SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy


IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case Number: 2025 -066625

In the matter between:

KELEBOGILE TSHOLOFOLO SYLIA KODISANG First Applicant

DAHLIA MAUBANE Second Applicant

FHULUFELO MOBADI Third Applicant

BONGIWE PHAKHATI Fourth Applicant

FIONA DAVHANA Fifth Applicant

SIMPHIWE JULIA THABEDE Sixth Applicant

And

THK GALLERY First Respondent
OFFICE OF THE CHIEF JUSTICE
REPUBLIC OF SOUTH AFRICA
(Registration Number: 2016/0513847/07)

TREVOR STUURMAN Second
Respondent

TREV OR STUURMAN FOUNDATION Third Respondent
(Registration Number: 2019/388152/08)
_____________________________________________________________________ _
Coram : Da Silva Salie J
Date of Hearing : 21 May 2025
Written Judgment delivered : 21 May 2025
Counsel for Applicants : Adv. T Ntsewa
Attorney for Applicants : Sithi & Thabela Attorneys
Counsel for Respondents : Adv. K Mashishi
Attorney for First Respondent : Maartens & Le Roux Attorneys
Attorneys for Second & Third Respondents: Maphike Attorneys Inc.


JUDGMENT DELIVERED ON WED NESDAY, 21 MAY 2025

DA SILVA SALIE J:

[1] This matter came before me today as an urgent application for interdictory relief
(Part A) of the Notice of Motion. This judgment is delivered ex tempore and is of
necessity brief. The matter was argued in Court with the issues in dispute and the crux
of the matter being fully ventilated during argument. The applicant s seek an interdict in
the form of a mandamus, that the respondents be interdicted from disseminating and/or
continuing the gallery exhibition currently underway as the “YOUR BEAUTY IS MY
CONCERN”, held at THK Gallery pending the finalisation of Part B of the application. In
short, the relief sought is to protect the applicants’ intellectual property.

[2] The background facts are briefly that in and around April/May 2023 the
applicants, collaborated as Wozasisi Collective (“WC”) , curated and publicly exhibited a
body of work titled: “Y OUR BEAUTY IS MY CO NCERN ” in Johannesburg. The
exhibition explores themes dealing with the lived realities of socio -economic struggles of
female hairstylists operating in downtown Johannesburg. The WC was formed by the
applicants as an independent artistic initiative aimed at amplifying the narratives of
marginalized communities through socially engaged creative expression. The exhibition
was a result of community -based research and collaborative engagement with local
hairstylists. In addition to critical acclaim, the exhibition also achieved notable
commercial success with artwork sales and licensing inquiries further establishing the
applicant’s reputation and the commercial viability of the co ncept and intellectual
property arising from the get -up as “Y OUR BEAUTY IS MY CONCERN ”. The exhibition
critically engaged with the lived realities of inner -city female hairstylists and garnered
acclaim on national media platforms such as SABC , Newsroom Af rika and Metro FM. It
is not in dispute that the exhibition extended into a soft copy published book: “Wo zasisi”
and i s currently available for purchase and forms an essential part of the applicants’
income stream, intellectual legacy and artistic impact. Wozasisi Collective, is a female
led organization which was established in 2012 to increase visibility and opportunities
for black women artists. (Annexure “RA1”, record page 126). The Citi Press article
reads: “The group publicly launched a book and held an exhibition called Your Beauty is
My Concern from 1 April to 6 May in 2023. The purpose was to tell the realities and
socioeconomic struggles of women stylists who have businesses in downtown
Johannesburg. ”

[3] The second respondent, Mr. Trevor Stuurman (“Stuurman”) is a photographer,
creative director, multimedia visual artist and gallery owner based in Johannesburg. On
or about 23 April 2025 the first respondent (THK Gallery “THK”) announced the launch
of a solo exhibition by Stuurman titled: “ YOUR BEAUTY IS OUR CONCERN”, posted
on their website and social media platforms. Stuurman also publicized the then
upcoming exhibition on his social media platform. The exhibition, currently underway, is
publicized and is running from 24 April 2025 until 30 May 2025.

