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CASE NO: 06/23129

CASE NO: 06/23130

In the matter between:





In the matter between:




[1] The above matters have been consolidated in the interests of convenience and expediency. The applications come before me as exceptions to the plaintiff’s particulars of claim brought in terms of Rule 23(1) of the Uniform Rules of Court. The plaintiff is cited in his capacity as the executor of the Estate Late Brenda Fassie.
[2] The first three exceptions taken in both matters by the excipients are, save for certain minor differences materially the same.
[3] In the action against EMI Music SA (Pty) Limited, under Case No. 06/23130 (“the EMI Music matter”), the defendant took a fourth exception. This revolved around the prescription of the plaintiff’s claim. This fourth exception was not pursued by the defendant. I was informed that a plea of prescription may be pursued as a special plea, should the matter proceed.

[4] The plaintiff claims payment from the defendants for damages resulting from the defendants’ alleged infringement of the plaintiff’s copyright. The plaintiff further claims a statement and debatement of account from the defendant arising out of certain artist agreements entered into between the plaintiff and the defendant.

[5 ] The law regulating music in South Africa, as in many other jurisdictions, is largely regulated through copyright law, which in South Africa is a creature of statute: The Copyright Act 98 of 1978 “(the Copyright Act)”. Works that are eligible for copyright are set out in section 2(1) of the Copyright Act. These include literary works, musical works, artistic works, cinematography films, sound recordings, broadcasts, programme carrying signals, published editions and computer programmes. These works have an impact on the ultimate musical product. In terms of section 6 of the Copyright Act, copyright in a literary or musical work vests in the exclusive right to do or authorise the doing of any of the following acts in the Republic: Reproducing the work in any manner or form; publishing the work if it was not published before; performing the work in public; broadcasting the work; causing the work to be transmitted in a diffusion service, unless such service transmits a lawful broadcast, including the work, and is operated by the original broadcaster, and making an adaptation of the work.
[6 ] Copyright in literary and musical works lasts for the lifetime of the author and a period of 50 years after the death of the author (section 3(2)(a) of the Copyright Act). Section 21(1) of the Copyright Act provides for several ways through which copyright in a protected work may be disposed of: assignment, licensing, transmission by testamentary disposition and operation of law as movable property. From the viewpoint of exploitation of the rights, assignment and licensing are the most commonly used methods. By assignment, the author completely divests himself/herself of one or more of their rights under the copyright, so that the assignee no longer has any claim to these rights, nor can he/she perform any of the acts covered by the particular rights without the authority of the assignee. Through licensing of these rights on the other hand, the copyright owner retains ownership of the right and merely allows the licensee to exercise the right without fear of being sued for infringement thereof. The licence may be exclusive or non-exclusive, and the licensee has to pay the owner royalties for the use of the rights.
[7] Copyright is in fact a negative right, in that it is a right of prohibition enforceable against others from performing infringing acts in relation to the work. Therefore, the ability to enforce a copyright through the Court is the foundation of such copyright. In terms of section 24(1) of the Copyright Act, the following remedies are provided for in instances of infringement: an interdict restraining the carrying out of the infringing act; damages, or payment of a reasonable royalty; and delivery-up of the infringing copies and plates used or intended to be used for making infringing copies. Section 24(1) of the copyright Act deals with the action by the owner of the copyright. This subsection, provides that infringements of copyright shall be actionable at the suit of the owner of the copyright.

[8] The first exception is identical in both actions. It arises as a result of the fact that the plaintiff sues, in both matters, as “joint owner of the copyright in the musical works listed on the schedule annexed [to the particulars of claim] marked ‘A’.
[9 ] The allegation of joint ownership of copyright is relied upon by the plaintiff on the following. The listing of the Late Brenda Fassie as co-author and/or co-composer of the various works listed in Annexure “A” to the particulars of claim. The definition of “works of joint authorship” (a work produced by the collaboration of two or more authors in which the contribution of each author is not separable from the contribution of the other author or authors) is contained in Section 1 of the Copyright Act. The provisions of Section 21(1)(a) of the Copyright Act, states the following:
Subject to the provisions of this section, the ownership of any copyright conferred by Sections 3 or 4 on any work shall vest in the author or, in the case of a work of joint authorship, in the co-authors of the work.” [Emphasis added]

[10] In the circumstances, the plaintiff is to be regarded, for the purposes of adjudicating these exceptions, as the joint owner of copyright in the works listed in Annexure “A” to the particulars of claim on the basis of which copyright the claims are brought.
[11] The plaintiff sues alone in these proceedings. There is no allegation of any cession of rights from any of the other co-owners of the copyright in question and none of the co-owners have been joined as plaintiffs.
[12] It is the defendant’s contention that the absence of such cession or joinder, founds a proper exception to the particulars of claim on the basis that the plaintiff has failed to join third parties which he was obliged to join, and/or the plaintiff lacks the requisite locus standi to pursue the actions instituted.
[1 3] It has been determined by these Courts that in relevant instances joint owners of property must act jointly – none may act alone. In Smith v Conelect 1987 (3) SA 689 (W), at 690H-I, Van Niekerk J said the following:
See also Herbstein & Van Winsen ‘The Civil Practice of the Superior Courts in South Africa’ 3rd Ed at 167, where the learned authors, referring to the Amalgamated Engineering case (supra), point out that the only cases in which a defendant has been allowed to demand a joinder of a third party as of right are those where the third party has a joint financial or proprietary interest such as joint owners, joint contractors and partners.

At 691E-F, Van Niekerk J, went on to say the following:
See Rahim v Mahomed 1955 (3) SA 144 (D) at 147B-E where Henochsberg A.J., in considering the necessity of joining co-owners, joint contractors and joint partners litigating, held that:
The rule is that in such cases the other co-owner, joint contractor, partner or interested party is a necessary party and should be joined in the proceedings, unless the Court is satisfied that he has waived his right to be joined.’

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