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[2023] ZAGPJHC 935
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Mdletshe and Another v Youtube Channel and Another (2022-035571) [2023] ZAGPJHC 935 (22 August 2023)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NUMBER:
2022-035571
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED. YES
B.C.
WANLESS
22
August 2023
In
the matter between:
NDUMISO
SIYABULELA MDLETSHE
First
Applicant
SIPHELELE
MBONGI
DUNYWA
Second
Applicant
and
YOUTUBE
CHANNEL
First
Respondent
AMBITIOUS
GROUP (PTY)
LTD
Second

Respondent
This
judgment was handed down electronically by circulation to the
parties' and/or the parties' representatives by email and by
being
uploaded to CaseLines. The date and time for hand-down is deemed to
be 10h00 on 22 August 2023
JUDGMENT
(SECTION
18 APPLICATION)
WANLESS
AJ
Introduction
[1]
On the 13
th
of March 2023 the Applicants in this matter
sought an order before this Court (on the Opposed Motion Court roll)
in the following
terms:-
PART A: URGENT
INTERDICTORY RELIEF PENDENTE LITE.
1.
Dispensing with the forms and
service provided in the Uniform Rules of Court and condoning
non-compliance with the Rules relating
to service and time periods in
terms of Rule 6(12);
2.
That pending final determination of
Part B attached to this notice of motion and marked Annexure
“
FA1”
,
any person or entity acting in concert with the Respondents, are
hereby interdicted from removing and/or deleting the account
of the
Applicants Youtube channel;
3.
That it be ordered that the Second
Respondent be interdicted from raising any copyright/ownership
dispute against the works of the
Applicants with any other Digital
Streaming Platform (
“
DSP”
)
inclusive of the First Respondent, Spotify, iTunes, Deezer, authored
by the Applicants from 15 June 2022, pending final determination
of
Part B.
PART B
4.
That it be declared that the
Exclusive Management Agreement, the Artist Management Agreement and
the Publication Agreement (“
the
Agreements”
) entered into
between the Plaintiffs and the Defendant on 10 January 2020, be
declared terminated as of 7 January 2022 alternatively
15 January
2022 alternatively it be declared that the Agreements are null and
void ab initio and hereby terminated;
5.
That an independent auditor be
appointed within 30 (thirty) days of this order to perform a
debatement of the accounts in order
to determine amounts due to the
Plaintiffs from January 2017 to date, in respect of the following;
a.
The First Schedule of the Exclusive
Management Agreement;
b.
The Second Schedule of the
Publication Agreement; and
c.
Clause 9, 10 and 11 of the Artist
Management Agreement.
6.
That the independent auditor provide
the Court as well as the Parties with a report, within 60 (sixty)
days of making this order.
7.
That the Defendant be ordered to pay
the costs of the independent auditor.
8.
That the Defendant be ordered to pay
the costs of the action on an attorney and client scale, inclusive of
the costs of counsel.
9.
Further and alternative relief.
10.
Ordering the Respondents opposing
Part A of this application to pay the costs thereof; and
11.
Further, and/or alternative relief.
[2]
Thereafter, on the 12
th
of June 2023 this Court delivered
a judgment (revised on 23 June 2023) and made the following order (in
terms of a Draft Order
handed in on behalf of the Applicants),
namely:-
[1]
That pending final determination of
Part B attached to this application, any person or entity acting in
concert with the Respondents,
are hereby interdicted from removing
and/or deleting the account of the Applicants’ Youtube channel;
[2]
That it be ordered that the Second
Respondent be interdicted from raising any copyright/ownership
dispute against the works of the
Applicants with any other Digital
Streaming Platform (“
DSP
”
)
inclusive of the First Respondent, Spotify, iTunes, Deezer, authored
by the Applicants from 15 June 2022, pending final determination
of
Part B.
[3]
The Second Respondent is ordered to
pay the costs of this application including the costs of two Counsel,
one of which is Senior
Counsel.
[3]
Pursuant thereto and on the 27
th
of June 2023 the Second
Respondent
(hereafter referred to as “the Respondent”)
lodged an application for leave to appeal against the judgment and
order of this Court.
[4]
On the 26
th
of July 2023 the Applicants released one audio
and one music video on the YouTube channel (“
the First
Respondent”
). Shortly thereafter, on the 31
st
of
July 2023, the First Respondent issued the Applicants with a notice
that both of the aforesaid works had been removed from YouTube
at the
instance of the Respondent.
[5]
The Applicants instituted this application on an urgent basis and the
matter was set down for hearing on the Urgent Court roll on Tuesday
the 15
th
of August 2023.In terms of the relevant Practice
Directive the matter was referred by the Judge hearing urgent
applications to
this Court. Since this Court was hearing Special
Motions on Monday; Tuesday and Thursday of that week the matter first
came before
this Court on Wednesday the 16
th
of August
2023. When it did, this Court raised the issue as to whether or not
the interim order made by this Court was one which
had the effect of
a final judgment, thereby falling within the provisions of subsection
18(1) of the Superior Courts Act 10 of
2013
(“the Act”)
and hence which this Court could indeed order otherwise in terms of
subsection 18(3) of the Act. Under the circumstances the matter
was
postponed, by consent, to Friday the 18
th
of August 2023
to enable the parties to fully consider the issue raised and address
this Court thereon.
[6]
On Friday the 18
th
of August 2023, both parties addressed
this Court and presented Heads of Argument to this Court as to
whether the order made by
this Court was one which fell within the
provisions of either subsection 18(1) or 18(2) of the Act. At the
outset, it is important
to note that both the Applicants and the
Respondent were
ad idem
that same was an order that had the
effect of a final judgment; was thus not suspended as a result of the
Applicants’ application
for leave to appeal and would not be
suspended in the event of this Court dismissing the Applicants’
application for leave
to appeal which is to be heard on the 28
th
of August 2023.In other words, both parties agreed that the
provisions of subsection 18(1) applied and not those of subsection

