About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1988
>>
[1988] ZASCA 131
|
|
Galago Publishers (Pty) Ltd. and Another v Erasmus (130/88) [1988] ZASCA 131; [1989] 1 All SA 431 (A) (30 September 1988)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
GALAGO PUBLISHERS
(PROPRIETARY) LIMITED
first appellant
PETER STIFF
second appellant
and
GIDEON HENRY ERASMUS
respondent
CORAM
r CORBETT, SMALBERGER, MILNE,
KUMLEBEN, JJA, et NICHOLAS, AJA.
DATE OF HEARING
: 6 September 1988
DATE OF JUDGMENT
: 30
September 1988
JUDGMENT CORBETT
JA:
This appeal concerns the alleged infringement of the copyright in a literary
work, namely a book entitled "Selous Scouts Top Secret
War" (to be referred to
as "Top Secret War"), which was first published in
2
South Africa in about July 1982. The work said to infringe the
copyright as Top Secret War is a book entitled "Selous Scouts - A Pictorial
Account" (to be re-ferred to as "Pictorial Account"), published in South Af-rica
in about September 1984. Pictorial Account was writ-ten
by second appellant, Mr
Peter Stiff, and published by first appellant, Galago Publishers (Pty) Ltd. It
is com-mon cause that second
appellant caused first appellant to publish
Pictorial Account
In May 1985 respondent claiming ownership of the copyright, by way of
assignment, in Top Secret War, insti-tuted action against the
appellants
alleging that Picto-rial Account was a reproduction and/or publication of Top
Secret War or a substantial part thereof,
alternatively, an adaptation thereof,
and claiming an interdict and cer-tain ancillary relief. The action was defended
by the appellants.
The matter came before Harms J in the Trans-
3
vaal Provincial Division. Having heard evidence and ar-gument,
the learned Judge concluded that infringement of copyright had been
éstablished. He accordingly granted an interdict and made ancillary
orders for the delivery up to respondent of all copies
of the infringing work
and costs. The claims for certain other relief (account of profits and damages)
were postponed
sine die
. With leave of the Court a
quo
appellants
now appeal to this Court a-gainst the whole of the judgment and order of the
Court a
quo
.
The relevant legislation is the
Copyright Act 98 of 1978
, as amended ("the
Act"). In terms of
sec 2(l)(a)
of the Act a literary work, if original, is
eli-gible for copyright. It is not in dispute that Top Se-cret War is an
original literary
work in that it represents the product of the authors' own
skill and labour. It is also now common cause that by virtue of
4
assignment ownership of the copyright in Top Secret War vests
in the respondent.
Copyright is infringed by a 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 of SouLh Africa, "any act which the owner of the copyright may
authorize"
(sec 23(1)
of the Act). To de-termine the meaning and effect of the
words just quoted in relation to a literary work it is necessary to refer
to
sec
6
, which provides,
inter alia
, that copyright in a literary work vests
the exclusive right to do or to au-thorize the reproduction of the work in any
manner or
form, the publication of the work or the making of an adaptation of
the work. It is also common cause that the appellants did not
have any licence
to reproduce or publish or make an adaptation of Top Secret War. Conse-quently
the essential issue in this case
is whether in
5
producing and publishing the work Pictorial Account the
appellants reproduced Top Secret War. (Although mentioned in the respondent's
particulars of claim, the question of an adaptation does not seem to arise. And
if Pictorial Account constituted a reproduction,
it was unquestionably published
by the appellants.)
In
sec 1(2A)
it is provided that
-
"Any reference in this Act to the doing of any act in relation to any work
shall, un-less the context otherwise indicates, be construed
as a reference also
to the doing of any such act in relation to any substan-tial part of such
work".
Consequently it is not necessary
for a plaintiff in infringement proceedings to prove the reproduction of the
whole work: it is sufficient
if a substantial part of the work has been
reproduced. To "reproduce" within the meaning of the Act means to copy and in
order for
there
6
to have been an infringement of the copyright in an origi-nal
work it must be shown (i) 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 identical
with, but as a reproduction or copy of the lat-ter; and (ii) that the original
work was the source from
which the alleged infringing work was derived, ie that
there is a causal connection between the original work and the alleged
infringing
work, the question to be asked being: has the defendant copied the
plaintiff's work, or is it an independent work of his own? (See
Francis Day
& Hunter Ltd and Another v Bron and Another
[1963] Ch 587
, at pp 618,
623, indirectly referred to with approval by this Court in the unreported case
of
Topka v Ehrenberg Engineering (Pty) Ltd
30/5/83). As I shall show, the
present case turns on the question of objective similarity; it being conceded by
the appellants that
if
7
such similarity exists the required causal connection has been
established. I turn now to the facts.
Top Secret War is the brain-child of Lt Col Ron Reid Daly. It relates the
story of a unit in what was then the Rhodesian Army, known
as the Selous Scouts
Regi-ment. The period covered is from November 1973, when the unit was formed,
until about the end of 1979,
when it was informally disbanded. It is a period in
the history of the territory then known as Rhodesia (now Zimbabwe) when armed
conflict was taking place. The Rhodesian Govern-ment, headed by Mr Ian Smith,
had some years before unila-terally declared Rhodesia
to be an independent state
and the Rhodesian Army was engaged in what was popularly de-scribed as "the bush
war" against the military
forces of two Black nationalist movements, known as
ZIPRA and ZANLA.
When the Selous Scouts unit was formed Lt Col Reid Daly was
asked by the commander of the Rhodesian Army,
8
Lieutenant General Peter Walls, to take command of it.
Reid Daly agreed to do so; and he continued as its commanding officer until
shortly before its disbandment. The unit started as a
company of about 120 men,
but eventually grew into a full regiment comprising in the region of 1 000
men.
