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[2021] ZAGPJHC 635
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Mokoena and Another v Minister of Tourism and Others (8931/2020) [2021] ZAGPJHC 635 (27 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 8931/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
In
the matter between:
MOKOENA,
DIROETLENG DAVID
First Applicant
MOKOENA,
NOMBUSO
Second Applicant
and
MINISTER
OF
TOURISM
First Respondent
GAUTENG
TOURISM AUTHORITY
Second Respondent
KUNJALO
CENTRE FOR DEVELOPMENT
Third Respondent
JUDGMENT
TERNENT,
AJ
:
INTRODUCTION,
AMENDMENT AND THIRD RESPONDENT
[1]
From the outset this opposed application
was beset with hurdles for the applicants. The applicants’
counsel accepted that
the application had not been served on Kunjalo
Centre for Development (“Kunjalo”), the third respondent,
and that unless
service was effected in accordance with the Rules and
via the Sheriff of the Court, the application could not proceed.
Having initially
sought that the matter be removed from the roll,
relief which was opposed by the first and second respondents, it then
became apparent
that the interdictory relief sought in paragraph 1 of
the Notice of Motion may well be moot.
[2]
This defence was raised for the first time
by the first and second respondents’ counsel, who submitted
that due to the long
duration of the proceedings in this matter,
(there having been an earlier application premised on essentially the
same facts and
parties, under case number 24086/2018), that the 3
year tender contract which had been awarded to Kunjalo had come to
its natural
end. I called for an affidavit detailing when the
contract had terminated and whether there was merit to this point.
[3]
The matter was adjourned, on the first
appearance before me on Monday 12 April 2021,until Tuesday 13 April
2021 in order to afford
an opportunity to the first and second
respondents to file this affidavit.
[4]
An affidavit was delivered and
uploaded to Caselines, deposed to by a Mr Mbuyi Kona, of the second
respondent. Attached to the affidavit
was the service level agreement
concluded between the second respondent and Kunjalo, which reflected
the signatures of the respective
representatives, Mr Dumisani Hlophe
on behalf of Kunjalo and, Mr Siphiwe Ngwenya for the second
respondent, who appeared to be
signing in his capacity as its Chief
Executive Officer. Notably, the date on which the agreement was
signed was not completed,
although there was a typed reference to the
year 2018.
[5]
The service level agreement expressly
provided that the Tourism Safety Monitors Project would commence from
the date of the last
signature of the signing of the agreement and
would endure for a period of three years. I was assured by the first
and second respondents’
counsel that the contract had come to
an end. What was clear from the affidavit was that the national
initiative to provide tourism
safety monitors in densely visited
tourist areas had come to an end. The 3 year period would have
coincided with the national lockdown,
due to COVID19 which commenced
on 27 March 2021, and tourism was directly affected as a result of
the lockdown restrictions imposed.
[6]
As such, the applicants’ counsel
accepted that the interdictory relief sought was moot and that the
relief as sought against
Kunjalo, primarily related to the interdict
(also the basis for the amendment sought below) The applicant’s
counsel accepted
that this relief was no longer possible.
[7]
It was in these circumstances, that the
applicants’ counsel then moved for an amendment to the Notice
of Motion to clarify
that the relief sought in paragraphs 2 and 3 of
the Notice of Motion would not be pursued against Kunjalo, as it had
not received
notice of the application but more importantly because
the relief sought, as submitted to me, was ill-founded in relation to
Kunjalo.
The amendment sought to tailor the relief to refer only to
the first and second respondents. In effect, the word “
respondents”
referring to all three respondents was amended to “
the
first and second respondents
”.
[8]
The first and second respondents’
counsel opposed the amendment submitting that this embarrassed the
first and second respondents’
defence, to the extent that such
a defence existed.
[9]
The matter stood down briefly in order to
afford the first and second respondents’ counsel an opportunity
to take instructions
in this regard. He was instructed to persist
with the objection to the amendment.
[10]
Having heard the argument, I granted the
amendment and informed the parties that I would give my reasons
therefor simultaneously
with this judgment. In a nutshell, the
amended relief sought to simply remove the third respondent from the
picture. The relief
as against the first and second respondents, who
had delivered their answering affidavits and were ready to argue the
opposed application,
remained extant. As a consequence, the case
which the first and second respondents were called upon to meet was
tailored, insofar
as interdictory relief could not be obtained, an
issue of which they were well-aware, as the national initiative had
come to an
end. The remaining relief in paragraphs 2 and 3 of the
notice of motion had not changed one iota and, accordingly, no
prejudice
arose.
