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[2013] ZAGPPHC 304
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Foschini Retail Group (Pty) (Ltd) and 9(Nine) Others v South African Music Performance Rights Association (0003/2009) [2013] ZAGPPHC 304; 2013 BIP 368 (CT) (25 October 2013)
REPORTABLE
HIGH
COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
Case
No: 0003/2009
Date:25/10/2013
In
the matter between:
FOSCHINI
RETAIL GROUP (PTY) (LTD) AND 9(NINE) OTHERS
And
THE
SOUTH AFRICAN MUSIC PERFORMANCE RIGHTS ASSOCIATION
JUDGMENT
PHATUDI
J:
Introduction
[1] This is a referral to the
Copyright Tribunal as provided in terms of Section 9A(1)(c) of the
Copyright Act 98 of 1978 as amended.
(Copyright Act). Section
9A(1)(c) provides that ‘in the absence of an agreement
contemplated in paragraph (B): the user,
performer or owner may refer
the matter to the Copyright Tribunal referred to in section 29(1).
,.
1
[2]
Section 29(1) stipulates: ‘The judge or acting judge who is
from time to time designated as Commissioner of Patents in
terms of
section 8 of the Patents Act, 1978,
2
shall also be the Copyright Tribunal ... for the purposes of this
Act.’
[3]
Section 8 of the Patents Act provides that ‘[the] Judge
President of the [Gauteng High Court]
3
of the [High]
4
Court of South Africa shall from time to time designate one or more
judges or acting judges of that Division as commissioner or
commissioners of patents to exercise the powers and perform the
duties conferred or imposed upon the commissioner by this Act.’
[4] I am presiding as a
commissioner of Copyright Tribunal (Tribunal). This is not a trial in
the
stricto sensu
5
but an enquiry. Section 31(5) of Copyright Act stipulates:
‘
Subject
to the provisions of subsection (4), the tribunal shall on any
reference under this section consider the matter in dispute
and after
giving the parties to the reference an opportunity of presenting
their respective cases, make such order, ... as the
tribunal may
determine to be reasonable in the circumstances.’
The Parties
[5]
The Referrers are a group of South African retailers who play
background music in their stores. Throughout the “pleadings”
including these proceedings, the Referrers are referred to as “the
retailers”. These retailers are: Foschini Retail
Group (Pty)
(Ltd), Pepkor Retail Limited Stores, Just Kor Fashion Group (Pty)
(Ltd), Mr Price Group Limited, Pick ‘n Pay
Retailers (Pty)
(Ltd), Truworths Limited, New Clicks SA (Pty) (Ltd), Dunns Stores,
Metrotoy (Pty) (Ltd) and Young Designers Emporium
(Pty) (Ltd). The
retailers ‘counsel'
6
submits that while these are the immediate [referrers], the outcome
of the matter affects all South African retailers, from the
largest
to the smallest, since the tariff applies across the board
to
all shops and stores’
7
[
6]
The defendant is the South African Music Performance Rights
Association. The name is abbreviated as SAMPRA. They are, throughout
the proceedings, referred to as SAMPRA. SAMPRA is accredited in terms
of the regulations on the Establishment of Collecting Societies
in
the Music Industry to act as a Representative Collecting Society. It
is ‘accredited in terms of section 9A of the Copyright
Act 98?
of 1978 and/or in terms of section 56(1) (b) of the Performers’
Protection Act 11 of 1967.’
8
Recording Industry of South Africa (Risa) is its only member. A
number of record companies are members of Risa. The so-called “big
four” record companies, being, Sony BMG Music Entertainment
Africa (Pty) Ltd (Sony BMG), EMI Music South Africa (Pty) Ltd(EMI),
Universal Music South Africa (Pty) Ltd(Universal) and Gallo Music
Company (Pty) Ltd(Gallo) are members of Risa and dominant
stakeholders
in SAMPRA. At the time of handing down this judgment,
SAMPRA is the only accredited Collecting Society.
[7]
It is important to note that the Retailers play music in their stores
in the background to create an ambience for the shoppers,
clients or
patrons on the one hand and SAMPRA, as a Collecting Society for
copyright owners, demand payment from retailers. SAMPRA
is
statutorily obliged to collect the royalty payable in respect of
playing, as background music, sound recordings in respect of
which
its members hold a copyright. It represents 95 - 99 per cent of
record companies.
[8]
At the commencement of the hearing, the parties agreed that SAMPRA
has a duty to show that the tariff it set is “reasonable
in the
circumstances.” Mr Murphy, counsel for SAMPRA and Mr
Sholton-Douglas for the Retailers, each synoptically set out
in their
opening statements what their contentions are in respect of the
tariff set by SAMPRA.
[9]
Sixteen (16) witnesses
9
,
including experts in Economics, Financial Analysts, Music Therapists,
Marketers, Accountants and International Music Copyright
Lawyers
testified. It is worth mentioning that the pleadings bundle is
throughout the proceedings being referred to as the “pink”
file while the retailer’s referred to as the "spotty”
file. SAMPRA’s discovered documents bundle referred
to the
“yellow” file.
Factual background
[10]
As a point of departure, I deem it necessary to extract from the
“pleadings" parties’ contentions. The retailers
allege in their particulars of claim
10
that ‘SAMPRA has unilaterally set a tariff (the tariff) to
determine the royalty payable in respect of playing, as background
music, the sound recording in respect of which its members hold
copyright.’
11
SAMPRA admits the allegation with a rider that it ‘is under no
legal obligation to negotiate a tariff with every user individually
before publishing a proposed general tariff.’
12
The retailers further
6.1.1
contend that SAMPRA has not provided, and is unable to provide, any
economic justification for the tariff it has set;
6.1.2
contend that the tariff is inflated, economically inefficient and an
incident of the monopoly which SAMPRA and its members
(particularly
the multinational record companies) hold;
6.1.3
are accordingly unable to reach agreement with SAMPRA as to the
amount of the royalty, as contemplated in s 9A(1)(b) of the
Act;
6.1.4
have thus referred to the Tribunal the dispute as to the amount of
the royalty payable to SAMPRA’s members for playing,
as
background music in the retail stores, the sound recordings in
respect of which SAMPRA’s members own or control the copyright,
as envisaged in terms of s 9A(1 )(c) of the Act;
6.1.5
are, pending the outcome of this referral, playing the royalty
claimed by SAMPRA (based on the tariff) into the Collecting
Society
Regulations.