The regiment was named after a famous African hunter and Rhodesian pioneer,
Frederick Courteney Selous, who came to Africa from England
in 1871 and was
killed in East Africa during the First World War. The object of its formation
was to train and put into the field
against the forces of ZIPRA and ZANLA, (for
the sake of brevity I shall refer to thse as "the insurgent forces") a unit
highly-skilled
in bush warfare in order to conduct what were termed "pseudo
operations". The concept of pseudo operations had its origin in the
fact that
after carrying out attacks the members of the insurgent forces hid their
9
arms and merged with the local population. Little, if any,
information as to who the members of the insurgent bands were and where
they
were located was forthcoming. It was consequently not possible to deal with the
situa-tion by conventional means. It was under
these circum-stances that the
idea was conceived of using, initially, teams from the Special Branch of the
Rhodesian Police, and
also from the Army, to pose as insurgent bands and in this
guise to obtain information about the whereabouts of the actual insurgents.
The
Selous Scouts Regiment was form-ed as an extension of this idea for the purpose
of the "clandestine elimination" of what was
termed "terrorism", both within and
outside the country. It used the concept of pseudo operations not only to obtain
information
about insurgents, but also, where possible, to track them down and
engage them or pass on information to other Army units so that
they could be
engaged by others. Members of pseudo teams disguised themselves by using
captured
10
insurgent uniforms and arms and, in the case of White men, by
blackening their bodies. Recruits were subjected to a very rigorous
course of
training, designed to toughen them, make them self-sufficient in the bush and to
teach them all the necessary arts of bush
warfare. During the period of its
existence the regiment carried out many suc-cessful operations against the
insurgents, both inside
Zimbabwe and outside in neighbouring territories
(referred to in the evidence as internal and external operations).
In the end, of course, as history relates, it was to no avail. The Lancaster
House agreement concluded towards the end of 1979 brought
the war to an end; and
the general election held in the following year brought to power Mr Robert
Mugabe, the leader of one of the
Black Nationalist movements, against which the
war had been wa-ged. In 1980 Reid Daly left Zimbabwe and came to live in South
Africa.
He was then porsuaded by a group of
11
persons (among them the respondent) who were assisting him
financially (referred to in the evidence as "the syndica-te") to write
a book
giving an account of the exploits of the Selous Scouts. He had managed to
smuggle out of Zim-babwe a large number of secret
documents relating to the
activities of the Selous Scouts, such as operational plans, de-briefing reports,
award citations and so
on. Using these records, together with his own unique
know-ledge, as commanding officer, of what had occurred, Reid Daly proceeded
to
write a manuscript of some 357 typed pages. It took him about four months of
concentrated, continuous work.
As Reid Daly explained in evidence to the Court a
guo
, the aim of
writing the book was not only to illus-trate to people what the task of the
Selous Scouts had been, but also "to engender
some finance". Consequently, it
was not written as a methodical, comprehensive and de-
12
tailed account of the contribution of the regiment to the war.
Instead Reid Daly looked back upon his experiences "in a subjective
way" and
selected areas and actual opera-tions which he thought "would go down in book
form". The book thus describes only 22 of
65 to 70 external operations and a
very small percentage of the internal operations. In describing the individual
operations, too,
Reid Daly had to -
".... invent dialogue, emotion and try and make the book portray the average
Selous Scout, the way he talks, the way he lived, his
fears. The normal battle
scene."
He not only selected the
operations to be described, but also decided upon the sequence in which they
were to be recounted and the
manner in which the story of each opera-tion was to
be told - what details were to be emphasized, the sequence of events, the
dialogue
(often invented), the individuals to be mentioned, the character
portrayal, lo-
13
cal colour and so on. For the individual Scouts mention-ed by
name Reid Daly invented pseudonyms in order to con-ceal their identity
from the
authorities in Zimbabwe, in case there were reprisals against them or their
families. The pseudonyms chosen were names sufficiently
similar to the real
names to enable former Selous Scouts to identify the individuals concerned.
Furthermore, on occasion he exaggerated
or embellished the true story in order
to add colour theretc.
When he had finished the manuscript Reid Daly took it to a so-called
"ghost-writer", a Mr Christopher Munnion, whose task was to put
the manuscript
into proper book form. This was done and the work was offered by the syndicate
to various publishers overseas, but
none was in-terested in publishing it.
Eventually Reid Daly approached the second appellant, a writer with Rhodesian
connections
and also managing director of first appellant,
14
which conducted a small publishing business in Johannes-burg.
Second appellant expressed the view that the manu-script did not do
justice to
the story and suggested that he be allowed to re-write the book himself. This
was agreed to and second appellant was commissioned
by the syndicate to
"ghost-write" and publish the book. To this end second appellant was given the
manuscript and a number of the
documents and photographs relating to the Selous
Scouts which Reid Daly had brought from Zimbabwe. In addition, second appellant
had many discussions with Reid Daly and interviewed various persons, former
Selous Scouts and others, who were able to furnish information
about the
subject-matter of the book. Using the manuscript as a basis or starting point
and utilising additional informa-tion gleaned
from the other sources indicated,
second ap-pellant in due course produced Top Secret War. The work was published
by first appellant.
The book had considerable success. There
were
15
several editions and impressions, including a soft-cover
edition, which was published in May 1983. All-told some 80 000 copies were
sold
and about R130 000 was paid by way of royalties to Reid Daly and the syndicate
by first ap-pellant.
The hard-cover edition (which was the original publication) contains about
400 pages of text. On the title-page and on the cover the
authorship of the work
is thus described: "Lt. Col. Ron Reid Daly as told to Peter Stiff". The book is
liberally illustrated with
photographs and paintings, both in colour and in
black and white. There are 16 colour pictures, 89 black and white pictures and
18
in-text maps, illustrations and diagrams. The text traces the origins of
pseudo operations and the general background to the formation
of the Selous
Scouts, the formation of the unit, the recruitment, selection and training of
Scouts and then proceeds to describe
the se-
16
lected operations, covering the period from January 1974 to
September/October 1979. The book tells the story from Reid Daly's subjective
point of view and mostly in the first person. There is a great deal of dialogue.