[11]
In these circumstances, the first and
second respondents’ counsel having informed me that he was
ready to argue the application,
the matter could then proceed.
[12]
Both counsel argued until the lunch
adjournment and informed me, as I had allocated another matter for
14h00 that day, that it suited
them better to not appear later that
day. As such, I stood the matter down until Wednesday 14 April 2021,
at 14h00, when the argument
on the merits, which had been touched
upon by both counsel, would be fully argued together with the
in
limine
points raised by the first and
second respondents.
THE
APPLICATION
[13]
The applicants instituted these proceedings
against the first and second respondents for infringing, since July
2017, their copyright
over what they termed their literary works
titled “
Tourism Safety Monitors
and Tourist Ambassadors”
. The
literary work referred to was attached to the founding affidavit. In
this regard, the document commences at page 11 and ends
at page 16.
Pages 1 to 10 of the document are missing. Accordingly, the document
upon which the applicant’s rely for their
copyright is
incomplete. The five pages, tendered into evidence, are typed and
there is a reference heading “
Draft
Tourism Safety Framework”
, on the
left hand top corner of each page. There is, in the absence of the
complete document/work, no reference to the title as
contended for by
the applicants.
[14]
The applicants contend for an infringement
(as contemplated by section 23 read with section 6 of the Copyright
Act 1978 (Act 98
of 1978 as amended) (“
the
Act”
)), when the second
respondent used the ideas/concepts/ proposals contained in the
document, their literary work, “
Tourism
Safety Monitors and Tourist Ambassadors”,
without
their permission or authority, and published a tender request for
proposals titled “
Terms of
reference”
for the appointment of
a project manager responsible for the day to day running of the
Tourism Safety Monitors Programme for 36
months, Bid No. GTA/VIS/01.
THE
APPLICANTS CASE
[15]
The applicants ran a neighbourhood watch in
the Vilakazi Precinct incorporating Vilakazi street and the Hector
Petersen memorial
area since 2004. They received recognition for
their efforts and, in January 2006, were material in apprehending a
Mr Daniel Mokoena
who was later charged with murder.
[16]
It was during this time when they met Mr
Morgan Mabaso, a tourism safety officer, who it is common cause was
appointed by the second
respondent. They interacted with him as they
had set up community patrols and the patrollers/ tourist guides wore
reflective vests,
carried torches and whistles, batons and other
implements. The priority was to secure the area for tourists so that
they felt safe,
maintain law and order and prevent crime. It is not
disputed that Mabaso had to set up a tourism safety framework in
Gauteng, create
a tourism safety program and that he was required to
engage with various stakeholders in the tourism sector, in the course
of his
mandate.
[17]
The applicants say it was during 2004 that
they shared their “i
dea
”
of the tourism safety program with Mabaso. Mabaso signed a
confirmatory affidavit confirming the aforesaid. This was not
disputed by the first and second respondents. The document (of which
the Court only has an incomplete copy), which the applicants
say
embodied the safety program was handed to Mabaso. The applicants do
not state when this occurred.
[18]
Mabaso introduced the applicants to Mr
Kona, who was the senior manager at the second respondent and then
later to a Mr Jacques
Scholtz who succeeded him.
[19]
The applicants were looking for finance as
they sought to turn their neighbourhood watch which had evolved over
time into a commercial
exercise. This created a stumbling block
because they were unable to do so.
[20]
The applicants contend that the second
respondent then advertised for the tender proposals referred to
above. The tender application
document was also attached to the
founding affidavit and was issued by the second respondent. It made
provision for a briefing
session on 17 July 2017 and all bids and/or
submissions had to be made by 11 am on 27 July 2017. In effect,
bidders sought appointment
as a service provider to assist with the
project management of the Safety Monitor Programme undertaken by the
second respondent.
The successful bidder would be required to work
with the Gauteng Tourism Authority Project Management Team and would
be responsible
for the day to day running of the project for a period
of three years. As it turned out, Kunjalo was appointed.
[21]
The applicants attended the tender briefing
but chose not to bid primarily because they believed that they had
been side-lined and
that their ideas/ concept had been unlawfully
used by the second respondent in the tender request for proposals.
