Feldman N.O. v EMI Music SA (Pty) Ltd / EMI Music Publishing SA (Pty) Ltd

The appellant, acting as executor in the estate of the late singer Brenda Fassie, instituted two actions in the Witwatersrand Local Division against EMI Music (Pty) Ltd and EMI Music Publishing (Pty) Ltd. He alleged copyright infringement in respect of 157 musical works, most of which were works of joint authorship between Fassie and other composers. The appellant claimed damages equivalent to reasonable royalties under s 24 of the Copyright Act 98 of 1978, as well as additional (punitive) damages. The respondents raised exceptions to the particulars of claim, contending inter alia that the appellant lacked locus standi to sue alone without joining co-authors or alleging cession of their rights, that the claims were vague and embarrassing for lack of detail regarding royalties, and that the particulars contained mutually contradictory averments. The High Court upheld the exceptions. The appellant appealed to the Supreme Court of Appeal.

The appeal against the upholding of the first exception was dismissed. The appeal succeeded in respect of the second and third exceptions. The order of the High Court was amended: the first exception was upheld; paragraphs 3–12 of the particulars of claim were struck out; the appellant was granted leave to amend the particulars within 21 days; all other exceptions were dismissed. The respondent was ordered to pay the appellant’s costs of appeal, including the costs of two counsel.

The case clarifies South African copyright law relating to works of joint authorship, confirming that a co-author cannot sue alone for the full measure of damages for infringement without joining other co-authors or alleging a legal basis for sole entitlement. It also affirms procedural principles regarding exceptions, particularly the permissible use of s 24(1B) enquiries to determine damages and the acceptability of pleading alternative claims.