The grammatical style is racy and according to an
expert wit-ness, Mrs Addleson,
called on behalf of the appellants, it approximates that of speech. The sentence
structure is fragmented
and sometimes incomplete; and liberal use is made of
ellipses, represented by three dots. The au-thor also makes frequent use of
colloquialisms, army slang and military jargon. The tale of each operation is
told with much circumstantial detail and in the process
the reader is spared
none of the gruesomeness or the harsh realities of the bush war. The humour is
of the barrack-room variety.
The amount which the book owes to Reid Daly's manuscript is a matter of some
dispute. It is conceded
17
by Reid Daly that the first chapter of the book, the last
chapter and portion of the penultimate chapter are entirely new. Otherwise
it
would appear as if all the operations and other matters described in the book
figure in the manuscript. As is illustrated too
by one of the exhibits handed in
at the trial, exhibit "I" (a three-way comparison of selected passages from the
manuscript, Top
Secret War and Pictorial Account) a good deal of the detail and
the language and idiom used has been carried through from the manuscript
into
Top Secret War. There is, however, substantially more material in Top Secret War
than is to be found in the manuscript. It nevertheless
became common cause in
the Court below that Reid Daly and the second appellant were co-authors of Top
Secret War.
The success achieved by Top Secret War gave se-cond appellant the
idea of producing and publishing a pic-torial account of the Selous
Scouts and
their operations as, to use second appellant's description, a "natural
18
follow-on". Second appellant put this idea to the syndi-cate,
but by then relations between them had evidently soured and his offer
was
ignored. He then decided to go ahead with this project on his own and in due
course Pic-torial Account was produced and published.
In a biblio-graphy at the
end of the book the author states -
"Most information contained in this book was derived from interviews with former
members of the Selous Scouts, the BSAP Special Branch
and other branches of the
Security Forces, particularly Lt Col Ron Reid Daly, during the writing of Selous
Scouts Top Secret War.
At the time a large number of unpublished documents in the manner of operational
orders, plans, debrief reports, logs, medal citations
and so on were made
available to the author. Since then a vast treasure of documents relating to all
aspects of the fighting war
have come into the author's hands and information
found in them has been freely drawn
upon."
19
The bibliography then proceeds to list some 55 publications
which were "found helpful". The list is fairly catholic and it includes
works as
far removed from the Rhodesian bush war as Fitzroy Maclean's "Eastern
Ap-proaches", Chester Wilmot's "The Struggle for Europe"
and Erich Remarque's
classic about World War I, "All Quiet on the Western Front". Top Secret War
figures modestly among the 55.
It was because of these circumstances that it was conceded on appellants'
behalf that, if there was suf-ficient objective similarity
between Top Secret
War and Pictorlal Account for the latter to be found to be a re-production of
the former or a substantial part
thereof, the necessary causal connection was
present. The sole issue, therefore, is that of objective similarity.
It has often been stated that there is no copy-right in ideas or thoughts or
facts, but only in the form
20
of their expression; and if their expression is not co-pied
there is no infringement of copyright (see
Natal Pic-ture Framing Co. Ltd v
Levin
1920 WLD 35
, at p 38;
Lad-broke (Football) Ltd v William Hill
(Football) Ltd
[1964] 1 All ER 465
(HL),at 477 B;
Harman Pictures NV v
Osborne and Others
[1967] 2 All ER 324
(Ch), at p 328;
Ravenscroft v
Herbert and New EnRlish Library Limited
[1980] RPC 193
, at p 203). As
pointed out, however, by Laddie, Prescott and Vitoria,
The Modern Law of
Copyright
, at p 31, this pithy statement is liable to lead to confusion. The
author continues -
".... in the case of a book the ideas it contains are necessarily expressed in
words. Hence, if it were really true that the copyright
is confined to the form
of expression, one would expect to find that anyone was at liberty to borrow the
contents of the book provided
he took care not to employ the same or similar
language. This is not so, of
course."
21
And, at p 33, the authors sum up the present law in Eng-land
as follows:
"Ideas, thoughts and facts merely existing in a man's brain are not 'works', and
in that form are not within the
Copyright Act; but
once reduced to writing or
other mate-rial form the rcsult may be a work suscept-ible of protection. Given
that there exists a good
copyright in a work, the law does not protect a general
idea or concept which underlies the work, nor any one fact or piece of
information
contained therein. However, a more detailed collection of ideas, or
pattern of incidents, or compila-tion of information may amount
to such a
substantial part of the work that to take it would be an infringement of the
copyright, although expressed in different
language or other form, it being a
matter of fact and degree whether the dividing line has been impermissibly
crossed."
There appears to be ample
support for these views in the English case law. In the recent
Ravenscroft
case,
supra
,
22
Brightman J emphasized (at p 204) that -
"Copyright protects the skill and labour employed by the plaintiff in
produc-tion of his work. That skill and labour embraces not
only language
originated and used by the plaintiff, but also such skill and labour as he has
employed in selection and
compilation."
And later in his judgment
he said (at p 206) -
"It is, I think, clear from the authorities that an author is not entitled,
under the guise of producing an original work, to re-produce
the arguments and
illustrations of another author so as to appropriate to him-self the literary
labours of that author".
As Laddie et
al, op
cit
, remark (at p 43), this was a case where there was a certain
amount of language copying, al-though with a few exceptions this was
of a minor
nature: the principal copying was of the facts contained in the plaintiff's
book. By reason of the correspondence
23
between the English law of copyright and our own in this
sphere, these English authorities are of cogent persuasive force. And indeed
similar views were expressed by Bris-towe J in the
Natal Picture Framing
case,
supra
, which concerned the copyright in a picture. Having referred
to the dictum that there is no copyright in ideas, but merely in the
representation of ideas, the learned Judge stated (at pp 38-9):
"Still the idea represented may have an im-portant bearing on the question
whether one picture is a copy or colourable imitation
of another. A commonplace
idea may be re-presented; for example, a tea-caddy, or a boy and a girl making
love at a stile. All representations
of such an idea must necessarily have much
in common, and unless there is an exact copy it may be impossible to say that
one is a
copy or imitation of another. But where an original combina-tion of
ideas is represented, any represen-tation of that combination,
even though there
may be variations of detail, may
ea-
24
sily be a copy or colourable imitation of the original representation. Hëre
the plaintiff's picture is a fancy combination.
