IN THE HIGH COURT OF SOUTH AFRICA 
CAPE OF GOOD HOPE PROVINCIAL DIVISION

CASE NO:   A459/06

In the matter between:

and

[1] The appellant stood trial in the Regional Court Cape Town on a charge of the contravention of section 27(1 )(a) and (b) of the Copyright Act 98 of 1978 in that, in the period during March and May 2001, the accused sold, by way of trade offered or exposed for sale or hire certain products which were the subject of copyright at the time.

[2] On 2 November 2005 the accused was found guilty on the above charge and sentenced to a R5 000-00 or 6 (six) months imprisonment.  In addition thereto, the appellant was sentenced to a further 6 (six) months imprisonment, conditionally suspended for 3 (three) years.

[3] On 15 December 2005, the learned Regional Magistrate gave leave to the appellant to appeal to this court on conviction only, hence this appeal against such conviction

[4] At the commencement of the hearing on appeal the prosecution and the defence agreed that copyright in the Microsoft products reflected on annexure 'A' (only) had been proven by the State, so that this aspect was no longer an issue. They further agreed to provide us with a revised schedule setting out the products in respect of which copyright had indeed so been demonstrated.

[5] I deal with the three bases upon which it was argued on behalf of the appellant that the learned regional magistrate misdirected himself in convicting the accused.

NO CHAIN OF EVENTS
[6] It was argued that there is no proper evidential chain linking the products sold by the accused and/or those which were confiscated, and the discs which were ultimately analysed and testified to by the experts.

[7] For that reason, so it was argued by Mr Bischoff, who appeared on behalf of the appellant, the element of possession which is required for the presumption in terms of s26(10) of the Copy Right Act to arise, had not been proven.

[8] In response thereto, Mr Tarantal for the State, correctly pointed out that there was no need for the State to rely on this presumption, as it had proved, through direct evidence, the sale of the Microsoft products.

[9] Mr Bischoff further argued that there was no certainty that the products sold indeed contained Microsoft computer software (as opposed to, for instance, music) as the purchasers never opened them. During debate, he, however, conceded that, in view of the accused's own evidence (that the discs contained Microsoft computer ware), this was a far fetched and speculative possibility and may be ignored.

ABSENCE OF MENS REA

At 831D, with reference to the facts of this case, Ackermann, J held:

On that basis the accused in that case was held to have had the required

[12]   In our view, these principles/observations are, likewise, applicable to
the present matter in that:

2. For that reason, the accused specifically stipulated in the disclaimer that the end user should, were he to ascertain that the product is so protected, either destroy same or purchase another product;
3. It would have been relatively simple for the accused to make inquiries from Microsoft so as to ascertain the true position. He could also have "run" the discs;
4. It appears from his cross-examination that he did not do so, quite simply because;
"... I was interested on the easiest way to get my service running, so even if I saw this copyright exists somewhere-let the end user, because he is using the soft ware, let him check and make sure if it is protected by copyright or not"
He also conceded:
"Ja, I didn't really care (whether copyright existed or not)."

NO SALE BUT RATHER A SERVICE BY THE ACCUSED
[15] This ground of appeal raised in the Heads of Argument, was not proceeded with during oral argument. In our view, the point was sensibly abandoned. The CD's in question were clearly advertised for sale and sold. At the very least there was a trade in the copyrighted products.

[16] In the circumstances I would dismiss the appeal and confirm both the conviction and sentence, save that, by agreement between the appellant and the State, the annexure to the charge sheet is replaced by one reflecting (only) the following computer ware:
	MS WINDOWS 98 ME
WINDOWS NT4 WORKSTATION
MS WINDOWS 2000 ADVANCED SERVER
MS WINDOWS PRO 2000
WINDOWS XP WHISTLE
MS OFFICE 2000 PREMIUM
	MS OFFICE 97 PROFESSIONAL
MS PROJECT 2000
MS VISUAL BASIC 6 ENTERPRISE

VAN RIET, AJ

I agree, and it is so ordered.
ZONDI, J