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"for the purposes of determining the amount of damages", the learned Judge said:
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"Section 24 (1B) of the Copyright Act contemplates and permits an enquiry into the quantum of damages only, and
not into the existence of an act of infringement. Proof of infringement of copyright, in respect of which the plaintiff
bears the onus, is a prerequisite to any entitlement to invoke the enquiry provisions of section 24 (1B). It is at the
level of proof of infringement that the plaintiff's particulars fail. Consequently, the provisions of section 24(1B) offer
no assistance to the plaintiff against this exception."
There was no basis, in the circumstances of these cases, to assess the appellant's prospects of proving what
is alleged. The appellant alleged that the respondent, in each action, received royalties from the acts of
infringement and that he has no knowledge of their extent. Section 24(1B) was obviously inserted into the Act
to cover just such a contingency. I may say that Mr Liebowitz, for the respondents, wisely did not press his
contentions in this regard with any discernible degree of enthusiasm. The appeal against the upholding of the
second exception in each case must therefore succeed.
Mutually contradictory averments ("The third exception")
[10] The third basis upon which the exception was framed in each case was the mutually contradictory allegations
concerning the current ownership of the copyright. In the EMI Music matter, after setting out, in paragraphs 1
12, the claim based on infringement, the particulars contain a second claim, not pleaded in the alternative, in
which the appellant relies on the conclusion by Ms Fassie of a number of socalled "performance agreements".
The claim is that EMI Music failed in its obligations, in terms of these agreements, to render regular, accurate
and proper accounts of what it had received and what was due to Ms Fassie and her estate. The notice of
exception alleged that the appellant's claim, in paragraph 3 of the particulars, to ownership of the copyright
and the allegation in paragraph 12 that there were no licensees of the works was inconsistent with the
contention that Ms Fassie had entered into what were effectively assignments and/or licensing agreements.
This exception was upheld by the court below but abandoned by EMI Music shortly before the appeal was
argued. In the EMI Publishing action the claim for contractual royalties was specifically pleaded in the
alternative to the infringement claim. Jajbhay J held that the particulars were vague and embarrassing and
that EMI Publishing was prejudiced thereby
"more particularly in that the defendant is unable to know whether to come to court to meet a case based on
ownership of copyright vesting in the plaintiff, or to meet a case based on ownership of copyright vesting in the
defendant, and a consequent claim for royalties and a statement and debatement of account. These two claims are
mutually destructive of one another . . ."
[11] It is not necessary to refer to authority for the proposition that a plaintiff is entitled to rely on mutually
contradictory averments in his particulars of claim, provided that it is clear from the manner of pleading them
that he is only relying on the one in the event that the other is not sustainable. In this instance one might
well have expected that the claim based on contract would be relied on as the main claim and that the
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claim for
Page 313 of [2009] 4 All SA 307 (SCA)
damages would be pleaded in the alternative, eg in the event of the claim on contract failing. But the
circumstance that the contractual claim is pleaded in the alternative to that for infringement damages does
not detract from the fact that it is clear to the reader of the particulars that the claims are relied upon in the
alternative. That the defendant will be required to come to court to meet one of two alternative claims is
certainly no basis for a finding that the defendant is embarrassed or prejudiced. This exception should
accordingly have been dismissed.
[12] In the result the appeals succeed only insofar as the second and third exceptions are concerned. Mr Leibowitz
submitted that since both parties had had a measure of success in the appeal, there should be no order as to
the costs in this Court. However, it was necessary for the appellant to come to this Court to have the second
and third exceptions set aside and on that basis the appellant should have the indemnity of a costs order.
[13] In each case, the following order is made:
1.
The appeal against the upholding of the first exception is dismissed.
2.
Save as is set out in paragraph 1, the appeal succeeds.
3.
The respondent is ordered to pay the appellant's costs of appeal, such costs to include the costs of two
counsel.
4.
The order of the court below is altered to read:
(a)
The first exception is upheld.
(b)
Paragraphs 3 to 12 of the particulars of claim are struck out.
(c)
The plaintiff is given leave to amend the particulars of claim by notice of amendment delivered
within 21 days of the date of this order.