.....As I have said, the
respondent's ar-tist had the plaintiff's picture in his possession, whether it
was actually before him when
he drew his own or not. He adopt-ed the applicant's
combination of ideas, reproducing them in their main particulars with merely
slight differences of detail. This makes the second picture, in my opin-ion, a
colourable imitation, calculated to deceive any person
who had a general
recol-lection of the plaintiff's
picture."
As to what is meant by the reproduction of
a
"substantial part" of the plaintiff's work, I
would simply
refer to what was stated in the
Ladbroke
case,
supra
, by
Lord Reid (at p 469):
"If he does copy, the question whether he has copied a substantial part depends
much more on the quality than on the quantity of
what he has taken. One test may
be whether the part which he has taken
is
25
novel or striking, or is merely a common-place arrangement of ordinary words
or well-known data. So it may sometimes be a convenient
short cut to ask whether
the part taken could by itself be the subject of copyright. But, in my view,
that is only a short cut, and
the more correct ap-proach is first to determine
whether the plaintiff's work as a whole is 'original' and protected by
copyright,
and then to en-quire whether the part taken by the defen-dant is
substantial. A wrong result can easily be reached if one begins
by dissect-ing
the plaintiff's work and asking, could section A be the subject of copyright if
it stood by itself, could section
B be pro-tected if it stood by itself, and so
on. To my mind, it does not follow that because the fragments taken separately
would
not be copyright, therefore the whole cannot be. Indeed, it has often been
recognised that if sufficient skill and judgment have
been exercised in devising
the arrangements of the whole work, that can be an important or even decisive
element in deciding whether
the work as a whole is protected
26
by copyright."
With those preliminary
observations on the law to be applied, I now turn to consider the alleged
infring-ing work.
Pictorial Account also tells the story of the Selous Scouts. It is divided
into 18 chapters. It was conceded by Reid Daly in evidence
that there was no
copy-ing to be found in chapters 1 (entitled "Rhodesians as Special Force
Soldiers"), 2 (entitled "Prelude to War
1957-1972") and 3 (entitled "The War
Heats Up - Operation Hurricane 1972"), which are all of an introductory
charac-ter. Nor was
there any complaint about chapters 13 (en-titled "Enemies of
the People - The Murder of Mission-aries"), 17 (entitled "Nkomo's Last
Throw")
and 18 (enti-tled "Win the Battle and Lose the War"). The alleged copying was,
according to him, to be found in the remain-ing
twelve chapters, which deal with
the Selous Scouts -
27
early pseudo operations, the formation of the unit, the
selection and training of Scouts and the various opera-tions carried out by
the
unit. I shall deal with the contents of these chapters in more detail later.
Generally speaking, Pictorial Account differs from Top Secret War in certain
respects. As far as out-ward appearance is concerned
Top Secret War is normal
book size (the pages measuring 25 x 18 cm) and the text and the photographs and
other illustrations are
separated - the photographs, etc appearing on groups of
glossy pages dis-tributed through the book. As I have already indicated,
the
photographs and other illustrations total 123. Pic-torial Account, on the other
hand, has a larger format (32,5 x 25 cm), larger
print and is a glossy-page type
of book, sometimes described by the epithet "coffee-table". It has many more
photographs and other
illustrations (498 in all) and these appear, intermingled
with the text, on
28
virtually every one of the, approximately, 170 pages of the
book. As to style and general manner of presentation, the first point
to be
noted is that the text of Pictorial Account is far shorter than that of Top
Secret War: this is obvious from the larger print,
the predominance of
il-lustrative material and the fewer number of pages. And when one comes to
compare the texts of the two works,
marked differences are immediately evident.
Pictorial Ac-count is a third person narrative. It is a far tauter, more
orderly, less
discursive account of the Selous Scouts than is Top Secret War.
There is less detail, far less dialogue, far less explanation and
background
material. The syntactical structures of the writing in Pictorial Ac-count are
more coherent, grammatical and complete.
There is not the same reliance on
ellipses as is to be found in Top Secret War.
Closer examination of the contents of the
two
29
works reveals, however, that these differences are largely
cosmetic. In truth, as I shall show, the twelve relevant chapters of Pictorial
Account constitute what is in effect an abridged version of what appears in Top
Secret War, with extensive language copying. Having
read the rele-vant portions
of the two works, I am left in no doubt that the second appellant wrote
Pictorial Account with Top Se-cret
War at his elbow, so to speak.
To begin with, chapter 4 of Pictorial Account, which is devoted to early
pseudo operations, prior to the formation of the Selous Scouts,
describes (i)
early exer-cises "to evaluate the pseudo concept in Rhodesia" during October and
November 1966 (pp 48-50); (ii) the
use of the pseudo concept by the Special
Branch of the Rhodesian Po-lice (pp 51-2); (iii) the first Army pseudo teams
under the leadership
of Sgt Andre Rabie and Sgt Stretch Franklin (pp 52-3); (iv)
the "first kill" by Stretch Franklin's
30
group at Mkaradzi Mine on 31 August 1973 (p 52); (v) the death
by accident of Andre Rabie (pp 53-4); (vi) the advent of Basil Moss,
a pseudo
team leader (pp 54-5); and (vii) the death of Lieut Robin Hughes, another team
leader, in action (p 55). Each of these episodes
is described in Top Secret War,
though admittedly not in the same sequence (see pp 74, 94, 24-5, 26, 28, 32,
35-6, 30-2, 36 and 39).
What is more important is that in each case the episode,
as described in Pictorial Account, is an abridgement of the corresponding
text
in Top Secret War. The abridgement is achieved by omitting certain
circumstantial detail and by paraphrasing, but in many instances
the original
phraseology, idiom and descriptive turns of speech of Top secret War emerge in
Pictorial Account. Let me give some examples.
