SUPREME COURT OF APPEAL OF SOUTH AFRICA MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM The Registrar, Supreme Court of Appeal
DATE 25 November 2019
STATUS Immediate

Please note that the media summary is intended for the benefit of the media and does not form part of the judgment of the Supreme Court of Appeal.

Tellytrack v Marshalls World of Sport (Pty) Ltd & others (971/2018) [2019] ZASCA 153.

Today the Supreme Court of Appeal (SCA) upheld an appeal against an order of the KwaZulu-Natal Division of the High Court, Durban. The appeal was lodged by Tellytrack, a partnership between Phumelela Gaming and Leisure Limited, Gold Circle (Pty) Ltd and Kenilworth Racing (Pty) Ltd. In the court below, as in the SCA, Tellytrack claimed that Marshalls World of Sport (Pty) Ltd and six other respondents, who all run bookmakers businesses, infringed Tellytrack’s copyright in cinematograph films by allowing the viewing by the public at their places of business live national and international horse racing events, on Tellytrack’s DSTV channel 239.

In denying infringement of copyright, the respondents submitted that what was being shown on the Tellytrack channel was not a cinematograph film, but a broadcast. The respondents further contended that the images shown on channel 239 were not fixated or stored, inter alia, on film or any other material of data, and therefore did not satisfy the definition of a cinematograph film in terms of s 1 of the Copyright Act 98 of 1978. They contended that what Tellytrack was displaying on its channel, was a live broadcast, which had not been stored.

In determining whether what Tellytrack was displaying on its channel was a cinematograph film, the court considered the work done by Tellytrack’s employees before the live races were viewed by the public on channel 239. It found that the images from the race events were recorded on more than one occasion to allow for the adding of enhancements like audio and graphics.

The court found that what the bookmakers allowed the public to view at its business premises on the Tellytrack channel were:

‘[A] sequence of images seen as a moving picture constituting in the main horse racing events. Those images and others, including those of studio interviews and the overlay of all the items imposed by way of the computer program, have indisputably been reduced to material form by way of the recordings on the aforesaid occasions. First, in relation to domestic races, two recordings were made at the OB van, second at the Tellytrack control room. In respect of international races, the recording is made of the complete product, including enhancements, at the Tellytrack control room. What is seen on channel 239 is what has already been recorded and stored at the OB van and the Tellytrack control room. At the time that a race event is seen on channel 239 is has already been recorded and stored. . . .’

The SCA found that there had been an infringement of copyright and the appeal was cosequently upheld with costs, including the costs consequent upon the employment of two counsel and the order of the court below was set and substituted with an appropriate order.

St Oswald’s Anglican Church in Milnerton will open its doors to the racing community at 2.00pm on Thursday for them to pay their last respects to Terrance Millard, a man many regard as the greatest South African trainer of all time.

But not ‘The Maestro’ himself. “I wasn’t,” he would say modestly. “There was Syd Laird and he took over from Syd Garrett who was the best trainer we ever had.”

It is always difficult to judge one generation against another, and doubly so if you have spent most of your racing life elsewhere, but a poll of the present generation would be odds-on to come up with Millard and Mike de Kock many of whose overseas successes are all the more remarkable for being achieved in the face of quarantine stipulations bordering on the impossible.

Millard’s roll of honour, displayed in the Kenilworth grandstand, speaks for itself – champion trainer seven times, 2,257 races won including 117 Group 1s; the Met, Durban July and Gold Cup six times each; the first three in the July twice (nobody else has done that even once). And as for the Paddock Stakes 16 times, only Aidan O’Brien can match it – with 16 victories in the Phoenix Stakes.

Millard’s life is well documented. He was even doing it himself after he retired only to baulk when the publishers wanted him to include what he called the juicy bits. But his career wasn’t all plain sailing and he was even forced to take work as a stuntman when his letters to English trainers seeking a job as an assistant failed to elicit even a reply.

Although he struck lucky with the broken-winded Laddie in his first year as a trainer – he bought the gelding for £25 and gave a half share to a couple of vet friends in return for the operation and the horse earned enough for him to buy a house and the vets to build a hospital – he was obliged to bet to attract patrons and keep his existing ones.

“I was forced to set horses up and the owners then wanted to see me have a bet to give them the confidence to put their own money down. I didn’t enjoy betting at all but this taught me a lot about training.

“It was hard to get horses. I had to have eight to get the licence in 1954 but it was slow progress and it was a long time before I had more than 20. I was not leading trainer until 1969 when I had 56 which was a big stable at that time, and I did not win the July until 1983 because I didn’t have the horses and for many years I couldn’t afford to travel to Durban. Eventually I was training 100 and, although I went a little bit over that sometimes, I wasn’t comfortable with more.”