They also could
not finance the project, if it were awarded to them,
had they successfully tendered for the work.
[22]
This is the sum total of the applicants
case.
THE
MERITS
[23]
Having
chosen motion proceedings, it is trite that the affidavits not only
take the place of pleadings in a trial action but also
of the
essential evidence which would be led at a trial. As such the
deponents to the affidavits are in effect “
testifying
in the motion proceedings”
.
[1]
[24]
Furthermore,
all of the necessary allegations and facts upon which the applicants
rely must appear in the founding affidavit and
cannot be supplemented
by adducing facts in the replying affidavit.
[2]
[25]
It is also clear that the onus rests
upon the applicants to:
25.1
establish their reliance on
copyright; and
25.2
the respondents’ infringement
thereof.
THE
LITERARY WORK RELIED UPON
[26]
Section 2 of the Act is clear that
copyright will exist in a literary work if it is :
26.1
original;
26.2
has been recorded in some form, and
26.3
its author was a citizen of South
Africa at the time the work was made.
[27]
It was not disputed that the document /
work was authored by the applicants. To the extent that 5 pages of a
document were proffered
in evidence, the work contended has been
recorded in a written form. The first and second respondent’s,
however, denied that
the requirement of originality had been
satisfied.
[28]
In
order to establish originality, it is not necessary that the work be
creative. As long as it has not been copied and the work
required “
a
substantial (or not trivial) degree of skill, judgment or
labour.
”,
[3]
that will suffice.
[29]
In
this regard, Nugent J in
Pyromet
(Pty) Ltd v Bateman Project Holdings Limited & Another
[4]
set out the test to be applied, as follows:
“
An
artistic work is eligible for copyright if it is original. The
following passage from Copeling Copyright and the Act of
1978 at
p 15, which was cited with approval in Klep Valves (Pty) Ltd v
Saunders Valve Co Ltd
[1987] (2) SA 1
(A) at 22H – 23A,
conveniently summarises what is meant by that concept:
"To be
original a work need not be the vehicle for new or inventive thought.
Nor is it necessary that such thoughts as the
work may contain be
expressed in a form which is novel or without precedent.
'Originality', for the purposes of copyright, refers
not to
originality of either thought or the expression of thought, but to
original skill or labour in execution. All that is required
is that
the work should emanate from the author himself, and not be copied. .
. ."
'The
requirement that the work should emanate from the author himself and
not be copied must not be interpreted as meaning that
a work will be
regarded as original only where it is made without reference to
existing subject-matter. Indeed, were this so the
great majority of
works would be denied the benefit of copyright protection. It is
perfectly possible for an author to make
use of existing material and
still achieve originality in respect of the work which he produces.
In that event, the work must be
more than simply a slavish copy; it
must in some measure be due to the application of the author's own
skill or labour. Precisely
how much skill or labour he need
contribute is difficult to say for much will depend upon the
facts of each particular case.'
[30]
Further,
“
It
should also be noted that a determination of originality applies to
the work as a whole, and not to select parts:
'Under
the Act the inquiry is whether the work was original. The inquiry is
not whether its parts are original.' “
[5]
[31]
As referred to in
Biotech
Laboratories
:
“
[9]
The argument can be disposed of by means of an extract from Ladbroke
(Football) Ltd
v William Hill (Football) Ltd
[1964] 1 All ER 465
(HL). Lord Reid said (at 469B - E):
'Broadly,
reproduction means copying, and does not include cases where an
author or compiler produces a substantially similar result
by
independent work without copying. If he does copy, the question
whether he has copied a substantial part depends much more on
the
quality than on the quantity of what he has taken. One test may be
whether the part which he has taken is novel or striking,
or is
merely a commonplace arrangement of ordinary words or well-known
data. So it may sometimes be a convenient short cut to ask
whether
the part taken could by itself be the subject of copyright.
But,
in my view, that is only a short cut, and the more correct approach
is first to determine whether the plaintiff's work as a
whole is
''original'' and protected by copyright, and then to inquire whether
the part taken by the defendant is substantial. A
wrong result can
easily be reached if one begins by dissecting the plaintiff's work
and asking, could section A be the subject
of copyright if it stood
by itself, could section B be protected if it stood by itself, and so
on
.[ my emphasis] To my mind,
it does not follow that, because the fragments taken separately
would not be copyright, therefore
the whole cannot be. Indeed, it has
often been recognised that if sufficient skill and judgment have been
exercised in devising
the arrangements of the whole work, that can be
an important or even decisive element in deciding whether the work as
a whole is
protected by copyright.'
