defendants had infringed their copyright by performing whole or part of Umoja, by making recordings and
cinematograph films thereof, and by having it broadcasted.
[3] Infringement, the plaintiffs said, had taken place in South Africa since 2001. That is the uncontentious part of
the claim and is based on the provisions of the Copyright Act 98 of 1978.
[4] The contentious part of the particulars of claim relates to the allegation that the defendants have also
committed acts of infringement in a large number of other countries, 19 in all, from Japan in the east to the
USA in the west. It is important to stress that in relation to these infringements the plaintiffs did not rely on
our Copyright Act but on the copyright laws
Page 453 of [2011] 1 All SA 449 (SCA)
of each of these countries. The particulars in relation to each country are in similar terms and it would suffice if
one country, say, the United Kingdom, is given as an example. The particulars state the following (albeit not in
these terms or sequence): the plaintiffs are the authors or owners by assignment of the relevant copyrights
for purposes of the UK Copyright Act; these rights exist by virtue of the UK Act; the copyrights have not
expired due to lapse of time; they have been infringed; and the plaintiffs accordingly are entitled to claim an
injunction, damages and/or royalties to which they would be entitled in terms of the UK Act.
[5] The exception by the defendants raised the question of jurisdiction squarely. It stated that proceedings for
infringement of copyright instituted in a local court may only be founded on the provision of our Copyright Act
and that in so far as the plaintiffs seek to apply the relevant copyright legislation of foreign states their claim
is bad. As mentioned, the court below upheld the exception and set aside the particulars of claim to the
extent that they are based on copyright legislation of other countries.
[6] Jurisdiction means the power vested in a court to adjudicate upon, determine and dispose of a matter.
Importantly, it is territorial.1 The
View Parallel Citation
disposal of a jurisdictional challenge on exception entails no more than a factual enquiry, with reference to the
particulars of claim, and only the particulars of claim, to establish the nature of the right that is being asserted
in support of the claim. In other words, jurisdiction depends on either the nature of the proceedings or the
nature of the relief claimed or, in some cases, on both. It does not depend on the substantive merits of the
case or the defence relied upon by a defendant.2
[7] The plaintiffs argued that the high court had jurisdiction to hear the foreign infringement claims because (a)
the relief sought, namely interdicts and damages, are within the high court's competence; (b) the plaintiffs are
incolae of the court below; (c) the defendants are domiciled or resident in South Africa and within the
jurisdiction of the court below; (d) section 19(1)(a) of the Supreme Court Act 59 of 1959 confers jurisdiction on
a high court "over all persons residing or being in its area of jurisdiction"; (e) a court can grant an effective
interdict against someone residing within its jurisdiction; and (f ) a court can determine through expert
evidence what the relevant foreign law is. Some point was also made in relation to the inconvenience of an
incola who has to sue in 20 jurisdictions.
[8] In so far as point (b) is concerned, the domicile of the plaintiff never determines jurisdiction and, as to point
(f ), 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
Page 454 of [2011] 1 All SA 449 (SCA)
certainty."3 The inconvenience of having to sue in multiple jurisdictions can also be discounted at this early
stage because the rule of jurisdiction for which the plaintiffs contend would also apply in the case of a single
infringement by a local incola committed in another country; and the plaintiff may not even be an incola. This is
illustrated by the facts in Lucasfilm Ltd v Ainsworth [2009] EWCA Civ 1328, a judgment of the Court of Appeal
(England and Wales).
[9] The defendants relied heavily on the judgment in that case in which the plaintiff, a US corporation, sued an
incola of the UK for a breach of American copyright. The acts were committed in the UK but were considered for
purposes of US law to have been committed in the USA. The court refused to entertain the matter, holding
that UK courts do not have jurisdiction to hear such a case. I shall revert to this judgment. Although our law
relating to jurisdiction is based on RomanDutch law as amplified by statute, and not on English commonlaw
this judgment is important because it is recent and also dealt with the issue comprehensively and from a
wider perspective. I, accordingly, do not intend to repeat everything said in that judgment.
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[10] Section 19(1)(a) of the Supreme Court Act provides that a high court has jurisdiction:
"over all persons residing or being in and in relation to all causes arising . . . within its area of jurisdiction and all
other matters of which it may according to law take cognisance."
The section has a long history, which need not be related. However, our courts have for more than a century
interpreted it to mean no more than that the jurisdiction of high courts is to be found in the common law.4 For
purposes of effectiveness, 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). Although effectiveness "lies at the root