to enable him to build
and set up a competing auger production line and supply a Chinese company
with auger and TS-derived technical drawings pertaining to the manufacture
thereof. He admitted that using TS’ drawings he had manufactured and sold three
auger-making machines.
227. Contrary to what he said in his evidence in chief in relation to his approach to
Arsamkar in 2013, h e disputed that he had any idea of making chain , until after
2015. He was then referred to a 2010 email to which he, Colenbrander and 5 th
defendant were parties, pursuant to approaches they had made to Plasson, in
which they had spoken of the manufacture of chain as a ‘big juicy carrot’ (sic).
When he was asked to confirm that this was a reference to feed chain (as it could
only have been), he said he was not sure that this was so. When it was put to him
that the email suggested they were looking for an investor for the manufacture of
‘feed chain’ he was similarly evasive before eventually conceding that this was
the case. He was also pointed to a presentation which was made, before 2015,
in which an offer had been made in relation not only to the production of auger
and flat wire, but also to feed chain. When it was suggested that from these
proposals it was apparent that if the defendants had come into funds pursuant to
any of their offers/proposals to 3 rd parties they would have proceeded to make
chain, he repeatedly did not answer the question, simple as it was.
228. His evidence regarding the so-called schematic ‘strip’ drawing (at A3-921) which
he had supplied to Feltham, and which was modelled on the plaintiff’s strip
(according to the plaintiff’s evidence it was identical to or substantially the same
as it), was equally oblique and deflective . When first asked about it he disputed
59

that it represented a ‘strip’. Then he disputed that it was ‘ 100%’ a strip and said
that it was just a schematic of steps which were to be taken to make a link, which
was obvious . After much to and fro he eventually conceded that the drawing
represented the sequential steps that are taken by the plaintiff in making a link of
feed chain in its progression tool.
229. Likewise, his evidence about the schematic ‘strip drawing ’ he supplied to
Arsamkar in 2016 was equally unsatisfactory. He was unable to explain why he
had sent this drawing (which was also modelled on the progression followed by
the plaintiff in its production of chain) to Arsamkar, a customer of the plaintiff. His
initial response was that he sent it because Arsamkar had wanted its logo on the
drawing of a ‘strip’ which he sent to it, and FCI had its own drawing. When asked
why, then, he had used the plaintiff’s strip for the drawing when he could have
used FCI’s one he said it was because it was ‘convenient’ to do so. Then he said
that the plaintiff’s drawings w ere 3D drawings whilst those of FCI were only 2D.
Aside from the nonsensical nature of this response what it shows is that contrary
to his denials in this regard he must have had a drawing of the plaintiff’s strip
progression in his possession. Once again, after much to and fro he eventually
addressed the question he was being asked and conceded that he had offered to
make chain for Arsamkar that was based on the plaintiff’s strip progression, and
the drawing replicated the plaintiff’s strip progression. He conceded that if he had
made a drawing representing VDL’s strip progression it would not look like the
Arsamkar drawing.
230. He clung fervently to the assertion that the processes which were followed by the
plaintiff in the manufacturing of its feed chain were all in the public domain and
nothing about them was confidential. He was unable to explain why then, if this
was the case, when commissioning Feltham to design a progression tool he had
enquired whether he would protect ‘confidentiality’ therein and not use the
designs he came up with for someone else. He had also been worried about FCI’s
copyright in Feltham’s works and drawings because he asked him to put the
copyright logo on his drawings. I n addition, i n his affidavit opposing further
discovery he had conceded that the plaintiff’s manufacturing process and
machinery was confidential to it and had resisted disclosing the names of FCI’s
customers and the prices it charged them in July 2017 , on the grounds that the
information that was sought by the plaintiff in this regard was confidential to FCI’s
business and constituted a trade secret. He had also claimed that the documents
were privileged and ‘confidential’ to the defendants , as they had spent a
considerable amount of time and money developing a ‘unique’ tooling process.
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231. When asked on what basis he could then deny that the plaintiff’s process was
confidential in relation to its chain manufacturing process (by means of its
progression to ol and its hardening and tempering process), he again became
obfuscatory and evasive. He said the plaintiff would have to specifically say which
documents it claimed were confidential, because to say that the ‘process’ was
confidential was ‘up in the air’. But after further questioning on this aspect he said
he ‘now understood ’ and he agreed that the detail s and application of the se
processes (including those pertaining to induction heating and tempering) were
aspects that were confidential to the plaintiff, albeit not the processes themselves.
He agreed that the processes utilised by FCI in the production of feed chain were
very similar to those of the plaintiff , at a ‘high-level’, but claimed they were ‘very
different’ in their detail.
232. He admitted that despite an interdict which was granted by Mangcu-Lockwood J
pending finalisation of the issues he had in relation to the 2015 auger order, in
terms of which the defendants were interdicted from manufacturing , marketing
and selling flat wire and auger, they nonetheless went ahead and did so. His
justification for doing so was that their legal team had given them the go -ahead.
He denied that by doing so they were in breach of both the 2015 order and the
order by Mangcu-Lockwood J. It also transpired that, contrary to his evidence in
chief on this aspect TK had not put himself forward as the independent assessing
expert but had suggested/appointed NTB to this position and despite this proposal
the defendants did not comply with the terms of the 2015 order in this regard.
233. He conceded that when he started with the production of chain, he had been
worried that TK/TS would find out what he was up to and had taken steps to
ensure that the same fate did not bef all his operations as had occurred in 2015,
in relation to the production of auger. He conceded that he had attempted to lay
down a set of facts and circumstances that would create the impression that what
had been done was the result of independent effort by a toolmaker.
234. He agreed that in Feltham’s proposed progression the chain links were still laced
to the strip, along its sides, and the link was only severed from the strip after it
had been formed and not before, as was done by TS and VDL. He agreed that
he had informed Feltham that he did not want th e order of progression he had
proposed and instructed him to follow the progression which was set out in the
schematic strip drawing (A3 -921) he sent him, which set out the progression
which the plaintiff followed in its strip and was modelled on the plaintiff’s strip. In
his covering email to Feltham he said that the progression which he set out in the
drawing was taken from ‘other tools’ he had seen. He agreed that this could only
61

be a reference to the plaintiff’s progression tool. However, despite these
concessions, when it was put to him that what he essentially proposed therefore
was that Feltham should replicate the TS strip with a few idlers added, he disputed
this and claimed that the strip he asked him to produce for the defendants was
‘completely different’. He agreed that the pitch measurement of 44.45mm he
provided Feltham could not be obtained from measuring the chain and was not
on the A3-921 drawing, and said it was a measurement he remembered from his
time at TS, as was the crucial 1.25-degree arc he supplied to Feltham.
235. As to the basis on which he had directed Feltham to the photograph of the
plaintiff’s linking part on the TD Coating website and had instructed him to copy
it, he justified this by saying that as the image was on the Internet one could use
it. When it was pointed out to him that the fact that an image appears on a public
website does not mean that a person has carte blanche to use it as they want, he
responded, disingenuously, that as they never made a copy of the photograph,
they did not infringe any copyright which may have vested in the image.
236. He conceded that a series of drawings pertaining to the top and bottom
progression tool assembly from which all the steps in the plaintiff’s progression
(including the cutouts, idlers, knuckle-curling formation and linking ) were
discernible, as well as a series of drawings of the link-forming die for the bottom
part of the tool, were found on his Mecer computer. Likewise, he conceded that
drawings of the plaintiff’s bobbin and its assembly and the moulds for its inner
isolator were also found on the Mecer computer. He admitted that he must
therefore have copied these drawings onto his Mecer computer at some stage.
He could not say why he had done so. He claimed that he did not know they were
there because it was an old computer which he no longer used, and he could not
open these files. It was then pointed out that in his affidavit opposing further and
better discovery he had said that he had ‘opened, perused and considered every
file’ that was on his computer(s) and from this exercise had prepared a list of files
which were set out in a spreadsheet, which according to him were irrelevant to
the proceedings. When pressed on this he conceded that he had lied in his
affidavit. He admitted that he had transferred a trove of auger drawings from this
Mecer computer to his laptop Dell, some years after he had left the plaintiff’s
employ.
237. Towards the end of his cross -examination he conceded that he had made a
concerted effort to ensure that the defendants ’ designs complied with the TS
‘recipe’ but sought to justify this on the grounds that ‘all’ of the TS designs were
‘in his knowledge and experience ’ and he could accordingly use them. When it
62

was put to him that the designs were confidential to the plaintiff, he disputed his
and suggested that the plaintiff had not told him which of its designs were
confidential to it, and if it had done so the situation may have been otherwise. This
was clearly disingenuous, considering that the plaintiff’s designs and drawings
were specifically listed as part of its confidential information in the confidentiality
agreement which he concluded with it. In similar vein, when it was pointed out to
him that the 2nd FCI coil was round, as was that of TS, he claimed that Lutchman
was responsible for its design, and not him . However, when he was confronted
with his evidence in chief, he recanted, and agreed that he had told Lutchman to
make the coil round because TS’ coil was round.
238. Ultimately, and by way of summary, during cross -examination 2 nd defendant
conceded that the processes and information which the plaintiff seeks to protect,
were confidential to it. He also conceded that the plaintiff’s progression tool, its
induction furnace and its temper oven were confidential and not in the public
domain. He further conceded that the defendants’ progression strip, linking part,
induction and temper ovens were substantially similar , if not substantially
‘identical’ to those of the plaintiff.
The law
A) Ad unlawful competition
239. It is trite that to succeed in a common law claim based on unfair competition, a
plaintiff must establish all the requisites f or Aquilian liability, including that the
defendant has committed a wrongful act. Wrongfulness is determined by the boni
mores of society, having regard for the requirements of honesty and fairness in
trade.
240. In this regard, whilst as a general principle every person is entitled to carry on a
trade or business freely in competition with their rivals, the competition must
remain within lawful bounds. If it is carried on wrongfully, in the sense that it
involves wrongful interference with another's rights as a trader, that will constitute
an injuria for which the Aquilian action will lie, if it has resulted in a quantifiable
loss,2 and interdictory relief may be granted.
241. As was pointed out by the plaintiff in its heads of argument, the moral
underpinning for the action is based on the injunctions that ‘thou shalt not steal’
and ‘thou shalt not reap that which thou hast not sowed’. Two seminal cases that
epitomize such instances are the SA case of Schultz v Butt3 and the English case