[4] On 2 May 2025 a letter of demand (Annexure FA6 ) was transmitted to the
respondents, by the applicants’ attorneys, Sithi and Thabelo Attorneys, stating that it
had come to their client’s attention that or about 23 April 2025 the gallery announced
the launch of the solo exhibition titled “YOUR BEAUTY IS OUR CONCERN ” and that
the exhibition would officially open to the public on 24 April 2025. It further addressed
that it considered an infringement that both the title and conceptual underpinnings of the
exhibition bear a striking and unmistakable resemblance to the original work of their
clients.

[5] In short, the mischief complained of was tha t the thematic presentation of
hairstyles as a central artistic motif , as well as the socio -economic political framing of
hairstylists’ narratives, has been copied in a manner that strips the original work of its
context and message and commodifies the art istic expression of WC without due credit
to them nor was it with their authorization . For these reasons, the WC took issue with
the fact that the respondents’ conduct constitutes an infringement of their intellectual
property rights, particularly in respect of the originality and expression of their creative
concept. The WC firstly demanded the immediate removal of the exhibition “YOUR
BEAUTY IS OUR CONCERN ” from public view at THK Gallery and from all associated
digital and promotion al platform s in addition to two other demands, namely: (a) a formal
and public written apology by Stuurman in terms of which he acknowledges the
unauthorized use of the aforesaid concept and the resultant prejudice ; and (b) in the
event that any artw orks from the exhibition have been sold, payment of 30% of the
gross proceeds of each sale. Only the first demand forms the subject of the hearing of
this matter, Part A, for relief to interdict the further exhibition under this theme and label .

[6] The respondents were afforded 48 hours of receipt of the letter on 2 May 2025
failing which the applicants would proceed with this legal action . The application
(unissued ) was served on the respondents on 9th May 2025, setting out a truncated
timetable fo r the matter to be heard on Tuesday, 14 May 2025 . The issued application
(identical to the papers of the 9th) was served on the respondents on 12th May 2025.
The respondents opposed the application , save for the first respondent , THK, who filed
a notice to abide on 19 May 2025. On 14 May 2025 the matter was postponed by
agreement to today’s roll , providing for the filing of the respondent s’ answering affidavit
by 08h00 on 19 May 2025 and the applicant s’ reply by 20h00 on the same date followed
by heads of argument on 20 May 2025. During argument, it was agreed that the
respondent shall be referred to as Stuurman, being the only respondent before the
Court.

[7] In his answering affidavit , Stuurman took issue with two points in limines :

(a) jurisdiction and misjoinder ; and
(b) lack of urgency and the defective notice of motion .

Misjoinder:

[8] It is contended by Stuurman that this Court does not have the jurisdiction to hear
this matter because THK’s registered address, being in Cape Town, as the gallery lacks
the necessary legal personality . It is also contended that the citing of THK in this matter
is an incorrect joinder of the gallery as it is not committing the offending infringement
compl ained of insofar as it merely collaborated with Stuurman for the purposes of
holding the exhibition for public viewing and or sale of Stuurman’s artworks. Stuurman
also submitted that the citation of the third respondent, Trevor Stuurman Foundation,
regis tered as 2019/ 388152/08) is inactive . The argument follows that the first and third
respondents do not have any direct and sub stantial interest in the subject matter and
insofar as there is no causal link between the first and third respondents, the point in
limine of a misjoinder ought to be upheld.

Urgency:

[9] It is argued that the application lacks urgency as the applicants learnt of t he
imminent exhibition prior to the exhibition . The respondent is of the view that the delay
in bringing th e application (a total of 17 days) from the time that the applicants learnt of
the exhibition in April 2025 is fata l to their ground of urgency. That the applicants
lacked funds as the basis for the delay and attempts between the parties to settle the
issue in dispute are argued for the respondent as being i nsufficient to justify the delay in
prosecution of the matter. The respondent also argues that there are only 9 days left of
the exhibition, and as such the proverb ial horse had already bolted.