[11]
SAMPRA denies these allegations. It persists in its
contention
that it has discharged the responsibility to set a tariff in a
responsible manner.
13
It further contends that it is obliged, in terms of Regulation 7(1)
of the Collect Society Regulations to make the entire repertoire
its
administration to potential users.
14
[12]
Further thereto, the retailers alleges that ‘besides the tariff
being set at a level that is economically unjustifiable,
the
structure thereof, as well as the manner in which SAMPRA has sought
to implement it, are, ... unreasonable, unfair and discriminatory
(and thus contrary to, inter alia, regulation 7(1) of the Collecting
Society Regulations) ,..’
15
This is as well denied by SAMPRA.
16
How SAMPRA determined the tariff.
[13]
It is necessary to consider as to how and the factors SAMPRA took
into account in setting its tariff for the licence fee payable
by
users. Keith Leister, (Leister) an attorney by profession, though not
practising as such, testifies that he, as the chairman
of the board
of SAMPRA, considered it to be his responsibility to lead SAMPRA in
developing tariffs for different forms of public
performance usage.
He appointed a committee specifically for setting up the tariffs.
[14]
The said committee consists of himself, David Du Plessis
(Du
Plessis) and Ignatius Smit (Smit). Prior to SAMPRA’s
accreditation, he (Leister) already had engaged Du Plessis ( who
at
the time, was employed as Operations Director of Recording Industry
of South Africa (RISA) and the CEO designate of SAMPRA)
in the
development of the tariffs SAMPRA intended to implement once
accredited. On SAMPRA’s accreditation, Smit got employed
as
National Sales Manager.
[15]
In setting the tariff, they considered a number of factors and
various structures around the world. They found setting the
tariff on
square metre age as simple to compound as opposed to that of South
African Music Rights Organisation (SAMRO). Samro tariff
is set on
square meter age and a number of employees in the retrial store. They
found it fair to set a tariff that will accommodate
the small
retailers. The tariff of R500.00 per annum for a 50mz of audible area
was then set as depicted hereunder
17
Fees: Size of Premises
(Audible Area in square metres
Licence Fee per store
per Annum (exclusive of VAT)
Up to 50
R 500.00
51 to 100
R 1,000.00
101 to 200
R 1,500.00
201 to 300
R 2,000.00
301 to 500
R 2,500.00
501 to 750
R 3,000.00
751 to 1000
R 3 500.00
1001 to 1250
R 4 000
1251 to 1500
R 4 500
1501 to 1750
R 5 000
1751 to 2000
R 5 500
2001 to 2500
R6 000
2501 to 3000
R6 500
3001 to 3500
R 7 000
3501 to 4000
R 7 500
4001 to 4500
R 8 000
4501 to 5000
R8 500
5001 to 6000
R9 000
6001 to 7000
R9 500
7001 to 8000
R 10 000
8001 to 9000
R 10 500
9001 to 10000
R 11 000
Every additional 1 to
1000 (Above 10000)
R 500.00
[16]
“Audible Area” is defined as the ‘[t]otal area,
measured in square metres, in which the publicly performed
sound
recordings can be heard on your premises (whether indoors or
outdoors). For the avoidance of doubt, this is not confined
to the
area to which customers have access and can include the area behind
any serving counter and the back office...[T]he audible
area of each
storey, floor or level should be included for the purposes of
measuring the total audible area of [the] premises.'
18
[17]
Leister testifies further that the committee analysed the tariff as
being fair. He opines that the amount of the tariff as
set is
tantamount to R1.33 per day. In substantiating his opinion, he gives
Mikes Cafe as an example. The Cafe is situated around
the corner of
this Court building, which occupies on the face of it, not more than
500 square metres. He says he bought a packet
of crisps and a can of
coke. He says out of the coke’s R2.50 margin, the shop owner
will be able to cover two days1 worth
of SAMPRA’s tariff.
[18]
David Du Plessis (Du Plessis), a legal practitioner by profession and
a musician from his primary schooling, testifies that
he is a
musician and a performer with vast experience in music industry. The
gist of his testimony is centred on the formation
of music from an
authored or written point to a composed and performed and up to the
promotion or marketing of the music. He describes
at length the
differences of what he terms good music and sound music. He opines
that the record companies invest in the marketing
of a sound
recording. He further opines that no company would conduct a
recording business without any prospects of receiving profits
from
their investments.
[19]
The promotion of the music is through advertising by means of, for
example, posters, YouTube or print media including sampling.
The
promotion exercise is made in order to create awareness of art work
to the public. He says all that was considered in coming
to 31
tariffs as shown in paragraph [15] above and the applicants form for
repertoire license. They cloned the Australian tariffs.
Their tariff
is per square meter.
Unilateral setting of tariff
[20]
Leister, Du Plessis and Smit, being former employees of Samro, set
the tariff without first consulting with the retailers.
Du Plessis
testified that due to the experience they have on the attitude shown
by retailers at the time of setting Samro’s
tariff, they
adopted “a take it or leave it” approach. He, under cross
examination, stated that he found it to be “silly”
to
engage the retailers in setting the tariff, recalling the retailers’
attitude at the time they were setting Samro’s
tariff. The
retailers’ attempt to engage SAMPRA in finding out the
explanation as to how SAMPRA arrived at the amount it
did, did not
bear fruits. This was even displayed by Smit in his response to some
retailers. He stated: ‘SAMPRA’s tariffs
[were] developed
by looking at the International Best Practice and the tariff scales
of PPL (Sound Recording Collecting Society
in the United Kingdom) and
PPCA (Phonographic Performance Company of Australia) as well as
Canadian model. This provided the basis
of what criteria should be
used i.e. Trading Square metres for Shops...I also looked at their
rates per tariff, but did not do
an outright Currency conversion. I
used the Big Mac Index to bring the Pound Sterling, Australian Dollar
and South African Rand
in line with each other...’
[21]
Du Plessis concedes that the retailer’s primary complaint on
the tariff is that the tariff is too high. He was further
taken to
task as to why they offer almost 60% discount to Musica (people who
retail music) above other retailers. He states that
a discount is not
a right but a privilege. Musica or retailers, who retail in music,
may be granted up to 100% discount. This,
however, is not principled
and thus not something everybody would be entitled to. Granting of
discount to retailers is a discretion
exercised during the
negotiation process when concluding a license agreement. He says a
“discount is a basic tool of negotiation,
nothing more, nothing
less.” He however opines that the tariff should be set and be
retrospectively ordered from 2009 when
retailers started paying into
escrows account.