2 Cochrane Steel Products (Pty) Ltd v M-Systems Group (Pty) Ltd and Ano 2016 (6) SA 1 (SCA)’; Schultz v Butt
1986 (3) SA 667 (A).
3 Schultz v Butt 1986 (3) SA 667 (A).
63

of Saltman Engineering.4 In Schultz, the locus classicus in SA in regard to the
misappropriation of the product of another person’s efforts , the SCA upheld a
finding by the court a quo that buying a boat and making a copy of the hull thereof
(which had been developed with considerable effort, time and expenditure), so
that a mould could be made from it which could be used to manufacture boats
with ‘substantially identical’ hulls, was wr ongful, and amounted to unfair
competition. In Saltman Engineering the plaintiffs instructed the defendant s to
make tools for the manufacture of leather punches, in accordance with drawings
which they provided. The defendant used the drawings to make tools, and the
tools to make leather punches, for their own account. The Court of Appeal
confirmed the decision of the court a quo that their actions were unlawful and
amounted to a ‘breach of confidence’. In effect (as later occurred in Schultz) by
their actions the defendants were able to dispense with the necessary process of
independent design which the plaintiffs had gone through to arrive at their
drawings, thereby saving themselves a ‘great deal of labour and calculation and
careful draughtsmanship’ at the plaintiffs’ expense.5
242. The plaintiff has characterized this matter as one involving the misappropriation
and misuse of confidential information and trade secrets belonging to it , which
gave rise to two causes of action: unlawful competition and breach of copyright.
243. The misappropriation or misuse of another person’s confidential information and
trade secrets is a well -established specie of the delict of unlawful competition in
our law.6 The test for determining whether the necessary ‘quality of confidenc e’7
is present is one derived from English law. To qualify as confidential or as a trade
secret the information must 1) relate to and be capable of application in trade or
industry 2) be secret or confidential and not public knowledge, in the sense that it
is known only to a restricted group of people and not to the public at large and 3)
be of economic value (in an objective sense) to the plaintiff.8
244. The information need not be novel (as is the requirement in patent law), to be
protected. What will make it confidential is the fact that the source thereof has
‘used his brains’ and has thereby ‘produced a result which can only be produced
by somebody who goes through the same process’.9 Thus, the fact that a product
has been manufactured from materials which are in the public domain does not

4 Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 R.P .C. 203.
5 Id at 215.
6 Pexmart CC and Others v H Mocke Construction (Pty) Ltd and Ano 2019 (3) SA 117 (SCA) para 63.
7 Saltman n 4 at 215.
8 Pexmart n 6 para 64.
9 Saltman n 4 at 215.
64

mean that the process by which it was made will not be confidential, for
‘something new and confidential may have been brought into being by the
application of the skill and ingenuity of the human brain’ to it.10
245. Examples of processes that have been considered protectable as trade secrets
(information pertaining to which was consequently held to be confidential), include
1) a plastic pipe-lining process11 2) an acrylic tile-coating process12 3) a process
for removing waste produced by mining operations 13 and 4) a heat treatment
process capable of heating a variety of objects, whether bent, moulded or cast,
which was developed as a result of experimentation and the expenditure of time
and money over 22 years.14 Although the principle of the (‘top hat’) furnace which
produced the heat was not new, and the ‘tape controllers, high velocity burners
and ceramic fibres’ used by the plaintiff were generally available on the open
market, it was the ‘summation’ of those parts, coupled with the design features
such as ‘take-off flues, locating devices and chromite sealant ’, which made it
unique.
246. As far as employees are concerned, for the principles to apply there need not be
a contractual agreement imposing an obligation of confidentiality on them. Such
a term may, in appropriate circumstances, be read as implied in their contract of
service. In Coolair 15 Marais J pointed out that this may be the case in respect of
confidential information th ey become privy to , such as an employer’s trade
secrets pertaining to a method of production which is not
247. protected by a patent, which would be potentially damaging if a competitor should
obtain it. The potential or actual usefulness of the information to a rival will be an
important consideration in determining whether it is confidential or not. It is well-
established in our law that it is unlawful for a servant to take their employer's
confidential information or trade secrets and use them to compete against them.16
248. While an ex-employee may apply the ir ‘general’ skills and knowledge of a
particular trade or industry elsewhere, the ir former employer is entitled to the
maintenance and protection of his trade secrets and confidential information
against misappropriation. The SCA has recognized 17 that it may be difficult, in
certain circumstances, to draw a ‘dividing line’ between the use by an employee

10 Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47.
11 Pexmart n 6.
12 Harvey Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd and Ano 1977 (1) SA 316 (T).
13 Waste Products Utilisation (Pty) Ltd v Wilkes & Ano 2003 (2) SA 515 (W),
14 Harchris Heat Treatment (Pty) Ltd v Iscor 1983 (1) SA 548 (T).
15 Coolair Ventilator Co. (SA) (Pty) Ltd. v Liebenberg and Ano 1967 (1) SA 686 (W) at p 689, 691B.
16 Easyfind International (SA) (Pty) Ltd v Instaplan Holdings 1983 (3) SA 917 (W) at 927.
17 Automotive Tooling Systems (Pty) Ltd v Wilkens and Others 2007 (2) SA 271 (SCA) para 10.
65

of his own skill, knowledge and experience , which he cannot be restrained from
using, and the use of his employer’s trade secrets or confidential information , or
other interests, which he may not use or disclose.
249. In some jurisdiction such as the USA and Australia a distinction is made between
an employee’s ‘general knowledge, experience, skill and memory’, which may be
used, and the ‘special knowledge’ they obtained at their previous employment
‘which a man of ordinary intelligence and honesty would regard as the property
of their former employer’,18 which they may not, whilst in English law a distinction
is made between an employee’s general stock of knowledge and their ex -
employer’s confidential information and trade secrets.
250. In our law the courts19 have opted for a flexible approach,20 which involves a value
judgment which is to be made as to whether the use of the information by the ex-
employee is justified despite its confidential nature . This involves a careful
weighing-up of the conflicting interests of the employer and the ex-employee,
against the criteria of reasonableness and the boni mores, in the light of all the
relevant circumstances of the case.
B) Ad copyright
251. Copyright is currently regulated by the Copyright Act of 1978 (‘the Act’).21 It
provides22 that certain ‘original’, defined ‘works’ will be eligible for copyright
protection. Included amongst these are literary, musical and ‘artistic’ works. 23 To
qualify as ‘original’, within the meaning contemplated in the Act, the works must
have been produced by means of ‘original skill and labour’ i.e. they must not have
been copied from another work.24 Originality does not require ‘inventiveness’ i.e.
the works do not have to constitute an invention.
252. Each of the various species of protected works is defined in the Act. ‘Artistic’ works
include (a)paintings, sculptures, ‘drawings’, engravings and photographs (b)
works of architecture 25 and (c) ‘works of craftmanship’ that do not fall within either
of the previous subcategories; irrespective of their artistic quality.26 Drawings are

18 Ansell Rubber Co (Pty) Ltd v Allied Rubber Industries (Pty) Ltd 1972 RPC 811 at 815.
19 Motion Transfer & Precision Roll Grinding CC v Carsten & Ano [1998] 4 All SA 168 (N) at 176.
20 As advocated by Van Heerden & Neethling Unlawful Competition, 2nd Ed.
21 Act 98 of 1978.
22 Section 2(1).
23 Sections 2(1)(a)-(c).
24 Topka t/a Topring Manufacturing & Engineering v Ehrenberg Engineering (Pty) Ltd 71 JOC (A) at 74. In terms
of s 2(3) a work may enjoy copyright protection and may qualify as original even if its making involved the
infringement of copyright in some other work, such as in instances where parts of it have been copied from
other work, but it also contains original material. A second version or edition of a work will also be entitled to
its own copyright provided it differs in substance from the first i.e. is not a mere copy.
25 Being either buildings or models of buildings.
26 Section 1.
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defined to include any drawing of a ‘technical nature’ or any diagram, map, chart
or plan. Thus, the technical drawings in issue in this matter qualify as artistic
works.
253. As for ‘works of craftmanship’, our courts have recognized the following as such:
the hull of a boat,27 the mould from which a toilet pan was made, 28 the prototype
of an exhaust silencer,29 a valve,30 and a wooden model of a kitchen appliance.31
In Bress Designs 32 a ‘work of craftmanship’ was described as one which is
produced by a craftsman i.e. ‘one who practises a handicraft that is a manual skill,
a manual art of trade or occupation….all works of craftmanship require a basic
technical skill and know-how in their creation. ‘
254. Ordinarily, ownership of copyright vests in the ‘author’ (or, in the case of a work
of joint authorship in the ‘co -authors’) of the work.33 The ‘author’ in relation to an
artistic work is the person who ‘first makes or creates’ the work. However, where
a work is made in the course of the author's employment by another person under
a contract of service, that ‘other person’ i.e. the employer will be the owner of any
copyright which subsists in the work.34 Copyright may be transmitted as ‘movable
property’ by assignment, testamentary disposition or operation of law. 35 An
assignment shall not have effect unless it is in writing which is signed by or on
behalf of the assignor,36 and may be complete or limited, so as to apply to ‘some
only’ (sic) of the acts which the owner of the copyright has the exclusive right to
control, or to a part only of the term of the copyright, or to a specified country or
other geographical area.37
255. Several presumptions and evidentiary aids apply in establishing authorship and
ownership of copyright. Thus, where in the case of an artistic work a name
purporting to be that of the author i.e. the maker thereof appeared on the work
when it was made (as would commonly be the case in technical drawings) , the
person whose name so appeared shall in any proceedings which are brought in

