Gallo Africa Ltd and Others v Sting Music (Pty) Ltd and Others

• Jurisdiction: South Africa
• Judge: Harms DP, Nugent JA, Lewis JA, Ponnan JA and Cachalia JA
• Judgment Date: 03 September 2010
• Citation: 2010 (6) SA 329 (SCA)
• Docket Number: 40/2010
• Hearing Date: 17 August 2010
• Counsel: A Subel SC (with O Salmon SC) for the appellants. J Blou SC (with C Bester) for the respondents.
• Court: Supreme Court of Appeal

Gallo Africa Ltd and Others v Sting Music (Pty) Ltd and Others
2010 (6) SA 329 (SCA)

2010 (6) SA p329

Citation	2010 (6) SA 329 (SCA)
Case No	40/2010
Court	Supreme Court of Appeal
Judge	Harms DP, Nugent JA, Lewis JA, Ponnan JA and Cachalia JA
Heard	August 17, 2010
Judgment	September 3, 2010
Counsel	A Subel SC (with O Salmon SC) for the appellants.; J Blou SC (with C Bester) for the respondents.

Flynote : Sleutelwoorde B

Jurisdiction — Whether subsisting — Foreign copyright — Local courts do not have jurisdiction to decide claims of infringement of foreign copyrights.

Headnote : Kopnota

A local court does not have jurisdiction to decide a claim of infringement of a foreign C copyright. (Paragraphs [1], [4] and [19] at 331B, 331E - G and 336B.)

Cases Considered

Annotations

Reported cases

Southern Africa

Appleton and Another v Harnischfeger Corporation and Another 1995 (2) SA 247 (A): D referred to

Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd and Another 1998 (3) SA 938 (SCA) ([1998] 3 All SA 175): referred to

Eilon v Eilon 1965 (1) SA 703 (A): considered

Estate Agents Board v Lek 1979 (3) SA 1048 (A): referred to

Ewing McDonald & Co Ltd v M & M Products Co 1991 (1) SA 252 (A): E referred to

Gcaba v Minister for Safety and Security and Others 2010 (1) SA 238 (CC) ([2009] 12 BLLR 1145): referred to

Hugo v Wessels 1987 (3) SA 837 (A): referred to

Makhanya v University of Zululand 2010 (1) SA 62 (SCA) ([2009] 4 All SA 146; [2009] 8 BLLR 721): referred to F

McDonald's Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd and Another; McDonald's Corporation v Dax Prop CC and Another; McDonald's Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd and Dax Prop CC 1997 (1) SA 1 (A) ([1996] 4 All SA 1): referred to

Memory Institute SA CC t/a SA Memory Institute v Hansen and Others 2004 (2) SA 630 (SCA): referred to G

2010 (6) SA p330

Metlika Trading Ltd and Others v Commissioner, South African Revenue Service 2005 (3) SA 1 (SCA) (2004 JTLR 73; [2004] 4 All SA 410): referred to A

MV Snow Delta Serva Ship Ltd v Discount Tonnage Ltd 2000 (4) SA 746 (SCA): referred to

Rosa's Heirs v Inhambane Sugar Estates Ltd 1905 TH 11: referred to

Sonia (Pty) Ltd v Wheeler 1958 (1) SA 555 (A): referred to

Spier Estate v Die Bergkelder Bpk and Another 1988 (1) SA 94 (C): referred to B

Steytler NO v Fitzgerald 1911 AD 295: referred to

Vagar (t/a Rajshree Release) v Transavalon (Pty) Ltd (t/a Avalon Cinema) 1977 (3) SA 766 (W): referred to

Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd (in Liquidation) 1987 (4) SA 883 (A): C referred to

Victoria's Secret Inc v Edgars Stores Ltd 1994 (3) SA 739 (A): referred to

Welgemoed and Another, NNO v The Master and Another 1976 (1) SA 513 (T): referred to.

Australia

Norbert Steinhardt & Son Ltd v Meth [1961] HCA 33: referred to D

Potter v Broken Hill Pty Company Ltd [1906] HCA 88: referred to.

Canada

Society of Composers, Authors and Music Publishers of Canada v Canadian Association of Internet Providers E [2004] 2 SCR 427: referred to.

England

British South Africa Co v Companhia de Mo|fcambique [1893] AC 602: referred to

Coin Controls Ltd v Suzo International (UK) Ltd [1999] Ch 33: referred to

Hesperides Hotels v Aegean Turkish Holidays [1979] AC 508: referred to F

Lucasfilm Ltd v Ainsworth [2009] EWCA Civ 1328: considered

Pearce v Ove Arup Partneship Ltd [2000] Ch 403: referred to

Plastus Kreativ v 3M [1995] RPC 438: referred to

Tyburn Productions Ltd v Conan Doyle (1990) 19 IPR 455: referred to.