[22]
Lauri Frederick Rechardt (Rechardt) an attorney at law, a member of
Finnish Bar
19
and a consultant for the International Federation of the Phonographic
Industry (IFPI) testifies that IFPI, as the international
trade body
of the recording industry that performs the same functions as SAMPRAS
here in South Africa, collects the royalty fee
for copyright owners
from the users. He is instructed by SAMPRA to produce a comprehensive
overview of the rates around the world
as he could give. He says
there are two elements in determining the royalty tariff. First is
the structure element. These are factors
taken into account when
calculating the tariff. The second element is the level of the rate
20
.
The principles followed or applied by IFPI in setting the tariff are
set out by European Court of Justice (ECJ). According to
ECJ, each
member state is obliged to ensure that performers and producers are
paid equitable remuneration when sound recordings
are used in public
performance or broadcasting. The ECJ says the equitable remuneration
should reflect the value of the performer’s
rights in trade. It
is, however, very hard to get evidence of the precise economic value
of the right to the users. In essence,
whoever, including retailers
who use the music as a background in their store should pay. There
are no studies of the value of
music for retailers because one can
conduct a retailing business without playing background music.
[23]
He testifies that in structuring the tariff for retailers, it is at
times taken into consideration the number of consumers
coming into
the retailer shop instead of the flour space. The floor space
expressed in terms of square meters dominates structuring
of the
tariff. The popularity of the performer is not taken into account
when setting the tariff. All that is considered is the
floor space
utilised by the retailer. He opines that SAMPRA’s structure of
tariff in terms of square meter age is in line
with the international
practice. He further opines that the amount SAMPRA is charging is
within the bounds of normality comparatively
speaking.
[24]
He under cross-examination testifies that the retailers are very
important customers of recording industry. There is a communality
of
interest in setting a fair rate of a tariff payable by retailers for
background music used in their stores. Nothing contrary
to what he
says in chief was raised. He concedes that the value of music to
users has not been quantified and cannot be quantified.
He says the
retailers must pay before they play the music. Putting it
differently, he says that the music rights are a product
that has a
price tag which should not always be low, but should be market
related. He concedes that the recording industry should
agree with
the users of their music on the tariff prior to setting the amount.
He lastly says, for simplicity purposes, determination
of the tariff
should be on square meters the retailer is occupying.
[25]
Peter Baron Paoliello, better known as Peter V (Peter V) has been in
the music industry as a drum mist, a singer and disc cutting
engineer
at EMI records. He gives a background of the music industry from the
writing of songs, performance and the recording on
compact disc (CD).
He explains the difference between cover music and original music. He
says both are available in the market.
The user may choose to use the
cover version instead of the original. Obviously, the original is
more expensive than the cover
version. He further says royalty rates
are based on popularity and importance of the artist.
[26]
On my enquiry as to whether the royalty rates of Whitney Houston can
be equated with that of Lady Gaga, he says Whitney Houston
got to a
royalty level she is at over a period of 10 - 15 years and probably
at the maximum royalty category. Lady Gaga came in
and became famous
a little quicker than Houston but both, he opines, are in the same
royalty category because they are superstars.
He, however, cannot
categorise the royalties into levels. Competition is however tight.
The older the artist, the less popular
the artist became, the less
royalties accumulate. He accepts that other artists are great
recording artist because of them being
great singers and their songs
maintain their royalty level.
[27]
Sean Reese James Watson(Watson) the Managing Director of Sony Music
Entertainment Africa (SMEA) and previously a board member
and
director at EMI music (Pty)Ltd testifies that privacy and the
development of technology impacted on music industry, the artist
and
the company’s availability to monetise their work. He says some
artists' work sell like "fat cakes”. He illustrates
by
giving Brenda Fassie’s record, Vuli Ndlela, as an example. He
says Chiko Twala, Brenda Fassie’s manager and promoter
at the
time, dropped them a TDK cassette with the song Vuli Ndlela. Chico
demanded payment before they could play the song. After
listening to
the song, he predicted a “hit" and thought it was going to
sell 50 000 units a year. Instead, it sold 50
000 units a day during
21-24 December of that year. He says that the sales of hard copied
recordings declined due to technological
means of accessing music.
People still access music, they still use music but the performers
and artists no longer enjoy royalties
as they used to. He says
payment of licence fee by retailers or users before usage of music in
retail stores will contribute immensely
to the sustainability of the
music industry.
[28]
The statement he made, forming part of "pleadings” was
questioned under cross-examination. Paragraph 18 of his statement
states: ‘I do not agree that it is important to record
companies and certainly not to Sony Music ... to promote new albums
through having them played in retail stores’ Mr Blumberg
21
demonstrates how that statement is not correct by taking him through
the process of how Sony awarded Mr Price an award for its
in house
radio station (Red Cap Radio) for achieving sales in excess of 25 000
units. He was not aware or did not know of such
an award irrespective
of him being the Managing Director of Sony at the time.
[29]
Mr Blumberg further demonstrates his suspicion to him that he
(Watson) is not an absolute author of “his” statement.
22
He
further illustrated how suspicious he is that Leister, who was his
employer or boss prior to drafting the statement, is in fact
the
author. He is refers Watson to paragraph 13.9 at page 292 of the
“Pink” file where he states that ‘...a minimum
number of 500 copies of CDs are manufactured of a new album. The
first 500 copies are used to sample the album to print media,
to
retailers...’ This too, is used to illustrate that his
statement of disagreeing that it is not of importance to record
companies to promote new albums through having them played in retail
stores is not correct. He finally concedes that such sampling
is made
by record companies and that such sampling focuses on publication of
new albums from which they expect consumers to respond
to this
exposure by making purchasing decisions.
[30]
Kobie Swart (Ms Swart) obtained Bachelor of Music and Honours Cum
Laude from Potchefstroom University. She obtained her Master’s
degree from Southern Methodist University in Dallas, Texas, USA where
she earned some “Honour”. She is registered with
HPCSA
23
as Music Therapist. She has been doing music therapy for 17 years
working with children and adult on various diseases, disorders
and or
disabilities.
[31]
She testifies on how music can affect consumers’ consumption in
the retail store. Music affects the consumers’
cognitive,
emotional and behaviour specifically with regard to consumers’
attitude and perception, time and money spent at
the retail store
with music ambience.