[32]
As stated above, the document upon which
the applicants rely as being the literary work subject to copyright
is incomplete. Allegations
were made that the completed document was
delivered by the applicants to representatives of the second
respondent, one Linda Mlaba
and Tshepo Diale, in 2016, who took the
original document and never returned it to them, save for the 5 pages
tendered in evidence.
It further appears that these pages/the
incomplete document was returned to the applicants although no
explanation is furnished
as to who sent or returned the document to
them or what they did to obtain the missing pages. It was submitted
to me by the applicant’s
counsel that the document had been
stolen by the second respondent. There was no suggestion of this in
the affidavits on behalf
of the applicants.
[33]
Of concern, is that no attempt seems to
have been made by the applicants, to the extent that they did not
have a master copy of
the literary work on which they seek to rely,
to obtain the missing ten pages. The Court is left in the dark as to
what efforts
were made to obtain the first ten pages and, more
importantly if the document was of such value, why a master copy had
not been
retained by the applicants. The document was typed and it
appears that whoever did so would have had a master copy. There is no
explanation furnished by the applicants as to the content of the
missing pages. Not a shred of evidence is placed before this Court.
Furthermore, it does not appear that any attempts were made to obtain
the missing pages nor was there an attempt by the applicants
to
utilise the provisions of Rule 35(13) and (14) to secure the
document, it clearly being a material document which underpins
the
establishment of the copyright. It does not suffice to simply attach
a portion of the document as a substantial amount of evidence
is
missing and absent that evidence weakens the applicants’
ability to establish the work, and so their copyright and discharge
their onus.
[34]
It is clear to this Court that the
subsistence of the copyright has not been proved, because the
literary work in which it is vested,
is not before this Court. The
applicants have materially failed to demonstrate the idea/ concept/
proposal that was reduced to
a material form and supposedly contained
in the document.
[35]
Even if the applicants had crossed this
hurdle, the infringement, i.e. copying, or adaptation has not been
proved. The relief sought
seeks to find that the first and second
respondents have copied and/or adapted the applicants’ concept
as set out in the
incomplete work furnished to this Court. Yet, not
an iota of evidence is placed before this Court in support of either
copying
and/or adaptation.
[36]
Similarly, and even if the work had been
established as deserving of copyright, (which they have not) they
also fail in their attempts
to establish that the copyrighted works
were infringed.
[37]
At best, there is an allegation that
the Minister of Tourism used the literary works “
as
part of their terms of reference when the first respondent launched
and awarded a tender with reference number GTA/VIS/01”
.
The further allegation is that “
the
website of the GTA
(the second
respondent)
then published a request for
proposals to project manage our concept which we had proposed to
them
.
This
was in 2017. A copy of the RFP is attached hereto marked Annexure
“
ODM5
”.
We were extremely shocked and demoralised to learn this. We attended
the tender briefing but did not submit the tender.
Second applicant
and I were recently surprised to learn that the “Tourism Safety
and Monitor Programme” was being implemented
by the GTA without
our involvement whose birthchild it was and for which the GTA did not
deserve to credit them”
.
Unfortunately, there is no evidence placed before this Court as to
the manner in which the applicants’ copyright was allegedly
infringed.
[38]
During the course of argument the
applicants’ counsel asserted, given the paucity of evidence in
the applicants’ affidavit
that the infringement constituted the
use of the words “
Tourist Safety
Monitors
” and “
Tourist
Ambassadors
”, in the call for
tender proposals. These titles, the applicants say they had
provisionally patented under Registration No.
2017/04644. It was
common cause that the patent had lapsed. The applicants counsel
accepted hat these words referred to job titles,
and as such did not
advance the applicants case.There was no effort to demonstrate to the
Court that the first and/or second respondents
had in any way copied
or adapted the concept evidenced by the literary work contended for
(to the extent that it was placed in
evidence before the Court given
that much of the substance of the document was missing).