Moving to Blouberg with its custom-built gallop in 1979 proved a major step forward. “The sand by the sea was not reliable because it would not be the same consistency each day so I built a sand gallop that ended uphill. I would firm it with water and it gave me a wonderful advantage.”

He retired in 1991 when he was only 61 to give son Tony a chance and Millard jnr showed he was a chip off the old block by winning two Mets and a July before moving to Hong Kong. “I told him to take the job. If you make money there you keep it whereas here I have seen blokes going broke even though they were training winners.”

Tragedy struck in 1982 when elder daughter Jenny was drowned while windsurfing off Cape Town (her sister Carol was a jockey before becoming Mrs Geoff Woodruff) and again in 1989 when most of his best horses were killed when the lorry coming back from Durban overturned near Worcester.

Why was he so successful? “I started right down at the bottom and I stuck at it but also because I discovered that every horse has a problem. If you can find it, you can maximise his performance.”

I asked others the same question. This is what they said:

Brother-in-law and rival Ralph Rixon: “Terrance was a great horseman and he was clever with his runners but also because he had a terrific inquiring mind.”

Vaughan Marshall: “He was a very good trainer and he taught me a lot of what I know.”

Dean Kannemeyer: “I used to ride work for him as a boy. He had a great eye for a horse, he picked a nice type and my father said: ‘Watch Terrance and see how well he places his horses in the build-up to the big races.’”

Karl Neisius: “He was a brilliant horseman and he was way ahead of his time. That was why he had so much support.”

Anton Marcus: “He had such presence about him that as kids we would look at him in awe. I only had a handful of rides for him but I won the Met and Queen’s Plate on Empress Club for Tony as well as the July on Dancing Duel.”

Glen Kotzen: “Early in my career I asked him what advice he would give a young trainer. He replied: ‘Learn to teach your horses to go through the sound barrier and, when the wheels come off, don’t change anything. And travel – because those that travel learn.’ He came back with all those good Argentinian horses years before anyone else did.”

By Michael Clower

Image Caption: Terrance Millard trained the 1992 Rothmans July winner ILLUSTRADOR.

Favourite Cirillo didn’t do punters any favours last Wednesday as he blew out of the back door and punters will be looking for better from stable companion Putontheredlight in the card opener at the Vaal tomorrow who is also likely to start favourite.

Sean Tarry dominates with four runners in a seven-horse field but stable elect is something of a puzzle. Putontheredlight showed last season that he had top class potential but his last run is cause for concern. He was pulled out of the race by seasoned rider Piere Strydom and the course vet found nothing to report. Strydom has been switched to Pure State but needless to say, if Putontheredlight brings his best, he does rate the horse to beat. Track & Ball are not taking any chances and have priced him up 15-10 favourite ahead of stable runners Rock The Globe and Cordillera with Pure State, the outsider of the Tarry runners – according to the books.

Pure State won well at second time of asking and Strydom stays with the ride. He is unexposed but does appear to have some scope.

Mr Greenlight was well thought of by the Howells yard before moving to De Kock and had a few pressured races for Howells to get him into some of the bigger features. Mr Greenlight has his first start for his new stable, one that is firing, and the 7-2 on offer may be good value. He has had two runs since being gelded and if anywhere near racing fit, he should have the measure of this field. Veteran Finchatton seldom runs a bad race and although he has a big weight he should be right there again along with Nordic Rebel, the two fighting it out at the top of the boards.

Apprentice Philasande Mxoli is no stranger to the winner’s enclosure, albeit in the rural former Transkei where he was a champion in their local ‘bush races’ winning over 90 races. The opposition in those races may not have been much to write home about but on the flip side he is not short of racing experience.

Mxoli has a chance to get off the mark as a professional rider when he partners Galactic Warrior in the seventh. Mxoli’s relative inexperience at this level will account for the 16-1 mark-up, but Galactic Warrior is back over his best trip and now tries blinkers. He looks worth a small punt and is not one to leave out of your exotics.

Aristachus has been priced up as luke-warm 22-10 favourite and although never far off them the alumites are back on and he may prove a worthy favourite although sentiment will lie with stable companion and old soldier Talktothestars who takes a major drop in class.

The Mike de Kock entry Riqaaby will likely start favourite in the last, given the stable form at present, but she was a well-beaten second at her last outing and it may be worth backing up with By Chance that has improved with each outing and should enjoy the extra. Hear The Tempest was running on nicely at her first start over ground and can do better and is a must inclusion as she should be a threat while Miss Cap Mala, although she has had plenty of chances, is never far back and a change of pilot could make a difference.

