Software developer Neil Harvey is confident that after a 14-year battle over what he describes as ‘rampant copyright theft’, a judge could order Medscheme, owned by the JSE-listed AfroCentric, to pay a huge R370m, plus interest.

Were this to happen – and it should be noted that Medscheme’s lawyer, Roger Wakefield, of Werksmans, says Harvey is ‘delusional, and should just withdraw his claim’ – it would be one of the largest amounts paid in a local copyright-related case, reports the Financial Mail.

The arbitration case is due to be heard in February 2022, and Harvey is confident after a private arbitrator, Judge Fritz Brand, ruled in October last year that his company, Neil Harvey Associates (NHA), ‘had succeeded in establishing an infringement of its copyright’.

Harvey is quoted by the FM as saying: ‘Medscheme spent 14 years trying to crush us, and trying to ensure we run out of money and energy, but it isn’t going to happen. We’re going to go to court, and there’ll be some extremely red faces on their side.’

Ultimately, the case was split in two: the first part, a claim of R21m for copying the electronic membership interface, and a second part, over Harvey’s R370m claim for expected loss of earnings, which is set down for hearing next year.

But since Brand ruled in NHA’s favour in the first phase, Harvey is confident it will win the second leg, too.

In part, this is because Brand’s ruling was unequivocal, saying Medscheme’s argument that there had been ‘joint authorship and tacit licence must fail’.

However, it wasn’t a wholesale victory for Harvey, since Brand awarded NHA just R2.7m – far less than R21m he’d wanted, which could have doubled with interest.

Ahmed Banderker, AfroCentric’s CEO, seems unconcerned, notes the FM.

‘We don’t feel that the second part of their claim should be of any concern to us,’ he is quoted as saying. ‘We could have even challenged (Brand’s) finding, but since it was a notional award of R2.7m, we didn’t feel it would be worth it.’

In Banderker’s telling, teams from both Medscheme and NHA worked on the software, and it was more of a collaboration.

And he rejects the way Harvey is framing this. ‘The word "stolen" is a very strong word, and not one we’d use. Particularly since there was collaboration in the development of that software. And anyway, all the people who were at Medscheme at the time have long since left.’

Wakefield elaborates: ‘This was a case of copyright infringement, not theft, where there is a criminal intent to steal something in the dead of night without anyone knowing. Had there been theft, (Brand) would have given an order against Medscheme due to the flagrancy of the act – and he didn’t.’

And, he says, Brand dismissed the claims against the directors accused of copying the software. Though Wakefield admits that Medscheme ‘did copy the software’, he says it was developed as ‘part of a collaborative effort for the benefit of both NHA and Medscheme that fell just short of joint authorship’.

In any event, he says, that software was relatively worthless and hardly used by Medscheme.

Full Financial Mail report