[39]
As
emphasised by Corbett JA in
Galago
Publishers (Pty) Ltd and Another v Erasmus
[6]
in
order to prove copyright infringement by reproduction the applicant
must establish two distinct things namely:
“
(i)
that there is sufficient objective similarity between the alleged
infringing work and the
original work, or a substantial part thereof,
for the former to be properly described, not necessarily as identical
with, but as
a reproduction or copy of the latter; and
(ii)
that the original work was the source from which the alleged
infringing work was
derived, i.e. that there is a casual connection
between the original work and the alleged infringing work, the
question to be asked
being: has the defendant copied the plaintiff’s
work, or, is it an independent work of his own?”
[40]
In
considering the first element, it is also instructive to refer to
Laubscher
v Vos and Others
[7]
where Nicholas J observed that in the case of artistic works a mere
comparison usually provides a ready answer whereas the answer
may not
be so readily reached if the copyright and the alleged infringing
works have a common source. Importantly, Schutz JA in
Jacana
Education (Pty) Ltd v Frandsen Publishers (Pty) Ltd
[8]
says at page 129:
“
The
importance of the plaintiffs identifying those parts of his work
which he alleges have been copied is made clear by Millett
J in a
case where a “Dog-N-Boots” design was alleged to be a
reproduction of a “Puss-N-Boots” design. The
case was
Spectravest Inc v Aperknit Ltd
[1988] FSR 161.
The relevant passage
appears at 170:
“
Accordingly,
where the reproduction of a substantial part of the plaintiffs’
work is alleged, a sensible approach is first
to identify the part of
the plaintiffs’ work which is alleged to have been reproduced
and to decide whether it constitutes
a substantial part of the
plaintiffs’ work. The test is qualitative and not, or not
merely, quantitative. If it does not,
that is an end of the case. If
it does, the next question is whether that part has been reproduced
by the defendant. Reproduction
does not mean exact replication. A man
may use another’s work as an inspiration to make a new work of
his own, treating the
same theme in his own manner; but he is not
entitled to steal its essential features and substance and retain
them with minor and
inconsequential alterations. The question is
whether there is such a degree of similarity between the salient
features of the two
works that the one can be said to be a
reproduction of the other. In considering whether a substantial part
of the plaintiffs’
work has been reproduced by the defendant,
attention must primarily be directed to the part which is said to
have been reproduced,
and not to those parts which have not.”
[41]
The applicants have not done so. The
applicants must stand and fall by their affidavits.
[42]
In all of the circumstances, the applicants
have materially failed to make out a prima facie case for the relief
sought.
[43]
That is the end of the matter.
[44]
Although this is so, I will briefly deal
with the first and second respondents
in
limine
points
,
all of which in my view were ill-founded, and took the case, to the
extent there was a case to meet, no further.
[45]
The first point
in
limine
was based on the principle of
lis pendens
.
An earlier abortive application had been instituted by the applicants
against the first and second respondents on the basis that
the
applicant’s had patented their idea.
[46]
A notice of withdrawal of that application
was served on the first and second respondents and uploaded to
CaseLines on 12 March
2020. Much was made by the first and second
respondents’ counsel of the fact that there had been no tender
for costs. To
my mind, the failure to do so does not impinge on the
withdrawal of the application. As such, there was no pending
litigation before
this Court and the point was without merit.
[47]
It was also contended that the first and
second respondents’ affidavits established a material dispute
of fact, also because
of the repetitive allegations now framed in
this application ( as evidenced in the withdrawn application), which
had been addressed
already. I was requested to grant a dismissal on
that basis alone.
[48]
The affidavits filed by the first and
second respondents did little to demonstrate a version let alone a
defence. The deponent to
the affidavit, Mr Mlabe, had on his own
admission limited dealings with the applicants. If a case had been
made out by the applicants,
I would have had to find that the
affidavit provided no assistance to the above Honourable Court and
contained empty denials. The
first and second respondents
misconstrued the nature and the extent of the copyright contended
for, albeit not established, but
importantly placed no evidence
before me which demonstrated a dispute. The affidavits sought to deny
allegations, for what it was
worth and make conclusions which were
not underpinned by any factual matrix. As such, no dispute of fact
was established by the
first and second respondents. This point too
held no merit.
[49]
The first and second respondents also
implausibly contended that there had been a material non-joinder in
that the SAPS had not
been joined to the application. Again, SAPS was
not an interested party and had nothing to do with the request for
tender proposals
which the applicants sought to underpin as the
source of the infringement. As such this point must fail too.
