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[2019] ZAGPPHC 96
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Leakgona Multimeddia (Pty) Ltd and Another v Fassie Records CC and Others (5220/18) [2019] ZAGPPHC 96 (22 March 2019)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES
(2)
OF
INTEREST TO OTHER JUDGES: YES
(3)
REVISED.
CASE NO: 5220/18
22/3/2019
In the matter between:
LEAKGONA
MULTIMEDDIA (PTY) LTD
1
st
Applicant
DZINGE
PRODUCTIONS CC
2
nd
Applicant
and
FASSIE
RECORDS CC
1
st
Respondent
ESTATE
LATE BRENDA FASSIE
2
nd
Respondent
BONGANI
FASSIE
3
rd
Respondent
LEGACI
NOVA ENTERTAINMENT
4
th
Respondent
VAUGHAN
EATON
5
th
Respondent
SHOWBIZ
BEE
6
th
Respondent
MASTER
OF THE HIGH COURT, GAUTENG
7
th
Respondent
J U D G M E N T
MNGQIBISA-THUSI,
J
:
[1]
On
6 February 2018 and by agreement, an interim interdict in terms of
Part A of the notice of motion was granted against the respondents
on
the following terms, that:
“
1.1 Pending
the finalisation of the relief sought in Part B, the Respondents are
interdicted and/or restrained
from conducting any casting auditions,
promotions, advertisement and production of the movie of the late
Brenda Fassie directly
or indirectly through any third party;
1.2 pending
the finalisation of the relief sought in Part B, the Respondents are
interdicted
and/or restrained from continuing with any preproduction
for the movie of the late Brenda Fassie directly or indirectly
through
any third party;
1.3 pending
the finalisation of the relief sought in Part B, the First, Second
and Third respondents
are interdicted and/or restrained from entering
into any contract with any third party for the production of the late
Brenda Fassie
movie”.
[2]
The
applicants now seek the following relief in accordance with Part B of
the notice of motion dated 24 January 2018:
2.1
that
any agreement between the first respondent; and the third, fourth,
fifth and sixth respondents for the production of the late
Brenda
Fassie movie be declared null and void;
2.2
that
the termination notice, dated 14 December 2017, terminating the joint
venture agreement between the applicants and the first
and second
respondents, be declared of no force and effect and be set aside;
2.3
an
order declaring the purported agreement between the first, second and
third respondents entered into with third parties, null
and void;
2.4
that
the respondents be interdicted and/or restrained from entering into
any agreement, directly or indirectly through third parties
with
anyone for the production of the Brenda Fassie movie; and
2.5
that
the first, third, fourth and sixth respondents pay the costs of this
application.
[3]
The
late Brenda Fassie (“the deceased”) is a well-known and
popular South African music icon and had during her lifetime
won
several music awards.
[4]
The
third respondent, Mr Bongani Fassie, is the son and sole heir of the
deceased. Mr Themba Mthembu was appointed executor
of the
deceased estate after the first executor, Mr David Feldman was
removed at the instance of the third respondent.
[5]
It
is common cause that on 6 October 2011 the applicants and the first
respondent, Fassie Records CC, represented by the third respondent,
concluded a joint venture agreement (“the first agreement”)
for the production of a film on the life of the late Brenda
Fassie
(“the deceased”).
[6]
The
first agreement provided,
inter
alia
,
that:
6.1
the applicants would provide the finance for the production of the
movie;
6.2
the third respondent would make available to the applicants in
pursuit of the production
of the movie, material, inclusive of
photographs and video images of the deceased;
6.3
the applicants would be entitled each to 45% of the proceeds of
any profits made from
the movie and the third respondent to 10% of
the profits;
6.4
the first respondent grants the applicants non-exclusive rights to
the use of the Brenda
Fassie trademark;
6.5
in the event of any breach of the agreement by either party:
6.5.1 the first
respondent could terminate the first agreement by giving the
applicants three months’ notice of
its intention to resile from
the agreement;
6.5.2 the
applicants could terminate the first agreement forthwith without
giving any notice to the first respondent;
6.6 the
applicants would seek the consent/consult the first respondent before
entering into any
agreement with a third party; and
6.7 any
dispute arising in relation to the terms of the agreement would be
referred to arbitration.
