(a)
in the case of an application under subsection (2), determine to be applicable in accordance with the
licence scheme; or
Page 47 of [2016] 2 All SA 40 (SCA)
(b)
in the case of an application under subsection (3), determine to be reasonable in the circumstances."
In the present case, the parties are ad idem that the disputed tariff does not form part of a "licence scheme"
in terms of the Act. Consequently, only the provisions of section 30(b) and section 33(3) read with section
33(5)(b) of the Act are relevant in assessing the jurisdiction of the tribunal in connection with a referral to it, in
terms of section 9A of the Act.
[17] The problem of reconciling the provisions of these sections in order to determine the jurisdiction of the tribunal
is immediately apparent. Whilst section 9A provides for the referral of "the matter" by either "the user,
performer or owner" to the tribunal, in the absence of agreement as to "the amount of any royalty", section
30 provides that the tribunal has jurisdiction to "determine disputes" arising between "persons from whom
licences are required and persons requiring licences" on "the application of a person requiring a licence". To
resolve the apparent anomaly Prof Dean suggests that section 30 should be interpreted as though owners
and performers holding performers' rights should be regarded as "other persons from whom licences are
required" and users should be regarded as "persons requiring licences".7 I agree with this solution. On this
basis a referral to the tribunal in terms of section 9A by a "user" being a person "requiring a licence" and who
has not reached agreement with the "owner" being the "person from whom a licence is required" should be
interpreted as an application in terms of section 30(b) of the Act. In the same way as the provisions of section
33(5)(b) were held in National Association of Broadcasters to apply mutatis mutandis to a referral in terms of
section 9A, so should the provisions of section 30, with the same objective, namely to prevent the provisions
of section 9A being rendered nugatory.
[18] If a referral to the tribunal by a user in terms of section 9A, is an application to the tribunal in terms of section
30(b) of the Act, this would also constitute an application "by any person who claims that he requires a
licence" in terms of section 33(3). The claim advanced in terms of section 33(3)(b) would be that the "charges,
terms or conditions subject to which a licensing body proposes that the licence should be granted are
unreasonable". Because the provisions of section 33(5) are expressly made applicable in terms of the Act to
an application under section 33(3), this reasoning also accords with the decision in National Association of
Broadcasters. Consequently, the tribunal dealing with a referral in terms of section 9A, has to be satisfied that
the claim of the applicant (being the user or person requiring a licence) is "wellfounded" and if satisfied may
determine what "charges, terms or conditions" subject to which a licence should be granted, are reasonable.
Accordingly, I do not agree with the submission of the retailers, that they do not make any "claim" falling
strictly within section 33(3), which would render the provisions of section 33(5) applicable.
Page 48 of [2016] 2 All SA 40 (SCA)
[19] It is against this analysis of the relevant sections of the Act that the submissions of the retailers and SAMPRA
as to the jurisdiction of the tribunal must be considered. As noted, the retailers submit that the jurisdiction of
the tribunal is located in section 9A, whereas SAMPRA submits it is located in section 33(5) of the Act. The
retailers submit that once they, as "the user" and SAMPRA, as "the owner", were unable to reach agreement
on the tariff payable, the retailers were entitled to refer the dispute to the tribunal for determination. In other
words, all that is necessary for the jurisdiction of the tribunal to be established is a failure to reach agreement
on the amount of the tariff.
[20] As noted, SAMPRA submits, however, that the tribunal's jurisdiction to determine a reasonable tariff is only
activated in terms of section 33(5) once the retailers satisfy the tribunal that their claim is well founded, that
the charges subject to which a licence will be granted are unreasonable and thereafter present evidence of
"circumstances" applicable to them which will enable the tribunal to determine a tariff that is "reasonable in
the circumstances".
[21] For reasons which will become apparent later in this judgment, when the issue of the onus is addressed, it is
clear that the submission by SAMPRA conflates the discrete issues of the tribunal's jurisdiction and the issue of
whether there is an onus resting upon a party to the dispute. It is clear that in terms of section 9A all that
was required before "the matter" could be referred to the tribunal was the absence of an agreement
between "the user" being the retailers and SAMPRA, as "the owner", as to "the amount of any royalty"
payable "to the owner of the relevant copyright". Once the absence of an agreement was established the
jurisdiction of the tribunal to determine the dispute in terms of section 30, read with section 33(3) and 33(5),
of the Act was established.
The issue of the onus
[22] Section 33(5) provides that the tribunal shall make an order declaring that 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
determine to be reasonable in the circumstances, "if the tribunal is satisfied that the claim of the applicant is
wellfounded".
[23] As we have seen the "claim of the applicant" to a licence is advanced by way of an application in terms of
section 30(b), read with sections 33(3) and 33(5), as a result of the referral in terms of section 9A. This
referral has as its foundation an allegation that the charges, terms or conditions, subject to which the
licensing body will grant the licence, are unreasonable. It is clear that before the tribunal will direct the
licensing body to issue a licence to the applicant, on terms and conditions and subject to charges which it
determines "to be reasonable in the circumstances", it must be "satisfied that the claim of the applicant is
wellfounded".