Between 2500 and
3000m²
R6500
R839
R1220
R1950
Between 3000 and
3500m²
R7000
R880,24
R1220
R2100
Between 3500 and
4000m²
R7500
R917,17
R1220
R2250
Between 4000 and 4500
m²
R8000
R951,03
R1220
R2400
Between 4500 and
5000m²
R8500
R983.03
R1220
R2550
Between 5000 and
6000m²
R9000
R1039,67
R1220
R2700
Between 6000 and
7000m²
R9500
R1090,76
R1220
R2850
Between 7000 and
8000m²
R10000
R1136,92
R1220
R3000
Between 8000 and
9000m²
R10500
R1179,40
R1220
R3150
Between 9000 and
10000m²
R11000
R1218,17
R1220
R3300
Every additional 1 to 1000
R500
(above 10000)
Page 59 of [2016] 2 All SA 40 (SCA)
[53] From the table it is apparent that the tribunal placed a limit on the tariff in stores with a floor area of 1 750
square metres. Thereafter, the rate was fixed without regard to the increasing size of the store. No reasons
were given in the judgment for this radical departure from the approach of SAMPRA and the retailers that
there should be a progressive increase in the rate, based upon the increased size of a store. In addition, no
reasons were furnished in the judgment why a particular tariff was determined for each category. The tariff
set by the tribunal is considerably less than the tariff set by SAMPRA. Other than the statement in the
judgment that the tariff should "optimise public welfare" and that it "is reasonable in the circumstances" no
other reasons are furnished for its award. An examination of the tariffs determined by the tribunal reveals no
rational or consistent basis for their computation, save that it appears the tribunal arrived at the initial rate of
R389 up to 50 square metres, by averaging the initial rates for this category of SAMPRA and the retailers.
[54] The determination of the tariffs by the tribunal, in terms of section 33(5)(b) of the Act, accordingly is not
"reasonable in the circumstances". In terms of section 36(3)(a) of the Act, this Court is entitled to confirm,
vary or set aside the order of the tribunal as this Court "may deem fair". It is in the context of determining a
tariff that is fair to both parties and which is reasonable in all of the circumstances that I find merit in the
submission by Counsel for the retailers. The submission was that SAMPRA should be awarded 30% of the
tariff set by it. The resultant tariff set out in the fourth column of the table is higher than the tariff awarded by
the tribunal in stores with an area exceeding 1 000 square metres. In addition, except for stores up to 50
square metres, it is higher than the tariff recommended by Prof Ross in each category. This disparity becomes
more apparent in stores over 1 250 square metres in size, where it is approximately double the tariff
recommended by Prof Ross. This progressive increase becomes more marked in larger stores where it
increases to twoandahalf times the rate recommended by Prof Ross. The rate proposed is accordingly
considerably higher than the PPCA (Australian) tariff for all floor sizes, except for stores less than 50 square
metres in size. When regard is had to Prof Ross' recommendation that the tariff should be set at the
Australian tariff level and this is the only expert evidence that attempts to determine what a reasonable tariff
is in the circumstances, in my view, the tariff proposed by the retailers is fair to SAMPRA and the retailers and
reasonable in the circumstances of this case.
[55] As regards costs SAMPRA submits that the view of the tribunal that SAMPRA's "take it or leave it" approach at
the time of setting the tariff, justified an award of costs in favour of the retailers was unjustified. This was
because the legislative framework did not impose a duty on either of the parties to reach an agreement.
However, the tribunal followed this statement by adding that the retailers succeeded in having the tariff set
by SAMPRA reduced, as justification for the award of costs. In terms of regulation 36 of the Copyright
Regulations the tribunal has a discretion to award "the costs of and incidental to any proceedings" to any
party. In all of the circumstances, I can see no reason to alter the costs order of the tribunal. As regards the
costs of the appeal, although SAMPRA has succeeded in achieving an increase in the tariff awarded by the
tribunal in
Page 60 of [2016] 2 All SA 40 (SCA)
respect of floor areas greater than 1 000 square metres, this is still considerably less than that determined by
SAMPRA. In addition, the increase in the tariff in this appeal was not as a result of any of the legal
submissions advanced by SAMPRA being upheld. In all of the circumstances, the extent of SAMPRA's success
should be acknowledged by awarding it 50% of its costs of the appeal.
[56] I make the following order:
1.
The appeal is upheld to the extent of the order contained in paragraph 2 below.