Discussion of the points in limine :

[10] I proceed to deal with the points in limine raised by the respondent.

[11] The cause of action is the alleged infringement which is based at the gallery of
the first respondent. I am not persuaded in the argument on behalf of the respondent
that applicants that the gallery’s registered address cannot sustain the jurisdiction of this
Court. I am satisfied that the cause of action arose when publication s on various
platforms were made that the exhibition will take place at the gallery of the first
respondent and indeed followed with the exhibition presently underway at the gallery of
THK, within walking distance from this Court. THK filed a notice to abide. Perhaps
more cogently is the fact that any relief or directive granted by this Court against the
gallery must be capable of enforcement against the gallery. If it had not been cited, a
point in limine of non -joinder could have been raised. The gallery played an instrumental
role in hosting and publication of the exhibition and cannot be extricated from the
dispute. Accordingly, I find that the joinder of THK Gallery is proper.

[12] Regarding urgency, while delay is a relevant consideration, I find the applicants
acted with sufficient expedition. The WC learnt of the exhibition late in April and by 2
May 2025 a letter of demand was transmitted to the respondents. This kicked off talks
to mediate and settle the issues in dispute. The attempt to resolve the dispute ought
not to be penalized by this Court, in any event, the exhibition is still ongoing and the
argument that as at today’s date only 9 days remain cannot be the basis for this Court
to adopt an attitude that the time lapsed and therewith the lapse of the exhibition
militates against the finding of urgency. Although a time lapse may frequently be
perceived by this Court as a factor which weigh against a finding of urgency , I am
however of the view that in the circumstances of this matter, taking due note of the
communication between the parties to resolve the issue as well as the fact that the
matter came before t his Court on 14 May 2025, 7 days ago, cannot now be the basis to
find that the exhibition had alrea dy sailed too far and justify a view that it might as well
run its course, thereby depriving the applicant of a hearing on an urgent basis. The
exhibition remains ongoing. Urgency is therefore established.

Allegations:

[13] The main grievance of the applicants is that Stuurman has plagiarized their work
in that it infringes and copies their original theme in that both exhibitions delve into the
same theme of black bea uty and the spaces where it is cultivated. It is argued fo r the
respondent however that the applicants conflate copyright issues with passing off and
that the applicants had not proven either of the requirements to sustain the relief sought.
In other words, they do not have a protectable interest as alleged.

Discussion:

[14] It is not in dispute that WC had lauded critical acclaim in 2023 for conscientizing
the theme which is almost identical to that of Stuurman’s exhibition . The title is almost
identical, with “my” and “ours” being the only differing feature. This is not substantial
and is not sufficient to distinguish the two brands. Essentially, the two brands are the
same. The respondent’s substitution of “my” with “ours” does not meaningfully
distinguish the two. On the contrary, it creates confusion.

Requirements for an interdict – mandamus:

[15] In order to succeed in obtaining final interdictory relief, in this case, a mandamus,
the applicant s need to establish and satisfy this Court that they have:

(a) a clear right ;
(b) reasonable apprehension of harm of breach or ongoing infringement of the
right;
(c) the absence of a suitable alternative remedy. In other words, no other
satisfactory remedy exists unless the interdict is granted.

[16] In order to consider whether the applicant s have a clear right , I have considered
the basis put forth by the applicant s. I am satis fied that the WC has demonstrated on
the papers that it has been well associated and established the movement : “YOUR
BEAUTY IS MY CONCERN” by way of the 2023 exhibition, literary works and
widespread media and public attention. The thematic and titular similarities between
the two exhibitions misappropriate the applicants’ intellectual creation and goodwill. In
short, th e WC has established their goodwill in the concept and that the interests and
fruits of its brainchild belong to the WC. Stuurman’s exhibition as “YOUR BEAUTY IS
OUR CONCERN” amounts to misrepresentation of what is accepted and distilled as
that belonging to the applicants.

