Case Comments: Jurisdiction in Respect of Claims of Extraterritorial Copyright Infringement: Gallo Africa v Sting Music

• Jurisdiction: South Africa
• Published date: 25 May 2019
• Citation: (2011) 23 SA Merc LJ 529
• Author: Coenraad Visser
• Date: 25 May 2019
• Pages: 529-532

Jurisdiction in Respect of Claims of

Extraterritorial Copyright Infringement: Gallo

Africa v Sting Music

COENRAAD VISSER

University of South Africa

In Gallo Africa Ltd and Others v Sting Music (Pty) Ltd and Others 2010 (6)

SA 329 (SCA), the appellants (the plaintiffs in the court below) alleged that

they were, by assignment or as original authors, the owners of the copyright in

the musical and literary works that comprise the musical Umoja. They further

alleged that the defendants had infringed their copyright by performing the

whole, or a part of, Umoja, by making recordings and cinematograph f‌ilms of

it, and by having it broadcast. The acts of infringement were alleged to have

been committed in nineteen other countries, from Japan in the east to the

United States of America in the west. Harms DP stressed that, in relation to

these infringements, the appellants did not rely only on the South African

Copyright Act 98 of 1978. Instead, they framed their claims with reference to

each of these countries (para [4]; see the example given by the judge with

reference to the United Kingdom (ibid)).

The South Gauteng High Court (per Makhanya J) allowed the exception

that a High Court does not have jurisdiction to entertain the claims of

extraterritorial copyright infringement (copyright infringement in countries

other than South Africa).

On appeal, the appellants contended that the High Court had jurisdiction to

hear the extraterritorial infringement claims, because (a) the relief sought

(interdicts and damages) is within the competence of the High Court; (b) the

plaintiffs are incolae of the court below; (c) the defendants are domiciled or

resident in South Africa and within the jurisdiction of the court below;

(d) section 19(1)(a) of the Supreme Court Act 59 of 1959 confers jurisdiction

on a High Court ‘over all persons residing or being in its area of jurisdiction’;

(e) a court can grant an effective interdict against someone residing within its

jurisdiction; and (f) a court can determine the relevant foreign law through

expert evidence. Some reference was also made to the inconvenience to an

incola who has to sue in twenty jurisdictions.

Harms DP did not waste time on some of these contentions. For example,

regarding point (b), he stated that the plaintiff’s domicile never determines

jurisdiction (para [8]); and regarding point (f), a court does not necessarily

require evidence of foreign law – it may take judicial notice of foreign law ‘in

so far as such law can be ascertained readily and with sufficient certainty’

(ibid, with reference to s 10(1) of the Law of Evidence Amendment Act 45 of

529

(2011) 23 SA Merc LJ 529

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