18(2). After hearing submissions from both Senior Counsel and having
had the benefit of their Heads of Argument, this Court was
in
agreement therewith. Insofar as was necessary, a ruling was made in
respect thereof. This judgment will not be burdened by setting
out
the reasons therefor. This Court wishes, once again, to record its
thanks to Counsel for their invaluable assistance therewith.
The
Law
[7]
As is clear from the above, this is an application by the Applicants
in
terms of subsections 18(1) and (3) of the Act. In their Notice of
Motion the Applicants sought the following relief:
1.
Dispensing with the forms and service provided in the Uniform
Rules of Court and condoning non-compliance with the Rules relating

to service and time periods in terms of Rule 6(12);
2.
In terms of section 18(1), read with
section 18(3)
, of the
Superior Courts Act, Act10
of 2013, it is ordered that the operation
and execution of the Judgment and Order of this Court (per Wanless
AJ), under case number:
2022/035571, dated 12th June 2023, revised on
23rd June 2023, shall not be suspended pending a decision on the
second respondent's
application for leave to appeal and, in the event
of leave to appeal being granted, the outcome of such appeal.
3.
That the Respondents opposing this application be ordered to
pay the costs thereof, on an attorney and client scale, including the

cost of senior counsel.
4.
Further and alternative relief.
[8]
The relevant subsections of section 18 of the Act for the purposes of
this judgment are:
18
Suspension of decision pending appeal
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders
otherwise, the operation and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal,
is suspended pending the decision of
the application or appeal.
(2)
…
(3)
A court may only order otherwise as contemplated in subsection (1) or
(2), if the party who applied
to the court to order otherwise, in
addition proves on a balance of probabilities that he or she will
suffer irreparable harm if
the court does not so order and that the
other party will not suffer irreparable harm if the court so orders.
(4)
If a court orders otherwise, as contemplated in subsection (1)—
(i)
the court must immediately record its reasons for doing so
;
[9]
The principles applicable to an application in terms of subsection
18(3)
are as follows:
…
The test is
twofold. The requirements are:
16.1
First, whether or not ‘exceptional circumstances’
exist; and
16.2
Second, proof on a balance of probabilities by the applicant
of –
16.2.1
The
presence of irreparable harm to the applicant/victor, who wants to
put into operation and execute the order; and
16.2.2
The
absence of irreparable harm to the respondent/loser, who seeks leave
to appeal.”
[1]
[10]
In
addition, the prospects of success in the appeal are relevant in
deciding whether or not to grant the exceptional relief.
[2]
The SCA approved the following approach by the Western Cape
[3]
:
…
the less
sanguine a court seized of an application in terms of s 18(3) is
about the prospects of the judgment at first instance
being upheld on
appeal, the less inclined it will be to grant the exceptional remedy
of execution of that judgment pending the
appeal. The same quite
obviously applies in respect of a court dealing with an appeal
against an order granted in terms of s 18(3).
[4]
[11]
In other words, the more confident a court is about the judgment
being upheld on appeal, the
more inclined it will be to grant relief
in terms of section 18(3).
[12]
The first
stage of the enquiry, whether “exceptional circumstances”
are present, depends on the peculiar facts of each
case. The
exceptional circumstances must be derived from the actual
predicaments in which the litigants find themselves.
[5]
[13]
The following circumstances have been found to be exceptional:
13.1
The
predicament of being left with no relief, regardless of the outcome
of an appeal. The forfeiture of substantive relief because
of
procedural delays, even if not protracted in bad faith by a litigant,
ought to be sufficient to cross the threshold of exceptional

