evidence of the existence of the licensing agreements on the ground that the relevant contract documents
were not put up with the founding papers. In those circumstances, it hardly lies in the Video Group's mouths
to object to the delivery of affidavits proving individual acts of infringement. The decision to allow Nu Metro
and the owners these costs was correct.
[12] The order for attorney and client costs was also fully justified. The deponent for the franchisor is a man with
considerable experience in the home entertainment market. There had been a debate (I put in no higher for
the purposes of this issue) amongst the Video Group as early as 2006, as to the legality of importing DVDs
from the USA for use in the Video Group's businesses. The conclusion then was that such conduct was
probably unlawful and the franchisor had circulated a warning to its franchisees that this was the case.
However, it seems that the Video Group decided to continue with their conduct and bide their time until faced
with an application for an interdict. The flagrant way in which the Video Group arranged to bypass the coding
restrictions used by the copyright owners for the obvious purpose of controlling the exploitation of their
rights, also has considerable significance in this context. After the application had been brought, and before
the answering affidavit was filed, the franchisor was advised by its attorney that the Video Group had no
defence to the application. Nevertheless, the Video Group delivered an answering affidavit opposing the relief
sought. It was only at the eleventh hour, when the heads of argument were being prepared, that the Video
Group capitulated in respect of the copyright owners. The decision by Fourie J to mark his disapproval of this
conduct by a special costs award was fully justified.
[13] The award of costs in favour of Nu Metro was warranted on the basis that the opposition to Nu Metro's
participation in the application was unsuccessful.
The appeal is dismissed with costs, such costs to include the costs of two counsel.
(Harms DP, Lewis, Snyders JJA and Tshiqi AJA concurred in the judgment of Hurt AJA.)
For the appellant:
AR SholtoDouglas and RDE Gordon instructed by De Klerk and Van Gend
For the respondent:
P Ginsburg SC and G Marriott instructed by Nortons Inc
Footnotes
1
"(1) Subject to the provisions of this Act, infringements of copyright shall be actionable at the suit of the owner of the
copyright, and in any action for such an infringement or such relief by way of damages, interdict, delivery of infringing
copies or plates used or intended to be used for infringing copies or otherwise shall be available to the plaintiff as is
available in any corresponding proceedings in respect of infringements of other proprietary rights."