SAMPRA contended, however, that the submissions were made in law and related to the application of the
Act. It is quite clear, however, that at no stage during the lengthy proceedings before the tribunal were
principles of competition law referred to, or applied. The evidence led by the parties did not have as its
objective the proof of any principles of competition law. If from the outset the dispute between the parties
had been framed in the context of competition law principles, there is ground for thinking that further, or
other, evidence, would have been produced by the parties. The issue was not investigated or canvassed
before the tribunal.5 To apply these principles now would alter the whole basis upon which the parties
approached and dealt with the central dispute between them. It would be unfair to allow this now.
[7] Central to SAMPRA's case on appeal are two propositions:
(a)
The retailers as applicants before the tribunal bore a duty, in terms of the legislative framework, to
satisfy the tribunal that their claims regarding the unreasonableness of the tariff set by SAMPRA were
well founded. The tribunal's jurisdiction to determine a reasonable tariff would only be activated once
the retailers had satisfied the tribunal that their claim of unreasonableness was well founded.
(b)
Only then would the tribunal be empowered to determine a reasonable tariff after the retailers had
adduced sufficient evidence of "circumstances" applicable to them, which would enable the tribunal to
determine a tariff which was "reasonable in the circumstances".
[8] SAMPRA then submits that the retailers did not adduce sufficient evidence in support of their claims regarding
the unreasonableness of the tariff and of the "circumstances" to enable the tribunal to determine a
reasonable tariff. In particular, the retailers were obliged to lead evidence
Page 44 of [2016] 2 All SA 40 (SCA)
of the rand value they derived from the use of sound recordings in their businesses, which was essential to a
determination by the tribunal of the reasonableness of the tariff in the particular circumstances of the
retailers. SAMPRA submits that the significance of this evidence lies in the essential inquiry of whether the
rand value the retailers derived from the use of sound recordings, is disproportionately lower than the tariff
set by SAMPRA.
[9] In the result, SAMPRA submits that the appeal should be upheld, the tariff determined by the tribunal be set
aside and replaced by the tariff set by SAMPRA, due to the retailers' failure to satisfy the tribunal that their
claims regarding the tariff's unreasonableness were well founded. In the alternative, SAMPRA submits that the
matter ought to be remitted to the tribunal in terms of section 36(3)(b) of the Act, with specific instructions for
the conduct of a proper inquiry with particular emphasis on evidence being placed before the tribunal by the
retailers, to show that the value derived by each of the retailers from the use of sound recordings is
disproportionately low when compared with the tariff. This procedure is advanced on the basis that in the
absence of this evidence, there is insufficient evidential material available to this Court on appeal to make its
own determination of what a reasonable tariff would be. SAMPRA adds that it is accordingly unwilling to
consent to this Court substituting its own determination in place of the tribunal's tariff, in the name of
expediency.
[10] The retailers' responses to these submissions are that:
(a)
All that is necessary to activate the tribunal's jurisdiction is the absence of agreement on the amount of
the tariff between the retailers and SAMPRA. There is no additional onus on the retailers to satisfy the
tribunal that the tariff is unreasonable, in order to activate the tribunal's jurisdiction to determine a
reasonable tariff.
(b)
The requirement in section 33(5) of the Act that the tribunal may make an order declaring that an
applicant "is entitled to a licence on such terms and conditions and subject to the payment of such
charges (if any) as the tribunal may . . . determine to be reasonable in the circumstances" if the tribunal
is "satisfied that the claim of the applicant is wellfounded" does not place an onus upon the retailers to
satisfy the tribunal on this issue.
(c)
The retailers placed sufficient evidence before the tribunal to satisfy it that the tariff set by SAMPRA was
unreasonable and to enable the tribunal to set a tariff that was reasonable in the circumstances. The
retailers denied that they were obliged to lead evidence to establish the rand value they derived from
the use of sound recordings in their businesses. They accordingly denied that there are any grounds for
a remission of the matter to the tribunal in terms of section 36(3)(b) of the Act, with an order compelling
them to obtain and lead evidence on this issue.
[11] The following issues, accordingly, arise for decision:
(a)
Does the jurisdiction of the tribunal only arise once the party referring the matter to the tribunal has
discharged an onus of satisfying the tribunal that the tariff is unreasonable, or does this arise when
Page 45 of [2016] 2 All SA 40 (SCA)
agreement cannot be reached between the user (the retailers) and the owners of the relevant
copyrights (represented by SAMPRA) on the amount of the tariff?
(b)
If the jurisdiction of the tribunal is established by an absence of agreement between the parties on the
tariff, is the party referring the matter to the tribunal required to satisfy the tribunal that their "claim"
that the tariff is unreasonable is "wellfounded" by the discharge of a formal onus, or is the tribunal
simply required to be satisfied on this issue, on all of the evidence placed before it?
(c)
Was sufficient evidence placed before the tribunal for it to be satisfied that the claim of the retailers was
well founded either on the basis that the retailers discharged any onus resting upon them, or