[7]
At
the hearing of this matter counsel for the applicants conceded that
this agreement was invalid by virtue of the fact that at
the time it
was entered into, the deceased estate had not been wound up and was
still under the control of the executor.
Even though the third
respondent was an heir to the estate, no rights over the estate had
vested on him. There was no link
between the first respondent
and the deceased estate. Therefore the first and second
respondents could not purport to transfer
any rights to the
applicants which they did not have. As a result prayer 2 of
Part B of the notice of motion was abandoned.
[8]
Subsequent
to the conclusion of the invalid first agreement and on 24 May 2012,
the applicants concluded a joint venture agreement
(“the second
agreement”) with the executor of the deceased’s estate.
In this second agreement the applicants
acknowledged that the rights
to the Brenda Fassie name were an asset of the deceased estate.
Furthermore, the applicants
were granted ‘non-exclusive rights
to use of the Brenda Fassie trademark and the right to ‘produce,
edit, market and
distribute a film based on the photographs and video
images’ of the deceased’
[1]
.
The terms of the second agreement were otherwise substantially
identical to the terms of the first agreement save that the
second
joint venture agreement also provided that the applicants would
provide copies of all agreements they intended concluding
with third
parties relating to the filmmaking project to the deceased estate
prior to them signing any such agreements
[2]
.
[9]
In
the founding affidavit, the applicants allege that they had started
with some preparation for the production of the movie which
included,
inter
alia
,
conducting interviews with various people who had dealings with the
deceased and contracting a scriptwriter, Professor Zakes Mda,
and a
movie director, Mr Ntshavheni wa Luruli. The applicants contend
that these preparatory work was done with the full
knowledge of the
third respondent who was updated on all developments relating to the
project.
[10]
It
is common cause that on 26 October 2017 the fifth respondent, Mr
Vaughan Eaton, had a meeting with the deponent to the founding
affidavit, Mr Ernest Sello Twala (“Mr Twala”), at the
offices of the first applicant. At that meeting the fifth
respondent informed Mr Twala that he was the manager of the third
respondent. Further, during the meeting, the fifth respondent
requested some information relating to the production of the movie as
he wanted to protect the interests of the second and third
respondents. He was given some documentation relating to the
research done on the project.
[11]
At
the time the meeting between Mr Twala and the fifth respondent took
place, the deceased estate had been finally wound up and
the executor
had transferred the estate to the third respondent. This is
evidenced by an e-mail attached to the answering
affidavit wherein
the executor alludes to the final winding up of the estate and its
transfer to the third respondent. Although
counsel for the
applicants objected to the admission of this email, nothing turns on
it as it is a fact that the estate had been
finally wound up.
[12]
On
14 December 2017 the fifth respondent dispatched a letter to the
applicants in which he gave notice summarily terminating the
first
agreement. However, this termination is irrelevant as the
agreement was invalid from the onset. The fifth respondent
further requested the applicants to provide him with a copy of the
second agreement. The third respondent alleges that he
was
unaware of this agreement until the fifth respondent obtained a copy
from Mr Twala.
[13]
It
is the applicants’ contention that the third and fifth
respondents could not terminate the first agreement as they have
already started performing in terms of the second agreement and that
until such time that a court order is granted terminating
the
agreement, it remained valid and effective. In support of this
contention the applicants rely on several authority dealing
with the
validity of an otherwise invalid administrative action by various
public entities which has not been set aside.
[14]
It
was submitted that in spite of the provisions of clause 7
(non-exclusive rights), the third respondent could not give the
rights
given to the applicants in that by his conduct he had intended
for the applicants to have exclusive use of the rights.