31
In the section or episode listed (iii) above the following passage appears in
Pictorial Account (at p 52):
"While this had been going on, the Army had started two pseudo teams of their
own led by two sergeants of the Special Air Service,
who had been instructors at
the Army Tracking Wing at Kariba. Their Afri-can personnel were soldiers from
the Rhode-sian African
Rifles.
The senior of the two team leaders Sergeant Andre Rabie, spoke several African
languages with fluency, and had a habit of correcting
the speech of African
soldiers when they were careless in their grammati-cal usage; much to their
amazement and de-light...for it
was a rarity to find white Rhodesians who
bothered to learn any Afri-can languages.
He knew their customs, too, so was ideal for the job.
The second team leader was Sergeant Stretch (Alan) Franklin a tall and
dedicat-ed soldier with a timely sense of
humour."
The corresponding passages in
Top Secret War (at p 26)
32
reads:
"While all this had been going on... in fact only a matter of weeks after the
Special Branch had taken the initiative... the Army
too had commenced two pseudo
teams of their own.
They consisted of two non-commissioned officers of the Special Air Service, who
had been attached to the Army Tracking Wing at Kariba...
obviously both were
experien-ced trackers who were well versed in bush-lore... and some African
soldiers from the Rhodesian African
Rifles.
The senior of the non-commissioned officers, Sergeant Andre Rabie, spoke
seve-ral African dialects with fluency and would often correct
African soldiers
when they were sloppy in the grammar usage of their own languages... much to
their delight, for few Rhodesian born
whites bothered to learn the languages of
their native African fel-low Rhodesians. He knew their tribal cus-
toms too The second
non-commissioned officer was Sergeant Stretch (Alan) Franklin, a lanky
and
33
dedicated soldier, noted for his quick wit
n and ready sense of humour.
(The
substance of these passages and some of the descrip-tive language appear also in
Reid Daly's manuscript. In evidence he explained
that it was a part-invencion,
or "an expansion" as he termed it: all that he knew was that Sgt Rabie spoke
"good Shona".)
Episode (v), which deals with how Andre Rabie met his death, describes how it
came about that owing to the giving of a wrong map reference
(by Andre Rabie) he
and his group were in an area where it was reported that. no pseudo teams were
operating. A combat team from
the Rhodesian Light Infantry, sent to investigate
a reported sighting of insurgents in that area, came upon Rabie and his group as
they were relaxing near a pool and, taking them for insurgents, opened fire.
Rabie was shot and killed. The culminating action of
this episode is thus
34
described in Pictorial Account (at p 54):
"He (ie Rabie) was watching his men trying to net fish in a small pool below the
dam wall. He took a snapshot of them. It was destined
to be the last photograph
he took in his life.
Vic Opperman was in front with the lead tracker and they both saw a Soviet
RPD-light machinegun. It was unmistakable against the
sandy backdrop. People
were laughing and they obviously didn't know the soldiers were there.
There was no question of 'halt who goes there!' in the bush. Most contacts with
the enemy were fleeting and lasted for little more
than seconds, and, he who
fired first before the enemy disappeared into the bush, nailed his foe - instead
of being nailed himself.
The policeman and soldier tracker opened fire with their FN rifles in the
direction of the RPD and the laughter.
Andre Rabie died in the first hail of bullets, although the rest of his pseudo
callsign scattered safely into the
bush.
35
Many people afterwards blamed themsel-ves for Andre's death, but the fault had
been his own. In war a man is fortunate indeed if
he makes a mistake, then gets
an-other opportunity to learn by it. Andre was unlucky, but Rhodesia lost a fine
and dedicated soldier."
The
corresponding description in Top Secret War reads (at P 36):
"Then, one of his group mentioned he had seen some fish swimming in the clear
waters of a pool in the river below the dam wall. Couldn't
they try to net them
... fish would make a refreshing change to a monotonous diet?
Andre promptly gave permission and strolled the short distance to the pool
with some of the men. He laid down his rifle and removed
his camera from its
case, intent on getting a snap shot of the fish being netted.
Framing the standing reeds at the ri-ver's edge was an open stretch of sand
which had been banked high by the river
36
when it last came down in spate... the machine gunner laid his Russian
RPD-light machine gun on the sand.
There were no fish visible in the pool, so
Andre's men went into the water to cool off.
No one saw the men of the
Rhodesian Light Infantry as they came around the bend.
Vic Opperman was in
front with the tracker... they both simultaneously saw the RPD-light
machinegun... its Russian identity starkly
unmistakable against the sandy
backdrop... movement and laughter came from the reeds.
The drill in the bush
is simple and uncomplicated... if you wish to stay alive... and if you wish to
kill the enemy... open fire!
An immediate fusillade was directed at the
movement in the reeds and Andre Ra-bie died... he didn't stand a chance. The men
with Andre
scattered in the confu-sion of the contact, and fortunately none of
them were killed.
Afterwards, many people blamed them-
37
selves for Andre's death; Pat Armstrong .... he should have re-checked the
position; Detective Inspector Vic Opperman... he should
have questioned the
informer in greater depth; the Rhodesian Light Infantry tracker, for it was his
bullets which had killed Andre
and it was Andre who had taught him his skills as
a tracker.. an impartation of knowledge which had been destined to cause his
death.
The truth... Andre's death was caused by his own errors in reading the country
and his maps... tragic but starkly true... and the
gods of war are harshly
unforgiving of those who make errors.
No one other than Andre was to blame ...but Rhodesia lost a very fine soldier as
a result."
This is a good example of
abridgement. The Pictorial Ac-count version is much briefer, less discursive;
but nevertheless part-sentences
and phrases in Top Secret War, such as "Vic
Opperman was in front with the tracker", "the RPD-light machine gun... its
Russian identity
starkly un-
38
mistakable against the sandy backdrop", "The men with Andre
scattered", "Afterwards, many people blamed themsel-ves for Andre's death"
are
clearly discernible, in virtually the same form, in Pictorial Account.
A third pertinent example appears in episode (vii), the death of Lieut
Hughes. Again I compare the two versions. In Pictorial Account
it reads (at p
55):
"... they were deployed with a pseudo group into the Mtepatepa farming area of
Centenary. Two of their African operators visited
a village to discuss setting
up a meeting with the local terrorist group, through a known contactman.