Results have not been kind to exotic bet punters in recent weeks with some real bombers putting paid to all tickets. Again, this is not an easy card and one needs to structure exotics, going light in some legs and filling up in others, and hopefully getting through to a big pay-out – the choice is yours.

By Andrew Harrison

The R2.4 million paid by Sean Tarry for the top lot at the CTS Ready To Run on Friday evening was the highest price paid at this sale since Brutal Force was bought in by Mayfair Speculators at R4.5 million six years ago.

The Tarry purchase was Track Commander, a colt by Gimmethegreenlight consigned from Soetendal Estate and out of a half-sister to Tibouchina winner Red Dor and Red Peril who won the 2017 Settlers Trophy at Durbanville for Billy Prestage.

Both the average and the median were down on last year although this was to be expected with a 46% increase in the size of the catalogue.

By Michael Clower

Only twice in the last ten years has the winner of the Concorde Cup, and its Selangor predecessor, gone on to land the Cape Guineas but both first and second showed a classic-winning turn of foot at Kenilworth on Saturday.

First Sachdev and then, decisively, King Of Gems accelerated as if they had been fitted with turbochargers and they flew home like Pegasus with Drakenstein’s son of the ill-fated Kingsbarns snatching victory almost on the line to become the longest-priced winner of the race this century.

The 55-1 shot was last of all turning into the short straight but Aldo Domeyer reported: “I was always going well. He picked it up like a good horse should but then Richard Fourie hit the front. This was a concern because Richard doesn’t normally stop when he does but then, though, my horse dug down deep and found an amazing gear.”

Fourie confirmed: “I thought I was going to get up – my mount has a serious turn of foot – but when I was getting there close home the other horse came and got me.”

The margin was only a neck and Justin Snaith reckons the gap is more than bridgeable – “I had to back right off Sachdev after the Cape Classic when his blood wasn’t right and as a result he was not as fit as I would have liked. But I think I will have him right for the Guineas.”

Brett Crawford seemed almost as impressed with third-placed Macthief as he was with the winner, saying: “He had a lot of things against him and in the back straight he clipped heels and pecked. They will both go for the Guineas and after Wednesday I hope to have a third runner (Kilindini).”

Corne Orffer, who rode Macthief, added: “He is not a horse who is going to quicken like the first two did but he keeps finding and he ran right to the line.”

Viva Rio, less than half a length further back fourth, will again be in the line-up on December 21 and Morne Winnaar said: “He will be better on the new course – he only got going late here.”

The principal negatives about the race – from the point of view of its bearing on the Guineas –  are that there was less than two lengths covering the first five, Domeyer’s comment “I can’t wait for ten furlongs” (it takes an exceptional horse to win the Guineas if he is not a specialist miler) and the eclipse of the Kannemeyer horses.

The Milnerton trainer was struggling to understand this in the immediate aftermath and said: “African Warrior (ninth) ran below his rating and he just didn’t quicken – and it’s the first time he hasn’t, while Seventh Gear (fifth) stayed on as if he is looking for ground.”

Vets Kate Meiring and Juan Batt provided the answers: African Warrior was not striding out on his left fore while Seventh Gear was blowing unnaturally hard.

Cane Lime ‘n Soda ran on into sixth and part-owner Robert Bloomberg said: “I think he is a Derby horse but we will take our chance in the Guineas.”

Snow Report (seventh) led until weakening just inside the final furlong and so gave his connections hope for the future. Apparently the Langerman winner has not thrived in recent months.

The stable promptly collected the Cape Merchants with the Domeyer-ridden Russet Air who came up the stands side to book his ticket for the season’s big sprints, much to the delight of Marsh Shirtliff and the Bass and Finch families.

“He gives you the impression that he is looking for a bit further but he is best up the straight,” said Candice.

“I am looking for a horse to take the place of Oh Susanna in the Group 1s,” said Snaith after Myabi Gold had come home in front in the conditions plate, “but I didn’t think I had this mare that fit – she had only had one gallop.” As part-owner Nic Jonsson pointed out, she was only beaten just over two lengths in last year’s Vodacom Durban July.

Andre Nel has Sun Met ambitions for Capoeira who completed Domeyer’s treble in the last – but the real lesson from the finale is just what Roi Querari and the rest of the home team are up against when the CTS Ready To Run finally does take place on Saturday fortnight. Invidia was giving the winner a kilo (and 7kg more than weight-for-age) and yet he was only beaten a neck. Little wonder that Ashley Fortune brought him down early!

By Michael Clower