[32]
In provisionally closing its case, SAMPRA, through, Mr Murphy applied
to hand up the statement by Lubabalo Ntsonkota
24
as evidence. The application is unopposed but for the relevance of
the contents for the purposes of determining the reasonableness
of
the tariff set by SAMPRA.
25
0n my perusal of the statement, I indeed agree with retailers’
counsel that the contents are irrelevant for the issues to
be
determined.
[33]
Dr Charles Scott Areni (Prof Areni) a Professor in marketing at the
University of Sydney Business School, in the state of New
South
Wales, Australia, is the last witness to testifies in these
proceedings. He testified after Prof Donald Ross (Prof Ross),
who
took a stand for the retailers. He testifies for SAMPRA. He says
SAMPRA instructed him to comment on the use by retail business
of the
atmospheric music to achieve commercial objectives and not to express
an opinion as to whether the present SAMPRA tariff
is reasonable or
not. He specialises in (i) environmental psychology, (ii) store
layout and design and (iii) the effects of in
store promotions. He,
as a consultant, specialises in advising retailers on how to design
their shops in order to create good ambient
shopping space. He
explains that under environmental psychology, retailers intend to
attract shoppers in their commercial space
for them to come and buy.
The design of their commercial space affects the shoppers' behaviour.
[20]
He says that lighting, as well as background music form an ambient
part of the environment of the retail store. He says music
is not
always there to be listened to, but it creates the right mood, the
right environment and atmosphere for a typical shopper.
He states
that most retailers in Australia play music in their stores. He gives
the Big W (Woolworths as it is known in South Africa)
as an example.
He conducted a research on what type of music was appropriate at Big
W stores. He researched as to which music created
a better ambient at
what times.
[35]
He states that Big W ended up creating an in-house radio station that
would run advertisement at regular intervals in between
music played.
Advertisement, he says, is the key factor that enhances the retail
stores’ profit. Music tempo affects the
speed at which shoppers
do things. They can either spent a lot more or less time, depending
on the type of background music that
is been played. Music tempo may
be determined by the atmospheric profile of the shopper, (age of the
shopper). The younger may
welcome the ambient of the high tempo music
as opposed to the elderly shoppers.
[36]
On the question of whether it is possible to quantify value of music
played by retailers in their stores, he states that there
is no
research, to his knowledge, that determines the tariff value of
atmospheric music played in retail stores. In fact, there
is no one
near any kind of estimate of the appropriate tariff. It would be
impractical to pinpoint the exact maximum commercial
value of music
to their retail performance. He opines it would be too hard to
achieve. It would be too expensive for what it may
be worth. Prof
Areni agrees with Prof Ross that it will be very costly to research
and find what the tariff rate should be and
would, for practical
purposes, be impossible for them to, with certainty say.
[37]
He, on the type of music to be played in retail stores, opines that
retailers are at liberty to piay any music, whether international
or
local. Of importance to them is the type of music they think will
help them to maximise their financial performance as a retail
operator. He emphasises the need of music in retail stores to create
an ambience. SAMPRA’s duty is to maximise the royalties
it
collects for redistribution to the artists it represents. However, no
one knows if the rates are correct, high or low. He agrees
with Prof
Ross that if the tariff is too high, the retailers will not pay for
SAMPRA licence which will affect the royalties. He
opines, on those
bases, that SAMPRA should be allowed to set the tariff SAMPRA
believes to be in the best interest of its clients.
He further opines
that the markets should determine the amount payable. If SAMPRA’s
tariff is too high, then, re-negotiations
may be entered into to
determine the amount suitable for all.
[38]
He says he is not an expert to opine on what must be taken into
account in setting the tariff, for example, whether the tariff
should
be set in accordance with the number of consumers attending the
retail stores or in terms of square metre age. He cannot
be of help
to that effect. His emphasis is to let SAMPRA set its tariff. The
retailers may engage SAMPRA for re-negotiation of
the tariff if they
deem the one set to be too high.
[39]
He is not an expert on retailing sector in South Africa. His
experience is exclusively Australian. He does not know what the
environment is like in South Africa. He is reluctant to compare
SAMPRA’s tariff with the equivalent Collecting Society of
any
country especially Australia. He acknowledges that Australia's PPCA’s
tariff is lower than that of SAMPRA. He says no
one knows that PPCA
tariff could be the lowest and below optimal tariff rate.
[40]
He opines that no one has the idea of what value a single retailer,
like Mike’s Cafe referred to earlier, has of the
music
composition. He further opines that no one has an idea of what value
the entire retail industry attaches to the music composition.
He sees
no point in comparing South Africa with Australia in determining the
tariff SAMPRA should set.
[41]
On the question of the retailers’ threat not to pay the licence
fee for playing music in their retail stores, he says
that if the
retailers find it to be in their best interest to do so, no one can
stop them. If their threat is simply to bluff SAMPRA,
then the
credibility of their threat must be questioned. If they stop paying
SAMPRA’s licence but establish in-house radios
or organise
other type of music not regulated by SAMPRA to be played, then that
implies that background music in their stores is
of certain value. If
they stop playing the music to infinity and regards that to be of
interest to their consumers, so be it. All
he emphasises is that
SAMPRA is there to collect royalties with responsibilities to pass
them on to its clients. SAMPRA is thus
tasked to maximise the amount
for royalties.
[42]
Esther Serena Job (Ms Job) is first to take the stand for the
retailers. She is an admitted attorney (though not practising
as
such) employed as a legal advisor by Foschini Group. Foschini Group
has various divisions. @Home, Markham’s, Exact and
Total Sports
are among the divisions of Foschini Group that play music in their
retail stores. She explains how much these divisions
budget for, for
the music played in stores. The consumers liked the music @Home plays
in their stores. @Home requested DMX to produce
CD’s for sale
at @Home stores. @Home sells the CD it compiles at the instance of
shoppers or consumers who liked the music
they heard played in @Home
store. Such music compilation is updated quarterly at the costs of
R50 000.00 per compilation (R200
000.00 per annum)
26
.
Foschini spends R1 million per annum. Markham’s outsourced the
production of CD compilation. Their compilation is done by
Selwyn
Shandell who charges them R75 000.00 for every new CD compiled.
[43]
Ms Job testifies that retailers only knew of Samro licence fees. They
knew of SAMPRA when they received a letter from Smit
demanding
payment for SAMPRA’s licence fee. SAMPRA invoiced them. An
umpteenth communique was exchanged between SAMPRA and
the retailers.