27 Schultz n 3.
28 EID Parry (India) Ltd v Vaal Sanitaryware (Pty) Ltd 728 JOC (T).
29 Bosal Afrika (Pty) Ltd v Grapnel (Pty) Ltd and Ano 1985 (4) SA 882 (C).
30 Insamcor (Pty) Ltd v Machinenfabriek Sidler Stalder AG t/a Sistag and Ano 1987 (4) SA 660 (W).
31 Kambrook Distributing v Haz Products and Ors 243 JOC (W). Prior to the amendment of the Act in 1992
‘works of craftmanship’ were qualified and limited to ‘artistic’ such works and those of a ‘technical nature’ .
Following the decision in Bress Designs (Pty) Ltd v GY Lounge Suite Manufacturers (Pty) Ltd & Ano 1991 (2)
SA 455 (W), these qualifications were removed, broadening the class of such works.
32 Id at 468B.
33 Section 21(1)(a).
34 Section 21(1)(d).
35 Section 22(1).
36 Section 22(3)
37 Section 22(2).
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terms of the Act be presumed, unless the contrary is proved, to be the author of
the work.38 Where in any proceedings brought in respect of an artistic work it is
proved or admitted that the author of the work is dead, the work shall be presumed
to be an original work unless the contrary is proved.39
256. The holder of copyright in an artistic work (and thus also in a work of craftmanship)
has the exclusive right to ‘reproduce the work in any manner or form’ 40 and to
make an ‘adaptation’ of the work.41 Copyright is infringed by any person, not being
the owner of the copyright, who, without the licence of such owner, does or causes
any other person to do, in the Republic, any act which the owner has the exclusive
right to do or to authorize.42
257. Reproduction in relation to an artistic work is defined in the Act as including
making a ‘version’ which is produced by converting the protected work into a
three-dimensional form, or if it is in three dimensions, by converting it into a two -
dimensional form. Given that technical drawings constitute artistic works,
reproducing what is depicted on them into a three -dimensional object, will
therefore constitute a breach of copyright.43 Thus, in Klep Valves44 it was held that
making valves which copied those of a competitor, constituted an infringement of
the copyright which vested in the competitor’s drawings, from which its valves
were made.
258. As far as making an adaptation of an artistic work is concerned, this is defined as
including a ‘transformation’ of the work in such a manner that ‘the original or
substantial features’ of it ‘remain recognizable’.
259. What constitutes a reproduction, for the purposes of the Act, has been the subject
of several cases. It was confirmed in Jacana Education45 that it does not mean
there has to be an ‘exact replication’:
‘Reproduction does not mean exact replication. A man may use another’s work as an inspiration
to make a new work of his own, treating the same theme in his own manner; but he is not entitled
to steal its essential features and substance and retain them with minor and inconsequential
alterations. The question is whether there is such a degree of similarity between the salient
features of the two works that the one can be said to be a reproduction of the other. In considering
whether a substantial part of the plaintiffs’ work has been reproduced by the defendant, attention

38 Section 26(1).
39 Section 26(4).
40 Section 7(a).
41 Section 7(e).
42 Section 23(1).
43 Marick Wholesalers (Pty) Ltd v Hallmark Hemdon (Pty) Ltd 1999 BIP 394 (T) at 409 – 410.
44 Klep Valves (Pty) Ltd v Saunders Valve Co Ltd 1987 (2) SA 1 (A).
45 Jacana Education (Pty) Ltd v Frandsen Publishers (Pty) Ltd 1998 (2) SA 965 (SCA) at 972g, citing
Spectravest Inc v Aperknit Ltd [1988] FSR 161 at 170.
68

must primarily be directed to the part which is said to have been reproduced, and not to those
parts which have not’.
260. In Creative Technology46 it was held that what must be shown is that there is
‘sufficient objective similarity’ between the alleged infringing work and the original
work, or a ‘substantial’ part thereof, for the former to be properly described, not
necessarily as being identical to, but as a reproduction or copy of the latter; and
that the original work was the source from which the alleged infringing work was
derived i.e. that there is a causal connection between the original work and the
alleged infringing work. Substantiality is a matter of quality, rather than quantity.47
The question is whether there is such a degree of similarity between the salient
features of the two works that the one can be said to be a reproduction of the
other.48 Where a ‘sufficient resemblance’ is shown between the two works, the
court may draw an inference of access and of copying. 49 The absence of a
reasonable explanation from the defendant may be a compelling indicator of an
infringement.50
261. In terms of s 26(12)(a)(i )-(ii), in any proceedings relating to the alleged
infringement of copyright in a work, evidence to prove the subsistence of the
copyright in that work and/or the title of any person in respect of such copyright,
whether by way of ownership or licence, may be adduced by way of affidavit, and
the mere production of such affidavit in such proceedings shall be prima facie
proof of the relevant facts contained therein. As is evident from what has been set
out above, the plaintiff filed a series of such s 26(12) affidavits in this matter.51
262. In an action for infringement of copyright a variety of remedies and relief may be
granted including damages, an interdict and delivery of infringing copies or ‘plates’
that were made or used (or that are intended to be used ) for infringing copies or
otherwise. A ‘plate’ is defined as including any ‘stereotype, block, mould, matrix,
record, disc or storage medium’ or any ‘version of a work of whatsoever nature’
that is or was used to make infringing copies. 52 Thus, the Act envisages that an
order may be made that the defendant deliver up the machinery and/or device by

46 Creative Technology Ltd v. Aztech Systems PTE Ltd [1997] FSR 491.
47 Galago Publishers (Pty) Ltd & Ano v Erasmus 1989 (1) SA 276 (A) at 285; Biotech Laboratories (Pty) Ltd v
Beecham Group Plc & Ano 2002 (4) SA 249 (SCA) para 9.
48 Jacana n 45.
49 Creative Technology n 46.
50 Id. Marick Wholesalers n 43 at 409 – 410.
51 Section 26(12)(b) provides that the court before which an affidavit referred to in paragraph (a) is produced,
may in its discretion order the person who made it to be subpoenaed to give oral evidence in the
proceedings in question, or may cause written interrogatories to be submitted to such person for reply, and
any reply purporting to be a reply from such person, shall likewise be admissible in evidence in such
proceedings.
52 Section 24(1).
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which it makes, or has made, infringing copies of the works concerned. In lieu of
damages the plaintiff may, at his or her option, be awarded an amount calculated
on the basis of a reasonable royalty which would have been payable by a licensee
in respect of the work or type of work concerned. 53 For the purposes of
determining the amount of damages or a reasonable royalty which is to be
awarded, the court may direct an enquiry to be held and may prescribe such
procedures for conducting such enquiry as it considers necessary.54
263. Where an infringement of copyright is proved or admitted, and the court is
satisfied (after having regard, in addition to all other material considerations, to
the flagrancy of the infringement and any benefit which is shown to have accrued
to the defendant by reason thereof), that effective relief would not otherwise be
available to the plaintiff, it shall in assessing damages for the infringement have
the power to award such additional damages as it may deem fit.55
The law applied: an assessment
A) The defendants’ case
264. Before arriving at an application of the law to the facts which were established in
evidence, it is necessary to refer briefly to the case which the defendants put up
in their plea (as amended) and to comment briefly on the witnesses.
265. As far as the defendants’ plea is concerned, the following. As to the allegation that
they had competed unlawfully with the plaintiff, by misappropriating the plaintiff’s
confidential information and trade secrets to set up a manufacturing plant which
copied that of the plaintiff, t he defendants denied that they had conducted
themselves in a manner which was unlawful.
266. In amplification of their denial they alleged that feed chain was a ‘generic product’
and ‘details’ of the plaintiff’s production process for the manufacture thereof
(including the layout of its plant and its component parts and particulars pertaining
to its setup and operation) were equally ‘generic’, and at all times relevant to the
proceedings, ‘information’ pertaining to the application of such processes was in
the ‘public domain’.
267. They admitted that the 2 nd defendant was employed by the plaintiff as a plant
engineer between 2001 and 2009, and that during that time he was under an
obligation to keep the plaintiff’s confidential information which he may have been
privy to, confidential, but averred that this duty did not continue after he terminated
his employment. The y claimed t hat he was at liberty , thereafter, to use his

53 Section 24(1A).
54 Section 21(1B).
55 Section 24(3)(a)-(c).
70

knowledge of the plaintiff’s confidential information pertaining to its manufacturing
processes and the design and operation of various items of plant with which he
had become ‘intimately acquainted’, for his ‘own gain’, to the extent that 1) such
knowledge was inseparable from and part of his ‘general stock’ of knowledge
gained in the exercise of his trade or profession, and 2) it was justified, having
regard to the competing interests of the parties and 2nd defendant’s constitutional
rights in terms of ss 10 and 22 of the Constitution and ‘right to benefit’ (sic) from
the experience he gained in the course of carrying out his trade or profession.
268. The defendants admitted that 2 nd defendant disclosed information pertaining to
the plaintiff’s manufacturing process to the other defendants from 2015 onwards,
from which date they manufactured and sold feed chain in competition with the
plaintiff, by means of a manufacturing process which was ‘similar’ to that used by
the plaintiff i.e by using items of plant, machinery and tooling which are ‘similar’
to those used by the plaintiff. The defendants denied however that the information
which 2nd defendant disclosed was ‘in truth’ confidential ‘in the sense understood
in law’ (sic). In the alternative, they averred that if it was confidential 2nd defendant
was entitled to act as he did as the information was not separable from his general
body of knowledge and expertise gained in the course of his ‘studies’ and in the
exercise of his trade or profession. In the further alternative, they averred that his
conduct in appropriating such knowledge and disclosing it was justified , having
regard to the competing interests of the parties and 2nd defendant’s constitutional
rights.
269. As regards the allegation that the defendants breached the plaintiff’s copyright
and the detailed averments which were made in support thereof, this was simply
denied in bald and general terms. The defendants contented themselves with
pleading, in the alternative, that if it was found that any of the their machinery or
component parts thereof, or drawings, constituted reproductions of any works in
respect of which copyright vested in the plaintiff, they were works which
comprised articles which primarily ha d a utilitarian purpose and were made by
way of an industrial process, as envisaged in s 15(3A)(c)(ii) of the Copyright act,
and three-dimensional reproductions thereof were made available to the public
by or with consent of the owner of the copyright , and hence the defendants’
reproduction thereof did not constitute an infringement of copyright. Thus, the
defendants denied they were liable for any damages either on the basis of a loss
of profit or as royalties.
270. As will be evident from the summary of the evidence, during the trial the
defendants raised several other defences which had not been expressly pleaded
71

