alternatively, on the basis that sufficient evidence was placed before the tribunal, for it to be satisfied
on this issue? If not, should this matter be referred back to the tribunal with directions that the retailers
obtain and place before the tribunal evidence of the rand value derived by them from the use of sound
recordings on their premises?
If sufficient evidence was placed before the tribunal, was the tariff determined by the tribunal
reasonable in the circumstances? If not, what is a reasonable tariff in the circumstances?
(d)
The jurisdiction of the Tribunal
[12] A consideration of the contentions of the parties as to the jurisdiction of the tribunal requires a consideration
of the provisions of sections 9A, 30, 31 and 33 of the Act. At the outset, it should be noted that this Court in
National Association of Broadcasters v South African Music Performance Rights Association and another [2014]
ZASCA 10, 2014 (3) SA 525 (SCA) [also reported at [2014] 2 All SA 263 (SCA) Ed] at paragraph 57 stated the
following:
"It is necessary at the outset to say something concerning the rather tortuous statutory scheme in terms of which the
tribunal derives its power. As pointed out by Dean in Handbook of South African Copyright Law,6 the factual matrix
set out in ch 3 of the Act has to be read 'mutatis mutandis to accommodate the adjudication of disputes arising out of
s 9A'. This means that one has to strain to make these provisions compatible with those of s 9A more particularly
those of s 9A(1)(b) and (2)(c). Put simply, the licensingscheme provisions are applied to the determination of the
royalty rate. That notwithstanding, the learned author rightly points out that to adopt a different view would render the
provisions of s 9A nugatory a consequence that should be avoided. Section 33(5)(b) therefore applies mutatis
mutandis and requires the tribunal, when it is determining a royalty rate, to make such order as it may 'determine to
be reasonable in the circumstances'."
[13] In National Association of Broadcasters only the calculation of the "needletime" tariff was in issue. However, the
"tortuous statutory scheme in terms of which the tribunal derives its power" is equally apparent when the
jurisdiction of the tribunal is considered.
Page 46 of [2016] 2 All SA 40 (SCA)
[14] The relevant portion of section 9A of the Act provides as follows:
"9A.
Royalties
(1)
(a)
in the absence of an agreement to the contrary, no person may broadcast, cause the transmission of or
play a sound recording as contemplated in s 9(c), (d) or (e) without payment of a royalty to the owner of
the relevant copyright.
(b)
The amount of any royalty contemplated in paragraph (a) shall be determined by an agreement between
the user of the sound recording, the performer and the owner of the copyright, or between their
representative collecting societies.
(c)
In the absence of an agreement contemplated in paragraph (b), the user, performer or owner may refer
the matter to the Copyright Tribunal referred to in section 29(1) or they may agree to refer the matter
for arbitration in terms of the Arbitration Act, 1965 (Act No 42 of 1965)."
[15] The relevant portions of section 30 of the Act provide as follows:
"30.
General provisions as to jurisdiction of tribunal
Subject to the provisions of this Chapter, the function of the tribunal shall be to determine disputes arising
between licensing bodies, or other persons from whom licences are required and persons requiring licences, or
organisations claiming to be representatives of such persons, either
(a)
on the reference of a licence scheme to the tribunal; or
(b)
on the application of a person requiring a licence either in accordance with a licence scheme or in a case
not covered by a licence scheme."
[16] The relevant portions of section 33 provide as follows:
"33. Applications to tribunal
(1)
. . .
(2)
Any person who claims that in a case covered by a licence scheme the licensing body operating the scheme
has refused or failed to grant him a licence in accordance with the provisions of the scheme or to procure the
grant to him of such a licence, may apply to the tribunal for an order under this section.
(3)
An application for such an order may also be made by any person who claims that he requires a licence in a
case not covered by a licence scheme, and either
(a)
that a licensing body or person has refused or failed to grant the licence or to procure the grant thereof,
and that in the circumstances it is unreasonable that the licence should not be granted; or
(b)
that any charges, terms or conditions subject to which a licensing body proposes that the licence should
be granted are unreasonable.
(4)
. . .
(5)
On any application under subsection (2) or (3) the tribunal shall give the applicant and the licensing body in
question and every other party to the application an opportunity of presenting his case, and if the tribunal is
satisfied that the claim of the applicant is wellfounded, it shall make an order declaring that, in respect of the
matters specified in the order, the 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