SAMPRA impressed on them a “take it or leave if approach. They,
the retailers, learned for the first time
the difference between
Samro and SAMPRA at that time. Foschini Head Office was responsible
for payment of Samro licensing fees
and each division budgeted for
its day to day compilations with different play lists.
[44]
Dr Donald Ross, who prefers to be called Don Ross (Prof Ross) majored
in Economics, Mathematics and Science in his junior degree
and
obtained his Ph.D. in Economics. He is a Dean, Faculty of Commerce,,
School of Economics at the University of Cape Town. He
is a Program
Director for Methodology at the Centre for Economic Analysis of
Research in Georgia State University. His statement
included a report
by Prof Glen Harrison - the Director of the Centre for Economic
Analysis of research at Georgia State University.
[45]
As an economist, he defines Economics as ‘the study of the
relationship between demand and supply’. He says he
is
qualified to express opinions on SAMPRAs tariff. In his research, he
used the “game theory”. He describes game theory
as ‘the
study of more than one agent trying to make plans knowing that
another agent is going to be responding and reacting
to those plans’.
The retailers briefed him to assess the level of SAMPRA s tariff from
an Economist point of view. His brief
was to assess SAMPRA’s
tariff and to give an opinion to the tribunal in determining the
reasonable price. He opines that
Sempra’s tariff is too high.
He says a price is normally set through the process of a regulated
competition among independent
sellers and the purchasing decisions of
independent buyers. In simpler terms, he opines that the price is set
by the market forces.
The market forces is what he terms “demand
and supply” as central to economics.
[46]
He states that this tribunal should seek to set a tariff that
optimises public welfare. A tariff that is neither too high nor
too
low, but which the service providers would realise profits whereas
the consumers would purchase voluntarily. Competition in
service
providers must be encouraged. Monopoly on the part of service
providers or suppliers should be discouraged. Competition
is not met
when the suppliers enjoys monopoly. Where there is competition, the
market forces normally produce a reasonable price.
[47]
He opines that SAMPRA’s tariff is higher than the developing
countries including Australia. He sees no justification
for that.
SAMPRA’s tariff is overpriced relative to the wealth of South
African consumers. He further opines that should
SAMPRA’s
current tariff be affirmed, some retailers would cease to play
recorded music. This may result with the consequence
that the
ambience in South Africa’s public places would change even for
worse.
[48]
He proceeds by comparing the tariff set by SAMPRA with its Australian
counterpart, PPCA. In converting the PPCA tariff from
Australian
Dollar to South African Rand, one can either use the exchange rates
(rates at which one can buy one currency using the
other currency on
international currency markets) or the purchasing power comparison
(where one is trying to compare values of
currency to what one can do
with or put differently, to what one can purchase in the countries
under comparison).
[49]
Continuing to compare the Australian dollar to South African rand, he
says that one can buy more goods and services in South
Africa than in
Australia. This means that the purchasing power parity implies how
many Rands one needs in South Africa to buy what
one Australian
dollar would buy in Australia. The purchasing power parity is
determined and recorded quarterly by various agencies
including the
World Bank. He continues to say that if one compares Australia PPCA
tariff with South Africa SAMPRA tariff using
the purchasing power
parity method, one will realise how cheap PPCA’s tariff is
compared to SAMPRA’s.
[50]
In response to a question on what he thinks considering the contents
of the letter written by Smit of SAMPRA to Ms Muller of
Pick &
Pay, where Smit stated that ‘he used the “Big Mac”
Index to bring a Pound sterling, Australian dollar
and South African
rand in line with each other. SAMPRA used PPP rather than exchange
rates. He criticises “Big Mac”
Index used by SAMPRA in
setting its tariff. He regards it as a very quick and dirty window
into purchasing because currency is
relatively under-valued or
over-valued by exchange rates.
[51]
He reiterates that SAMPRA’s tariff is substantially greater
than that of PPCA. He recommends a tariff that is at a level
that
will optimise overall public welfare. He recommends the following
tariff.
Actual SAMPRA rates 2009
Recommended rate using PPP
comparison, 2009 rates
Size of store
Up to 50m
²
R 500.00
R 279.46
Between 50 and 100m
²
R 1,000.00
R 279.46
Between 100 and 200m
²
R 1,500.00
R 337.32
Between 200 and 300m
²
R 2,000.00
R 376.10
Between 300 and 500m
²
R 2,500.00
R 399.49
Between 500 and 750m
²
R 3,000.00
R 511.52
Between 750 and 1000m
²
R 3,500.00
R 549.69
Between 1000 and 1250m
²
R 4,000.00
R 646.94
Between 1250 and 1500m
²
R 4,500.00
R 646.94
Over 1500m
²
R5000-R11000
R 646.94
[52]
He believes that the tariff level he recommends is closer to the
efficient market rate than the current SAMPRA tariff. He opines
that
even though it is higher than the competitive market rate, the fact
remains it is higher than the tariff a competitive market
would
produce.
[53]
He confirms under cross examination that the purpose of his research
as instructed by retailers was to determine if SAMPRA’s
tariff
is reasonable and not whether there is value attributed to music in
their stores. He does not think that the comparison
of SAMPRA’s
tariff made by Armitage and Richardt is economically relevant. He
opines that the retailers are interested in
fine music familiar to
their patrons. This results in retailers having special interest in
SAMPRA’s playlist. This means
that SAMPRA's playlist or the
music it holds the rights is of special value to the retailers given
the preferences of their customers
or patrons.
[54]
Professor Ross did not consult SAMPRA in his research because, as he
says, he avoided blasness in the report. He accepts, as
a matter fact
and law that the works of performers and music recording companies
constitute their intellectual property. He states
this because he
lectured students on Intellectual Property Economics and Law. He
concedes that the intellectual property SAMPRA
is managing the
licencing fee has value to the retailers.
[55]
It is put to him under cross examination that the payment of money by
retailers into escrow account one may infer that SAMPRA’s
tariff is optimal. He denies that proposition and gives Eskom
vis-a-vis pricing of electricity in South Africa scenario as an
example. He says the mere fact that the members of the communities
consume electricity amid the price renders it optimal.
