Student Name: Kaisa Audrey

Student number: 19001156

Module: Intellectual Property Law
Module code: IPL 4631
Lectures: Prof L Ndlovu and Dr. DO Oriakhogba
Assignment 01

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Table of content
Question one
1.1………………………………………………page 3
1.2……………………………………………….page 5

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1.1.
Introduction
First and foremost, intellectual property is intangible property that is a result of
creativity1. Amongst others, it includes copyright, patents, trademarks, and trade
secret. Furthermore, the law provides intellectual property rights to creators and
innovators in order to protect the products of their creativity, goodwill, and efforts 2.
Identification of the intellectual property
Copyright is one of the various rights one can have for their intellectual property. It
does not have to be registered for it exists automatically in a product. This means
that it subsists when certain requirements are met by the product such as the fact
that the product has met the genre of ‘works. Furthermore, copyright does not exist
over an idea, the idea must be converted into a material form. The Supreme Court of
Appeal, in Gallo Africa Ltd v Sting Music3, declared that copyright is incorporeal
immovable. This thus entails that copyright can only exist over a material thing. The
copyright gives its owner certain exclusive rights that are limited in duration. Thus,
copyright is a body of legal rules and principles that protects a person’s material
expression of ideas. These rules subsist automatically if certain requirements are
met.
Requirements for copyright
The requirements of copyright are divided into common law and statutory. Moreover,
statutory requirements are twofold, they relate to the inherent feature of the work and
the external circumstances.
The common requirement for copyright is propriety. In the case of Goeie Hoop
Uitgewers( Edms) Bpk v Central News Agency 4, the court held that propriety is a
requirement because it is against the public interest to allow an author to benefit
from works that are not proprietary.
Furthermore, the inherent features entail that the work must be original and reduced
to a material form. In terms of section 2 of the Copyright Act 5 provide that work is
only eligible as copyright if it is original. In the case of Moneyweb (Pty) Ltd v Media
24 Ltd and Another6, the court held that when establishing originality, the work must
be looked at as a whole, rather than selecting parts of the work.
The requirement of material form calls for a work to be in some or other material
form for it to qualify for copyright protection. Section 2(2) of the Copyright Act 7,
1
https://www.wipo.int/about-ip/en/
2
Andries van der Merwe, Sunelle Geyer, Roshanna Kelbrick, Hennie Klopper,Pieter Koornhorf, Tana Pistorius,
Philip Sutherland, Lee -Anna Tong, Pieter van der Spuy, ‘LAW OF INTELLECTUAL PROPERY IN SOUTH AFRICA’ 2nd
LexisNexis (Pty) Ltd, 2016.
3
Gallo Africa Ltd v Sting Music (Pty) Ltd 1103 JOC (1108).
4
Goeie Hoop Uitgewer (Edms) Bpk v Central News Agency 1953 (2) SA 843(W).
5
Act 98 of 1978.
6
Moneyweb (Pty) Ltd v Media 24 Ltd and Another (31575/2013) [2016] ZAGPJHC 81; [2016] 3 AII SA 193 (GJ);
2016 ZAGPHJC 81.
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Act 98 of 1978.

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provides that a work to qualify as copyright must be written down, recorded, and
represented in digital data thus reduced to material form. The material embodiment
of work should have a certain measure of permanence.
The external circumstances of the time at which the work was made provide that
copyright arises in three alternative circumstances namely when the work is formed
by a qualified person, when the work is first made and published in South Africa and
when the work is created under the direction or control of the state.
Section 3 (1) of the Copyright Ac8t states that copyright is only conferred when an
author or any of the authors, is qualified at the time of the work was made. A
qualified person is therefore defined by section 3(1) as a person who is a citizen of
the country or juristic person and any person or citizen whose country is a member
of WTO. In terms of the Domicile Act, section 1(2), provide that a domicile of choice
is acquired when a person is lawfully present at a particular place and intends to set
in such a place for an indefinite period. In the case of Levene v Inland Revenue9, the
court held that an individual is ordinarily a resident in a country if that country is his
or her habitual and normal country of residence in the sense that such a person lives
there with some degree of continuity. Furthermore, in the case of Ex parte Minister
of Native Affairs 194110 it was stated that the courts have turned away from trying the
impossible task of giving a precise definition of the word resides.
With regards to publication or making, section 1(5) 11 provides that a work shall be
deemed to have been published if the copies of such work have been issued to the
public with the consent of the owner of the copyright. Lastly, the requirements for
works created by or under the direction or control of the state, section 5 (5) 12
provides that copyright vests in works created by or under the control of the state
irrespective of the compliance with the statutory requirements for the subsistence of
the copyright. This means the work does not need to be made by a qualified author.
In the case of Beecham Laboratories 13, the court held that one must first consider
whether the work was made under the circumstances falling within section 5(2) 14.
The work must be made under the control or direction of the state. This was noted in
the mentioned case above, where the Medical Control Council directs only the
approval of the insert and did not provide direction or control over the effort in
making the insert. The court went on to state that control did not mean cooperation
or consultation.
In casu, copright is clearly the proper identification of the form of intellectual property.
Mr. Mbedzi proposal is original for he came up with the idea and reduced it into
documentary form thus creating originality and material form. It is clear that putting
his ideas into a document amount to writing. Furthermore, he meets all the inherent

8
Act 98 0f 1978.
9
Levene v Inland Revenue 1928 AC 217.
10
Ex parte Minister of Native Affairs 1941 AD 53.
11
Act 980f 1978.
12
As above.
13
Biotech Laboratories (Pty) Ltd v Beecham Group plc [ 2002] 3 AII SA 652 (SCA).
14
Act 980f 1978.

