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[2016] ZAGPPHC 963
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Theuns Jordaan Productions (Pty) Ltd and Another v Afrikaans is Groot (Pty) Ltd (80584/16) [2016] ZAGPPHC 963 (27 October 2016)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 80584/16
27/10/2016
REPORTABLE: NO
OF INTEREST TO OTHER JUDGES:
NO
REVISED.
In the matter between:
THEUNS JORDAAN PRODUCTIONS (PTY) LTD
First Applicant
THEUNS JORDAAN
Second Applicant
and
AFRIKAANS IS GROOT (PTY)
LTD
Respondent
JUDGMENT
VAN DER WESTHUIZEN, A J
1.The applicants launched an urgent application in terms of the
provisions of Rule 6(12) of the Uniform Rules of Court seeking
inter
alia
an order dispensing with the provisions relating to time
periods and service and that the matter be heard as one of urgency.
2.The second applicant is a professional artist and conducts his
profession through the vehicle of the first applicant.
3.This application relates to a show known as
Afrikaans Is Groot
and in particular to concerts to be held during November 2016.
4.The relief that is sought by way of urgency is:
(a) That the decision by the respondent to remove the applicant from
the Afrikaans Is Groot 2016 concerts to be held on 10 to 12,
17 to 19
and 24 to 26 November 2016, as informed on 3 October 2016, be set
aside;
(b) That the applicant be authorised forthwith to appear as an artist
at the Afrikaans Is Groot concerts to be held on 10 to 12,
17 to 19,
and 24 to 26 November 2016;
(c) That the respondent be ordered to forthwith ensure that the
applicant be given the same rights and privileges with regard to
his
appearance at Afrikaans Is Groot 2016 concerts to be held on 10 to
12, 17 to 19 and 24 to 26 November 2016, had the decision
to remove
the applicant on 3 October 2016 not been done;
(d) That the respondent be ordered to pay the costs of this
application.
5.It may be prudent to state some background to the application.
6. Prior to 2012, the second applicant participated in a show known
as the
Huisgenoot Skouspel.
In 2012, a number of artists got
together and a new show,
Afrikaans Is Groot
(AIG), was staged.
The latter show appeared to be successful and evolved into an annual
show since 2012. The AIG is a live show.
7. The second applicant claims to be one of the founding artists of
AIG. There appears to be a dispute on the papers as to the
origin of
the AIG. For purposes of this judgment it is not necessary to
consider and/or decide that dispute.
8.On 11 March 2016, the respondent handed a contract to the second
applicant relating to his participation in the AIG 2016 concerts.
In
response thereto, the second applicant gave an undertaking to sign
the contract forthwith and return it the following day. It
is clear
from that undertaking, that the second applicant was in agreement,
and assented to, that participation in the AIG 2016
concerts was to
be regulated contractually.
9.However, the second applicant did not sign the agreement as per his
undertaking and did not return same the following day. Despite
various requests to the second applicant to sign the agreement, he
did not heed to the requests, nor did he respond thereto.
10. The second applicant concedes that on 27 September 2016, for the
third time, he was placed on terms to sign the aforementioned
agreement. He was advised in no uncertain terms that should he not
sign the agreement immediately, i.e. on 27 September 2016, he
would
not be participating in the AIG 2016 concerts.
11. Only on 29 September 2016 did the second applicant append his
signature to the agreement and in doing so subjected it to conditions
precedent. By appending his signature to the said agreement, the
second applicant clearly confirmed that participation at AIG 2016
concerts was to be on a contractual basis.
12. The second applicant signed the agreement subject to two
conditions precedent. The first related to full disclosure by the
respondent of CD and DVD sales in respect of previous AIG concerts
and how the profit on the CD and DVD sales was calculated. The
second
condition precedent was directed at a meeting to be held between the
first applicant, the vehicle through which the second
applicant
conducted his act as artist, and Coleske Artists (Pty) Ltd. The
second applicant requested either of the two new directors
(Messrs
Mark Rosin and Antonio Lee) of the respondent to be present at the
meeting. The second applicant suggested dates for the
proposed
meeting and requested that it be held at the latest on 19 October
2016. It is common cause that the conditions precedent
did not relate
to any issue in respect of the AIG 2016 concerts.
13. It was made clear to the respondent that the signing of the
agreement was subject to the said conditions precedent being met.
The
respondent acceded to the first condition precedent, however the
second applicant did not make use of the offer. There was
non-compliance with the second condition precedent, as neither of the
two new directors was prepared to attend such meeting.
