HURT AJA:
[1] The appellant, who is the executor in the deceased estate of the wellknown singer, Brenda Fassie, instituted
two actions in the Witwatersrand Local Division of the High Court, claiming relief based on copyright. The
defendant in the first action (and the respondent in the first of the appeals) is EMI Music Publishing (Pty) Ltd
("EMI Publishing") and, in the second, EMI Music (Pty) Ltd ("EMI Music"). The respondents delivered notices to
cure vagueness and embarrassment in terms of rule 23(1) of the Uniform Rules of Court and, no response to
these notices having been received from the appellant, notices of exception were duly delivered. The cases
were dealt with as one by Jajbhay J for the purposes of deciding them. The learned Judge upheld the
exceptions with costs and gave the appellant leave to amend the particulars of claim within 21 days. This
appeal comes before us with the leave of the court below.
The infringement claims ("The first exception")
[2] The particulars of claim in each matter commenced with a claim for damages based on copyright infringement.
The appellant claimed to have joint ownership of the copyright in 157 works listed in an annexure to the
summons. With four exceptions1 the works listed (being music and lyrics for socalled "pop songs") are works
in which the late Ms Fassie collaborated with others to compose them. They are accordingly works of "joint
authorship" as defined in section 1 of the Copyright Act 98 of 1978 ("the Act"). Having made the necessary
averments to establish that the works are entitled to copyright protection, the particulars of claim in the EMI
Publishing action proceed as follows:
"4.
From and subsequent to 1980, the Defendant continuously, until the present time, without the licence of the
Plaintiff or any of the persons referred to in paragraph 3.1.1.1 above (s c the joint authors), and whilst the
exclusive right to do so vested in the Plaintiff and the said persons:
[reproduced, published and made adaptations of the works and purported to grant licences to third parties to
perform similar acts]2
Page 309 of [2009] 4 All SA 307 (SCA)
5.
In the premises, the defendant, during the said period, infringed the copyright in respect of the said works,
referred to in paragraph 3 above.
6.
The defendant at all relevant times bore knowledge of the fact that such conduct constituted an infringement as
aforesaid.
7.
The Defendant received royalties for performing the acts set out in paragraph 4 supra.
8.
The damages suffered by the Plaintiff constitute the reasonable royalty that would have been payable by a
licensee in respect of the work.
9.
The plaintiff has no knowledge of the extent of the royalties the Defendant received as aforestated.
View Parallel Citation
10.
In order to determine the amount of a reasonable royalty, having regard to the provisions of section 24(1B) of
the Copyright Act, the Plaintiff will seek an order directing that an enquiry be held."
[3] The relief sought in respect of the infringement claim is an order for damages equivalent to the royalties which
would reasonably have been payable by a licensee of the copyright and an enquiry aimed at establishing the
amount of such royalties. There is a further prayer for what are sometimes referred to as "punitive damages"
based on the provisions of section 24(3) of the Act.3
[4] The particulars in the EMI Music action are almost identical to those set out above, save that the date of
inception of the alleged acts of infringement in paragraph 4 is 1993, the words "and/or fees" appear after the
word "royalties" in paragraph 7 and the words "and that the defendant be ordered to pay to the Plaintiff the
amount found to be due pursuant thereto" appear after the words "an inquiry to be held" at the end of
paragraph 10. These variations are not material to the issues raised by the first exception in either action.
[5] The notices of exception taken to the claims based on infringement, after recounting the nature of the
copyright relied upon by the appellant, state that:
"4.
The claims pursued by the plaintiff in this action are claims founded upon copyright ownership.
5.
The plaintiff has not indicated that any of the joint authors listed in Annexure A to the particulars has ceded or
otherwise made over their copyright to Fassie. It is accordingly unclear on what basis the plaintiff has the
requisite locus standi to sue on his own.
6.
The particulars are accordingly vague and embarrassing, alternatively lack averments necessary to sustain the
cause of action, and the defendant is accordingly unable to plead thereto."
This will be referred to as "the first exception".
Page 310 of [2009] 4 All SA 307 (SCA)
[6] Before dealing with the parties' respective contentions, it will be convenient to refer briefly to the law
concerning joint authorship of works protectable by copyright. Section 21(1)(a) of the Act states that:
"Subject to the provisions of this section, the ownership of any copyright conferred by section 3 o r 4 on any work
shall vest in the author or, in the case of a work of joint authorship, in the coauthors of the work."