Dun and Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Corbett J
• Judgment Date: 16 November 1967
• Citation: 1968 (1) SA 209 (C)
• Hearing Date: 23 October 1967
• Court: Cape Provincial Division

Dun and Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd
1968 (1) SA 209 (C)

1968 (1) SA p209

Citation	1968 (1) SA 209 (C)
Court	Cape Provincial Division
Judge	Corbett J
Heard	October 23, 1967
Judgment	November 16, 1967

Flynote : Sleutelwoorde

Trade and trade mark — Unlawful competition — When actionable D — Nature of remedies available — Trader compiling information and distributing it on a confidential basis — Rival obtaining such information and falsely representing or passing it off as his own — Trader entitled to damages and, in an appropriate case, an interdict.

Headnote : Kopnota

E Where a trader has by the exercise of his skill and labour compiled information which he distributes to his clients upon a confidential basis (i.e. upon the basis that the information should not be disclosed to others), a rival trader who is not a client but in some manner obtains this information and, well knowing its true nature and the basis upon which it was distributed, uses it in his competing business and F thereby injures the first mentioned trader in his business, commits a wrongful act vis-à-vis the latter and will be liable to him in damages. In an appropriate case the plaintiff trader would also be entitled to claim an interdict against the continuation of such wrongful conduct.

Case Information

Argument on an exception to the plaintiff's particulars of claim. The nature of the pleadings appears from the reasons for judgment.

G S. Aaron, S.C. (with him L. L. Boshoff), for the excipient (defendant).

L. Kooy, S.C. (with him C. B. van Ryneveld), for the respondent (plaintiff).

Cur adv vult.

H Postea (November 16th).

Judgment

Corbett, J.:

In this matter defendant has taken exception to the plaintiff's particulars of claim, as amended, on the grounds (i) that they do not disclose a cause of action, and (ii) that they are vague and embarrassing. Plaintiff's combined summons, containing its particulars

1968 (1) SA p210

Corbett J

of claim, was originally filed on 9th May, 1966. As a result of a request for further particulars substantial amendments to the particulars of claim were effected and on 17th October, 1966, and in terms of Rule of Court 28 (5) plaintiff filed an amended particulars of A claim. Defendant thereupon requested further particulars to the amended particulars of claim. On 22nd February, 1967, plaintiff furnished certain particulars in response thereto and gave notice in terms of Rule of Court 28 of its intention further to amend its particulars in a minor respect. No objection to this amendment being forthcoming, it was duly B effected. On 15th March, 1967, plaintiff filed another amended particulars of claim incorporating this minor amendment. These particulars read as follows:

'1.

Plaintiff is Dun & Bradstreet (Pty.) Ltd., a company duly incorporated according to the laws of South Africa and having its registered office at Hollandia House, 127 President Strect, Johannesburg, where (and elsewhere in the Republic) it carries on the business of supplying credit information.

2.

C Defendant is SA Merchants Combined Credit Bureau (Cape) (Pty.) Ltd., a company duly incorporated according to the laws of South Africa and having its registered office at 96 Main Road, Fish Hoek, Cape, where it carries on the business of supplying credit information.

3.

Plaintiff avers that, at all times material to this suit,

(a)

it has been the sole owner of the copyright in certain literary works known as 'Credit Records' which are weekly, monthly, quarterly and half-yearly compilations of contemporaneous D judgments of the Supreme Court and the magistrates' courts of the Republic of South Africa;

(b)

the said literary works were made available by plaintiff to its subscribers only, and it was a term of each contract of subscription that the said works were to be held in confidence and not revealed to any other person;

(c)

E neither defendant nor its predecessor, SA Merchants Combined Credit Bureau hereinafter referred to, was or is a subscriber to the said works 'Credit Records'.

4. (a)

On or about 30th June, 1964, defendant acquired the business of a firm styled 'S.A. Merchants Combined Credit Bureau', which conducted the business of supplying credit information.

(b)

In acquiring the said business as aforesaid defendant also acquired the firm's cards and/or other records containing credit information, which cards and/or records include inter alia F substantial reproductions from plaintiff's said 'Credit Records' effected wrongfully, unlawfully and in breach of plaintiff's aforesaid copyright.

5.