circumstances.
[6]
13.2
If a
refusal to put into operation an order, pending the determination of
an application for leave to appeal, will result in the
“evaporation”
of the order because it will never be put into effect.
[7]
13.3
When the
effect of the appeal is that, even without any consideration of the
merits of the appeal, the appellants will have achieved
rendering the
order nugatory.
[8]
13.4
Where
interim execution is necessary to prevent an unconstitutional state
of affairs from continuing.
[9]
[14]
In respect of the second stage of the enquiry, the proper meaning of
subsection 18(3) was
explained by Sutherland J (as he then was) as
follows:
[24]
The second leg of the s 18 test, in my view, does introduce a novel
dimension. On the South Cape test, No
4 (cited supra), an even-handed
balance is aimed for, best expressed as a balance of convenience or
of hardship. In blunt terms,
it is asked: who will be worse off if
the order is put into operation or is stayed. But s 18(3) seems to
require a different approach.
The
proper meaning of that subsection is that if the loser, who seeks
leave to appeal, will suffer irreparable harm, the order must
remain
stayed, even if the stay will cause the victor irreparable harm too.
In addition, if the loser will not suffer irreparable
harm, the
victor must nevertheless show irreparable harm to itself
.
A hierarchy of entitlement has been created, absent from the South
Cape test. Two distinct findings of fact must now be made,
rather
than a weighing-up to discern a 'preponderance of equities'. The
discretion is indeed absent, in the sense articulated in
South Cape.
What remains intriguing, however, is the extent to which even a
finding of fact as to irreparable harm is a qualitative
decision
admitting of some scope for reasonable people to disagree about the
presence of the so-called 'fact' of 'irreparability'.
[10]
The
merits
[15]
It was common cause that on the application papers before this Court
and in order to succeed
with the present application in terms of
subsections 18(1) and 18(3) of the Act the onus was upon the
Applicants to prove, on a
balance of probabilities, that (i) the
circumstances are exceptional; (ii) that the Applicants in this
particular matter will suffer
irreparable harm if this Court does not
grant the order, and (iii) that the Respondent in the present matter
will not suffer irreparable
harm if this Court grants the order.
[16]
What was not common cause between the parties was whether this Court
should take into account
the Respondent’s prospects of success
in respect of its application for leave to appeal which, as already
noted earlier in
this judgment, has been set down for hearing before
this Court on the 28
th
of August 2023. This will be dealt
with later in this judgment.
[17]
It is now
necessary for this Court to turn and examine the facts of this matter
in relation to the applicable legal principles as
set out above. Of
course, this involves not only a consideration of the application
papers placed before this Court but also the
thorough and detailed
arguments placed before this Court by Adv Wesley SC for the
Applicants and Adv Baloyi SC (with her Adv Van
Nieuwenhuizen) for the
Respondent. In doing so, this Court is acutely aware of the
provisions of subsection 18(4)(i) of the Act
which provides that “
If
a court orders otherwise, as contemplated in subsection (1) the court
must
immediately
record its reasons for doing so;…..”.
[11]
Moreover,
in
University
of the Free State v Afriforum
[12]
it was held,
inter
alia
,
that proper reasons (that is, not reasons lacking materially in
substance) should be furnished.
[13]
In the premises, this Court has attempted, to the best of its
ability, to reach a compromise between providing these reasons on
an
urgent basis (bearing in mind the limited resources available to it)
whilst also ensuring that it provides reasons which are
not lacking
in substance. With regard to the latter, it must naturally be
accepted that, to one degree or another, a certain amount
of detail
must be lost. Nevertheless, it is trusted that an overview of the
evidence and the submissions made on behalf of Counsel
representing
the respective parties, will do justice to the real issues and,
ultimately, the reasons for this Court coming to the
decision that it
has.
[18]
Before dealing with the merits of this application it must also be
noted that prior to
hearing argument in respect thereof, this Court
also heard argument in relation to the issue of urgency and made a
ruling in respect
thereof. That ruling is a matter of record and this
judgment will not be burdened unnecessarily by dealing therewith.
Suffice it
to say, this Court found, on the grounds set out in the
application papers before it, together with the Practice Directive of
this
Division, that the matter should be heard during the course of
the week during which it had been set down for hearing. The last

point to note is that Adv Baloyi SC, on behalf of the Respondent,
specifically conceded (correctly in this Court’s opinion)
that
the Respondent no longer persisted with the point
in limine
that the Applicants did not have the requisite
locus standi
to
institute the present application.
The
general approach adopted by the Applicants and the Respondent
[19]
It is useful to first summarise the arguments put forward on behalf
of both parties (as
understood by this Court) before examining those
arguments in greater detail. On behalf of the Applicants it was
submitted that
the Applicants had clearly discharged the onus
incumbent upon them. In this regard, it was submitted that the
Applicants’
version had been answered by the Respondent with
vague and qualified denials. In the premises, the Applicants contend
that not
only is it clear from the application papers before this
Court that exceptional circumstances exist and that the Applicants
will
suffer irreparable harm should this Court not order that the
interim order be put into operation but also, that the Respondent
will not suffer any irreparable harm if it is. The Applicants also
rely on the case made out in the application giving rise to the