[15]
Further
it was submitted on behalf of the applicants that the second
agreement was valid as according to the executor, the third
respondent had consented to the conclusion thereof. In support
of this submission and at the hearing of this application,
counsel
for the applicants handed up a copy of an email ( dated 5 September
2018) from the executor of the deceased estate who
intimated that he
had concluded the second agreement with the applicants at the
instance of the third respondent. However,
no confirmatory
affidavit by the executor was filed.
[16]
Furthermore,
it is the contention of the applicants that s 47 of the
Administration of Estates Act
[3]
(“the Act”) does not apply as the agreement entered into
with the executor is not a sale agreement as contemplated
in s 47.
S 47 provides that:
“
Unless
it is contrary to the will of the deceased, an executor shall sell
property (other than property of a class ordinarily sold
through a
stockbroker or a bill of exchange or property sold in the ordinary
course of any business or undertaking carried on by
the executor) in
the manner and subject to the conditions which the heirs who have an
interest therein approve in writing: Provided
that-
(a)
In
the case where an absentee, a minor or a person under curatorship is
heir to the property; or
(b)
If
the said heirs are unable to agree on the manner and conditions of
the sale,
the
executor shall sell the said property in such a manner and subject to
such conditions as the Master may approve”.
[17]
On
behalf of the respondents it was submitted that the second joint
venture agreement was invalid in that when the executor purported
to
conclude the agreement with the applicants, he did not seek the
written consent of the third respondent, in contravention of
s 47 of
the Act. It is the respondents’ contention that at the
time the second agreement was concluded, the third respondent
was
neither consulted nor was his written consent sought by the executor
before concluding the agreement with the applicants.
[18]
Further,
it is the respondents’ contention that even if the second
agreement is found to be valid, in terms of clause 7, the
applicants
cannot deny the third respondent from contracting with any other
person as they were not given exclusive rights to the
material
pertaining to the deceased’s life.
[19]
In
the alternative, although not pleaded, it was argued that the
application was premature as the applicants failed to comply with
the
provisions of clause 18
[4]
of the agreement by referring the dispute to arbitration.
[20]
It
is not in dispute that the applicants and the executor concluded
second agreement. What is to be determined is whether
the
second joint venture agreement was validly entered into by the
executor. If not that is the end of the applicants’
case. If a finding is made that the second agreement was valid,
it needs to be determined whether the interpretation given
to clause
7 by either party is correct.
[21]
When
a person passes on, the deceased estate initially resides with the
Master of the High Court until an executor for the deceased
estate
(either provisional or final) is appointed. The effect is that
the assets of the deceased estate cannot be disposed
of without the
consent of either the Master (in the event that an executor has not
been appointed) or the executor.
[22]
Even
though the executor to the deceased estate could deal with the assets
of the deceased estate whilst still in control of those
assets, this
right is subject to the heir(s) of the deceased estate giving written
consent to any disposal of any assets of the
deceased estate.
[23]
The
applicants have given a restrictive interpretation to the word sell
in s 47. ‘To sell’ means to give or hand
over
(something) in exchange for money. The executor, by giving over
to the applicants the estate’s intellectual profit
in exchange
of a share in the profits made through the exploitation of the
deceased name and other material, is in effect involved
in a sale.
I am of the view that applicant’s counsel submission in this
regard cannot be sustained. The executor
was required to obtain
the written consent of the third respondent before contracting with
the applicants. As indicated above,
in an email handed up
during the proceedings, Mr Mthembu alleges that he concluded the
second agreement when requested to do so
by the third respondent,
which claim is denied. Such request was not in writing as
envisaged by the provisions of s 47 of
the Act. I am satisfied
that the failure by the executor to obtain the written consent of the
third respondent renders the
second agreement invalid from the onset.
[24]
With
regard to the applicants’ argument that the second agreement
remains valid until set aside by the court is misplaced
in view of
the fact that the agreement was invalid from the onset due to
non-compliance with a peremptory statutory provision.
