Discovery battles in software copyright litigation: Taskflow v Aluxium

In two recent judgments, Taskflow (Pty) Ltd v Aluxium (Pty) Ltd and Others and Aluxium (Pty) Ltd and Others v Taskflow (Pty) Ltd, the Gauteng Division of the High Court tackled the complex intersection of software development and intellectual property law. The court’s rulings provide critical guidance on Rule 35(3) discovery, the relevance of pleadings, and the treatment of both proprietary and open source software under South African copyright law.

Whether you’re a legal professional or a software developer, this case offers valuable insights into how courts approach discovery and copyright in the digital age.

Background

The dispute centres on Taskflow, a software development company, and its former directors who went on to establish Aluxium. Taskflow alleges that Aluxium unlawfully adapted or reproduced its proprietary software, infringing copyright in the Taskflow computer program.

Following multiple amendments to Taskflow’s particulars of claim, the litigation evolved from a source code infringement claim to a broader allegation of software adaptation and reproduction. This shift triggered a contentious discovery process under Rule 35(3) of the Uniform Rules of Court.

Discovery dispute

Taskflow sought discovery of Aluxium’s software and source code used from 29 July 2021 onward, arguing it was necessary to instruct an expert to assess potential copyright infringement. Aluxium resisted, claiming the request amounted to a “fishing expedition”.

In August 2024, Acting Judge Mogagabe ruled in favour of Taskflow, compelling Aluxium to disclose the requested materials—subject to a confidentiality undertaking. The court emphasized that once relevance is established via pleadings, discovery must follow.

Appeal outcome

Aluxium appealed the discovery order, arguing it was final in effect and thus appealable. However, in September 2025, a full bench (Makhoba J, Hassim J, with Senyatsi J dissenting) dismissed the appeal. The majority held that:

• The discovery order was interlocutory, not final.
• The requested documents were relevant to the pleadings.
• The appeal did not meet the “interest of justice”

Copyright protection of source code in South Africa

Under the Copyright Act 98 of 1978, a computer program is defined as a set of instructions fixed or stored in any manner which, when used in a computer, directs its operation to produce a result. Section 11B of the Act grants the copyright holder exclusive rights to:

• Reproduce, publish, perform, broadcast, or adapt the program.
• Authorise others to do the same.
• Prevent unauthorised distribution or rental of copies.

Importantly, copyright protection applies to original computer programs that are reduced to material form. This includes both the source code and any adaptations thereof.

Open source software: Public domain vs copyright

A key issue raised in the litigation was whether Taskflow’s software was open source and therefore in the public domain. Aluxium argued that Taskflow had already disclosed its source code publicly, making it non-confidential. However, Taskflow maintained that only a limited portion (5%) had been disclosed and that the full program remained proprietary.

It’s important to distinguish between open source software, which is distributed under licenses that permit use, modification, and redistribution, and software that is in the public domain, which is free of copyright protection. Open source software is still protected by copyright – the license simply governs how it may be used. In contrast, public domain software has no copyright owner and can be freely used without restriction.

In this case, the court accepted that Taskflow’s software was not in the public domain and upheld the need for a confidentiality undertaking before discovery could proceed.

Key takeaways for legal teams

• Discovery hinges on relevance to pleadings, not evidentiary strength or matter stage.
• Interlocutory discovery orders are rarely appealable unless they have a final or constitutional impact.
• Confidentiality undertakings help balance disclosure with IP protection.
• Objections to amended pleadings must follow proper procedural rules (e.g., Rule 28(2)).

Key takeaways for software developers

• Source code and software are protected under South African copyright law if original and fixed in material form.
• Open source software is not “free-for-all”; it is governed by specific licenses that define how it may be used, modified, and redistributed.
• Partial publication of code doesn’t waive copyright over the full program.
• Courts may compel disclosure in litigation, often under confidentiality safeguards.
• Clear documentation of your software’s origin and licensing is vital in defending IP claims.