judgment and order of this Court and the contents of that judgment,
together with the order as a consequence thereof.
[20]
The argument on behalf of the Respondent is similarly based on the
contents of the application
papers before this Court. In that regard,
it is submitted that the Applicants have failed to make out their
case and plead facts
in their Founding Affidavit upon which they
rely. As a result thereof it is further submitted that the Respondent
is unable to
refute the factual allegations upon which the Applicants
allegedly rely. In fact, the Respondent says that the Applicants have
failed so dismally to do this in respect of exceptional
circumstances, that the question of irreparable harm does not even
arise.
[21]
These then
were (in broad summary) the two conflicting approaches adopted by the
respective parties when the matter was argued before
this Court. In
doing so, both Adv Wesley SC and Adv Baloyi SC submitted that certain
aspects of the evidence pertaining to exceptional
circumstances also
applied equally to irreparable harm. Both Counsel also took this
Court meticulously through the application
papers and referred this
Court to specific references to paragraphs in various affidavits and
the responses thereto. For obvious
reasons and, more particularly,
those reasons set out earlier in this judgment,
[14]
it is simply not possible for this Court to make reference thereto.
The
case for the Applicants
Exceptional
circumstances
[22]
The grounds relied upon by the Applicants to establish exceptional
circumstances are,
inter alia
, the following:
22.1
the principal manner in which the Applicants earn an income is by
releasing music videos
and audios on YouTube. The Respondent’s
conduct is directly impacting the Applicants’ ability to do
this and is severely
curtailing the income that they can earn. This
factor is directly linked to
irreparable harm
since
this income, once it is not earned, is lost forever;
22.2
the Respondent has not prosecuted the application for leave to appeal
with proper diligence thereby
allowing the Respondent to strike down
any new music the Applicants may release onto various digital
streaming platforms
(“DSP’s”)
;
22.3
the merits of the Respondent’s pending application for leave to
appeal are poor.
Irreparable
harm
[23]
Insofar as the Applicants allege they are suffering irreparable harm,
in addition to the
loss of income from YouTube as alleged above the
Applicants also aver,
inter alia
,:-
23.1
a monetary loss in respect of planned tours and the like. The
investment of money and time
into the production and releasing of the
songs and videos; and
23.2
a loss of income as a result of less exposure to the marketplace,
including the overseas
market.
[24]
With regard to the irreparable harm being suffered by the Respondent
the Applicants aver
that the Respondent is suffering none other than
that occasioned by its own conduct, that is, removing songs and
videos from YouTube
which could be earning an income and which, on
the Respondent’s version, the Respondent is entitled to a share
of.
The
case for the Respondents
[25]
As set out
above the Respondent criticizes the Applicants for failing to place
any real facts before the Court in substantiation
of the aforegoing
and what Adv Baloyi SC described as vague assertions lacking in any
detail. Further, Adv Baloyi SC, relying on
the matter of
Knoop
N.O. and Another v Gupta
[15]
correctly submitted that the inquiry in an application of this nature
is clearly a factual one.
[16]
[26]
It is the nature of this criticism that deserves close examination
for, in a well-presented
argument, Adv Baloyi SC certainly does not
lack judicial authority (and in certain instances legitimate facts)
to support that
argument. In the first instance, Adv Baloyi SC
attacked any reliance by the Applicants on the Media Statement by the
Respondent
as being somehow an instrument giving rise to either
exceptional circumstances on the part of the Applicants or
irreparable harm
being experienced by them as a result of a loss of
invested time, money and popularity. This Court understands Adv
Wesley SC to
have conceded that the Applicants no longer rely thereon
to assist them in discharging the onus in this application. In the
premises,
this Court will place no weight on the publication of that
statement by the Respondent and the somewhat problematic contents
thereof.
[27]
Whilst
trite, it is obviously nonetheless important to bear in mind, as
correctly pointed out by the Respondent’s Counsel,
that the
Applicants must set out all the facts upon which they rely in their
Founding Affidavit, not only to justify the relief
sought but also in
order to make the Respondent aware of the case that it had to meet.
If the Applicants did not do so, they cannot
attempt to do so in
their Replying Affidavit. In this regard, Adv Baloyi SC referred this
Court to the often cited decision of
National
Council of Societies for the Prevention of Cruelty to Animals v
Openshaw
[17]
Finally, Counsel for the Respondent placed some considerable reliance
on the principles (and findings) in the matter of
KGA
Life Limited v Multisure Corporation (Pty) Ltd and Others
[18]
.
In
this matter, it was held,
inter
alia
,
that
Multisure
(the First Respondent) in an urgent appeal in terms of subsection
18(4)(ii) of the Act, had shown a trajectory of financial decline