The villagers plied them with beer and the discussions became protracted, as is
normal in African custom. Michael Bromley and Rubin
Hughes crept into the
village, once it was dark, and concealed themselves by the cattle
kraal.
Unexpectedly, the real
terrorists ap-peared. Without waiting to see if their cover had passed muster,
the two pseudo
39
operators in the village initiated a fire-fight.
Two ZANLA terrorists were killed and another wounded and captured, but Robin
Hughes was killed in the cross fire. He had stood up
in the centre of the
contact area to open fire and help his men, but un-luckily, he was downed by a
stray bullet."
The Top Secret War version is as follows (at p 39):
"They were deployed into the Mtepatepa farming area of Centenary and it was
not long before his group had nuzzled their way into the
confidence of a local
ZANU sympa-thiser, and ascertained that a group of ZAN-LA terrorists were
operating in the area.
On the 18th October, the African pseudo operators were invited to visit the
contact-man's village after dark, to discuss the question
of a meeting being set
up with the resident ZANLA group.
They sat down to a meeting in the village, their backs against some rocks,
and the tribesmen plied them with beer.
While the beer-drinking and
40
discussions were in mutually amicable progress, Michael Bromley and Robin
Hughes stealthily made their way into the village, covered
by the darkness and
concealed themselves on the far side of a cattle-kraal, only a few metres away
from the huddle of villagers and
pseudo operators.
Suddenly... and
tótally unexpectedly ... the group of real ZANLA terrorists they had been
negotiating to meet, walked into
the village.
There was a face-to-face
confrontation between the pseudo terrorists and the real terrorists who clearly
realised something was amiss.
The pseudos knew immediately they would not be
able to carry it off, so they swung up their guns and opened fire first. There
was
a sharp and decisive firefight in which two ZANLA terrorists were killed and
another wounded and captured... the rest got away.
After it was all over, Lieutenant Robin Hughes who had placed himself on the
far side of the cattle-kraal was dead...
41
tragically killed in the cross-fire. The situation had been a welter of
confusion and Robin, who had the reputation of being a matchless
rifle shot had,
it was thought, stood up in the centre of the contact area to help his men, and
was unluckily killed by a stray bullet."
The same
pattern of copying is to be found in chapter 7 of Pictorial Account, dealing
with the selection and training of Selous Scouts.
The material contained in this
chapter was obviously gleaned from pages 134-140 of Top Secret War. Pictorial
Account faithfully repro-duces,
in the same sequence, the essential facts
contained in pages 134-140, but leaves out a certain amount of cir-cumstantial
and discursive
detail. Again there is con-siderable evidence of language
copying. I give three examples, quoting (a) the passage in Top Secret War
and
then (b) the passage in Pictorial Account.
(1) (a) "I (ie Reid Daly) would stress
42
that any volunteer could drop out. of the course at any stage and no one was
going to sneer at them for failing. Failure to gain
entry into the Scouts
certainly did not mean they were washouts as soldiers... quite the contrary...
in an environment more suitable
to their particular temperaments, they would
make outstanding sol-diers... as many of the volunteer officers,
non-commissioned officers
or rankers already were, or would later become." (p
135)
(b) "He (the commanding officer) would
stress that once they start-
ed the course there was no compul-sion to stay with it... a volun-teer could
drop out at any stage ... without it being considered
a disgrace. Failure to
gain ac-ceptance into the Scouts, certain-ly wouldn't mean they were failures...
they could well be outstanding
soldiers in other less
43
specialist units, as many men who failed selection were, or would become." (p
64)
(2) (a) "The volunteers would then be issued with a one-day ration pack ... a
rat-pack as it was known... and warned, that while the
course was on, food
issues might well be unpredictable ... and ... that the rat-pack might have to
last them some considerable time."
(pp 135-6)
(b) "Once the CO's address was over they would each be issued with a one
day's field ration pack - a rat-pack, as it was generally
known in the Rhodesian
forces, and told that while on selection, food supplies would likely be
unpredictable and the ration pack
might well have to last... so they would be
wise to eke it out." (p 64)
44
(3) (a) "One Cockney Londoner... a
former Royal Marine... once summed it up very succinctly.
'Cor,' he said in awe as the elephants trumpeted and crashed through the bush
nearby the camp, 'it's like Whipsnade Zoo... wiv'out
the bars!' (p 138)
(b) "A Cockney Londoner who had
been through the mill in the Royal Marines, who thought he had seen everything
that an unsympathetic military could dish out, started
nervously when he heard
elephants breaking trees adjacent to the camp. 'Blimey,' he whispered in awe,
'it's like Whipsnade Zoo -wiv'aht
the bars.' (p
66)
(This last quoted remark was, according to Reid
Daly, one of his inventions.)
Then came the chapters dealing with the various operations conducted by the
Selous Scouts. As I have in-
45
dicated, 22 selected external operations (of a potential number of 65-70) are
described in Top Secret War in a certain sequence. In
Pictorial Account the same
external operations are described in the same sequence. Moreover, there are no
operations described in
the relevant chapters of Pictorial Account which are not
to be found in Top Se-cret War. And again when one comes to compare the
respective accounts of the individual operations one finds in each, generally
speaking, the same selection of narra-tive detail,
the same sequence of events,
the same indivi-duals chosen for special mention, the same dialogue, the same
jokes; and a marked correspondence
in the language used. A full documentation of
these similarities in this judgment would cause it to become unduly protracted
and
would serve no useful purpose. In evidence there was put in, on respondent's
behalf, a document (exhibit "J"), which consists of
a two-way comparison of
selected passa-ges from Top Secret War and from Pictorial Account. This
46
was compiled by Reid Daly. It lists some 290 such compa-risons. It is not a
complete comparison in that Reid Daly did not go beyond
page 135 of Pictorial
Account and page 316 of Top Secret War. He considered that by then he had
demonstrated the point he wished
to make. There is no doubt that this document
builds up an impressive case of copying, particularly in regard to the selection
of
the facts presented and also in regard to language copying.