[56]
He lastly opines that this tribunal’s role is not to judge
which case is superior in law but what price may be said to
be
reasonable in the circumstances. He says this tribunal should
disapprove SAMPRA’s tariff that has been set unilaterally
which
the retailers regret. The retailers raised their concerns over the
price. It is not that they refuse to pay, but they shame
SAMPRA’s
“take it or leave it” approach. The Copyright Act did not
create a bargaining process. The referral
may to a certain degree, be
construed as the bargaining process. The tribunal cannot ignore the
"offers” and "counter
offers” made by the
parties.
Law
[57]
Section 9A of the Copyright Act as inserted by section 3 of Copyright
Amendment Act 9 of 2002 provides:
S9A
Royalties
(1)
(a) In the absence of an agreement to the contrary, no person may
broadcast, cause the transmission of or play a sound recording
as
contemplated in section 9 (c), (d) or (e) without payment of a
royalty to the owner of the relevant copyright.
(b)
The amount of any royalty contemplated in paragraph (a) shall be
determined by an agreement between the user of the sound recording,
the performer and the owner of the copyright, or between their
representative collecting societies.
(c)
In the absence of an agreement contemplated in paragraph (b), the
user, performer or owner may refer the matter to the Copyright
Tribunal referred to in section 29 (1) or they may agree to refer the
matter for arbitration in terms of the Arbitration Act, 1965
(Act 42
of 1965).’
[58]
Section 9 (c), (d) and (e) of the Copyright Act stipulate that
‘
Copyright
in sound recording vests the exclusive right to do so or to authorise
the doing of any of the following acts in the Republic:
(a)
...
(b)
...
(c)
broadcasting the sound recording;
(d)
causing the sound recording to be transmitted in a diffusion service,
unless that service transmits a lawful broadcast, including
the sound
recording, and is operated by the original broadcaster;
(e)
communicating the sound recording to the public.
Evaluation:
[59]
It is common cause that SAMPRA has exclusive right to collect money
from users of music recordings. It is further common cause
that the
Retailers, as users of music, play musical recordings as background
music in their stores. SAMPRA is obliged, in terms
of Regulation on
the Establishment of Collecting Societies in the Music Industry
27
27(Regulations) to ‘administer public playing rights
effectively and efficiently’
28
and
to 'enter into framework agreements with representative trade
associations and user groups concerning the use of the repertoire
by
potential users affiliated to them.’
29
SAMPRA unilaterally set a tariff. It implemented it. The retailers do
not accept the tariff and regards it as excessive and unreasonable
in
the circumstances. Some retailers opted to pay a certain sum of money
in an escrow account
30
pending the outcome of this referral to this tribunal. The Retailers
pay the money in the escrow account as provided in terms of
Regulation 7(5). The Regulation stipulates that ‘[s]hould a
tariff proposed by the collecting society not be accepted by
the
trade associations and representative bodies or any potential users,
user groups, or individual users, such potential users
and user
groups shall have the option to pay the amount demanded by the
collecting society into an escrow account, pending the
outcome of a
referral to the Copyright Tribunal or, ...’
[60]
The retailers concede that there is value in music played in their
retail stores. The concession is made after a number of
days of
evidence led by SAMPRA in their endeavour to show that music played
by retailers in their stores is of value to their businesses.
The
retailers submit that the said value has not been economically
determined either by SAMPRA, the Retailers or any Court or Tribunal
both locally and internationally. All that the Retailers seek is for
this Tribunal to determine as to whether the tariff set by
SAMPRA is
reasonable in the circumstances and to make such order as envisaged
in terms of section 31(5) of Copyright Act.
[23]
I think it is important at this early stage to point out that section
9A of the Copyright Act re-established a royalty known
as
“needletime”. It is an intellectual property owned by
record companies and the performers. SAMPRA as a Collecting
Society
is accredited and authorised to collect and distribute royalties on
behalf of its registered members.
[24]
SAMPRA is obliged to set up tariffs. Du Plessis testified that they
set the tariff unilaterally. They did so knowing from the
experience
they gained while employed by Samro, the attitude of the users of
recordings. SAMPRA contravened the provisions of section
9A (1) (b)
of the Copyright Act. Lister, Du Plessis and Smit knew or reasonably
expected to have known the provisions of the Copyright
Act. The
section, regulations and the rule of law dictates to SAMPRA to use
the correct legal process. Regulation 7(3) of the Collecting
Society
Regulations stipulates that as part of a framework agreement... the
collecting society may negotiate... with user groups
or with
individual user, a tariff that determines the amount...’ This,
in my view, obligates SAMPRA to enter into ‘
negotiations”
with the retailers as users before determining the amount for the
royalty.
[63]
Lister and or Du Plessis and or Smit, bearers of legal knowledge,
knew or reasonably expected to have known what the Act required
of
them as the collecting society to afford the users or the retailers
an opportunity to submit their inputs prior to the setting
of the
tariff. An agreement with the user of the sound recording, to
determine the amount of the royalty contemplated in terms
of section
9A(1)(b) read with regulation 7(3)is peremptory. Their knowledge of
the users’ attitude showed in their previous
encounter is not a
bar to determine the amount in agreement with the users. I am of the
view that had they contacted the users
prior to setting the tariff
they did, this matter may not have been referred to this tribunal.
Watson conceded in his testimony
that the retailers’
input
would have assisted SAMPRA in setting the tariff. SAMPRA’s
“take it or leave if approach is not procedurally fair.
[63]
It is common cause that SAMPRA is authorised to administer public
playing rights effectively, efficiently and to maximise the
economic
exploitation of the rights entrusted by the right holders for their
direct benefit. SAMPRA is further authorised to distribute
the
proceeds of such exploitation equitably amongst its members.
31
In its attempt to exercise its authority, it set a tariff which the
retailers as users, contends is excessive. The dispute is referred
to
this tribunal to determine if the said tariff is reasonable in the
circumstances.
[64]
A question was imposed on both Professors Areni and Ross
respectively if this tribunal is empowered to set the tariff price.