[17] In the context of considering the clear right in question, I consider the intellectual
propert y in question. Passing off is a protection in common law to protect the goodwill
of a trader or originator of a product or intellectual property from misrepresentation.
Stuurman’s attempt to rebrand the concept and movement for which WC had gained
moment um, public and commercial interest amounts to passing off , designed to confuse
the mindset of consumers and public. I am satisfied that WC’s goodwill in the movement
ought to be protected from such passing off and that it has a clear right to t his
intellec tual property. As for the need to show damage to succeed with intellectual
property protection of in common law, I am satisfied that the right which WC has
established is worthy of protection and that it will suffer financial and reputational loss if
the exhibition and social media platform which flows from the exhibition is not put to a
halt. The staging of an exhibition is also a showcasing of a concept and a commodity
and in addition to sales of art, the concept would continue to gain momentum as that
belonging to Stuurman. His rebranding of the applicants’ concept into a similarly titled
exhibition is calculated to confuse and mislead the public. This amounts to
misappropriation and passing off.

[18] As for the remaining requirements for the interdict sought, I am satisfied that the
facts clearly demonstrate that the right of the applicants had been infringed and that the
continuation of the exhibition (and therewith social media/media publications)
exacerbates this harm, which is neither quantifiable nor remediable by damages. I am
persuaded that the continued exhibition would result in harm which is not capable of
restoration through a suitable or alternative remedy unless the interdict is granted. The
continuation of the exhibition poses a real and ongoing threat of reputational dilution,
economic loss and misattribution. The applicants are at risk of having their originality
misrepresented as derivative and creative legacy eclipsed. This constitu tes ongoing
injury with no alternative meaningful redress.

Conclusion:

[19] The fruit of intellectual property is premised on the law’s recognition to encourage
innovatio n. Intellectual property is not solely dependent on registration or written law.
Equitable remedies are available to the creator of intellectual property to protect the
creator. In this matter, the WC is a collaboration of women who created a platform t o
conscientize them es such as anti -blackness , hair culture and the complexities which
arise for black women in our society. It is a story by black women for society to
embrace the challenges and so too the pride , resilience against oppression and
celebrat ion of the shaping of community identities and cultural expressions.

[20] Black hair culture is not just aesthetics but also an act of resilience, community
building, identity, agency and cultural preservation. In essence, the concept of “Your
Beauty is My Concern” uses art to demonstrate storytelling of voices which and still are
unhear d and amplify the recognition of culture and personal narratives in hair practices.
It is notable that for our unequal past, which is still a divided society with relics of our
unjust and unequal history, this theme is an important one to claim its rightful space in
our society and our narratives. The story must be told, it must be echoed, however
importantly its originator must be protected and acknowledged in its acclaim. The
applicants , six (6) women , started telling and raising of awareness of th ese stories in a
manner which grabbed public, media and commercial attention through their artistic
vision and skills . It received its acclaim and the fruits of their labour warrant protection
against appropriatio n of their narrative, visual expression and conceptual labour.

Conclusion:

[21] I am satisfied that on the papers before me, and for the reasons as set out
above, that the applicants have made out a case for the relief sought and ought to
succeed in Part A of this application. Wherefore I make the following order:

(i) The respondents are interdicted and restrained from disseminating ,
exhibiting and proceeding with the presentation of the exhibition titled:
“Your Beauty is My Concern” including “Your Beauty is Our Concern” ,
pending the final determination of the relief sought in Part B of this
application , including removal of any posts on social media and other
public platforms of the label, title and or get-up as “Your Beauty is Our
Concern” within 24 (twenty four) hours of the granting of this Order .

(ii) The respondents are interdicted and restrained from selling, transferring or
otherwise disposing of a ny artworks associated with the exhibition under
the theme “Your Beauty is My Concern” including “Your Beauty is Our
Concern ” pending the final determination of the relief sought in Part B of
this application.

(iii) Costs shall stand over for determination at the hearing of Part B .

[22] A copy of this order must be served on the first respondent, THK Gallery, by the
Registrar of this Court within 24 hours of this order by electronic mail: o[...] as well as
service to the legal representatives of the parties.


_____________________
DA SILVA SALIE, J
JUDGE OF THE HIGH COURT
WESTERN CAPE