Kodisang and Others v THK Gallery and Others (2025/066625) [2025] ZAWCHC 214 (21 May 2025)

Case Note

Case Name: KELEBOGILE TSHOLOFOLO SYLIA KODISANG, DAHLIA MAUBANE, FHULUFELO MOBADI, BONGIWE PHAKHATI, FIONA DAVHANA, and SIMPHIWE JULIA THABEDE v THK GALLERY, TREVOR STUURMAN, and TREVOR STUURMAN FOUNDATION
Citation: Case Number 2025-066625
Date: 21 May 2025

Reportability

This case is reportable because it raises important issues related to the protection of intellectual property rights in the artistic domain. The judgment addresses the delicate balance between creative expression and unauthorized appropriation in the art world, particularly when concepts and thematic presentations are duplicated without consent.

The case also illustrates significant procedural concerns regarding jurisdiction, misjoinder, and the assessment of urgency in interdictory relief applications. It highlights the challenges that creative collectives face when their work is commercially exploited by others without proper accreditation or authorization.

Furthermore, the decision is significant as it sets a precedent for intellectual property disputes involving artistic collaborations and community-based research projects, ensuring that the original creators are adequately protected under the law.

Cases Cited

No specific cases have been referenced in full citation format within this judgment. The judgment primarily focused on the matter’s procedural and substantive aspects without referring to previous case law.

Legislation Cited

There is no explicit reference to specific legislation in the provided judgment excerpt. The discussion is framed around intellectual property infringement and the principles of mandamus, but no particular statutory provisions were quoted.

Rules of Court Cited

The judgment does not cite any specific rules of court by name or number. The court’s analysis remains focused on addressing the procedural objections raised by the respondent, such as misjoinder and urgency, rather than on detailed rules.

HEADNOTE

Summary

The judgment concerns an urgent application for interdictory relief brought by a group of applicants, collectively operating as the Wozasisi Collective. The applicants allege that their original exhibition titled "YOUR BEAUTY IS MY CONCERN", which explored the socio-economic struggles of inner-city female hairstylists, was copied by the respondent. The respondent, a photographer and gallery owner, initiated a similar solo exhibition under the title "YOUR BEAUTY IS OUR CONCERN" at THK Gallery.

The applicants claim that this replication of their concept not only misappropriates their intellectual property but also strips the original work of its contextual richness and intended message. The dispute centers on the unauthorized use of their creative concept and the potential negative impact on their reputation and commercial interests.

The applicants seek a mandamus interdict to prohibit any further public display of the copied exhibition until the legal issues, particularly concerning intellectual property rights and proper credit, are resolved by the court.

Key Issues

The key legal issues addressed in the judgment include whether the respondents’ actions constitute an infringement of the applicants’ intellectual property rights. The court also examined the validity of the jurisdiction and misjoinder objections raised by the respondent.

Another important issue was the argument regarding urgency. The respondent contended that the delay in filing the application negated the need for urgent relief, considering that significant time had elapsed since the applicants first became aware of the infringement.

Held

The court held that the jurisdiction of the High Court is proper despite the registered address of the first respondent being in Cape Town. It dismissed the misjoinder arguments and found that the cause of action arises from the exhibitions publicized at THK Gallery and related online platforms.

Additionally, the court determined that the applicants’ claim of urgency was sufficient to justify the interdictory relief, primarily because the unauthorized exhibition threatened to damage their intellectual property rights further. The court thereby granted interim relief to prevent the continuation of the disputed exhibition pending a full determination of the matter.

THE FACTS

In April and May 2023, the applicants, operating as the Wozasisi Collective, collaboratively curated and exhibited an original body of work titled "YOUR BEAUTY IS MY CONCERN" in Johannesburg. This exhibition was the result of community-based research and aimed at amplifying the voices and experiences of female hairstylists in inner-city Johannesburg. The exhibition not only received critical acclaim but also achieved commercial success, establishing the collective’s reputation.

