The plaintiff, Dillian Prinsloo, a professional cinematographer, claimed damages against the defendant, Zimbabwe Broadcasting Corporation (ZBC), for alleged unlawful airing on national television (ZTV) of certain original audio visual works belonging to the plaintiff. The plaintiff claimed damages for copyright infringement in the sums of USD$363,400 and USD$8,909.00 or the equivalent in Zimbabwe dollars at the official exchange rate. The defendant denied liability and the matter proceeded to trial. At trial on 14 June 2021, the parties disagreed on the assessment of damages and agreed that a neutral technical evaluation was required. The court, with the parties' consent, referred the matter to a referee (Nancy Samuriwo) under section 19A of the High Court Act. The parties presented their cases to the referee on 8 July 2021, but no decision had been rendered for four years, leading to the current procedural order.
1. The Registrar shall bring this judgment to the attention of the referee Ms Nancy Samuriwo who must through the Registrar provide a status report on this matter within fourteen (14) days of the date of this order. 2. Upon receipt of the status report aforesaid, the Registrar shall set down the matter for case management for determination on the course to take bearing in mind the content of the referee's status report.
The binding legal principles established are: (1) Questions of assessment of damages in copyright infringement cases that require technical or specialized knowledge constitute matters that "cannot conveniently be conducted" by the court within the meaning of section 19A(1)(a) of the High Court Act and may properly be referred to a referee; (2) The court retains supervisory jurisdiction over referees appointed under section 19A and may intervene when a referee fails to deliver a report within a reasonable timeframe; (3) Before appointing a new referee to replace one who has not delivered a report, procedural fairness requires that the court first seek a status report from the original referee to understand the reasons for delay; (4) The court's power under section 19A(2) to adopt, modify, or remit a referee's report carries with it the inherent power to manage the referral process and ensure it does not result in indefinite delay of justice.
The court observed that the matter had remained unconcluded for four years, which is an excessive delay. The court noted that the parties had suggested appointing another referee, indicating their frustration with the delay. While the court acknowledged this suggestion had merit, Chitapi J observed that fairness required first ascertaining the referee's position before taking such action. The court's reference to this being "appropriate" suggests a judicial view that referees owe a duty of timely performance to both the court and the parties. The judgment implicitly suggests that prolonged delays by referees may justify their replacement, though this was not formally decided as the court opted first to seek the status report. The court's detailed recitation of section 19A(1)-(3) also serves as obiter guidance on the proper scope and application of the referral mechanism, emphasizing that the court retains ultimate control over the proceedings and is not bound by a referee's report.
This case is significant for its application of section 19A of the High Court Act in the context of copyright infringement claims. It demonstrates the court's recognition that assessment of damages in intellectual property matters often requires specialized technical expertise beyond the court's own capacity. The case also highlights important case management principles regarding procedural delays and the court's supervisory role over referees appointed under section 19A. The judgment clarifies that when a referee fails to deliver a report within a reasonable time (here, four years), the court retains control over the proceedings and can intervene to ensure timely resolution. The case contributes to Zimbabwean jurisprudence on the interface between copyright law and civil procedure, particularly regarding the appropriate mechanisms for determining damages in technical intellectual property disputes.