and which at times were mutually contradictory. Thus, whilst they admitted that
many of the components of their production processes were substantially similar,
if not identical to that of the plaintiff, at one and the same time they sought to
distinguish them on the basis of a myriad of minor, non-functional differences (i.e.
differences in regard to their size, measurement, dimensions or appearance), with
a view to contending that they were not an exact copy or identical replica of the
plaintiff’s compone nts. At times these contesting defences were raised in
schizophrenic fashion. In other instances, where they were confronted with an
evident exactness or a substantial similarity or identity, they contended that this
was an inevitable outcome of the end product and the fact that ‘form followed
function’. Thus, they contended that inasmuch as any chain which was produced
by any manufacturer in the world had to match and be compatible with that which
was produced by the pioneer manufacturer McCauley in Ohio since 1950, in order
to run in a standardized, mechanised poultry feeding system , it was inevitable
that the manufacturing process and equipment which was used to produce it
would be set up in a largely uniform and substantially similar fashion by
competing manufacturers and would be substantially similar in material respects.
B) The witnesses
271. As far as the witnesses are concerned , given the nature and extent of the
concessions that were made in evidence by the defendants ’ witnesses and the
extent to which much of the material facts became common cause, it is not
necessary to comment in any great detail. The plaintiff’s principal witnesses i.e.
TK, NTB and AJS gave their evidence in a frank and consistent manner and did
not contradict themselves materially during cross -examination. Whilst
opportunistic attempts were made to assail TK’s credibili ty on minor aspects, he
withstood these, despite being in the witness box for many days. Two aspects of
his testimony require mention. In the first place, it was evident that he was
extremely angry with the defendants and at times he displayed an openly hostile
demeanour towards them. Given that he perceived them as having wrongfully
stolen the fruits of years of his labour, effort and expense in developing and
refining his manufacturing process, his attitude was understandable. In my view
it did not impact materially on his credibility , in any way . Notwithstanding his
animus towards the defendants, he did not allow it to influence him to the extent
that it caused him to him be untruthful or dishonest regarding any material issue.
The second aspect that bears mention is that during a tea adjournment, and whilst
FDB was under cross-examination, TK apparently passed him a note in which he
adjured him to answer negatively to a question that had been posed to him. The
72

note was brought to my attention by the plaintiff’s counsel immediately when
proceedings resumed and was accompanied by an acknowledgement that what
he had done was inappropriate, for which he apologised. He was clearly repentant
and embarrassed, and it was evident that it was no more than a rash and
impulsive act which had been occasioned by the anger that he felt towards the
defendants and his perception that they were dragging out the proceedings
unnecessarily. Nothing more was made of this by the defendants, and it was not
suggested at the time , or at any subsequent stage thereafter (including during
argument), that this act caused F DB to give evidence that was untruthful in any
way, or that it diverted him from the views he expressed in the witness box , in
confirmation of those he expressed in his expert report. If anything , the central
tenor of FDB’s evidence was confirmed by some of the defendant’s own
witnesses such as Bowles and prof Mostert. It was also not suggested that TK’s
evidence was to be diminished in any way, by this act. As for the remainder of the
plaintiff’s witnesses, other than to say they were satisfactory and truthful, there is
no cause or need to comment.
272. As for the defendants ’ witnesses the following. Both Bowles and Feltham came
across as attempting to justify the defendant’s actions rather than as independent
experts who were willing to assist the court in as fair, objective and truthful a
manner, as is expected of expert witnesses. Having not seen any other feed chain
manufacturing plants, other than those of the plaintiff and the defendant, Bowles’
central and abiding assertion that there was always going to be an inevitable,
substantial similarity in the process of competing manufacturers making feed
chain, was questionable. The weight of the evidence , on both sides , is against
him. In this regard Jan Marias testified that when he was asked to produce a
progression strip using AutoForm, it differed materially in its progression from that
of the plaintiff, and prof Mostert testified that students who were required to do an
assignment pertaining to the manufacture of feed chain came up with a
manufacturing model which was different to that followed by the plaintiff and the
defendant in that it envisaged that the heat treatment, both in respect of hardening
and tempering, would be carried out in a single, continuous phase in an oven
which could do both induction heating and tempering . And 2nd defendant gave
evidence pertaining to the VDL progression which indicated that it also does not
follow the progression adopted by the plaintiff, where the link is cut from the strip
before it is formed, rather than after. The weight of the evidence thus clearly
showed there was no necessary inevitability, in form or function, pertaining to the
manufacturing process. In addition , the fundamental difficulty with Bowles’
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evidence is that it was predicated on the understanding that to qualify as a copy,
a work or component had to be an exact (100%) replica of the original, and to this
end he sought to point to a myriad of minor, non -functional differences between
the parties’ respective components with a view to distinguishing them as being
materially different from one another. But as is evident from the exposition of what
constitutes a reproduction in copyright law, an infringing work does not have to be
an exact copy i.e. an identical replica, and all that is required is that it is
substantially identical or similar to the original.
273. As for Feltham, as is evident from the summary of his evidence there were several
unsatisfactory features in it, for example, where he sought , unsuccessfully, to
distinguish the A3-921 strip progression drawing which the 2nd defendant made
and sent him, from both the plaintiff’s strip progression and the defendants’ one,
and contended that they were wholly different from one another, when they clearly
and obviously were substantially similar and the differences between them were
likewise not material, functional differences. So too, where he sought to assert
that the plaintiff’s progression strip (on which the A3-921 strip was modelled), had
played no real part in his design of the defendants’ progression strip. There were
also other instances where he seemed to be setting out his evidence in a manner
and line that would fit in with the defendant’s case.
274. As for the 2nd defendant, as is evident from the exposition of his evidence, he was
a most unsatisfactory witness. He was evasive, obfuscat ory and disingenuous
and at times clearly untruthful. He came across as wholly expedient and cynical.
C) The findings
275. It is time finally, to arrive at an assessment of the evidence in the light of the legal
principles which are set out above. In relation to the claim for unlawful competition
it is clear from the evidence (if not common cause given the defendants ’
admissions in this regard) , that whilst the manufacturing of feed chain from
stainless steel strips using a progression press and heat treatment consisting of
induction heating and tempering, based on established engineering principles ,
are in general terms processes which are in the public domain, the plaintiff’s setup
and application of these processes is not and is confidential, unique and particular
to it. Given the turnover generated by the plaintiff and the position it has achieved
in the global market, utilizing these processes, they have obvious and significant
economic value to it. The processes which the plaintiff uses to make its feed chain
are the result of more than 20 years plus of experimentation and the expenditure
of considerable skill, effort and money. There is no suggestion that the 2 nd
defendant played any material part in this endeavour, and when it commenced he
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was still a child. By the time he was taken into the plaintiff’s employ it was already
producing feed chain utilising the processes it had developed , and these were
simply refined during the years that he worked for the plaintiff. There is no
indication that he played any material role in the process of refinement and
development.
276. Information pertaining to these processes, including the specific ‘recipes’ and
‘solutions’ (as the plaintiff called them) that were developed and applied to them,
constituted valuable trade secrets in the hands of the plaintiff and g ave it a
competitive edge and advantage in the market. Having regard for the nature of
such information, the economic and competitive value thereof to the plaintiff, the
limited (if not negligible) nature of the 2 nd defendant’s involvement in the
development and refinement of the processes concerned , the boni mores of
society and the dictates of fairness and reasonableness , such information was
clearly not information which 2 nd defendant as an ex-employee was entitled to
impart or disclose to others, nor was he entitled to appropriate it for his own use
in competition with the plaintiff.
277. As for the 2nd defendant’s purported reliance on the constitutional rights set out in
ss 10 and 22 of the Constitution, neither of these sections grant a licence to an
ex-employee to steal or misappropriate valuable confidential information and
trade secrets of his employer (on which the heart of his enterprise has been built
over many years), and a right to use them. In the circumstances, in setting up a
competing plant utilising this confidential information to replicate the plaintiff’s
confidential processes the defendants acted unlawfully. In regard to the cynical
claim that the plaintiff’s linking part and its induction and termper ovens and
bobbins were in the public domain, the following. It is clear from the confidentiality
agreements or regime which the plaintiff imposed on those who w orked on its
parts and processes, that at all times it considered information pertaining thereto
to be confidential to it and it did not want such information to become public, for
that would open the field to replication by competitors and destroy the competitive
advantage which it had carefully built up over many years of painstaking
development and refinement. The publication of a photograph of part 2002 by TD
Coating on its website clearly occurred without the plaintiff’s knowledge, and
certainly not with its consent. When it became aware of this it protested and the
photograph was immediately removed. There is no indication that the publication
of this photograph became public knowledge in the sense that it became known
to the industry in which the plaintiff operated , either as a whole, or to any of its
members, suppliers or employees, or to any of its competitors other than the 2 nd
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defendant, who, as has been pointed out had stolen its confidential information
and trade secrets and was setting up in unlawful competition with it. In the
circumstances to say that the 2nd defendant was allowed to appropriate the image
of the plaintiff’s linking part and to use it to reproduce the plaintiff’s part, would be
outrageous, and goes against the cardinal principle of fairness which underpins
the legal principles pertaining to what constitutes lawful competition. Regarding
the photographs of the plaintiff’s temper ovens, which Thermopower placed on its
Facebook page, the Oldnalls were at pains to point out that they ensured that
they did not show the ir inside workings and configuration, but only their outside,
as they did not want the public to have access and insight into the plaintiff’s
confidential processes. Insofar as the bobbins are concerned the suggestion that
because they sometimes lay outside the plaintiff’s factory or could be seen by
passersby, and thus they were also in the public do main, is equally cynical. No
evidence was tendered to suggest that anyone in the industry, or any other
competitor became aware of this, or that this was the basis on which the design
and configuration of the plaintiff’s bobbin became that of the defendants. As in the
case of the other components which the defendants reproduced, they replicated
those of the plaintiff because the 2 nd defendant knew how they looked and
purposefully decided to copy them. After all, as he (and his witnesses) put it so
often during the trial, there was ‘no need to reinvent the wheel’(sic).
278. As to the claim in copyright, on the strength of the various decisions referred to
above the works by means of which the plaintiff developed its progression to ol
and its linking part/component in particular, its induction heating and tempering
process (including its inner isolator and m oulds, soaking/susceptor pipe) and
furnaces (including induction coils and temper ovens), as well as its bobbins,
coilers/decoilers, sprocket assembly and ‘hakie’, were works of craftsmanship.
They were works made by individual craftsmen such as A JS and engineering
firms such as Erosion Technology, Schuurman Engineering and TD Coating,
using original, specialist technical skill and know -how. These works and the
drawings in respect of which plaintiff sought copyright protection were identified
and listed in annexures POC 2.1 -2.2 to the particulars of claim and in plaintiff’s
rule 21 response of 6 July 2020. They were also set out in annexures to the draft
order which has been proposed, and it is accordingly unnecessary to recite them
in detail. They will be included in annexures to the order that will be made.
279. As to originality, the makers of the works of craftsmanship and the authors of the
drawings, some of whom were experienced draughtsmen, gave extensive
evidence as to the skill, effort, technical know-how and expertise they employed
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in producing them. None of the works, including the drawings, were copied from
the works or drawings of any other parties or persons and were original.
280. As to the authorship of these works and drawings and the vesting of copyright
therein, this was set out in the viva voce evidence and the s 26(12) affidavits, and
it is similarly not necessary to recite chapter and verse thereof. In terms of the
presumption in s 26(1) the persons whose names appeared as the makers of the
drawings in the t itle blocks on them , are presumed to be their authors and n o
evidence rebutting this presumption was led by the defendants. The authors of
each of the technical drawings (including the adaptations that were made thereto)
were identified and listed in the table of works which were supplied as well as in
annexure POC 2.1 to the particulars of claim. Several of the authors of the
drawings, including Gaffie le Roux, Johann Strauss ,56 Johan Erasmus and 2nd
defendant, were employed by the plaintiff. As such, copyright in the drawings they
produced, vested in the plaintiff. Those who were not, including AJS (and his close
corporation BTM Engineering CC), NTB (and his close corporation NTB Technical
Services CC) and Erosion Technology CC, Schuurman Engineering CC and
Thermopower (Pty) Ltd, assigned their copyright in the drawings and /or works
they produced, to the plaintiff.
281. As s ome of the assignments were made after summons was issued the
defendants contended that the plaintiff had not shown that it was the owner of
copyright in the works that were produced by the assignors, as an assignment of
copyright can only operate ex nunc and not ex tunc. The plaintiff contends that
the defendants have misconceived the legal position, and the issue is one that ,
properly categorized, goes to the plaintiff’s standing, and not to the validity of the
cessions. It submits that in any event, even if the assignments only operate ex
nunc, at the time when the court is required to pronounce on the matter the plaintiff
is the owner and holder of copyright in the works in question , as they were
assigned i.e. ceded to it. It accordingly has the right, title and standing to seek the
enforcement of the copyright. It refers to the decisions in 3 matters, in support of
its contentions. In Pleasure Foods 57 the court rejected an objection to the
applicant’s locus standi that the assignment of a trademark was ineffective as it
was made retroactive, to a date before the applicant came into existence and the
application was instituted. In Pangbourne Properties 58 the South Gauteng Court

