Brief Summary

Contract — Unlawful contracts — Agreement to host and promote boxing contests — Contest involving intentional bodily force to settle disputes — Common purpose to gain profit and fame — Participation potentially constituting organized crime — Contract deemed illegal, contra bones mores, and unenforceable — Application dismissed.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an application in the Gauteng Division of the High Court, Pretoria, brought on motion proceedings in which the applicants sought substantive corporate and monetary relief arising from the operation of a business trading as “Tikbox”, which hosted and promoted boxing-type contests involving TikTok influencers.

The applicants were Tikbox League (Pty) Ltd (first applicant) and two individuals associated with the business (second and third applicants), together with Dominant Slap League (Pty) Ltd (fourth applicant). The first respondent was an individual formerly involved in the business, and the second respondent was the Companies and Intellectual Property Commission. Further respondents included entities and individuals involved in ticket sales and related aspects of the event (including the third to sixth respondents), although the second to seventh respondents did not appear.

The matter came before Le Grange AJ, was heard on 5 October 2023, and judgment was delivered electronically on 18 December 2023. Although the notice of motion sought, among other things, the declaration of the first respondent as a delinquent director and payment over of ticket-sale proceeds, the court treated a prior issue as dispositive: whether the underlying business and contract were lawful and enforceable, or whether the “purse” was filled with proceeds of unlawful activity.

The dispute’s general subject matter concerned the enforceability of agreements and claims arising from arranging public boxing contests between private individuals (TikTok “stars”) as entertainment and a profit-generating venture, and whether such arrangements were contra bonos mores, unlawful, and therefore unenforceable.

2. Material Facts

The court identified certain facts as common cause notwithstanding points in limine and a serious dispute about the true terms of the parties’ arrangement. Tikbox (as referred to by the court) conducted business as a promotion company hosting and promoting “for fun” TikTok “star” fights, ostensibly “in a safe and controlled manner”, for the benefit of the participants through promotion of the events. TikTok “stars” were described as individuals who had acquired fame and followers on the TikTok platform to the extent that followers’ engagement generated income.

On the first respondent’s version (recorded by the court as part of the background), the business concept arose in late 2022 when he observed verbal altercations between local social media influencers on TikTok and conceived of arranging in-person boxing events for those influencers, open to the public upon purchase of tickets, as a profitable venture.

It was also common cause that associated participants and entities were drawn into the venture through further agreements or engagements, including competitors, sponsors, and an online ticket sales platform, with the broader TikTok platform and followers forming the intended audience and market. The first event took place on 4 March 2023 and generated income, which then became the centre of the dispute.

The applicants sought relief that included a declaration that the first respondent was a delinquent director of the first applicant, an order directing the Companies and Intellectual Property Commission to update its records to remove him as a director, and an order directing respondents responsible for ticket receipts to pay ticket sales over to the first applicant.

After the fallout, the first respondent resigned as a director and incorporated “Tikbox South Africa (Pty) Ltd”, whose stated purpose and promotional materials (as quoted in the judgment) replicated Tikbox’s concept by framing the venture as transforming TikTok disputes into boxing bouts.

A fact treated as disputed was whether the event and business were conducted through the corporate vehicle of the first applicant or through a partnership arrangement between individual directors (the second applicant and the first respondent). The court expressed serious doubt about the first respondent’s partnership version but held that, for purposes of deciding legality and enforceability, the dispute about the precise vehicle and terms was ultimately irrelevant. The court therefore proceeded on the basis that the parties bound themselves through “Tikbox” in terms that resulted in hosting and promoting the contested events.

3. Legal Issues

The central legal question was whether the agreement(s) and business arrangements to host and promote the relevant “boxing” contests were lawful and consistent with public policy, or whether they were unlawful, contra bonos mores, and therefore unenforceable. Closely connected to this was whether participation and associated arrangements could amount to involvement with the proceeds of unlawful activities, raising the concern that the income at issue might be tainted.

A further legal question was whether the intentional application of bodily force inherent in the contests could be justified by consent (invoking the principle of volenti non fit injuria) as a ground of justification that negates unlawfulness, particularly by analogy to consent in lawful sport.