Since 30th June, 1964, defendant, well knowing the facts set forth in paras. 3 and 4 above, has been:

(a)

obtaining, without plaintiff's consent and in some manner to plaintiff unknown, copies of 'Credit Records';

(b)

reproducing substantial portions of 'Credit Records' on to its cards and/or other records used by it in its business;

(c)

r G issuing written reports to its own subscribers based on the information reproduced from 'Credit Records' in the manner set out in paras. 4 (b) and 5 (b) above;

(d)

issuing verbal reports to its own subscribers based on the information reproduced from 'Credit Records' in the manner set out in paras. 4 (b) and 5 (b) above.

6.

H Plaintiff avers, in the premises, that defendant's conduct described in subparas. 5 (b) and 5 (c) above was and is wrongful, unlawful and in breach of plaintiff's aforesaid copyright. Plaintiff further avers that defendant's conduct described in sub-paras. 5 (a) and 5 (d) above is wrongful, unlawful and in breach of plaintiff's aforesaid right (referred to in subparas. 3 (b) above) to have the information contained in 'Credit Records' confined to its own subscribers.

7.

On 22nd October, 1965, in the above Honourable Court plaintiff was granted a final interdict against defendant, with costs, restraining defendant or any person under its control from making use of plaintiff's 'Credit Records' for the purpose of supplying information to defendant's customers.

1968 (1) SA p211

Corbett J

8.

As a result of defendant's conduct as set out in para. 5 above, plaintiff has suffered damages in the sum of R2,000.

9.

Defendant still has in its possession the said cards and/or other records containing information copied from plaintiff's works as alleged in paras. 4 (b) and 5 (b) above.

10.

Despite demand defendant wrongfully and unlawfully refuses to A deliver to plaintiff the cards and/or other records in its possession containing information reproduced from 'Credit Records', or to account to plaintiff for the income it has received from its use of such information.

Wherefore plaintiff claims:

(a)

An order that defendant deliver to plaintiff all cards and/or records in its possession containing information reproduced from 'Credit Records' since May, 1963.

(b)

B Damages in the sum of R2,000.

(c)

An order that defendant account to plaintiff for all income received by defendant arising from the use by it of information in plaintiff's 'Credit Records'.

(d)

Alternative relief.

(e)

Costs of suit.'

It was common cause that these particulars should be read together with C the further particulars furnished on 22nd February, 1967. The following allegations contained in these further particulars are relevant for present purposes:

(a)

That the 'substantial reproductions' mentioned in para. 4 (b) of the particulars refer to all judgment information on the cards D and records described in that sub-paragraph and that the plaintiff relies only on reproductions effected since May, 1963;

(b)

With reference to para. 5 of the particulars, that defendant obtained all the issues of 'Credit Records' and reproduced all the portions thereof relating to judgments:

(c)

That the sum of R2,000 claimed by way of damages represents the E plaintiff's estimate of the general loss of its trade over and above * the amount of income received by defendant arising out of the use by defendant of information culled from 'Credit Records'.

Thereafter defendant filed a notice in terms of Rule 23 (1) of the Rules F of Court. In para. 2 of this notice defendant states that it appears that plaintiff is alleging two different types of unlawful conduct by the defendant: (i) a breach of copyright by reason of the conduct described in paras. 5 (b) and 5 (c) of the amended particulars of claim; and (ii) a breach of a right - referred to in para. 3 (b) of the amended particulars of claim - to have the information contained in 'Credit Records' confined to its own subscribers, such breach occurring G by reason of the conduct described in paras. 5 (a) and 5 (b) of the amended particulars of claim. Defendant states further that it finds the allegations concerning the second of these two types of unlawful conduct vague and embarrassing and it requests a number of further particulars H designed to remove this complaint. Plaintiff filed a reply to this notice declining to furnish the particulars requested in para. 2 thereof. In para. 4 of the notice defendant stated:

'Inasmuch as plaintiff is apparently alleging two different species of legal wrong by defendant, plaintiff is required to indicate what portion of the R2,000 it has allegedly suffered as damages, it suffered in respect of each wrong.' In his reply plaintiff responded as follows:

'Plaintiff apportions the sum of R2,000 equally between

(1)

defendant's conduct as alleged in paras. 5 (b) and (c) of the particulars of claim and

1968 (1) SA p212

Corbett J

(2)

defendant's conduct as alleged in paras. 5 (d) read with 5(a) of the particulars of claim.'

The notice of exception subsequently filed by the defendant is directed A at that portion of...