Prof Areni opined that the price determination in respect of the
needletime royalty should simply be left to market forces, rather
than it being determined by a tribunal. The answer to this question
is in my view, provided in section 9A (1) (c) read with section
31(5)
of Copyright Act. The word “scheme” as used in section
31(5) requires determination. For ease of reference, section
31(5)
provides:
‘
Subject
to the provisions of subsection (4), the tribunal shall on any
reference under this section consider the matter in dispute
and after
giving the parties to the reference an opportunity of presenting
their respective cases, make such order, either confirming
or varying
the scheme in so far as it relates to cases of the class to which the
reference relates, as the tribunal may determine
to be reasonable in
the circumstances.’(my underline)
[63]
The word “scheme” is neither defined in the Copyright
Act, Collecting Society Regulations nor the Performers' Protection
Act 11 of 1967. The word “scheme” is defined in Shorter
Oxford English Dictionary as ‘a plan of action’
In my
interpretation of the word, I am of the view that the amount payable
of any royalty contemplated in section 9 and 9A of the
Copyright Act
is embraced in the word “scheme”. I, as a result, find
that the tribunal is empowered and required to
determine the amount
of the tariff of the royalty to be payable, especially in the absence
of the agreement between the user of
the sound recording, the
performer and the owner of the copyright or their representative
collecting societies as envisaged in
terms of section 9A(1).
[66]
In determining the amount of the tariff, SAMPRA contends that this
tribunal should consider the value of sound recordings played
by
retailers has to their businesses. SAMPRA instructed Prof Areni to
research on the value of music to the retailers. Prof Areni,
in
preparing his report, had no sight of SAMPRA’s tariff up to the
time of his testimony. He had no knowledge of South Africa
Copyright
Act or Collecting Society Regulations. He further had no knowledge of
the sources SAMPRA used in setting its tariff.
He knew nothing about
the process SAMPRA followed in setting the tariff. He could not even
differentiate between SAMRO and SAMPRA.
[67]
Prof Areni testified that he laboured under the impression that his
mandate was to persuade the tribunal to enforce SAMPRA’s
tariff. He did not know that SAMPRA administers the needletime
royalty rights of copyright owners in sound recordings. He accepted
under cross examination to have been careless in his usage of the
word or terminology “economic efficiency” without
first
finding out from Economists what it meant. He further conceded that
he is not an expert in Economics but a consultant who
advises
retailers what type of music to play in their stores. He specialises
in
“
interior
decoration” that enhances ambiance in the retail stores with a
view to attract consumers who will ultimately enhance
the retailers’
profit. He recommends that SAMPRA must set a tariff that would
maximise the amount of royalties that can be
collected and
redistributed to the clients it represents. He opines that if
retailers find the tariff to be too high, they must
negotiate with
SAMPRA. Put differently, he recommends confirmation of SAMPRA’s
tariff which he had no knowledge of. Prof
Areni’s testimony was
in my view not of assistance to the tribunal is determining the
reasonable tariff.
[68]
Professor Ross testified that it is prohibitively expensive to
determine the marginal value of music played in retail stores.
As
indicated earlier, both Professors Areni and Ross respectively
testified that there is no research that has been made thus far
in
determining the value of music in the retail stores. Professor Ross
recommends the tariff as set out in paragraph [51] above.
Contrary
thereto, Prof Areni opines that Prof Ross’s recommendation of
setting tariff in comparable rate to Australia is
entirely arbitrary.
[69]
It is common cause that the economic analysis of setting a tariff
cannot work. It is accepted that the market based approach
does not
work. All that is left is the benchmarking approach. Mr Lister's
evidence shows that SAMPRA used the benchmarking in coming
up with
the tariff it set
32
.
They used the Big Mac Index on Australian PPCA tariff. Prof Ross
recommends usage of purchasing power parity as opposed to SAMPRA’s
Big Mac Index in coming up with a tariff that the tribunal may deem
reasonable. He states that the tribunal should take the (i)
absence
of free competition on the supply side that (ii) creates excessive
inefficient pricing that maximises the monopolist’s
gains but
prejudices the users or consumers in the economy into account in
setting the tariff.
[70]
In my assessment of the evidence and the submissions made, I find the
tariff set by Sampras to be invalid because it has neither
been set
by agreement between the users and the owners’ or their
representative collecting societies’ copyright nor
by any
tribunal or arbitration as stipulated in terms of the Copyright Act.
The tariff set by SAMPRA stands to be set aside. I
indicated earlier
that the needletime royalty is an intellectual property of the owner.
Intellectual property is deemed to be property
as defined in law and
the owner's right is protected by section 25(1) of the Constitution
of the Republic of South Africa Act 1996.
Section 25(4) (b) of the
Constitution provides: ‘For purposes of this section, property
is not limited to land.’ The
setting aside of the tariff set by
SAMPRA is not deprivation of the intellectual property of the owner
of their right to property
as SAMPRA contends. The infringement of
the owners’ rights by retailers in communicating the sound
recording to the public
must be compensated by a reasonable tariff.
Conclusion
[71]
The tariff I am about to set, as SAMPRA ought to have done, is not
determined on the economic value attached to background
music played
by the retailers in their stores but to let users to remunerate
appropriately the owners of the royalties. Value has
not been
determined. I am not an expert in Economics or any other field to
determine the value attached to music by retailers.
There is no
evidence before me that determines such value. The expertism in any
field should be left for the experts in that field).
I accept that
music played in the retail stores, whether original, cover version or
live, contributes to the retailers’ stores
ambience that may or
may not affect the consumers’ mood which may or may not
increase sales for the retailer.
[72]
In setting the price, the owner of the retail store, for instance,
Mike’s Cafe, considers a number of factors in coming
to a fixed
price. There is no evidence tendered on how Mike’s Cafe shop
owner manages to make a profit of R2.50 over a can
of Coke. My
enquiry from Lister of factors they considered in coming up with the
price they set did not bear fruit. There is no
evidence quantifying
either the creator, the performer or the companies’ costing of
a sound recording. I heard that popularity
of the performer may
increase the demand of the sound recording. I learned that such
demand does not affect the prising of the
sound recording. It only
increases the sales. Every retailer’s objective is to break
even and make profit. It is wrong for
the owner of a property to set
a price based on what the consumer makes as a profit from his/her
merchandise. Put differently,
the value attached to the merchandise
by the consumer should not affect the prising by the owner of the
property.
[73]
SAMPRA developed the tariff by looking at the international best
practice and the tariff scales of their counter parts in London
(PPL)
and Australia (PPCA). It further used the Big Mac Index to bring the
Pound Sterling, Australian Dollar and South African
Rand in line with
each other. It is an accepted practice to compare with the
international world in developing schemes that were
never made in
South Africa. This must however be done taking into account the
interest of justice. It will not be in the interest
of justice to, in
my view, “cut and paste” the international practice
without engaging the market forces who are affected
by the “scheme”.