since
KGA
(the Appellant) had stopped its payments to
Multisure
.
[19]
However, the Court in this matter still held:
[20]
Multisure contended
that the financial harm to KGA should the execution order be granted,
can be undone by a repayment of the premiums
to it. It is not evident
why the same could not apply in relation to the financial harm it has
suffered and will suffer until the
finalisation of the appeal.
Multisure has not placed evidence about its overall financial
position before the court. It is unclear
whether it owns assets, what
other income it has, what its liabilities are and whether it can
raise loans to remain financially
afloat pending the appeal. The
information before the court is too sparse to make a determination.
While Multisure has certainly
established that it will suffer harm,
it has not proven that harm to be irreparable on a balance of
probabilities.
[28]
The aforegoing principles extracted from the abovementioned
authorities are relied upon
by the Respondent in the following
respects.
28.1
The Respondent avers that the Applicants do not state what revenue
they have lost and will continue
to lose if the order remains
suspended;
28.2
It is submitted by the Respondent that the Applicants have not
asserted that or explained why,
if ultimately successful, they could
not calculate the loss of revenue;
28.3
Further, the Respondent submits that since the Applicants have other
channels to distribute their
music this means that the suspension of
the order and any loss of revenue will not cause irreparable harm to
the Applicants. Indeed,
the Applicants do not deny that radio and
television exposure far surpass the exposure of their music on the
affected platforms;
28.4
As to whether the Respondent will suffer irreparable harm if the
suspension is lifted the Respondent
submits the onus rests on the
Applicants to prove they will not and point to the fact that on the
application papers the Applicants
admit they are not persons of
means.
Conclusion
[29]
With regard
to the reliance placed by the Applicants upon the submission that the
Respondent has not prosecuted the application
for leave to appeal
with proper diligence, thereby allowing the Respondent to strike down
any new music the Applicants may release
on to various DSP’s,
this Court, during the course of argument, raised with Counsel for
the Applicants the regrettable situation
that delays are often caused
in the hearing of applications for leave to appeal by difficulties in
the Appeals Office in this Division
and not always by the actions of
the litigants themselves. Following thereon, this Court understood
Adv Wesley SC not to necessarily
abandon the submission in its
entirety but, certainly, not to pursue it with any alacrity. At the
end of the day, this Court echoes
the sentiments of Sutherland J (as
he then was) when dealing with the same point in
Incubeta
Holdings
[21]
when
the learned Judge stated “…
I
disregard this aspect of the case as presented, since it plays no
useful role in the reasoning I offer for my conclusions.”
[30]
In respect
of the Respondent’s prospects of success in having this Court
grant it leave to appeal against its judgment and
order of the 12
th
of June 2023 (the application for leave to appeal having been set
down for hearing on 28 August 2023) it is clear from that set
out
earlier in this judgment
[22]
and upon a proper reading of
Afriforum
[23]
that
the SCA has definitively decided that the prospects of success in the
appeal process are relevant in deciding whether to grant
the
exceptional relief in an application in terms of section 18 of the
Act. In the present matter the relief sought
[24]
by the Applicants includes that the order granted by this Court is
not suspended in the event of leave to appeal being granted
by this
Court until the outcome of such appeal. In the premises, apart from
the directions of the SCA; the nature of the order
granted by this
Court (an interim prohibitory interdict) and the nature of the relief
sought by the Applicants in this application
(which this Court is
entitled to grant in terms of section 18 of the Act) it cannot be
doubted that the Respondent’s prospects
of success on appeal
must be one of the factors which should be taken into consideration
when deciding whether the Applicants have
discharged the onus
incumbent upon them in the present application.
[31]
Perhaps understandably, having regard to the stance taken by the
Respondent on this point,
Adv Baloyi SC spent no time whatsoever
addressing this Court on whether or not there was a reasonable
possibility of another Court
coming to a different decision in
relation to the interim order granted by this Court. On the other
hand, Counsel for the Applicants,
in submitting to this Court that
the merits of the Respondent’s pending application for leave to
appeal are poor, dealt with
each ground relied upon by the Respondent
in its Notice of Application for Leave to Appeal. In doing so, Adv
Wesley SC submitted
that each such ground had either not been argued
at the application itself; was incompetent in law or had been
properly found to
have been proven by the Applicants.
[32]
This Court finds that whilst it would appear
prima facie
(at
this stage and subject to hearing full argument at the application
for leave to appeal) that the prospects of success on appeal
appear
to be against the Respondent, this is only one factor which is to be
considered amongst a number of factors when deciding
this
application. Just as much as no decision has been reached as to
whether or not this Court will grant leave to appeal to the