New Zealand G

Atkinson Footwear Ltd v Hodgskin International Services Ltd (1994) 31 IPR 186: referred to

KK Sony Computer Entertainment v Van Veen (2006) 71 IPR 179: referred to.

United States

Voda v Cordis Corporation 476 F 3d 887: referred to. H

Case Information

Appeal against a decision in the South Gauteng High Court, Johannesburg (Makhanya J). The facts appear from the judgment of Harms DP.

A Subel SC (with O Salmon SC) for the appellants. I

J Blou SC (with C Bester) for the respondents.

Cur adv vult.

Postea (September 3). J

2010 (6) SA p331

Judgment

Harms DP (Nugent JA, Lewis JA, Ponnan JA and Cachalia JA concurring): A

[1] This appeal relates to the jurisdiction of a High Court to decide matters relating to foreign copyright. The issue was raised by way of exception by the six defendants, the present respondents. The High Court upheld the exception, finding that a local court does not have B jurisdiction. This court granted leave to appeal after leave had been refused by the court of first instance (Makhanya J).

[2] The five plaintiffs (the appellants) issued summons against the defendants in the South Gauteng High Court. They alleged that they were (by assignment or as original authors) the owners of copyright C works consisting of musical and literary works which make up a musical known as 'Umoja'. They further alleged that the defendants had infringed their copyright by performing whole or part of Umoja, by making recordings and cinematograph films thereof, and by having it broadcasted. D

[3] Infringement, the plaintiffs said, had taken place in South Africa since 2001. That is the uncontentious part of the claim and is based on the provisions of the Copyright Act 98 of 1978.

[4] The contentious part of the particulars of claim relates to the E allegation that the defendants have also committed acts of infringement in a large number of other countries, 19 in all, from Japan in the east to the USA in the west. It is important to stress that in relation to these infringements the plaintiffs did not rely on our Copyright Act, but on the copyright laws of each of these countries. The particulars in relation to each country are in similar terms and it would suffice if one country, say, F the United Kingdom, is given as an example. The particulars state the following (albeit not in these terms or sequence): the plaintiffs are the authors or owners by assignment of the relevant copyrights for purposes of the UK Copyright Act; these rights exist by virtue of the UK Act; the copyrights have not expired due to lapse of time; they have been infringed; and the plaintiffs accordingly are entitled to claim an injunction, G damages and/or royalties to which they would be entitled in terms of the UK Act.

[5] The exception by the defendants raised the question of jurisdiction squarely. It stated that proceedings for infringement of copyright instituted in a local court may only be founded on the provision of our H Copyright Act and that, insofar as the plaintiffs seek to apply the relevant copyright legislation of foreign states, their claim is bad. As mentioned, the court below upheld the exception and set aside the particulars of claim to the extent that they are based on copyright legislation of other countries. I

[6] Jurisdiction means the power vested in a court to adjudicate upon, determine and dispose of a matter. Importantly, it is territorial. [1] The

2010 (6) SA p332

Harms DP

A disposal of a jurisdictional challenge on exception entails no more than a factual enquiry, with reference to the particulars of claim, and only the particulars of claim, to establish the nature of the right that is being asserted in support of the claim. In other words, jurisdiction depends on either the nature of the proceedings or the nature of the relief claimed or, B in some cases, on both. It does not depend on the substantive merits of the case or the defence relied upon by a defendant. [2]

[7] The plaintiffs argued that the High Court had jurisdiction to hear the foreign infringement claims because (a) the relief sought, namely interdicts and damages, are within the High Court's competence; (b) the C 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) s 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 D residing within its jurisdiction; and (f) a court can determine through expert evidence what the relevant foreign law is. Some point was also made in relation to the inconvenience of an incola who has to sue in 20 jurisdictions.

[8] Insofar as point (b) is concerned, the domicile of the plaintiff never E determines jurisdiction and, as to point (f), a court does not necessarily require evidence of foreign law - it may take judicial notice of foreign law 'insofar as such law can be ascertained readily and with sufficient certainty'. [3] The inconvenience of having to sue in multiple jurisdictions can also be discounted at this early stage because the rule of jurisdiction for which the plaintiffs contend would also apply in the case of a single F infringement by a local incola committed in another country; and the plaintiff may not even be an incola. This is illustrated by the facts in Lucasfilm Ltd v Ainsworth [2009] EWCA Civ 1328, a judgment of the Court of Appeal (England and Wales).

[9] The defendants relied heavily on the judgment in that case in which G the plaintiff, a US corporation, sued an incola of the UK for a breach of American copyright. The acts were committed in the UK, but were considered for purposes of US law to have been committed in the USA. The court refused to entertain the matter, holding that UK courts do not have jurisdiction to hear such a case. I shall revert to this judgment. H Although our law relating to jurisdiction is based...