[74]
Prof Ross opined that the currencies of Australia and South Africa
attract each other. Both currencies are based on export
profile on
extracted industry and minerals. Both are user friendly. He further
opined that Australian PPCA’s tariff is a
best international
benchmark for a tariff that can be set for South African SAMPRA. He
finds no justification for the tariff set
by SAMPRA because the
tariff is higher than the developing countries including the favoured
Australia. He emphasised that the tariff
set by SAMPRA is overpriced
relative to the wealth of South African consumers. I am persuaded
that should ! confirm the figures
SAMPRA used as the tariff pricing,
some retailers may cease(if the threat turns to reality) to play
sound recordings which SAMPRA
is authorised to collect and distribute
royalties, then the ambience in South African public places will
change for the worse.
It will equally be undesirable to let the
retailers to communicate the sound recording to the public for less
which may result
in removing the bread from the table of the owners
of the royalties. Peter V Paoliello (Mr.V) opined during his
testimony that
the price to be set as the tariff should be
counterproductive. He opined that an excessive or low price will be
counterproductive.
[75]
Kobie Swart (Ms Swart) the Music Therapist, impressed on the tribunal
that the human body cannot ignore music in the public
spaces. The
consumer’s mood may be changed for good or for worse by them
either liking or disliking, respectively, the music
they hear in
stores.
[76]
Most witnesses’ testimonies are in line with Prof Ross’s
recommendation that this tribunal must set a tariff that
optimises
public welfare. It is recommended that a tariff to be set by the
tribunal should neither be too high nor too low, but
a tariff which
the owners of the royalty will realise profits on the one hand and
the consumers will purchase voluntarily. It is
hard, in my view, to
satisfy the preferences of either party. It has already been
indicated that I am not tasked to judge as to
which case is superior
in law but to set a tariff that may be said to be reasonable. The
following tariff will, in my view, optimise
public welfare. I am
further of the view that it is reasonable in the circumstances. The
tariff is operative from 2008 until December
2014. CPI index may be
used in determining the tariff adjustment for the subsequent years or
as shall have been agreed upon between
the user of the sound
recording, the performer and the owner of the copyright, or between
their representative collecting societies.
Tribunal's reasonable rate
from 2008-2014
Size of store
Up to 50m
²
R 389.00
Between 50 and 100m
²
R 389.00
Between 100 and 200m
²
R 568.00
Between 200 and 300m
²
R 620.00
Between 300 and 500m
²
R 840.00
Between 500 and 750m
²
R 930.00
Between 750 and 1000m
²
R 1,050.00
Between 1000 and 1250m
²
R 1,110.00
Between 1250 and 1500m
²
R 1,110.00
Over 1500m
²
R 1,220.00
Costs
[77]
Regulation 36(1) of Copyright Regulations stipulates that
‘
[t]he
costs of and incidental to any proceedings shall be in the discretion
of the tribunal, which may direct that any party against
whom an
order for costs is made shall pay to any other party a lump sum by
way of costs or such proportion of the costs as it may
deem just.'
[78]
Sampra’s “take it or leave it” approach at the time
of setting the tariff prompted the retailers to refer
the matter to
this tribunal. The retailers succeed. They are thus entitled to their
costs.
[79]
I, in the result, make the following order.
[79.1]
The tariff set by SAMPRA as set out in paragraph [15] of this
judgment is set aside and replaced with the one appearing at
paragraph [76].
[79.2]
SAMPRA is ordered to pay the retailers’ costs including the
costs of two counsel.
A.M.L. Phatudi
Judge
of the High Court
On
behalf of SAMPRA:
Edward Nathan Sonnenbergs
…
........................................
150
West Street
…
........................................
Sandown
…
......................................
Sandton
…
......................................
Johannesburg
Dates
Heard and Representation.
30/01/2012
– 18/02/2012: Mr M Murhpy
22/10/2012
– 09/11/2012: Adv B.C. Wanless SC
…
.....................................
Mr
M Murphy
19/02/2013
– 21/02/2013: Mr M Murphy
On
behalf of the Retailers:
Bernadt Vukic Potash & Getz
…
...............................................
11th
Floor 1
…
...............................................
Thibault
Square
…
...............................................
Cape
Town
Dates
Heard and Representation:
30/01/2012
- 18/02/2012 Adv. A.R. Sholto - Douglas Sc
…
....................................
Adv.
M Blumberg
22/10/2012
– 09/11/2012 Adv. A.R. Sholto - Douglas Sc
…
.....................................
Adv
M Blumberg
19/02/2013
– 21/02/2013 Adv. A.R. Sholto - Douglas Sc
…
.....................................
Adv.
M Blumberg
1
Section 9A
inserted
by
section 3 of Copyright
Amended
Act
9of 2002.
2
Patents
Act 57 of 1978 as amended.
3
The
wording in the Act still refers to Transvaal Provincial Division.
4
I substituted the word supreme as used in the Act with High.
5
The rules governing the trial proceedings are relaxed and yet
applied for convenience and smooth running of the proceedings.
6
Adv.
S.H. Sholto-Douglas SC assisted by Adv. Bloomberg
7
Retailers
Heads of Argument, page 4 paragraph 2.1
8
Certificate of
Accreditation - Retailers bundle of documents, page 1.
9
Nine (9) for SAMPRA and
seven (7) for Retailers. Four of the 16 are legal practitioners.
10
The document is headed: Retailer’s Statement of Particulars
Pleadings bundle page 1.
11
Particulars
of Claim page 3 ~ pleadings Bundle.
12
SAMPRA's
plea headed SAMPRA's Answering Statement - page 18 paragraph 4
13
Answering
Statement page 19 - paragraph 6.1.1 ,4
14
bid
page 20 - paragraph 6 12 '5 Particulars of Claim
15
page
9 - paragraph 16 l6 Answering Statement page
16
57
paragraph 16
17
Annexure A: Pleadings bundle (Pink file). Pages 12
18
Ibid
19
Helsinki, Finland
20
The amount of money fixed as tariff.
21
Adv. Blumberg
22
Page
291 - 294
23
Health Profession Council of South Africa
24
Summary evidence - by Lubabalo Ntsokota - page 285 - 288 of
pleadings bundle. (Pink Bundle) Page 1334 record
25
Ibid
26
Exact budget
27
Promulgated on 1 June 2006 under GN 517 in GG 28894
28
Regulation
6
29
Regulation
7(2)
30
Escrow
account can be equated with Trust account.
31
Regulation 6(2) of the Collecting Society Regulations: Certificate
of Accreditation
32
See
paragraph [15] above