56 As Strauss passed away while in the employ of the plaintiff, the presumption in section 26(4) of the Act
applies.
57 Pleasure Foods (Pty) Ltd v TMI Foods CC 2000 (4) SA 181 (T).
58 Pangbourne Properties Ltd v Your Life (Pty) Ltd 2013 JDR 2220 (GSJ).
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upheld the claim of a plaintiff who se right to claim was only ceded to it after its
action had been instituted and in Aussenkehr Farms 59 the SCA upheld the claim
of a plaintiff to whom the right to claim payment from the defendant had been (re-
)ceded only after the action was instituted.
282. As to infringement, as is apparent f rom what is set out above, and by way of
summary, the central issue that requires determination is whether the defendants
have wrongfully ‘reproduced or adapted ’ the plaintiff’s protected works of
craftmanship and drawings. In terms of s 7 of the Act direct infringement occurs
when a protected work is reproduced ‘in any manner or form’, and in terms of the
definitions section a ‘reproduction’ of a work of craftmanship or a drawing includes
making a version by converting the ‘work’ or drawing into a three -dimensional
form, or, if it is in three dimensions, by converting it into a two -dimensional form.
In terms of the case law, to constitute a reproduction in terms of copyright the test
is not whether the infringing work is an ‘exact replication’ i.e. identical, but whether
objectively there is ‘such a degree of similarity between the salient features of the
two works that the one can be said to be a reproduction of the other’. In
determining whether what the defendants have done was impermissible one must
determine whether that which wa s produced by them amounts to a
misappropriation of the ‘essential features and substance’ of the plaintiff’s work,
with ‘minor and inconsequential’ alterations or additions thereto.
283. In my view, on a careful consideration of the detailed evidence which was given
in this regard by all the witnesses (particularly but not only NTB), and a n
examination of the parties’ respective linking parts and the photographic and
video evidence which was submitted as to both this part a nd the various other
components and parts referred to, the plaintiff has succeeded, overwhelmingly, in
showing that this is what the defendants did: they copied the essential features of
the plaintiff’s parts and components, added certain non-material aspects to them
and/o removed or altered others, to produce theirs. In short, they reproduced
every material aspect of the works in which the plaintiff enjoyed copyright , and
that accounts for the substantial similarity in the parties’ works. Even if it could be
suggested that wha t they did only constituted an adaptation of the plaintiff’s
works, it nonetheless constituted an infringement, as the ‘original’ and ‘substantial’
features of the plaintiff’s works ‘remain recognizable’ in the work they produced.
The infringements were not only in three -dimensional form, but also two -
dimensional, if one has regard inter alia for the A3 -921 and Arsamkar strip

59 Aussenkehr Farms (Pty) Ltd v Trio Transport CC 2002 (4) SA 483 (SCA).
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progression drawings which were prepared by the 2nd defendant and the drawing
of the plaintiff’s linking part 2002, which 2nd defendant provided to MTD, to enable
it to produce a workable version for the defendants. In this regard, reference must
also be made to the detailed comparison which NTB made of the plaintiff’s
drawing of its linking part 2002 (revision 9), with the defendants’ drawing of its
linking part 128 (revision 11), which clearly demonstrated the infringement by the
defendants of the plaintiff’s drawing for part 2002.
284. Lastly, as for the s 15(3A) defence which was raised in the plea, it does not avail
the defendants and was not persisted with in argument . The defence is only
available in instances where three-dimensional articles have been made available
by the copyright owner, to the public, by or with its consent.
D) The relief sought
285. As to the remedies which the plaintiff seeks and to which it is entitled, considering
the findings that I have arrived at, the following. The plaintiff is entitled, firstly, to
an order allowing it to amend its particulars of claim as per its application of 13
May 2022 (to bring the pleadings in line with the evidence pertaining to the
assignment of copyright by AJS and BTM Engineering CC) and the defendants
should pay for the costs thereof.
286. As far as the principal relief which is sought is concerned the plaintiff is entitled to
be granted interdictory relief60 in the terms proposed by it in the draft order, which
will restrain the defendants from infringing its copyright and its confidential
information and trade secrets inter alia by using its current infringing
parts/components for the manufacture of feed chain and by making available,
disclosing or transmitting the plaintiff’s confidential information and trade secrets
to 3rd parties. Given that, by their own admission the defendants have not abided
by the prior interdictory orders which were granted by this court in relation to the
auger matter, to safeguard the plaintiff from any future breach of copyright and its
right to the integrity and protection of its confidential information and trade secrets,
the terms of the interdictory relief which is to be granted should include an order
that the defendants shall not recommence the process of manufacturing ,
marketing and selling feed chain or feed chain equipment, unless they do so by
means of an independently designed and manufactured facility, utilising original

60 No case was made out for an interdict that should be of limited duration. Having regard for the length of
time which the plaintiff took to develop its processes, which stretched over 20 years plus, and having regard
for the fact that any competitor who is desirous of setting up a feed manufacturing facility independently, by
means of its own, original effort and design, would probably also take several years to do so there is, in my
view, no warrant for making an order of limited duration vide Purple Surgical International Ltd v Medivators
(Pty) Ltd 2019 JDR 0782 (GP).
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skill, labour and thought, after prior notification thereof to the plaintiff , so that it
can inspect the plant, equipment and/or components which are to be used therein
as well as the drawings for it, which will depict their designs.
287. In the 2nd place, as provided for in terms of the Copyright Act, an order must be
made for the delivery up of the infringing parts and components, together with any
infringing drawings (in hardcopy or electronic format). In order to ensure that there
is no overreach in the process of seizure and to ensure that the execution of the
delivery up order does not breach the defendant’s rights, the order proposes that
a report is to be prepared as to what is seized, which is to be provided to the
parties for their consideration, before the destruction of any of the items that have
been seized.
288. Thirdly, an order is to be granted declaring that the plaintiff has suffered damages
(the nature, quantum and extent of which is to be determined at a separate
enquiry), as a result of the misappropriation and misuse of the plaintiff’s
confidential information and trade secrets and breach of its copyright. To expedite
the quantum stage of the proceedings i.e. the enquiry into the award of damages,
the plaintiff proposes that an order should be made at this stage, directing the
defendants to make discovery of certain listed documents, in accordance with the
provisions of rule 35 (2). As previously pointed out the Copyright Act provides that
in dealing with an enquiry into damages the court may adopt such procedures as
it considers to be fit and appropriate. Whilst in conventional proceedings it would
be somewhat unusual to make an order of such a nature at this stage (given that
the pleadings in re spect of the quantum stage have still to be filed) , given the
length of time that it has taken the plaintiff to ge t to this stage of the action and
the nature of the documents which are sought, which relate to the
earnings/proceeds unlawfully derived by the defendant s from the manufacture
and sale of feed chain in unlawful competition with the plaintiff and in breach of
the plaintiff’s copyright and right to confidential information and trade secrets, and
with a view to avoiding further unnecessary delay, in my view making such an
order would be appropriate and will not cause any harm or prejudice to the
defendant. As the plaintiff points out there is precedent for making such an order
in intellectual property dispute cases. 61As the plaintiff further points out such an
order is necessary in order to assist it in properly quantifying the extent of the