14. On 3 October 2016, and in view of the second applicant's stance
in respect of the two conditions precedent, the second applicant
was
notified that he would not be participating in the AIG 2016 concerts.
This prompted the second applicant to act and eventually
resulted in
the launching of this urgent application.
15. It is common cause between the parties that no agreement came
into place in respect of participation in the AIG 2016 concerts.
16. The second applicant seeks to rely on the assumption that as a
founding artist of the AIG concerts, he is automatically entitled
to
participate in such annual concerts. In this regard the second
applicant contends that, in respect of founding artists, no
contractual arrangement is required for participation in AIG
concerts. No support for this contention is provided, either by other
founding artists or in respect of the minutes of a meeting held on 27
July 2016. It appears from those minutes that the issue of
participation of founding artists in AIG concerts is uncertain and
that such is to be considered and negotiated. At that meeting
no
principle was established that founding artists' participation in AIG
concerts was guaranteed.
17. The aforementioned contention by the second applicant begs the
question. If no contractual arrangement is required, it is not
explained why the second applicant undertook to sign a contractual
agreement, and in fact signed the agreement on 29 September
2016,
albeit subject to conditions precedent.
18. Counsel for the applicants disavowed any reliance on the part of
the second applicant on any contractual arrangement. He also
disavowed any reliance on the minutes of the aforesaid meeting of 27
July 2016.
19. The "right" to participate in AIG 2016 concerts appears
to be a reliance on the assumption that founding artists
are entitled
to automatically participate in an AIG concert, and, particularly in
the present instance (AIG 2016), on the apparent
"use" of
the second applicant in media exposure for promotional purposes of
the AIG 2016 concerts. The second applicant
further relies on him
being "in the show" up until 3 October 2016. This
proposition by second applicant's counsel is
without merit.
20. The second applicant signed agreements relating to the AIG
concerts during 2012, 2013 and 2014. Only in respect of the AIG
concert for 2015 did the second applicant not sign an agreement. It
is apparent that the second applicant's contention that no
contractual agreement is required in respect of participation in an
AIG concert is without merit. For the years 2012, 2013, 2014
and 2016
the second applicant signed such agreements and such signed
agreements militate against the second applicant's contention
in that
regard. Since 2012 the second applicant was aware, and it is clear,
that participation in AIG concerts are secured by contract.
21. The second applicant has not shown an automatic right of
participation in AIG concerts.
22. At no stage during 2016, or for that matter during 2012 to 2014,
had the second applicant indicated that he as founding artist
was not
required to sign an agreement for participation in the AIG
concerts,and hence was not obliged to sign such when presented
therewith during March 2016. Contrary thereto, the second applicant
undertook to sign the agreement and in fact signed such, albeit
subject to conditions precedent.
23. The reliance on the non-signing of the 2015 agreement and the
second applicant being "in the show" until 3 October
2016
is akin to premising the alleged right to participate on some form of
estoppel.
It is trite that
estoppel
cannot form a
causa
for a claim.
24. Whether the second applicant has a protectable right is a matter
of substantive law.
[1]
25. When the second applicant was informed on 3 October 2016 that he
would not participate in the AIG 2016 concerts, it confirmed
what the
second applicant was advised would happen if he did not sign the
agreement on 27 September 2016. Subjecting his signature
to the
agreement on 29 September 2016 to conditions precedent and in the
absence of compliance with the conditions precedent, it
is tantamount
to not signing the agreement. It is common cause that second
applicant has no contractual right.
26. Furthermore, the second applicant has not proven on a balance of
probabilities that as a founding artist, his participation
in AIG
concerts is guaranteed.
27. The second applicant has not proven that he has a clear right, or
a right clearly established. Accordingly, the second applicant
has
not complied with the first and foremost requirement for a final
interdict.
28. .It follows that the application cannot succeed.
I grant the following order.
(a) The application is dismissed;
(b) The applicants are to pay the costs, such costs to include the
cost of two counsel where applicable.
____________________________
C J VAN DER WESTHUIZEN
ACTING JUDGE OF THE HIGH COURT
On behalf of Applicant: KW
Loderitz
J Vorster
Instructed by:J I van Nniekerk Inc
On behalf of Respondent:C Zietsman
Instructed by:Morne Mostert Attorneys
[1]
Welkom Bottling
Co
(Ply)
Ltd v Belfast Mineral Waters (OFS)
(Ply) Ltd
1967(3) SA 45 (0)
at 56D-E