[24] For the tribunal to be satisfied that the claim of the applicant is "wellfounded" it must have a foundation in
fact or reason, based on good grounds or evidence.8 There are, however, two possible interpretations of
Page 49 of [2016] 2 All SA 40 (SCA)
the statutory requirement that the tribunal must be "satisfied". Either the onus is on the claimant to satisfy
the tribunal, or there is simply a requirement that the tribunal be satisfied on this issue on all of the evidence.
In the latter instance, there can be no suggestion that the claimant must satisfy the tribunal by the discharge
of a legal onus of proof. In the former instance, however, the claim must be proved by the claimant by the
discharge of the requisite onus of proof, to the satisfaction of the tribunal.
[25] The retailers submit that the strict application of an onus is "simply inapposite" to a referral in terms of section
9A of the Act where the proceedings come before the tribunal by virtue of an "absence of an agreement", and
not by virtue of any "claim" made by the retailers in terms of section 33(3). However, in the light of the
construction placed upon the relationship of sections 9A, 30, 33(3) and 33(5) in the Act, as set out above,
there can be no valid distinction drawn, for purposes of the presence or absence of an onus.
[26] The retailers also submit that the imposition of such an onus upon referrers such as the retailers, would
confer undue protection in respect of the monopolistic price demanded by SAMPRA and would unduly limit the
role and function of the tribunal. SAMPRA, in turn, submits that the imposition of an onus is supported by the
purpose of the legislation, as well as the nature of the rights possessed by the copyright owners. It argues
that the Act creates exclusive rights in sound recordings for specific usage categories and thereby establishes
a monopoly in respect of each sound recording, in the hands of the copyright owner. This was aimed at the
promotion, proliferation and just remuneration of the creative endeavours of the copyright owners, as well as
the stimulation of the local music industry. It submits that this has been done against a backdrop of
deprivation and injustice and in order to transform the economic conditions of South African musicians.
[27] As regards the nature of the rights, SAMPRA submits that the copyright granted to owners in respect of sound
recordings is property that enjoys protection under the Constitution. The power accorded to the tribunal to
compel a copyright owner to grant a licence to a user, it is submitted, is akin to a deprivation of property and
comparable to expropriation. The retailers contend, however, that the Act as amended conferred protection
upon copyright owners which they did not possess before, to prevent the playing of their sound recordings in
public without their consent. Consequently, the compulsion to grant a licence subject to the payment of a
tariff does not constitute a deprivation of property. In the light of the conclusion reached below on the
interpretation of the Act, it is not necessary to decide the validity of these submissions.
[28] It is clear that the primary purpose in the Act, as provided for in section 9A, is for the parties to reach
agreement on the amount of the tariff payable. As an alternative to a referral to the tribunal when agreement
cannot be reached, the parties may refer the matter to arbitration in terms of the Arbitration Act 42 of 1965.
The object is to facilitate the resolution of disputes without resort to formal legal procedures. However, if the
user of copyright protected music bears a formal onus of proving that the claim is well founded, that the tariff
demanded by the owner of the copyright is unreasonable, there would be little or no incentive for the owner
to reach
Page 50 of [2016] 2 All SA 40 (SCA)
agreement with the user, or agree to a referral of the dispute to arbitration. This is because a referral of the
dispute to the tribunal would hold the considerable advantage to the owner of requiring the user to discharge
this onus. Such an interpretation would undermine the apparent purpose of section 9A, which is for the
amount of the tariff to be resolved by agreement.9 That this is not a hypothetical danger is illustrated by the
facts of this case. Mr Lister, on behalf of SAMPRA, stated that:
". . . the phrase 'take it or leave it', is one that does not embarrass me in the least, having been the primary
negotiator. We have said take it or leave it many many times, in exactly the same way as yesterday Mr Rechardt said
the Australian court I think said tough, because it is take it or leave it, meaning if you do not want it, then do not play
it. If you are objecting to the tariff, let us get to the copyright tribunal."
On the take it or leave it approach he stated:
". . . if any retailer felt that they did not want to pay it, there is no way that we would reduce it or discount it.
Obviously if we had found a wide scale rejection, we might have changed that stance. But we did not. We did not find
that wide scale rejection."
Mr Du Plessis also said "there is the very clear provisions of the Copyright Act which says that once we have
proposed a tariff that can be referred to the copyright tribunal". This was said in the context of his view that
SAMPRA could speak to the retailers for 20 years "only to reach the conclusion then after 20 years that we still
cannot see eye to eye". He said it would be silly to gauge market response to the proposed tariff before
setting it. Mr Lister also added that their case had always been that the onus was on the retailers to show
what they do with the music, and why they do it, and to prove the value to them of doing so. His attitude to
the dispute is encapsulated in the following statement: "Let us not waste time, money and energy, emotion
and relationships on trying to resolve a dispute that we are not going to resolve. Let us get it to the copyright
tribunal."
[29] In addition, there are a number of provisions in the Act, as well as the regulations promulgated in terms of
section 29(3)(a) of the Act, regulating proceedings before the tribunal, in which an informal procedure is
envisaged. For example, section 33(5) provides that "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", which
suggests a more informal procedure aimed at gathering evidence, rather than the strict imposition of an onus