Respondent on the 28
th
of August 2023 this Court, whilst
accepting that it is obliged to consider the Respondent’s
prospects of success on appeal
at this stage of the proceedings, is
also alive to the fact that same should not be over-emphasised to the
detriment of other pertinent
and important factors. It is, as already
stated, only one of the relevant factors to be added into the
“melting pot”
of the various factors to be taken into
consideration in each particular case when arriving at a decision as
to whether an applicant
has discharged the somewhat onerous burden of
proof in an application of this nature and proven, on a balance of
probabilities,
both exceptional circumstances, together with
irreparable harm and, at the same time, no such harm to a respondent.
[33]
By far the most important factor in the present application, in the
opinion of this Court,
is that dealt with broadly above, being the
Applicants’ contentions that the actions of the Respondent in
sending take down
notices to YouTube in respect of their songs and
music videos, constitute exceptional circumstances and are causing
them irreparable
harm. These contentions have been countered by the
Respondent on the basis that the Applicants have failed to place
sufficient
facts before this Court to support same.
[34]
The applicable principles and authorities dealing therewith have all
been clearly set out
earlier in this judgment. As also dealt with
herein, both parties have criticised each other in respect of the
paucity of the factual
averments and/or the responses thereto. As is
so often the case, both skilled Counsel made telling points when
dissecting paragraphs
of affidavits drafted by highly competent legal
practioners on behalf of their respective clients. However, when one
pushes aside
the semantics and “legal camouflage”, one is
left with that as set out hereunder.
[35]
The interim order granted by this Court simply protects the rights of
the Applicants to
continue:
35.1
to have an account on YouTube;
35.2
to earn an
income from songs and music videos authored by the Applicants from 15
June 2022 by streaming songs and music videos on
any
DSP’s,
including
YouTube, Spotify, iTunes and Deezer.
[25]
[36]
During the course of argument, Adv Baloyi SC focussed particularly
on:-
36.1
the fact that the Applicants were not restricted solely to YouTube
and had other DSP’s
via which they could stream their songs and
music videos. In addition thereto, the mediums of radio and
television were also available
to the Applicants; and
36.2
the Applicants had failed to place evidence in respect of their
overall financial position before
the Court and had not tendered to
put up any security pending the finalisation of PART B of the order.
[37]
In the
first instance, no mention whatsoever was made, either in the
application papers before this Court or by the respective Counsel
for
the parties, to the relief granted in paragraph [1] of the interim
order.
[26]
This is an interim
interdict in terms of which  “…..
pending
final determination of Part B attached to this application, any
person or entity acting in concert with the Respondents,
are hereby
interdicted from removing and/or deleting the account of the
Applicants’ Youtube channel;”.
The
relief sought in the present application by the Applicants and
opposed by the Respondent
[27]
is
in respect of the
entire
order granted by this Court on the 12
th
of June 2023. As such, it includes the relief sought in
both
paragraphs [1] and [2] of that order, not just paragraph [2] thereof.
In the premises, should this Court not order otherwise in
terms of
subsection 18(1) of the Act and the interim interdict (order) remains
suspended pending the finalisation of the appeal
process the
Respondent
(or
any other person or entity acting in concert with YouTube or the
Respondent)
can take steps to remove and/or delete the account of the Applicants
on the YouTube channel.
[38]
The fact that the Applicants have other DSP’s via which they
are able to stream their
music and music videos in addition to
YouTube, should not have come as any surprise to the Respondent. This
must have been clear
from the broad manner in which the relief in
paragraph [2] of the Applicants’ Notice of Motion was framed in
the application
and which was granted in the order of the 12
th
of June 2023. Of course, it must also be remembered that, until
fairly recently, the Respondent was the record company responsible

for managing and promoting the Applicants. As such, the Respondent
would, at the very least, have intimate knowledge of all of
the DSP’s
upon which the Applicants streamed their music and music videos. In
addition, it would be a simple exercise to
ascertain same, since
these DSP’s all function in the public domain.
[39]
Nevertheless, when disclosed by the Applicants, it transpires that of
the six (6) DSP’s
where the Applicants have followers and/or
subscribers, YouTube is ranked fourth (behind Facebook; Instagram and
Tiktok).As to
the mediums of radio and television, it was common
cause between the parties that these mediums did assist the
Applicants in essentially
growing their brand but it was pointed out
by the Applicants that these are limited to a domestic audience
whilst a DSP of the
nature of YouTube is a global platform with a
global audience. Once again, having regard to the prior relationship
between the
parties, these facts could hardly have come as a shock to
the Respondent.
[40]
The relevance of the aforegoing, for the purposes of this application
is, in the opinion
of this Court, the following. The Respondent
cannot be heard to say that simply because the Applicants have other
means available
to them through which they can distribute their music
and music videos the Applicants have failed to satisfy the
requirements of
exceptional circumstances and irreparable harm. This
misconception has arisen as a result of the fact that the initial
application
primarily involved (as a result of the actions of the
Respondent) a single DSP, namely YouTube. However, the interim relief
sought
and granted in the form of a prohibitory interdict, was much
wider. The misconception that this application involves one DSP only,

or that only YouTube should be considered when examining the
principles of exceptional circumstances and irreparable harm, has

been perpetuated in the present application. Ironically, this is so,
by the continued actions of the Respondent who, after lodging
an
application for leave to appeal against the judgment and order of
this Court, thereby suspending same
(and, in the words of the
Respondent, obtaining the “benefit” of subsection 18(1)
of the Act)
, elected to obtain a take down order of the
Applicants’ latest song and music video on YouTube and not in
respect of any
other DSP upon which the Applicants may be streaming
that song and music video or on television or radio. This is so,
despite the
Respondent’s utterances in its Answering Affidavit
that the amount earned by the Applicants on YouTube is not
substantial
and the pointing out by the Respondent (as set out above)
that other DSP’s used by the Applicant’s have far more
followers
and/or subscribers than YouTube.
[41]
As to the amount of damages being suffered by the Applicants and the
averments by the Respondent
(as dealt with above) that the amount is
an insignificant one, this Court finds that, on the basis that each
case must be decided
on its own particular facts; the fact that it is
common cause that the Applicants are not persons of means and the
fact that the
Applicants are having to fund tours and pay for music
videos and the like to promote their music the Applicants have
successfully
refuted these averments. Most importantly, this Court
finds that, in this particular matter, when considering the
requirement of
irreparable harm the fact that revenue is lost forever
and not recoverable when a song or music video is removed from a DSP,
is
decisive in this matter. Simply because the Respondent has not
chosen, as yet, to take action in an attempt to have the songs and

music videos of the Applicants taken down from other DSP’s used
by the Applicants, is no answer to the relief sought by the