[50]
The remaining points that were made were
not points
in limine
and went to the merits of the application. Given my findings that the
applicants did not make out a
prima
facie
case and failed to discharge
their onus, it is unnecessary for me to deal with these submissions,
as they take the case no further.
COUNTER-APPLICATION
[51]
The second respondent counter-applied in
terms of section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956
for an order declaring
the applicants to be vexatious litigants. It
seeks a costs order against the applicants on the attorney and client
scale. The second
respondent did not file a further affidavit and
relied on the answering affidavit filed in opposition of the main
application.
The applicants did not file an opposing affidavit.
[52]
Mr Linda Mlaba, the deponent to the second
respondent’s answering affidavit, vaguely contends that the
application launched
by the applicants is “
ill-conceived
and vexatious”
. In support of the
allegation of vexatiousness, he says that:
52.1
the applicants have not established a
tourism business in implementation of their safety and tourism
concept and, accordingly, have
never been in competition with
Kunjalo; and
52.2
the applicants failed to bid /tender, an
indication albeit vaguely alleged that they were not interested in
the first and second
respondents assistance.
[53]
Neither of these points, to my mind,
demonstrate vexatious conduct.
[54]
In the course of argument the respondents’
counsel sought to also raise the following points:
54.1
Because the application, set down by the
respondents had never been served on Kunjalo, this indicated that the
applicants were litigating
vexatiously, as the matter was now in the
opposed court. The failure to do so, ultimately had no impact on the
arguing of the application,
as the applicants conceded that they
could not proceed against Kunjalo, which had not been served but also
because the lapse of
time had rendered the interdict moot. This did
not affect the respondents’ ability to present and argue its
case against
the remaining relief;
54.2
This application was a regurgitation of the
first abortive application, albeit now framed under copyright. The
first application
had been withdrawn without a tender for costs, and
this application should be dismissed too as the applicants were
simply clogging
the Court system and putting the first and second
respondents to great time and cost, involving taxpayer funding, in
opposing an
application which lacked merit.
54.3
In addition, it was submitted that the
events commenced as far back as 2004 and that the time that had
elapsed, without result,
did not justify the relief sought.
[55]
This
Court enjoys at common law an inherent power to strike out claims
that are vexatious by which is meant “
frivolous,
improper, instituted without sufficient ground, to serve solely as an
annoyance to the defendant”.
[9]
[56]
Furthermore, under section 173 of the
Constitution of the Republic of South Africa 1996, this Court has the
inherent power to protect
and regulate its own process and to prevent
an abuse of such process.
[57]
In
Beinash
v Ernst & Young
[10]
the Court set out the purpose of the Vexatious Proceedings Act 3 of
1956 as follows:
“
This
purpose is “to put a stop to persistent and ungrounded
institution of legal proceedings.” The Act does so by allowing
a court to screen (as opposed to absolutely bar) a “person
[who] has persistently and without any reasonable ground instituted
legal proceedings in any Court or inferior court”. This
screening mechanism is necessary to protect at least two important
interests. These are the interests of the victims of the vexatious
litigant who have repeatedly been subjected to the costs, harassment
and embarrassment of unmeritorious litigation; and the public
interest that the functioning of the courts and the administration
of
justice proceed unimpeded by the clog of groundless proceedings.”
[58]
Section 2(1)(b) of the Act confers a
discretion upon the Court whether to make an order that the
applicants are vexatious.
[59]
I
have considered the submissions made by the first and second
respondents and the conduct of the applicants. It cannot be said
that
the applicants have litigated prolifically. In the
Ernst
& Young
matter
the applicants had instituted 45 different proceedings of which 27
had been unsuccessful, 1 had been an application for leave
to appeal
which had succeeded and 17 of which had not been completed at the
date of the judgment.
[11]
[60]
Here, the applicants appointed a new legal
representative, Ramantse Attorneys, which attended to the drafting
and settling of the
founding and replying affidavits. To the extent
that the founding affidavit has failed to establish a
prima
facie
case, that responsibility cannot
be attributed to the applicants. Their erstwhile attorney of record,
Mr O M Ntimbane Attorneys
represented them in the abortive
proceedings which were withdrawn. I am not of the view that the
applicants are
mala fide
or that there is any ulterior motive or absence of
bona
fides
on their part, in bringing this
second application.