In order to illustrate this I shall, however, refer to one of the external
operations described in both works, viz Operation Eland,
which consisted of an
attack upon a ZANLA base near the Pungwe River, across the border in Mozambique.
This operation is recounted
in Top Secret War at pages 178-222. The version in
Pictorial Account appears at pages 92-8. (This operation constitutes items
146-186
of the two-way comparison, exh "J".) Bríefly, the story, as told
by Top Secret War, is the following.
47
The existence of a big ZANLA base on the Pungwe River was first revealed by
the interrogation of captured insurgents (referred to
in both works as
"captures"). Initially the Air Force could not find the base, but then it was
discovered by accident during an unrelated
photo-graphic reconnaissance flown
over the area. The feasibility of the Selous Scouts mounting an attack on the
base was then investigated.
Further information was gathered, which indicated
that the base was the main one used by ZANLA for infiltrating insurgents into
the
eastern districts of Rhodesia and that it contained a hospital. It was
estimated that at the time there were about 5 000 insurgents
there. The planning
went ahead and eventually in the early hours of Monday 9 Augusb 1976 an armed
column, manned by Selous Scouts,
84 officers and men, crossed the border into
Mozambique. The column included a number of Unimog troop carrying vehicles,
which were
48
similar to those used by FRELIMO, the insurgent force which had assumed power
in Mozambique in 1974 and with which ZANLA had forged
close links. The vehicles
had been disguised to look like FRELIMO transport. In addition, the Selous
Scouts personnel, who included
both White and Black soldiers, had disguised
themselves as FRELIMO soldiers. The column was under the command of Capt. Rob
Warracker.
The column reached the base, or camp as it is described, without
detection and the two versions (I quote first from Top Secret War
p 205 and then
from Pictorial Account p 95) describe how entry was gained to the camp as
follows:
(1) "At 08h25 the head of the column reached the entrance to the camp.
There were six ZANLA guards at the gate who normally, would have been
accom-panied by two FRELIMO soldiers with the responsibility
to scrutinise all
movement orders - gia de marche...prior to allowing any person or vehicle to
enter the camp.
49
The two FRELIMO soldiers had apparent-ly been at the gate earlier that morning,
as was their duty, but later, probably be-cause they
tired of hanging around,
they had left their posts and returned to their barracks.
This was fortunate for us, for as the inexperienced ZANLA guards hesitated about
lifting the boom, Sergeant Rodrigues, his balaclava
pulled well down over his
face, screamed a torrent of abusive Portuguese at him.
The guard, jumped to it as if by re-flex, and raised and held the boom up to
allow the column to pass through into the Nyadzonya/Pungwe
camp.
(2) "The Scouts reached the entrance to the base at 08h25. On duty at the boom
were two inexperienced and unarmed ZANLA terrorists
- instead of the six armed
FRE-LIMO guards who should have been there, but who had probably got tired and
left.
A Portuguese speaking Special Air Ser-vice sergeant who was accompanying them,
Sergeant Rodrigues, pulled his balaclava
a
50
over his face and screamed abuse at the guards and they hurriedly raised the
boom."
(The episode involving Sgt Rodrigues was, according to Reid Daly, another of
his inventions).
The column then entered the camp and made its way to the parade ground. Here
the Scouts encountered a large concentration of insurgents,
the largest that any
Rhodesian soldier would see at any one time throughout the war. They had
mustered for the daily parade. The
fol-lowing was the reaction, as described in
both works (firstly at p 206 of Top Secret War and secondly p 95 of Pictorial
Account):
(1)
"'Jesus!' exclaimed Willie
van der Riet to the Scouts on his vehicle, 'I just hope we don't run out of
ammunition.'
(2)
"'Jesus,' murmured Willie van
der Riet to the men on his vehicle. 'I just hope we don't run out of
ammunition!'"
51
Both versions then proceed to describe how the vehicles, upon
which were mounted machine guns and cannon, formed themselves into a
firing
line. There were two plans, A and B. A involved a ruse whereby the most
important insurgent leaders would be kidnapped, before
the Scouts opened fire
and destroyed the camp. Plan B involved firing commencing immediately the order
was given. At that stage the
insurgents on parade broke ranks and rushed towards
the column and surrounded the vehicles. The descriptions proceed (firstly p 207
of Top Secret War and secondly p 95 of Pictorial Account):
(1) "'Viva FRELIMO... UP FRELIMO', screamed a happily jiving terrorist,
undulating only inches away from the hostile muzzles of Sergeant
Bruce
Fitzsimmons' twin MAG's.
'Viva your bloody arse!' muttered Bruce through his bushy beard, standing on tip
toe to get the maximum depression on his MAG's...
when he opened fire it would
be
52
at point blank range.
The terrorist suddenly ceased undula-ting and his
eyes widened as if they they were going to pop out of their sockets, as the
colour
of Bruce's steely and clearly European eyes ... which were squinting down
at him through the gun-sight ... registered on his senses.
'Murungu!...
Murungu! Whiteman!... Whiteman!' he screamed, frantically attempting to fight a
passage away from the vehicles.
His cry of panic was joined by the cries of
others in the front of the crowd as they too suddenly twigged there were
Europeans on
the trucks as well as Africans, and they joined the mad scramble to
get away as well.
Unfortunately for them, their warning cries were drowned by
the singing and cheering of those in the rear ranks who were still anxiously
jostling forward to get a better look.
Rob Warracker realised it had to be plan B, and it had to be plan B
quickly... they were at grave risk of being swamped.
53
'Fire!' he barked into his radio's handset."
(2) "One terrorist undulated madly in front of the depressed muzzles of Sergeant
Bruce Fitzsimmons' twin MAGS, yelling: 'Viva FRELIMO,
Viva FRELIMO!'
He stopped dancing abruptly when he suddenly noticed Bruce's steely blue eyes
staring at him through the gunsight, at point-blank
range.
'Murungu! Murungu!' he screamed in panic. 'White man! White man!' He attempted
to fight a passage through the crowd to get away from
the vehicle and what he
had suddenly realised was sudden death.
