Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC) Moseneke DCJ for the majority of
the court remarked obiter at paragraph 72 [also reported at 2012 (3) BCLR 219 (CC) Ed]:
"Were a court to entertain Everfresh's argument, the underlying notion of good faith in contract law, the maxim of
contractual doctrine that agreements seriously entered into should be enforced, and the value of ubuntu, which
inspires much of our constitutional compact, may tilt the argument in its favour. Contracting parties certainly need to
relate to each other in good faith. Where there is a contractual obligation to negotiate, it would be hardly imaginable
that our constitutional values would not require that the negotiation must be done reasonably, with a view to reaching
an agreement and in good faith."
[58] I n Makate v Vodacom Ltd 2016 (4) SA 121 (CC) at paragraph 100 Jafta J after considering both these
judgments said that this issue remained a grey area in our law. However, the respondents do not seek a
deadlock breaking mechanism or that a substantive agreement must necessarily eventuate. They content
themselves with an open ended process of negotiation in good faith by the applicants as contemplated in
clause 12(7). The reasoning in Everfresh is compelling, and even though obiter, it is of highly persuasive value
in this Court. It is unequivocal as to how the common law of contract should be developed under the
Constitution. I find myself constrained to follow this approach and the respondents' counterapplication
should succeed.
Costs
[59] Both the applicants and the first and second respondents have been partly successful and neither party has
conducted itself in a blameless manner. They should bear their own costs. The fifth respondent sought no
costs order.
The order
[60] The following order is made:
1.
The first and second respondents are finally interdicted from infringing the applicant's copyright in the
cinematographic film called "TRUTH BE TOLD: PROJECT SPEAR" (the work") by:
1.1
broadcasting the work;
1.2
reproducing the work in any manner or form including making a still photograph therefrom;
1.3
causing the work to be seen or heard in public;
1.4
causing the work to be transmitted in a diffusion service;
1.5
making an adaptation of the work; and
1.6
letting or offering or exposing for hire or sale by way of trade, directly or indirectly, a copy of the
work.
2.
Directing the first respondent to deliver to the applicant within 14 days of receipt of this Order, the raw
footage in relation to the work.
3.
Directing the applicant within 14 days of receipt of this order to initiate and enter into negotiations in
good faith with the respondents pursuant to Schedule V clause 12.7 including but not limited to the sale
of the work.
4.
Each party shall pay his/her/its own costs.
Page 645 of [2016] 4 All SA 623 (GJ)
[Paragraph numbering as per original transcript Ed]
For the applicant:
C Puckrin SC, T Motau and P Cirone instructed by Werksmans Attorneys, Sandton
For the first and second respondents:
J Brickhill, M Bishop and N Khumalo instructed by the Legal Resources Centre, Johannesburg
For the fifth respondent:
NH Maenetje SC and K Mhango instructed by Werksmans Attorneys, Sandton and the State Attorney, Johannesburg