[61]
Intellectual property and copyright law is
a complex area of the law. It requires a keen and experienced legal
mind to assist parties
in formulating a proper and well-founded case
supported by relevant evidence. These are not issues which lay people
such as the
applicants can grapple with. They have approached
attorneys to represent them and it is only reasonable to accept that
they sought
and relied upon the legal advice which has been furnished
to them. The affidavits filed by the applicants are devoid of malice.
[62]
I
am not of the view, as set out in
Beinash
v Wixley
[12]
,
“
that
an abusive process has taken place so that “the procedures
permitted by the Rules of the Court to facilitate the pursuit
of the
truth are used for a purpose extraneous to that objective”
.
[63]
Yes, the first and second respondents have
been put to trouble in a second unsuccessful application, and there
have been delays
in the prosecution of the application, but it cannot
be said to be vexatious. Having said so, I caution the applicants to
carefully
consider their options should they wish to prosecute this
claim further.
[64]
In all of the circumstances, the second
respondent has not established that the applicants have conducted
themselves in a manner
which is vexatious and, accordingly, the
relief cannot be granted.
COSTS
[65]
As I have already stated, the applicants’
case is fatally flawed by the lack of evidence required to discharge
the onus which
is upon it. There is no suggestion that the applicants
are
mala fide
or vexatious in bringing these proceedings. As such, I am of the view
that the costs must, in accordance with the general principles,
follow the result.
[66]
Insofar as the counter-application is
concerned, the applicants did not file an opposing affidavit and,
accordingly, were not put
to any additional trouble in the launching
of the application. The second respondent also relied on its
answering affidavit in
founding its counter-application. I am aware
that the second respondent is frustrated that this is the second
unsuccessful application
launched by the applicants. I am also aware
that taxpayers fund their costs. As a consequence, I am of the view
that insofar as
the counter-application is concerned, the applicants
were not put to much trouble or expense and it would be fitting to
order that
each of the parties bear their own cost, in relation to
the counter-application.
[67]
In the circumstances, I make an order
in the following terms:
67.1
The main application is dismissed.
67.2
The applicants are ordered to pay the first
and second respondent’s costs jointly and severally, the one
paying, the other
to be absolved.
67.3
The counter-application is dismissed with
the applicants and the second respondent ordered to pay their own
costs.
P V TERNENT
Acting
Judge of the High Court of South Africa
Gauteng
Local Division; Johannesburg
DATE
OF JUDGMENT
:
27 August 2021
DATE
OF HEARING
:
12 April 2021, 13 April 2021 and 14 April 2021
APPEARANCES
:
For
Applicants:
Mr Nkosinathi Mkhize
Instructed
by
Ramantsi Attorneys
Mr T Ramantsi
For
First and Second
Respondents:
Mr S Chitando
Instructed
by
the State Attorney
Ms M Mathe
[1]
Hart
v Pinetown Drive-In Cinema (Pty) Ltd
1972
(1) SA 464
(D) at 469C-E;
Venmop
275 (Pty) Ltd v Cleverlad Projects (Pty) Ltd
2016
(1) SA 78
(G) at 86A
[2]
Mauerberger
v Mauerberger
1948
(3) SA 731
(C) at 732;
Titty’s
Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd
1974
(4) SA 362
(T) at 368-9
[3]
Haupt
t/a Soft Copy v Brewers Marketing Intelligence (Pty) Ltd 2006 458
(SCA
)
at 473A – B, para 35
[4]
2000
BIP 355(W) at 357G to 358C
[5]
Moneyweb
(Pty) Ltd v Media 24 and Another
2016
(4) SA 591
(GJ) and
Biotech
Laboratories (Pty) Ltd v Beecham Group Plc and Another
2002 (4) SA 249
SCA, para 8 at 257H
[6]
1981
(1) SA 276
(A) at 280B-D
[7]
3
JOC (W) at 6
[8]
1998
(2) SA 965 (CSA)
[9]
Fisheries
Development Corporation of SA Ltd v Jorgensen
1979
(3) SA 1131
(W) at 1339E-F;
Bisset
v Boland Bank Ltd
1991
(4) SA 603
(D) at 608B-E;
Cohen
v Cohen
2003
(1) SA 103
(C) at 108D-H
[10]
1999
(2) SA 116
(CC) at 112F-H
[11]
Ernst
& Young and Others v Beinash and Others
1999
(1) SA 1114
(W)
[12]
[1997] ZASCA 32
;
1997
(3) SA 721
(SCA) at 734