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requirements of copyright. Mr Mbedzi is a citizen of South Africa, thus also meeting
the external circumstance. Copyright does not need to be registered; all he has to do
is prove that his work meets the requirements of copyright as explained above.
Further, his work does meet the requirements of copyright.
From the facts, it is clear that the municipality infringed the work of Mr. Mbedzi. The
infringement is direct in that the municipality went on to implement exactly the
proposal with another company without the consent of Mr. Mbedzi. Section 23(1)
provides that infringement takes place when someone without the consent of the
copyright owner does or causes someone else to do any of the acts the owner has
the exclusive right to do so. Looking at this provision, it is exactly what the municipal
did, hence the direct infringement of Mr. Mbedzi business proposal. One can say the
municipal reproduced the work of Mr. Mbedzi. This also entails that Mr. Mbedzi has
to prove the causal link and that is a causal connection between the original work
and the allegedly infringing work, it must be proved that the creator of the allegedly
infringing work had access to the original work.
In conclusion, Mr. Mbedzi is entitled to damages in terms of section 24 of the
Copyright Act, for there was an infringement of his work by the municipality.
1.2
AK Attorney Incorporation
630 P. West, Church Street
Thohoyandou
Ref: ak. attorneyincorporation.ac.za
Telephone number: 0980188
To: THE TOWN CLERK
Thulamela Local Municipality
Thohoyandou Civic Center, Old Agriven Building
Thohoyandou
Dear Sir/ Madam

RE: NOTICE IN TERMS OF SECTION 3 AND 4 OF THE INSTITUTION OF LEGAL

PROCEEDINGS AGAINST CERTAIN ORGANS OF STATE ACT, 40 OF 2002
We refer to the above matter.
1. This serves as a notice in terms of Sections 3 and 4 of the Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002.
2. Kindly take notice that we are acting on behalf of MR Mbedzi hereinafter
referred to as “our Client”

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3. It is our instruction that on the 11th day of May 2022 around 09h00am our
client submitted a 50-page business proposal to the Municipal manager. After
listening to the business proposal, the manager went on to call a team of
municipal experts to listen to our client’s business proposal that very same
day. A memorandum of understanding was drafted, and the parties were
given time to read through the proposal from the comfort of their homes.
4. Our client was advised that the municipal liked the proposal and would
implement it after further consultation had taken place. As a result, after three
weeks his proposal has been heard, and our client went to recruit some
business education facilitators and secure some supplies from the
wholesalers that amount to R 150 000.00(one hundred and fifty thousand
rands).
5. After a month of not hearing from the Municipal, on the 16th of June our client
went back to the municipal offices to inquire about the progress. He learned
that the implementation of the project had commenced under a company
from Gauteng called Developers Pty Limited. Our client discovered that
Developers Pty Limited was implementing his original ideas encapsulated in
the proposal he had presented to the municipality.
6. Consequently, our client suffered damages in the sum of R150 000.00 (0ne
Hundred and Fifty Thousand Rands) calculated as follows:
A. Damages in terms of section 24 of the copyright ACT
Section 24 of the Copyright Act provides that infringement of copyright shall
be actionable in a suit of the owner of the copyright, and in any action for
such infringement’s relief will be by way of damages, interdict, accounts,
delivery ·of infringing copies or plates used or intended to be used for
infringing copies or otherwise shall be available to the plaintiff as is available
in any corresponding, proceedings in respect of. In our case, our client is
seeking for damages of R150 000.00 and the delivery of the infringing copies
that were used in the implementation of the business by the Gauteng
Developers (Pty) Ltd.
7. It is our instructions that we demand from you, as we hereby do, payment in
the sum of R150 000.00 (One Hundred and Fifty Thousand Rands) within
thirty (30) days of receipt of this notice, failing which, legal action shall
commence against yourselves with no further notice.
8. Kindly make such payments in the following account details or approach our
offices:
Account Holder : AK attorneys
Bank : ABSA
Branch / Branch Code : Thohoyandou
Account Number : 118096277
Reference : Mr. Mbedzi
Trusting the above is in order, kind regards.

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Bibliography

Books
Merwe A, Geyer S, Kelbrick R, Klopper H, Koornhof P, Pistorius T,
Sutherland P, Tong L, Spuy P ‘LAW OF INTELLECTUAL PROPERTY IN
SOUTH AFRICA’ 2nd edition, 2016 LexisNexis. Page

Cases
Biotech Laboratories (Pty) Ltd v Beecham Group plc [ 2002] 3 AII SA 652
(SCA)
Levene v Inland Revenue 1928 AC 217
Ex parte Minister of Native Affairs 1941 AD 53
Gallo Africa Ltd v Sting Music (Pty) Ltd 1103 JOC (1108)
Goeie Hoop Uitgewer (Edms) Bpk v Central News Agency 1953 (2) SA
843(W)
Moneyweb (Pty) Ltd v Media 24 Ltd and Another (31575/2013) [2016]
ZAGPJHC 81; [2016] 3 AII SA 193 (GJ); 2016 ZAGPHJC 81

Legislature
The Copyright Act 88 of 1978