[25]
In
the event that I am wrong with regard to the validity of the second
agreement, I am not convinced by the applicants’ contention
that the second agreement gives them exclusive rights to produce the
Brenda Fassie movie. The meaning of the wording of clause
18 of
the agreement is clear. With regard to the interpretation of
contracts the Supreme Court of appeal in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[5]
stated that:
“
[18]
... Interpretation is the process of attributing meaning to the words
used in a document, be it legislation,
some other statutory
instrument, or contract, having regard to the context provided by
reading the particular provision or provisions
in the light of the
document as a whole and the circumstances attendant upon its coming
into existence. Whatever the nature
of the document,
consideration must be given to the language used in the light of the
ordinary rules of grammar and syntax; the
context in which the
provision appears; the apparent purpose to which it is directed and
the material known to those responsible
for its production.
Where more than one meaning is possible each possibility must be
weighed in the light of all these factors
[6]
.
The process is objective not subjective. A sensible meaning is
to be preferred to one that leads to insensible or
unbusinesslike
results or undermines the apparent purpose of the document. Judges
must be alert to, and guard against, the temptation
to substitute
what they regard as reasonable, sensible or businesslike for the
words actually used. To do so in regard to a statute
or statutory
instrument is to cross the divide between interpretation and
legislation. In a contractual context it is to make a
contract for
the parties other than the one they in fact made. The
‘inevitable point of departure is the language of
the provision
itself’
[7]
, read in
context and having regard to the purpose of the provision and the
background to the preparation and production of the
document”.
[26]
The
applicants were given ‘non-exclusive rights to use of the
Brenda Fassie trademark and the right to ‘produce, edit,
market
and distribute a film based on the photographs and video images’
of the deceased’.
[27]
In
order to succeed in an application for a final interdict, an
applicant has to show on a balance of probabilities that:
(i)
it
has a clear right;
(ii)
that
an injury was actually committed or was reasonably apprehended; and
(iii)
that
it has no other satisfactory remedy available to it.
[28]
The
applicants are seeking a final interdict. The test is whether the
facts averred by the applicant and admitted by the respondent,
together with the facts alleged by the respondent justify the relief
sought.
I
am satisfied that the applicants
failed
to prove it has a clear right as a basis for the relief sought.
[29]
With
regard to costs, costs follow that result.
[30]
In
the result the following order is made:
‘
The
application is dismissed with costs’.
N P MNGQIBISA-THUSI
Judge
of the High Court
For the Applicant Adv M
Tshivhase (instructed by Mmathuntsha Inc Attorneys)
For the Respondent Adv E
Abrahams (instructed by Durrheim Letly Inc)
[1]
Clause
7 of the agreement.
[2]
Clause
5.1.1 of the agreement.
[3]
Act 66 of 1965.
[4]
Clause
18.2 of the second agreement provides that: “If the dispute
has not been resolved by such negotiation as referred
to in clause
18.1 above, the parties shall forthwith submit the dispute to the
Arbitration Foundation of Southern Africa (“AFSA”)
for
administered mediation, upon the term set out by the AFSA
secretariat”.
[5]
2012
(4) SA 593 (SCA).
[6]
Described
by Lord Neuberger MR in
Re
Sigma Finance Corp
[2008]
EWCA Civ 1303
(CA) para 98 as an interactive process. The expression has
been approved by Lord Mance SCJ in the appeal
Re
Sigma Finance Corp (in administrative receivership) Re the
Insolvency Act 1986
[2010]
1 All ER 571
(SC)
para 12 and by Lord Clarke SCJ in
Rainy
Sky SA and Others v Kookmin Bank
[2011]
Lloyds Rep 34
(SC) para 28…
[7]
Per
Lord Neuberger MR in
Re
Sigma Finance Corp
[2008]
EWCA Civ 1303
(CA) para 98. The importance of the words used was stressed by
this court
in
South African Airways (Pty) ltd v Aviation Union of South Africa &
others
2011 (3) SA 148
(SCA) paras 25 to 30.