Applicants. Nor is the fact that the Respondent has not, as yet,
sought to have the Applicants’ YouTube channel closed pending

the finalisation of the entire appeal process.
[42]
As to the
argument put forward on behalf of the Respondent that the Applicants
have failed to place evidence in respect of their
overall financial
position before this Court and have not tendered to put up any
security pending the finalisation of PART B of
the order, as set out
earlier in this judgment, Adv Baloyi SC relied upon the decision in
the matter of
KGA
Life Limited.
This
matter involved two companies in the insurance industry. An execution
order was granted (by a single Judge) in favour of one
party
(Multisure)
in terms of subsections 18(1) and (3) of the Act, in respect of
certain declaratory relief (payment of premiums by
KGA
)
pending an appeal to the Supreme Court of Appeal. In an urgent appeal
by
KGA
to the
Full Court of the Eastern Cape Division (Makhanda) in terms of
subsection 18(4)(ii) of the Act, it was held
,
inter alia
,
that:
[28]
Multisure
contended that the financial harm to KGA should the execution order
be granted, can be undone by a repayment of the premiums
to it. It is
not evident why the same could not apply in relation to the financial
harm it has suffered and will suffer until the
finalisation of the
appeal. Multisure has not placed evidence about its overall financial
position before the court. It is unclear
whether it owns assets, what
other income it has, what its liabilities are and whether it can
raise loans to remain financially
afloat pending the appeal. The
information before the court is too sparse to make a determination.
While Multisure has certainly
established that it will suffer harm,
it has not proven that harm to be irreparable on a balance of
probabilities.
[43]
Based on the aforegoing, Adv Baloyi SC submitted before this Court
that the Applicants
had failed to prove irreparable harm in that they
had not,
inter alia
, placed before this Court financial
statements pertaining to their financial position; had not set out
their debtors and creditors;
had failed to place before this Court
any evidence as to their financial situation; failed to list their
assets; failed to list
their liabilities and also failed to set out
whether they could secure any loans pending the finalisation of PART
B of the order.
[44]
In the
first instance, this Court wishes to return to the fundamental
principle that in applications of this nature it is imperative
that
it should always be remembered that when evaluating whether or not
exceptional circumstances exist (and in this context their

relationship to irreparable harm) this must always depend on the
facts of each case. In
Incubeta
Holdings
it
was held:
[29]
Necessarily,
in my view, exceptionality must be fact-specific. The circumstances
which are or may be “exceptional” must
be derived from
the actual predicaments in which the given litigants find themselves.
[45]
Following thereon, the facts and more particularly the “predicaments”
in which
the litigants find themselves in the present matter compared
to that which the litigants found themselves in
KGA Life Limited
are, in the opinion of this Court, very different. On that basis
the facts in
KGA Life Limited
are distinguishable to those in
the present matter. In this matter it is common cause, as dealt with
earlier in this judgment, that
the Applicants are not persons of
means. As such, they are in a vastly different financial position to
that of a company in the
insurance industry. To expect the Applicants
to be in a position to place before this Court evidence of the
calibre as mentioned
in
KGA Life Limited
would be, in the
opinion of this Court, too onerous a burden indeed. Further, whilst
not suggesting for one moment a shift in the
onus or even in the
evidential burden, the Respondent must be well aware of the financial
status of the Applicants (which is in
fact common cause). In the
premises, it would be unfair to expect the kind of financial
disclosure from the Applicants in the present
matter as was defined
in
KGA Life Limited.
[46]
As to the criticisms by the Respondent that the Applicants do not
state what revenue they
have lost and will continue to lose if the
order remains suspended and the submission that the Applicants have
not asserted that
or explained why, if ultimately successful, they
could not calculate the loss of revenue, the same considerations
must, in general,
apply. As stated by the Applicants these damages,
by their very nature, are difficult to ascertain. Together therewith,
is the
necessity of having to institute this application on an urgent
basis. But possibly the most plausible explanation as to why the

Applicants would have grave difficulty in providing such information
at this stage of the proceedings (apart from the obvious averments
as
set out in the application papers) and one which was not dealt with
either in argument before this Court or in any of the affidavits