The artwork and its associated book publication became integral to the applicants’ artistic legacy and income stream. The original exhibition was widely publicized on national media platforms and served as a significant platform for creative expression among marginalized communities.

In contrast, on or around 23 April 2025, the first respondent, operating through THK Gallery, announced a solo exhibition by Mr. Trevor Stuurman under the title "YOUR BEAUTY IS OUR CONCERN". This exhibition, which directly mirrored the theme and concept of the earlier work, prompted the applicants to issue a letter of demand, leading to the current legal proceedings.

THE ISSUES

The primary legal question for the court was whether the respondents’ subsequent exhibition infringed upon the applicants’ intellectual property rights by duplicating both the title and conceptual content of the earlier exhibition. The court had to determine if this replication diluted the originality and the intended socio-economic commentary embedded in the original work.

Another issue was the challenge to the court’s jurisdiction and the claim of misjoinder, where the respondent argued that the inclusion of THK Gallery and the Trevor Stuurman Foundation in the proceedings was improper. The respondent maintained that there was no direct causal link between the infringement and the parties other than Mr. Stuurman.

The matter of urgency was also critical. The respondent contended that the delay in initiating legal proceedings weakened the urgency of the application. The court needed to assess whether the timeline of events justified the expeditious relief sought by the applicants.

ANALYSIS

The court’s reasoning began with assessing the jurisdiction of the court despite the registered address of THK Gallery being in Cape Town. The court found that the cause of action was properly initiated due to the public dissemination of the exhibition information, which occurred at the gallery. The jurisdictional concerns raised by the respondent were thoroughly considered and ultimately dismissed.

In its analysis, the court also examined the misjoinder arguments. The respondent’s assertion that THK Gallery and the Trevor Stuurman Foundation did not have a direct substantial interest in the alleged infringement was not persuasive. The court recognized that both entities were connected to the public exhibition and that their inclusion was relevant to the dispute concerning the unauthorized use of the creative concept.

Furthermore, the court addressed the issue of urgency. Although the respondent argued that the applicants’ delay of 17 days undermined the need for urgent relief, the court observed that any further public display of the infringing work would continue to cause harm. The court indicated that preventing the continuation of the exhibition was essential to safeguarding the applicants’ intellectual property rights while the matter underwent further legal scrutiny.

REMEDY

The remedy granted in this case is an interdictory relief in the form of a mandamus. The court ordered that the respondents be interdicted from disseminating and/or continuing the exhibition titled "YOUR BEAUTY IS OUR CONCERN" at THK Gallery. This order is to remain in effect pending the final resolution of the broader intellectual property dispute.

The remedy serves to immediately halt any further exploitation of the disputed creative work. It provides temporary relief that protects the applicants’ legal rights and preserves the status quo until all substantive issues can be resolved.

By issuing this order, the court aims to prevent irreparable harm to the applicants' artistic legacy and economic interests, ensuring that no additional credit or reputation is wrongly appropriated from the original work.

LEGAL PRINCIPLES

The judgment reinforces the legal principle that intellectual property rights, particularly in the realm of creative and artistic works, must be robustly protected. It emphasizes that the unauthorized replication of creative concepts not only undermines the originality of the work but also has significant commercial and reputational repercussions for the original creators.

A further principle established is that jurisdictional arguments, such as those concerning the registered address of an entity, should not be used to avoid accountability in cases where the cause of action clearly arises from public acts. The court’s dismissal of the misjoinder and jurisdiction objections sets a precedent for similar cases involving collaborative artistic endeavors.

Lastly, the court’s analysis of urgency illustrates that any delay in addressing intellectual property infringements can exacerbate the harm suffered by the original creators. The need for swift judicial intervention in cases where unauthorized use is evident reinforces the importance of maintaining strict control over artistic expressions, ensuring that creative originality is duly recognized and protected.