Gallo Africa v Sting Music
[2011] 1 All SA 449 (SCA)
Division:
SUPREME COURT OF APPEAL
Date:
3 September 2010
Case Number:
40/2010
Before:
LTC HARMS DP, A CACHALIA, CH LEWIS, RW NUGENT and VM
PONNAN JJA
Sourced by:
A Street
Summarised by:
DPC Harris
Parallel Citation:
2010 (6) SA 329 (SCA)
. Editor's Summary . Cases Referred to . Judgment .
[1] Civil procedure Jurisdiction Whether a South African court has jurisdiction to decide copyright infringement claims
in respect of foreign copyright Based on accepted principle that South African courts do not have jurisdiction to decide
claims in respect of property located outside of South Africa, court answering question in negative.
[2] Intellectual property law Copyright Copyright infringement Jurisdiction Whether a South African court has
jurisdiction to decide copyright infringement claims in respect of foreign copyright Based on accepted principle that South
African courts do not have jurisdiction to decide claims in respect of property located outside of South Africa, court
answering question in negative.
Editor's Summary
Alleging that they were the owners of the copyright in the musical and literary works which make up a musical
known as "Umoja", the appellants instituted action against the respondents, on the ground that the respondents
had infringed their copyright by performing the musical, by making recordings and cinematograph films thereof, and
by having it broadcasted.
The alleged infringement in South Africa was based on the Copyright Act 98 of 1978, and was alleged to have
occurred since 2001.
The particulars of claim became contentious where the allegation was made that the respondents also committed
acts of infringement in nineteen other countries. In relation to those infringements, the appellants did not rely on
the South African Copyright Act but on the copyright laws of each of the countries with the particulars in relation to
each country being framed in similar terms.
The respondents raised an exception to the particulars of claim, relating to the issue of jurisdiction. They argued
that proceedings for infringement of copyright instituted in a local court may only be founded on the provision of the
South African Copyright Act, and that in so far as the appellants sought to apply the relevant copyright legislation of
foreign states, their claim was bad. The court a quo upheld the exception and set aside the particulars of claim to
the extent that they were based on copyright legislation of other countries.
Having obtained leave to appeal, the appellants referred to the present Court, the issue of the jurisdiction of a
High Court to decide matters relating to foreign copyright. The appellants argued that the High Court had
jurisdiction to hear the foreign infringement claims because the relief sought was within the High Court's
competence. Referring to section 19(1)(a) of the Supreme Court Act 59 of 1959 which confers jurisdiction on a High
Court over all persons residing or being in its area of jurisdiction, the appellants averred that they were incolae of
the court a quo and the respondents were domiciled or resident in South Africa and within the jurisdiction of the
court a quo. It followed, it was argued, that a court can grant an effective interdict against someone residing
Page 450 of [2011] 1 All SA 449 (SCA)
within its jurisdiction and can determine through expert evidence what the relevant foreign law is.
Held Jurisdiction means the power vested in a court to adjudicate upon, determine and dispose of a matter. A
jurisdictional challenge, raised on exception does not involve the substantive merits of the case or the defence
relied upon by a defendant.
In response to two of the appellants' submissions as listed above, the court pointed out firstly that the domicile of
the plaintiff never determines jurisdiction and, furthermore, that a court does not necessarily require evidence of
foreign law. It may take judicial notice of foreign law in so far as such law can be ascertained readily and with
sufficient certainty.
Section 19(1)(a) of the Supreme Court Act provides that a high court has jurisdiction over all persons residing in
its jurisdiction, and in relation to all causes arising within its jurisdiction. Our courts have interpreted the section to
mean no more than that the jurisdiction of high courts is to be found in the common law. The defendant must be, or
reside within, the area of jurisdiction of the court (or else some form of arrest to found or confirm jurisdiction must
take place). What is further required is a ratio jurisdictionis.
In the case of Eilon v Eilon 1965 (1) SA 703 (A), the court held that South African courts had no jurisdiction in