61 In Red Diamond Holdings Sarl v Eye of the Storm 2 (Pty) Ltd [2020] 1 All SA 829 (GJ).208, which concerned
trade mark infringement, the court directed the respondent to make discovery (within 60 days of the grant of
the order) of a range of documents including inter alia an inventory of apparel bearing the relevant trade
mark, and a complete and detailed list, accompanied by invoices, of all sales made and orders placed and
copies of all invoices issued.
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unlawful gain derived by the defendants from their unlawful competition and
breach of copyright, at the expense of the plaintiff. This is an aspect which touches
fundamentally on the quantum of any damages which are to be awarded, and in
my view the defendants would be required to produce such documents in any
event, in due course. As is the case in any invocation of the provisions of rule 35,
the defendant has the right to contest the production of any of the documents
sought, if it can make out a case to show that the y are not relevant to the
proceedings and the relief which is sought.
289. Finally, as far as costs are concerned the plaintiff seeks an order directing that
the defendants should be liable for costs on the scale as between attorney and
client. It submits that this is warranted not only because of the defendant’s
conduct but also because this is a matter where the plaintiff should be granted a
full indemnity in respect of the costs it has incurred in vindicating its rights. In
motivating for such an order the plaintiff points out that the defendants have a
long, sustained and cont inued history of breaching the plaintiff’s rights which
extends as far back as 2008 -2009 onwards, which conduct they persisted in
notwithstanding orders made by this court, including the 2015 auger order and
the order made by Mangcu-Lockwood J in 2020, which held that the defendants
had contravened the 2015 order as they were manufacturing and selling auger.
By their own admission the defendants have disregarded the terms of the interim
interdict which was granted by Mangcu -Lockwood J and appear to be actin g in
contempt thereof. In this regard during his evidence 2 nd defendant admitted the
defendants had continued with their conduct, notwithstanding the orders referred
to.
290. The plaintiff points out that after the auger order was granted in 2015 declaring
that they were in unlawful competition with the plaintiff, the defendants
nonetheless deliberately and cynically set about establishing a feed chain
production plant which replicated the plaintiff’s, utilising the plaintiff’s confidential
information and trade secrets and breaching its copyright. Thus, from 2015-2016
onwards the defendants have been competing unlawfully with the plaintiff in the
production of feed chain. Their conduct was brazen and egregious.
291. The plaintiff also pointed out that, from his own evidence and the affidavits he filed
in these and ancillary proceedings, it is apparent that 2nd defendant has been
mendacious and dishonest (a florid example of this was his averment that he
designed the 3rd defendant’s factory ‘from scratch’ and did not copy any of the
plaintiff’s drawings and indeed did not even use them as a ‘design reference’, and
any similarities between the parties’ ‘design solutions’ was ‘purely coincidental’)
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and showed that he had absolutely no scruples in his dealings, and was prepared
to do whatever was necessary and expedient in the pursuit of financial gain, with
complete disregard for the plaintiff’s rights. In my view there is much force in these
submissions and defendants’ egregious conduct, particularly that of the 2 nd
defendant, is such that the plaintiff should be granted a f ull and complete
indemnity for the costs which it has had to incur in having to vindicate its rights.
By the time that the matter came to a conclusion it was evident that there was no
merit in any of the defences which the defendants had sought to raise and the 2nd
defendant had effectively conceded that he had appropriated and misused the
plaintiff’s confidential information and trade secrets, which it had acquired over
two decades of effort and considerable cost. In my view the defendants’ conduct
also merits a punitive costs order as a mark of the court’s displeasure. Both
parties made use of senior counsel assisted by two juniors and given the
complexity of the technical issues involved and the extraordinary breadth of the
issues in dispute, save in respect of the application for leave to amend (which
should cover the costs of two counsel) the order should make provision for costs
incurred upon the employment of 3 counsel.
292. In 2018 the plaintiff made application for an order (under case no. 21151/18) that
the defendants were to desist with the marketing, sale and /or disclosure of the
tooling or equipment they were using for the manufacture of feed chain. The basis
for the application was that the tooling and equipment was a replica of the
plaintiff’s and had been acquired as a result of the misappropriation of the
plaintiff’s confidential information, trade secrets and drawings. The application
was necessitated because of information which came to light which indicated that
the defendants had approached 3 rd parties and/or customers of the plaintiff and
had offered to sell or make available to them such tooling or equipment, and
indications that the shareholding in the 3 rd defendant was possibly going to be
disposed of. Although the defendants opposed the application they acceded to an
interim order, by agreement, in which the relief which wa s sought was granted,
pending the outcome of this action, and the costs were reserved for determination
in this action. The plaintiff contends that i n that application, too, the defendants
were not honest and had they made a full and honest disclosure of the facts which
emerged in this trial, the application would have gone against them on a final
basis. In my view, given that they conceded the relief which was sought, which
effectively amounted to a concession that the tooling and equipment concerned
was a copy, made in unlawful competition and in breach of copyright , as in the
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B. Interdictory and related relief
3. The second, third, fourth and fifth defendants (‘the defendants’) are interdicted and
restrained from infringing the plaintiff’s copyright in the works (including the
drawings) listed on annex A to this order, by: -
3.1. reproducing or adapting , in any manner whatsoever, these works or any
works substantially similar thereto;
3.2. infringing the plaintiff’s copyright in any manner contemplated in section 23(2)
of the Copyright Act, 1978;
3.3. causing, aiding or abetting or being party in any manner whatsoever to, any
infringement as contemplated in the preceding two sub-paragraphs.
4. The defendants are interdicted from:
4.1. infringing the plaintiff’s confidential information or trade secrets in those items
listed on annex B to this order;
4.2. using, in the form , or substantially in the form, currently used by them as at
date of this order, the:
4.2.1. strip layout (die master) for the punching and forming of chain;
4.2.2. bottom progressive tool, including the arrangement of its bottom
progressive tool;
4.2.3. linking part, known as part 128, to form and link chain;
4.2.4. induction ovens;
4.2.5. moulds for making the ceramic sleeve/inner isolator of the induction ovens;
4.2.6. temper ovens;
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4.2.7. valves used inside the temper ovens;
4.2.8. bobbins, bobbin coilers and bobbin decoilers;
4.2.9. ‘hakie’ i.e hook used to pull, coil and decoil feed chain;
4.2.10. drawings for the equipment and constituent components listed in this
paragraph.
4.3. without derogating from any other order made hereby and regardless of the
form, format or method:
4.3.1. making available, marketing, selling, exporting or otherwise disposing of
the plaintiff’s confidential information or trade secrets, or any confidential
information or trade secrets substantially similar thereto;
4.3.2. marketing, selling, publishing, disclosing, or making available in any
manner; any drawings, designs, specifications, tooling, machinery or
equipment of the plaintiff’s confidential information or trade secrets, or any
confidential information or trade secrets substantially similar thereto;
4.3.3. causing or permi tting any aspect or item of the plaintiff’s confidential
information or trade secrets, or any confidential information or trade secrets
substantially similar thereto, to be exported from or to or used outside the
borders of the Republic of South Africa;
4.3.4. manufacturing, marketing, offering for sale, soliciting custom for, selling,
disposing of, making available or exporting , feed chain produced with the
use of the plaintiff’s confidential information or trade secrets , or any
confidential information or trade secrets , substantially similar to such
confidential information or trade secrets;
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4.4. directly or indirectly, aiding or abetting or causing any party to do any of the
prohibited acts contemplated in this order.
5. The sheriff or deputy sheriff, as the case may be, is directed and authorised,
immediately upon this order being made, to attach the following items, or
components of these items, of the defendants’ feed chain manufacturing line, or
items or components substantially similar thereto, wherever they may be found,
pending finalisation of the delivery up procedure specified below:
5.1. linking and forming tool known as part 128;
5.2. bottom progression tool;
5.3. bobbins, bobbin coilers and bobbin decoilers;
5.4. ceramic sleeve/inner isolator used in the induction ovens;
5.5. moulds to manufacture the ceramic sleeve/inner isolator;
5.6. soaking pipe used in the induction ovens and the ovens;
5.7. ‘hakie’ i.e hook used to pull, coil and decoil feed chain;
5.8. sprockets;
5.9. temper ovens;
5.10. valves used inside the temper ovens;
5.11. drawings for each of these parts, equipment and components.
6. The defendants are ordered to deliver up for destruction, within 7 court days of this
order having been made, and according to the procedure described in the
paragraph immediately following this paragraph, to the plaintiff all copies (including
all revisions and/or versions of such works) of each of the following works, whether
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in two or three - dimensional format and regardless of the medium in which it is
stored: -
6.1. the linking and forming tool known as part 128;
6.2. bottom progression tool;
6.3. bobbins, bobbin coilers and bobbin decoilers;
6.4. ceramic sleeve/inner isolator as used in the induction oven;
6.5. mould which is used to manufacture the ceramic sleeve/inner isolator;
6.6. soaking pipe as used in the induction oven and induction ovens;
6.7. ‘hakie’ i.e hook used to pull, coil and decoil feed chain;
6.8. sprockets;
6.9. temper ovens;
6.10. the valves used in the temper ovens;
6.11. drawings for each of these parts, equipment and components.
7. The delivery up procedure (“the delivery up process”) shall be conducted as
follows:
7.1. It shall be attended by the sheriff or deputy sheriff, as the case may be ;
supervising attorney(s) in the person(s) of either or both of Mr Carel Regardt
Nelson of Kemp Nabal Incorporated and/or Mr Chris Brand of Swart Attorneys
(“the supervising attorney (s)”); technical expert (s) Mr Forrester de Beer
and/or Mr N T Broekhuizen and/or Mr Alf Smidt and/or Mr Hennie van
Deventer (“the technical expert(s)”); and photographer (s), being Mr W V
Sieberhagen and/or Mrs D T Wielandt (“the photographers”) and independent
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IT experts from Cyanre Digital Lab (the “IT experts”). The defendants shall ,
for the purpose of the delivery up process, permit these persons access to
any premises (“the premises”) used by the defendants or to such premises
where the items in issue may be found;
7.2. The defendants’ attorney is entitled to be present during the delivery up
process;
7.3. The second defendant or, failing him, a party appointed by the defendants to
do so, shall, at such inspection, point out and deliver up to the supervising
attorney(s):
7.3.1. all three-dimensional components, items and equipment; and
7.3.2. all drawings, regardless of the format in which they are stored;
to be delivered up as contemplated in this order;
7.4. The sheriff or the deputy sheriff , supervising attorney (s) and te chnical
expert(s), in order to ensure that this order has been complied with insofar as
it relates to three dimensional objects , as well as drawings in hard copy
format, may inspect any part of the premises. In the event of them pointing
out items which ought to be delivered up in terms of this order, which have
not been pointed out by the defendants, such items shall be attached by the
sheriff or deputy sheriff, as the case may be;
7.5. The sheriff or deputy sheriff, supervising attorney(s), technical expert(s) and
IT expert(s), in order to ensure that this order has been complied with insofar
as it relates to electronic media, may inspect any part of the premises and
any electronic or digital media (including but not limited to computers, tablets,
smart phones, hard drives including servers, removable drives, flash drives,
CD drives, DVD drives, smart phones, CDs and DVDs) and any of the
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defendants’ accounts on servers, including but not limited to cloud storage
assets such as Dropbox and iCloud, as well as communication and social
media platforms such as WhatsApp, LinkedIn and Facebook. The defendants
shall provide all passwords necessary to enable such inspection. In the event
of any of the supervising attorney (s), technical expert (s) and IT expert (s)
pointing out items as contemplated in this order which are to be destroyed,
the IT expert (s) shall store such item (s) on separate storage d evices and
thereafter remove it from the defendants’ devices or those devices on which
the material in issue was found;
7.6. Each of the technical expert (s), IT expert (s) and independent attorney (s)
shall, within 30 days of the delivery up inspection, compile a report of the
delivery up procedure, accompanied by such photograph s as each of t hem
may deem suitable and shall deliver copies of such report, as well as copies
of the separate storage devices containing the items stored by the IT experts
contemplated in the preceding sub -paragraph, to each of the parties , within
this time period;
7.7. Within 48 hours of the finalisation of the delivery up inspection, the
supervising attorney(s) shall issue a certificate of termination of the delivery
up inspection;
7.8. The plaintiff shall, at its cost, and within seven court days of the date of
certificate of termination, transport and deliver for destruction all three-
dimensional components, items and equipment delivered up in terms of this
order, to SA Metals (Pty) Ltd at 14 Christian Avenue Epping 2, Cape Town,
Western Cape, under supervision of the supervising attorney(s) and technical
expert(s). The defendants shall do all things necessary to enable the removal
and transport of the items to be delivered up.
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8. All steps taken as part of the attachment and the delivery up process contemplated
in this section B shall take place between the hours of 08h00 and 17h00 on a
business day.
C. Enforcement of the order
9. The defendants shall not commence the manufacture, marketing, offering for sale,
sale or export of (1) feed chain or (2) equipment or components with which to make
feed chain; unless and until, they have
9.1. designed and manufactured, or caused to be designed and manufactured,
independently and without reference to the plaintiff’s confidential information,
trade secrets or its copyright works; a feed chain producing facility, including
all equipment and components comprised by such facility, (the “new line”) for
the forming of steel into feed chain, the securing, storage and movement of
feed chain, as well as the heat treatment of feed chain;
9.2. informed the plaintiff in writing, in a communication addressed to the plaintiff’s
attorneys of record, of any intention to commission the new line (by
‘commission’ is meant an intention to produce feed chain);
9.3. afforded the plaintiff, in writing, in a communication addressed to the plaintiff’s
attorneys of record, an opportunity of inspecting the new line within ten court
days of such notification having come to the notice of the plaintiff;
9.4. provided, at least 48 hours prior to the inspection contemplated in the
preceding subparagraph, to the plaintiff complete drawings and designs of
each machine , item and component relating to the forming of steel ;
movement, securing and storage of feed chain, and heat treatment of feed
chain in the new line.
10. The inspection contemplated in this section of this order shall take place as follows:
91