These issues were primarily questions of law, informed by the characterization of undisputed facts, and involved the application of legal principles to those facts (including the normative assessment of public policy and the scope of lawful consent). Because legality was treated as logically anterior to the merits of the corporate and monetary relief sought, the legality determination was dispositive of whether the court could grant the substantive relief.

4. Court’s Reasoning

The court approached the matter by first insisting that it could not decide entitlement to the “purse” (income) or corporate delinquency relief without being satisfied that the money claimed was not generated by unlawful contracts and activities. This framed legality as a threshold issue.

On the characterization of the arrangement, the court held that the nature and intended purpose of the agreement were clear: it was an agreement to host and promote an event where members of the general public, having social media feuds, were placed in contests in which they intentionally applied bodily force to each other, to public spectacle, and with a shared purpose of profit and/or fame. The court analogised the concept to the historical notion of a “duel”, observing that such contests embody what modern law regards as crimes such as assault, culpable homicide, and even murder.

The court then clarified that assault, like culpable homicide and murder, and conspiracy to commit such offences, is unlawful and criminal conduct. Relying on the standard criminal-law understanding of assault, the court treated the intentional application of force as prima facie unlawful unless a recognised ground of justification applied.

The court considered whether consent could supply such justification in the circumstances. It referred to the requirements for valid reliance on consent as a defence (as set out in Snyman’s Criminal Law), emphasising that “lawful consent” is narrower and more complex than ordinary consent, and that there are categories of offences for which consent cannot operate as a defence (the judgment used murder as an example, supported by authority). The court accepted that in certain settings, including lawful sport, consent can operate to negate unlawfulness for certain injuries, but it stressed that the scope of that principle depends on whether the sport is lawful and regulated to prevent serious injury and death, and whether the participants’ intention is not to inflict serious injury.

In applying those principles, the court relied on the distinction between unlawful contests such as duelling and prize-fighting (where serious injury or death is an imminent risk and participation does not provide a defence) and lawful sport (where rules are designed to prevent serious injury and consent may purge liability for injuries incurred within the rules). The court treated this distinction as critical in evaluating whether the Tikbox events could be justified as “boxing” in a lawful sporting sense.

The court then considered the role of legislation in rendering boxing lawful and capable of supporting lawful consent. It reasoned that boxing is tightly regulated by the South African Boxing Act 11 of 2001, its regulations, and the Safety at Sports and Recreational Events Act 2 of 2010, with such regulation being necessary to “legalise the sport” so that lawful consent may be granted. The judgment emphasised that regulatory frameworks are aimed at ensuring, among other things, appropriate matching of competitors and medical and other examinations so that participants are fit and properly able to understand inherent risks, thereby enabling lawful consent.

The applicants sought to distinguish the events from “prize fighting” and argued that ad hoc tournaments were not prohibited, referring to historical context and examples such as “white collar boxing”. The court rejected this reasoning, holding (with reference to LAWSA and earlier South African authorities) that a person cannot simply consent to “pure assault”: some legally recognised justification must exist for the intentional application of bodily force. The court considered an obiter remark in Austin v Morrall & Others (1905) 22 SC 67 about a “friendly contest in boxing, not calculated to produce injury”, but stated that, given modern understanding of the sport and its inherent risks, it could hardly conceive of boxing as not calculated to produce injury, particularly given the sport’s nature and purpose.

From this, the court distilled its evaluative conclusion: for the event, act, business, and contract to be lawful, in the absence of legislation and absent public policy to the contrary, consent would need to be of a kind where the intention is not to inflict injury to the extent that there is an inherent and/or imminent risk of serious injury or death. On the undisputed facts before it, the court found that the contest had not been legalised in the relevant sense and that lawful consent could not be granted.

The court then addressed public policy, explicitly locating its analysis within constitutional values and the “spirit, purport and objects” of the Bill of Rights, referring in particular to constitutional provisions including the preamble and sections 11, 12, 16(2)(b), 185 and 198 (as cited in the judgment). In light of those constitutional norms read with the legislative context, the court concluded that public policy did not merely demand criminalisation of such conduct, but had moved beyond that to statutory criminalisation of association, participation, and consequent agreements. The court referred to the Prevention of Organised Crime Act 121 of 1998, including its definition of “unlawful activity” and the offence of assisting another to benefit from proceeds of unlawful activities, as part of the statutory context underpinning its concern that participation and arrangements around the proceeds may themselves be criminalised.