Rob Warracker gave the order to open
fire."
(According to Reid Daly this was
mostly his invention. For instance, the individual to whom he gave the pseudonym
Bruce Fitzsimmons
actually had brown eyes.)
The two versions then proceed to describe in similar fashion and with much
correspondence of language
54
the carnage caused by this attack, how the Scouts disen-gaged
themselves, escaped from the camp and eventually found their way back
to
Rhodesian territory.
Despite all the evidence of objective similarity which has been described and
illustrated above, appel-lants' counsel argued that
Pictorial Account did not
amount to a reproduction of Top Secret War, or a substan-tial part thereof. A
number of points were raised.
Firstly, counsel submitted that some allowance
should be made for the fact that second appellant was part-author of Top Secret
War
and in this connection reference was made to what is said by Cornish,
Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights
,
at p 353. It is not very clear from counsel's submission what form that
"allowance" should take. In my view, there is no substance
in the point on the
facts of this case. The second appellant was part-author of Top Secret War
only
55
in that he re-worked and added to Reid Daly's manuscript. Much
of the content of Top Secret War - eg the operations chosen for description,
the
descriptions themselves, the individuals mentioned, the language used - derives
from the manuscript. In any event, it seems to
me that generally speaking where
an author has surrendered his copyright by assignment to another, he is placed
in the same position,
vis-á-vis the copyright work, as a stranger and any
alleged infringement by him must be adjudged on that basis. The possibility
of
unconscious copying by reason of his authorship of both works, mentioned by
Cornish, op
cit
, does not arise, in my opinion, on the facts of this
case. Nor, in my view, is there room for the argument that the similarities
of
language in the present case were to be attributed to what counsel termed second
appellant's "house style". The similarities are
too marked, too many and in too
many instances inexplic-able except on the basis of copying.
56
Secondly, it was argued by appellant's counsel that Top Secret
War narrated historical facts and that there is no copyright in facts;
and that,
in any event, a distinction should be drawn between historical works and works
of fiction. With regard to this latter point
coun-sel referred to what was said
by Brightman J in the
Ravenscroft
case,
supra
, at pp 205-6, viz
-
"I am inclined to accept that a histo-rical work is not to be judged by
precisely the same standards as a work of fiction. The purpose
of a novel is
usually to interest the reader and to contribute to his enjoyment of his
leisure. A historical work may well have that
purpose, but the author of a
serious and original historical work may properly be assumed by his readers to
have another purpose
as well, namely to add to the knowledge possessed by the
reader and perhaps in the process to increase the sum total of human experience
and understanding. The author of
a
57
historical work must, I think, have attributed to him an intention that the
information thereby imparted may be used by the reader,
because knowledge would
become sterile if it could not be applied.
Therefore, it seems to me reasonable to suppose that the law of copyright will
allow a wider use to be made of a historical work
than of a novel so that
knowledge can be built upon
knowledge."
Top Secret War, as Reid
Daly's evidence reveals, is not exactly a serious, historical work, although it
does purport to narrate facts,
embellished in various matters of detail. As I
have pointed out, however, in dealing with the dictum that there is no copyright
in
ideas, thoughts or facts, the copying of an author's se-lection and
compilation of facts and the manner in which he presents them
may well amount to
infringement of copy-right; it is generally a matter of degree.
While there is cogency in the above-quoted dis-
58
tinction drawn by Brightman J between historical works and works of fiction,
I do not find it necessary to decide the point. As I
have demonstrated, in
writing Pictorial Ac-count the second appellant not only used the general idea
underlying Top Secret War, but
went much further: he reproduced the facts
selected by the author of Top Secret War to portray the history of the Selous
Scouts,
virtually down to the last detail. In each of the chapters of Pic-torial
Account, to which objection is taken, the story follows
faithfully, in all its
essentials, that told in Top Secret War. In the chapters dealing with the
operations by the Selous Scouts
second appellant selected the same operations
(out of a much greater potential num-. ber) and told the story of each operation
in
the same way, with the same circumstantial detail, selection of the
cha-racters portrayed, the use of the same pseudonyms, and so
on. Moreover, as I
have shown, there was a very consi-derable amount of language copying. It was
argued that
59
this is for the most part what was termed "referential
language": language which had to be used to recount a particular fact. I am
not
impressed with this argument. There are often different ways of describing
facts; and in this case there is such a large degree
of correspond-ence between
the language used in the two works that, in my opinion, it can only be described
as copying. Furthermore,
this argument on referential language tends to amount
to a dissection of Top Secret War into its components such as that warned
against
by Lord Reid in the above-quoted passage from his speech in the
Ladbroke
case,
supra
.
Appellants' counsel further submitted that there was no significance in the
fact that operations were re-counted in the same sequence:
this sequence simply
fol-lowed the chronological order in which they occurred. There is some force in
this argument, though as Reid
Daly
60
pointed out in evidence, certain operations took place
concurrently.
To sum up, I have no doubt that, viewing each of the two works as a whole and
having regard to the simi-larity between the two in
the respects which I have
empha-sized and illustrated, Pictorial Account, in the relevant chapters,
reproduces a substantial part
of Top Secret War. In my opinion, Pictorial
Account could not have been writ-ten without continuous reference to Top Secret
War and
the differences between the two in regard to content and lang-uage are
mainly due to the fact that Pictorial Account was written
as an abridgement of
Top Secret War with, as re-gards language, a considerable amount of colourable
alter-ation. In producing Pictorial
Account the author availed himself
unlawfully of a great deal of the skill and indus-try that went into the writing
of Top Secret
War.
In my judgment it follows that the Court a
quo
61
correctly found that Pictorial Account constituted an
in-fringement of the copyright in Top Secret War. No objec-tion was taken to
the
consequential orders made by the Court a
quo
.
The appeal is dismissed with costs, including the costs of two counsel.
M M CORBETT
SMALBERGER, JA)
MILNE, JA) CONCUR
KUMLEBEN, JA) CONCUR.
NICHOLAS,
AJA)