10.1. The plaintiff shall be entitled to inspect on any business day (s) during the
hours of 08h00 – 17h00 during the ten court day period.
10.2. The defendants shall allow the sheriff and /or deputy sheriff; as well as
supervising attorney(s) in the person(s) of Mr Carel Regardt Nelson of Kemp
Nabal Incorporated and/or Mr Chris Brand of Swart Attorneys (“the
supervising attorney(s)); technical expert(s) Mr Forrester de Beer and/or Mr
N T Broekhuizen and/or Mr Alf Smidt and/or Mr Hennie van Deventer (“the
expert(s)”); and photographer (s), Mr W V Sieberhagen and/or Mrs D T
Wielandt (“the photographer(s)”) , accompanying them, to enter the
defendants’ premises, for the purpose of:
10.2.1. examining any item or aspect of the defendants’ new line, including
its equipment, machinery, components and parts, such examination
including the taking of measurements;
10.2.2. taking detailed photographs of the entirety of the defendants’ new
line and each of its equipment, machinery, components and parts.
10.3. The defendants are ordered to permit the said persons to remain on the
premises until the inspection has been completed, and, if necessary, to re -
enter the premises on the same or subsequent day(s) to complete such
inspection.
10.4. The supervising attorney(s) shall compile a report of the inspection, including
a bundle of the photographs taken during the inspection, within thirty court
days of completion of the inspection, and shall provide a copy thereof to each
of the defendants as well as the plaintiff.
10.5. The drawings, designs and photographs of the defendants’ new line, including
its constituent parts, provided in terms of this section of this order or taken in
92

terms of the inspection, shall be deemed to be confidential until such time as
a court has determined whether the defendants ’ own processes and its
constituent parts are, in fact, confidential. The plaintiff shall not be entitled to
make use of those photographs, save for the purposes of privately examining
them and of legal proceedings.
11. The sheriff or deputy sheriff, as the case may be, is directed, before this part of this
order concerning the inspection, is executed, to:
11.1. hand to the defendants or the other person found in charge of the premises a
copy of a notice which accords with Form D (with the necessary amendments
as the context requires thereto) attached hereto;
11.2. explain the terms thereof with the assistance of the supervising attorney , as
may be required.
12. Absent agreement between them, the parties are granted leave to approach the
court for further directions relating to the execution of this order.
D. Damages
13. The plaintiff is declared to have suffered damage s as a result of the
misappropriation and unlawful use by the defendants of the plaintiff’s confidential
processes, trade secrets and information in manufacturing, marketing and selling
feed chain, and the breach of its copyright works.
14. An enquiry shall be held to investigate and determine the nature and quantum of
the damages suffered by the plaintiff as a result of the infringement of its copyright,
confidential information and trade secrets , including the amount of punitive
damages (if any) which may be payable by the defendants.
93

15. The defendants are, in respect of the period 3 June 2015 to date of the discovery,
ordered to make the following discovery, not later than 20 days f rom the date of
this order:
15.1. in respect of and concerning the manufacture, offering for sale, marketing,
sale, supply, export, or disposal of feed chain or any equipment or component
used in the manufacture of feed chain by the defendants:
15.1.1. every invoice; and
15.1.2. purchase order;
15.1.3. all written and digital communications with suppliers, purchasers
and interested parties;
15.1.4. every delivery note; and
15.1.5. acknowledgement of delivery;
15.1.6. every quotation;
15.1.7. and in respect of raw material:
15.1.7.1. every invoice;
15.1.7.2. delivery note;
15.1.7.3. acknowledgement of delivery; and
15.1.7.4. quotation, including those merely being requested;
15.1.8. general ledgers of each of the defendants;
15.1.9. all records and documentation concerning the attendance by the
defendants or their representatives at trade fairs;
94

15.1.10. customs clearance forms;
15.1.11. requests for customs clearance;
15.1.12. letters of credit, manifests, waybills and all other export
documentation;
15.1.13. all written and digital communications between the defendants and
export agents;
15.1.14. forward exchange contracts (FECs);
15.1.15. financial statements of each of the defendants;
15.1.16. marketing or advertising material or statements issued by or to the
defendants;
15.2. regardless of the method of communication and concerning the manufacture,
marketing, offering for sale, sale, supply, export or disposition of feed chain
or any equipment or components for the manufacture of feed chain:
15.2.1. written and digital communications between the defendants inter
partes or with third parties in respect of potential investments in the
defendants;
15.2.2. financial reports, statements, summaries or any other
documentation passing between the defendants inter partes or third
parties in respect of potential loans to or investments or
partnerships in the defendants;
15.2.3. any disclosures made by any of the defendants in respect of the
manufacture or supply of feed chain, or any equipment or
95

components for the manufacture or supply of feed chain, whether
inter partes or to third parties;
15.2.4. all written and digital communications between the defendants inter
partes or with third parties, exploring the possibility of
manufacturing, selling, exporting or supplying feed chain, or
equipment or components to manufacture and produce feed chain;
15.2.5. marketing or advertising material or statements issued by or to the
defendants;
15.3. bank statements of each of the defendants pertaining to:
15.3.1. the receipt of proceeds from the manufacture, supply or sale of feed
chain or equipment or components used in the manufacture of feed
chain;
15.3.2. remuneration or salaries from or to any entity or person
manufacturing, supplying or selling feed chain or equipment related
to the manufacture of feed chain;
15.3.3. payments for the purchase of raw material or equipment for
purposes of or related to the manufacture of feed chain.
16. Should it become evident to the plaintiff, upon receipt of documents from the
defendants, that the provisions of this order concerning discovery do not (1) enable
the plaintiff to plead adequately or (2) satisfy the requirements of an enquiry into
damages, the plaintiff may approach the court for appropriate relief and/or the
production of documents necessary or required for the purpose of pleading.
17. Upon the expiry of the period of 20 days referred to above, or 20 days after the
finalisation of such further proceedings as may be necessary, as contemplated in
96

the preceding paragraph of this order, the plaintiff shall have a period of 6 months
for the purposes of pleading its damages.
17.1. Thereafter the rules of court shall apply in the determination of the process
and procedure for the litigation of the plaintiff’s claim for damages.
17.2. The parties are authorised, on notice to the other parties and should it be
required by one or either or both of them, to make application to this court
to add to, or vary the above order so as to facilitate the conducting of the
determination of the inquiry and award of damages and generally to make
application for further directions in regard thereto.
E. Confidentiality of the record of proceedings
18. The provisions of the order of 7 August 2020 under this case number 7235 /2017
are confirmed, also in respect of the record and reports filed pursuant to paragraph
7.6 of this order. The Registrar is directed to not provide access to the public of any
of the record or documentation contemplated in the 7 August 2020 order , nor the
reports filed pursuant to paragraph 7.6 of this order.
F. Costs
19. The defendants shall be liable jointly and severally (the one paying the other to be
absolved), to pay the costs of the plaintiff in this matter, on the attorney-client scale,
such costs to include the costs of 3 (three) counsel (where so employed); the costs
of all inspections of the plaintiff’s and the defendants’ feed chain manufacturing
plants; as well as the costs and qualifying fees of the plaintiff’s expert witnesses ,
including the costs of their attendance at trial, these witnesses being:
19.1. Forrester De Beer;
19.2. Nicolaas Theodorus Broekhuizen;
97

19.3. Alfred James Smidt;
19.4. Hendrik Willem van Deventer;
19.5. Jan Marais;
19.6. Deon van Staden;
19.7. Burger Coetzee;
19.8. Jaco de Beer.
20. The defendants shall be liable jointly and severally (the one paying the other to be
absolved), to pay the costs of the plaintiff in case number 21151/18, including the
costs of two counsel where so employed, on the attorney-client scale.