To illustrate the public policy and participation concern, the court analogised these arranged contests to a scenario of encouraging and recording a school fight for social media “likes”, in which the encouragers and platform would be engaging in criminal conduct through participation. On this basis, the court reached the conclusion that arranging contests between random members of the public that are inherently dangerous, with risk of serious injury or death, is contra bonos mores and unlawful, and that the contract the parties sought to enforce was likewise unlawful and unenforceable.

Because illegality was dispositive, the court did not proceed to determine the internal dispute about who was entitled to the money or whether delinquency relief should be granted on the merits.

5. Outcome and Relief

The court dismissed the application and made no order as to costs.

In addition, the court directed that its order be referred to the Companies and Intellectual Property Commission to consider whether the purpose of the first applicant company was lawful and, if not, to address the issue accordingly.

The court further directed that its order be referred to the National Prosecuting Authority to consider whether any crime(s) had been committed by any of the persons or entities mentioned in the judgment and, if so, to address the issue.

Cases Cited

S v Robinson and Others 1968 (1) SA 666 (A).

Rex v Fundakubi and Others 1948 (3) SA 810 (AD).

Austin v Morrall & Others (1905) 22 SC 67.

Rex v Motomana 1938 EDL 128.

Rex v Manuele Sile 1945 WLD 134.

The State v Sikunyana and Others 1961 (3) SA 549 (E).

S v Marx 1962 (1) SA 848 (N).

Van Jaarsveld v Bridges (3409) [2010] ZASCA 76 (27 May 2010).

Legislation Cited

South African Boxing Act 11 of 2001.

Safety at Sports and Recreational Events Act 2 of 2010.

Riotous Assemblies Act 17 of 1956 (section 18(2)(a)).

Constitution of the Republic of South Africa, 1996 (Act 108 of 1996).

Prevention of Organised Crime Act 121 of 1998 (including section 5, as quoted in the judgment).

Boxing and Wrestling Act No 5 of 1923 (historically referenced in argument).

Rules of Court Cited

No specific rules of court were cited in the judgment.

Held

The court held that the agreement and business arrangement to host and promote arranged boxing contests between members of the public (TikTok influencers) for spectacle and profit involved intentional application of bodily force in circumstances where the contest had not been legalised and where lawful consent could not be granted. The arrangement was found to be unlawful, contra bonos mores, and accordingly unenforceable, rendering the applicants’ claims for payment and related corporate relief untenable in those proceedings.

The application was dismissed with no order as to costs, and the matter was referred to the Companies and Intellectual Property Commission and the National Prosecuting Authority for consideration within their respective mandates.

LEGAL PRINCIPLES

The judgment applied the principle that agreements founded on unlawful conduct, or which are contra bonos mores and contrary to public policy, are unenforceable, and that a court must be satisfied that the relief sought is not grounded in proceeds of unlawful activity before it determines questions of entitlement.

It reaffirmed that assault consists of the intentional and unlawful application of force to another, and that unlawfulness may sometimes be negated by a recognised ground of justification such as consent, but only where the law recognises consent for that category of act and where consent meets the requirements for validity in criminal law.

The judgment applied the distinction between unlawful violent contests (such as duelling or prize-fighting, where serious injury or death is an imminent risk and participation is no defence) and lawful sport, where rules aim to prevent serious injury, the participants do not intend serious injury, and consent may purge liability for injuries incidental to lawful play. It treated comprehensive statutory regulation as central to boxing’s legality and to the possibility of participants granting lawful consent.

The court further treated public policy, informed by constitutional values and statutory schemes addressing unlawful activities and proceeds, as a normative yardstick in assessing whether such arrangements should be recognised and enforced by courts, concluding on the facts that the arranged contests were contrary to public policy and thus unlawful.

Tikbox League (Pty) Ltd and Others v Du Toit and Others (B1342/2023) [2023] ZAGPPHC 2025; 2024 (3) SA 198 (GP) (18 December 2023)