placed before this Court, is the nature of the relief as set out in
PART B of the order. That relief (essentially a debatement
of
account) is as relevant at this stage of the proceedings as it will
be at the conclusion thereof. This not only clearly illustrates
the
difficulty in the quantification of damages but once again emphasises
the importance of examining the particular facts of each
individual
case in an application in terms of section 18 of the Act.
[47]
Further, as to the passing shot from the Respondent that the
Applicants had not tendered
any security, it must be noted that none
has been formally requested, at this stage, by the Respondent. Once
again, it is common
cause that the Applicants are not persons of any
great financial means. It is also noted that the Respondent, whilst
averring that
the Applicants will always have a claim for damages,
have also not tendered to put up security to negate any claims of
irreparable
harm that may be suffered on behalf of the Applicants.
[48]
Finally, in respect of whether the Respondent will suffer any
irreparable harm should this
Court grant the Applicant the relief
sought, it is correct, as submitted by Adv Wesley SC, that there are
no material averments
in the present application papers before this
Court by the Respondent pertaining thereto. Rather, the Respondent
has adopted the
attitude that the onus rests upon the Applicants to
prove same. Moreover, in the initial application, the Respondent only
made
bald and vague averments in respect of how it was being
prejudiced by the Applicants continuing to stream their music on
DSP’s
after ending their business relationship with the
Respondent in that the Respondent’s reputation was suffering
and other
artists may follow the allegedly unlawful actions of the
Applicants. Certainly, the Respondent has set out no reasons why this
Court could come to the Respondent’s assistance and find that
the Applicants have failed to prove that, on a balance of
probabilities,
the Respondent would not suffer irreparable harm if
this Court granted the Applicants the relief sought in terms of
subsections
18(1) and (3) of the Act.
[49]
In light of the aforegoing, this Court holds that the Applicants have
discharged the onus
of proof incumbent upon them to prove, on a
balance of probabilities, the existence of exceptional circumstances
in this matter
as contemplated by the provisions of subsection 18(1)
of the Act and, in addition, in terms of the provisions of subsection
18(3)
of the Act, that the Applicants will suffer irreparable harm
should this Court not grant the relief sought and that the Respondent

will not suffer irreparable harm if this Court makes an order as set
out in the Applicants’ Notice of Motion. Finally, in
the
exercise of its general discretion pertaining to costs, this Court
grants costs of the application to the Applicant but declines
to
grant those costs on a punitive scale.
Order
[50]
In the premises, this Court makes the following order:-
1.
In terms of subsection 18(1), read with subsection 18(3), of
the
Superior Courts Act, Act
10 of 2013, it is ordered that the operation
and execution of the Judgment and Order of this Court, under case
number 2022/035571,
dated 12 June 2023 and revised on 23 June 2023,
shall not be suspended pending a decision on the Second Respondent’s
application
for leave to appeal and, in the event of leave to appeal
being granted, the outcome of such appeal;
2.
The Second Respondent is ordered to pay the costs of this
application,
including the costs of Senior Counsel.
B.C. WANLESS
Acting Judge of the High
Court
Gauteng Division,
Johannesburg
Heard
:

16
August 2023
Judgment
:

22 August 2023
Appearances
For
Applicants
:
CP
Wesley SC
Instructed
by
:
Friedland
Hart Solomon & Nicolson Attorneys
c/o AJ
Scholtz Attorneys
For
Second Respondent
:
MS
Baloyi SC (with HP van Nieuwenhuizen)
Instructed
by
:
Richen
Attorneys Inc.
[1]
Incubeta
Holdings (Pty) Ltd v Ellis and Another
2014 (3) SA 189
(GJ) at para
[16]; endorsed by the SCA in Ntlemeza v Helen Suzman Foundation and
Another
2017 (5) SA 402
(SCA) at paras [35]-[36] and in University
of the Free State v Afriforum and Another
2018 (3) SA 428
(SCA) at
paras [9]-[10].
[2]
UFS v
Afriforum 2018 at para [15].
[3]
Minister
of Social Development Western Cape and Others v Justice Alliance of
South Africa and Another (20806/2013)
[2016] ZAWCHC 34
(1 April
2016) approved in UFS v Afriforum at paras [14]-[15].
[4]
Justice
Alliance at para [27], approved in UFS v Afriforum at paras
[14]-[15].
[5]
UFS v
Afriforum at para [13].
[6]
Incubeta
Holdings at para [27].
[7]
Fidelity
Security Services (Pty) Ltd v Mogale City Local Municipality and
Others
2017 (4) SA 2017
(GJ) at para [28].
[8]
Actom
(Pty) Ltd v Coetzee and Another (A269/2015) [2015] ZAGPPHC 548 (31
July 2015) at para [15].
[9]
Democratic
Alliance and Others v Premier for the Province of Gauteng and Others
[2020] ZAGPPHC 330.
[10]
Incubeta
Holdings at para [24]; emphasis added.
[11]
Emphasis
added.
[12]
2018
(3) SA 428
(SCA) at 438A-D.
[13]
Erasmus:
Superior Court Practice (‘Erasmus”) at D-135.
[14]
Paragraph
[17] ibid.
[15]
2021
(3) SA 135 (SCA).
[16]
At
paragraphs [55] and [56].
[17]
[2008] ZASCA 78
;
2008
(5) SA 339
(SCA) at paragraphs [29] and [30]
[18]
(CA
157/2022) [2022] ZAECMKHC 115 (14 December 2022).
[19]
At
paragraph [54].
[20]
At
paragraph [55]
[21]
At
paragraph [3].
[22]
Paragraphs
[10]; [11] and [16] ibid.
[23]
Paragraphs
[14] and [15].
[24]
Paragraph
[7] ibid.
[25]
Paragraphs
1 and 2 of the order of the 12
th
of June 2023; paragraph [2] ibid; emphasis added.
[26]
Paragraph
[2] ibid.
[27]
Paragraph
[7] ibid.
[28]
At
paragraph [55].
[29]
At
paragraph [22].