BY ORDER OF THE COURT

COURT REGISTRAR
Nabal attorneys

Plaintiff’s attorneys
Unit 1D, Anansi Park
25 Church St
Durbanville
(PR Nabal)
Tel:021 879 3991
c/o England Slabbert
Suite 10AB, 10th Flr, The Pinnacle
Cnr Strand, Burg & Castle Streets
Cape Town
98

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE
DIVISION, CAPE TOWN)
Case No.: 7235/17
In the matter between:
TECHNICAL SYSTEMS (PTY) LIMITED Plaintiff
and
FEED CHAIN INDUSTRIES First defendant
CHRISTIAAN ARNOLDUS KURTZ Second defendant
C QUIPTECH (PTY) LIMITED Third defendant
CGC INDUSTRIES (PTY) LIMITED Fourth defendant
CARL WILLIAM RICHTER Fifth defendant
ANNEXURE A: LIST OF PROTECTED WORKS




No. Component/Part Drawing no./File name Page(s)1
1. Bottom tool assembly 083-2000-203 1
2. Bottom tool assembly \T\O\2000-3 2
3. Top tool assembly 083 1000 202 3
4. Top tool assembly \T\1000 3 4
5. Linking block insert top tool:
Part no. 1032
T\0\1032: Rev 0 10
\T\O\1032-1: Rev 12 11
\T\T3\1032-2: Rev 2 12


1 Machine page numbers on Bundle B to the plaintiff’s Rule 21 Answer.
2 Rev 1 = original version.
2


T\O\1032-5: Rev 5 13
T\O\1032-6: Rev 6 14
6. Link forming die bottom tool:
Part no. 2002
083-2002-203:Rev 0 22
\T\T3\2002-8:
Rev 2 (Update)
Rev 3
Rev 4
Rev 7
Rev 8
23
2002:
Rev 5
Rev 9
24
S - 2002: Rev 1 25
S - 2002: Rev 2 26
2002-11:
Rev 9 (update)
Rev 10
Rev 11
27
2002-12: Rev 12 28
2002-13: Rev 13 29
2002-14: Rev 14 30
2002-15: Rev 15 31
11. Comparison drawing Part 2002 vs Part 128 32
12. Bottom tool shim SHIM 2002 2 33
SHM 2002 34
12a. Oven chain hook detail CH313-01 35
3


13. Bobbin assembly TM001-000-000 38
14. Bobbin pipe detail TMP001 001 000 39
15. Bobbin rim detail TMP001-002-000 40
16. Bobbin hub detail TMP001 003 000 41
17. Bobbin disc detail TMP001-004-000 42
18. Bobbin gusset detail TMP001 005 000 43
19. Bobbin handle detail TMP001 006 000 44
20. Bobbin coiler BC213-0000 45
21. Bobbin coiler BC213-0000 46
22. Feeder frame bobbin decoiler BC213-0101 47
23. Detail of air circulating furnace:
horizontal bobbin
677/1 50
28. Alternative furnace TECH-SYSTEMS-MC2 53
29. Alternate furnace element and flow
detail
TECH-SYSTEMS-MC3 54
30. Alternate furnace external dimensions TECHSYSTEMS677 –
MC4
55
30. Proposed bobbin guide system 57
32. Bobbin BOBBIN DIMENSIONS 58
35. General arrangement of Temper Oven 779 – MC1 62-63
36. Tech Systems 300  fan 779 – MC2 64
37. Technical Systems Fan base 779 – MC3 65
38. Tech Systems (temper oven) Door 779 – MC4 66-67
39. Technical Systems Centering
Arrangement
779-MC5 68-69
40. Convection kiln general arrangement 826 – MC – 1 70
41. Boom structure detail, temper oven 838 MC 2 71
42. Convection furnace 826 – MC – 3 72
4


43. Lifting device, temper oven 826 MC 5 73
44. Convection kiln general arrangement 838 – MC – 1 74
45. Boom structure detail, temper oven 838 MC 2 75
46. Inner back plate, temper oven 838 – MC – 5 76
47. Inner mechanics of temper oven 838 – MC – 6 77
48. Element bank, temper oven 838 – MC – 7 78
52. Concept illustration temper oven (2
drawings)
T1 98/T1 – T8 82-83
53. Temper ovens 7, 8 and 9 with front
view, side view, top view
963 – ASM – 01GA 84
54. Oven mould 214 – 01 – 202: Rev 13 85
214 – 01 – 2: Rev 2 86
214 – 01 – 2: Rev 3 87
55. L/h outer mould oven mould 214 – 01 – 01 – 2034 88
56. L/h outer mould China Oven mould 214 - 01 - 01 - 203 89
57. R/h outer mould oven mould 214 – 01 – 02 – 2035 90
58. R/h outer mould China Oven mould CHINA – 214-11-02-203 91
59. Bottom holder oven mould 214 – 01 – 05 – 2036 92
60. Center mould oven mould 214 – 01 – 03 – 203: Rev 17 94
214 – 01 – 03 – 2: Rev 2 95
214 – 01 – 03 – 3: Rev 3 96
61. Center mould China Oven mould CHINA – 214 – 01 – 03 –
203
97
62. Top holder oven mould 214 – 01 – 04 – 203 98
63. Top holder 1 oven mould 214 – 01 – 04 – 203: Rev 2 99

3 Rev 1 is the original.
4 Rev 1 is the original.
5 Rev 1 is the original.
6 Rev 1 is the original.
7 Rev 1 is the original.
5


64. Top holder 2 oven mould 214 – 01 – 09 – 203 100
65. Spacer oven mould 214 01 06 203: Rev 18 101-102
214 01 06 2: Rev 2 103
66. Spacer 2 oven mould 214 01 08 203 104
67. Side plate oven mould 214 – 01 – 07 – 203 105
214 – 01 – 07 – 2: Rev 2 106
68. CY Pipe induction oven CY PIPE–2: Rev 19 107
CY PIPE–2: Rev 2 107
69. CY pipe assembly CYPIPE–ASSY–2: Rev 110 108
CYPIPE–ASSY–2: Rev 2 108
CYPIPE–ASSY–3: Rev 3 109
70. Section-bend CY pipe detail CYPIPE–BEND–2: Rev 111 110
CYPIPE-BEND-2: Rev 2 110
71. Inner guide induction oven INNER GUIDE 111
72. Inner guide lid induction oven INNER GUIDE LID 112
73. Sprocket assembly QT218-0401-01-203 113
74. Sprocket assembly drive complete QT218-0401-01-202 114
76. Sprocket – Isometric assembly 116














8 Rev 1 is the original. Page 102 is a copy of page 101.
9 Rev 1 is the original.
10 Rev 1 is the original.
11 Rev 1 is the original.
WORKS OF CRAFTMANSHIP: POC 2.2


1. Bobbin coiler as depicted on pp815 and 906 of trial bundle C3.
2. Bobbin as depicted on p943 of trial bundle C3.
3. Induction oven mould as depicted on p864 of trial bundle C3.
4. Induction oven tapered core as depicted on p873 of trial bundle C3.
5. Induction oven soaking pipe as depicted on EXHIBIT 11: MS
POWERPOINT PRESENTATION – INDUCTION OVEN.
6. Oven chain hook as depicted on p888 of trial bundle C3.
7. Induction oven bobbin de-coiler as depicted on p895 of trial bundle C3.
8. Inside tempering oven inlet valve as depicted on p922 of trial bundle C3.
9. Tempering oven as depicted on pp944 and 958 of trial bundle C3.
10. Part 2002 as depicted on pp46 – 61 of trial bundle C1.
11. The sprocket as depicted on pp579 and 583 of trial bundle C2.
















7



IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION)


Case No.: 7235/17
In the matter between:

TECHNICAL SYSTEMS
(PTY) LTD

and


Plaintiff
FEED CHAIN INDUSTRIES First defendant
CHRISTIAAN ARNOLDUS
KURTZ

Second defendant
C QUIPTECH (PTY) LTD
Third defendant
CGC INDUSTRIES (PTY)
LTD

Fourth defendant
CARL WILLIAM RICHTER
Fifth defendant
ANNEXURE B

Items embodying plaintiff’s confidential information and trade secrets:
1. Strip layout progression (die master) for the punching and forming of feed chain.
2. Arrangement of steps in and the layout of, plaintiff’s bottom progression tool.
3. Tooling to punch and form feed chain, including the part known as part 2002,
to form and link feed chain.
4. Induction ovens.
5. Ceramic sleeve/inner isolator used in the induction oven.
6. Soaking pipe used in the induction oven.
7. Sprockets.
8. Moulds for the ceramic sleeve/inner isolator used in the induction oven.
9. Temper ovens
10. Valves used inside the temper ovens.
11. Bobbins, bobbin coilers and bobbin decoilers.
12. ‘Hakie’ for pulling, coiling and decoiling feed chain.
13. Drawings for each of the above items and their constituent components, such
drawings being listed on annex A to the order.





8




IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION)


Case No.: 7235/17
In the matter between:

TECHNICAL SYSTEMS
(PTY) LTD

and


Plaintiff
FEED CHAIN INDUSTRIES First defendant
CHRISTIAAN ARNOLDUS
KURTZ

Second defendant
C QUIPTECH (PTY) LTD
Third defendant
CGC INDUSTRIES (PTY)
LTD

Fourth defendant
CARL WILLIAM RICHTER
Fifth defendant
FORM D - NOTICE



1. The order being served on you requires you to allow the persons named
therein to enter the premises described in th e order and to search for,
examine, photograph and seize the articles specified in the order. You are
also required to hand over the articles specified in the order which are on
the premises or under your control, to the sheriff.
2. When these documents are handed to you, you are entitled, if you are an
employee of the defendants(s) or in charge of the premises, to contact the
defendants immediately and you or the defendants are entitled to contact
an attorney and have him come to the premises to advise you. The attorney
must be called and must arrive without delay, and the supervising attorney
must inform you as to how long the search
9

can be delayed so as to have the attorney present. Until the attorney, if called,
arrives or until the time has passed for him to arrive, you need not comply with
any part of this order, except that you must allow the supervising attorney, the
sheriff and the other persons named in the order to enter the premises and to
take such steps as, in the opinion of the supervising attorney, are reasonably
necessary to prevent any prejudice to the further execution of this order.
3. You are further entitled to have the supervising attorney explain to you what this
notice and order mean.

4. Take note that, i f you disobey this order you may be guilty of the offence of
contempt of court, for which you may be brought before court and, if convicted,
may be subjected to a sentence of imprisonment and/or a fine, or both, or to such
other sanction as the court may deem fit.