Gallo Africa Limited and Others v Sting Music (Pty) Limited and Others

The five plaintiffs (appellants) were owners or assignees of copyright works consisting of musical and literary works that comprised a musical production known as 'Umoja'. They issued summons in the South Gauteng High Court against six defendants (respondents), alleging copyright infringement in South Africa since 2001 under the Copyright Act 98 of 1978. Additionally, the plaintiffs alleged that the defendants had committed acts of infringement in 19 other countries (from Japan to the USA), relying on the copyright laws of each of those countries rather than South African law. The plaintiffs claimed interdicts, damages and/or royalties in respect of both the South African and foreign infringements. The defendants filed an exception, arguing that the South African court lacked jurisdiction to hear claims based on infringement of foreign copyright. The court below (Makhanya J) upheld the exception, setting aside the particulars of claim insofar as they were based on foreign copyright legislation.

• Whether a South African high court has jurisdiction to adjudicate claims for infringement of foreign copyright
• Whether the fact that the defendants are incolae (residents) of South Africa confers jurisdiction on South African courts to determine foreign copyright infringement claims
• What is the appropriate ratio jurisdictionis (ground of jurisdiction) for copyright infringement claims
• Whether intellectual property rights, particularly copyright, are territorial in nature and constitute immovable incorporeals

The appeal was dismissed with costs, including the costs of two counsel. The high court's decision upholding the exception and setting aside the particulars of claim insofar as they were based on foreign copyright legislation was confirmed.

South African courts do not have jurisdiction to adjudicate claims for infringement of foreign copyright. Copyright is territorial in nature and constitutes an immovable incorporeal under South African law. The forum rei sitae (the court of the place where the property is situated) has exclusive jurisdiction over immovable property, including immovable incorporeals such as copyright. Therefore, only the courts of the country whose copyright law is alleged to have been infringed have jurisdiction to adjudicate such claims. The fact that a defendant resides within South Africa (is an incola) does not confer jurisdiction on South African courts to determine foreign copyright infringement claims, as effectiveness of jurisdiction alone is insufficient - there must also be an appropriate ratio jurisdictionis (ground of jurisdiction), which is absent in respect of foreign copyright.

The court made several non-binding observations: (1) The Berne Convention does not form part of South African law but merely places international obligations on signatory governments, and is therefore not directly justiciable in South African courts. (2) There is no difference in substance between registered intellectual property rights (like patents and trademarks) and unregistered rights (like copyright) insofar as territoriality is concerned - both are creatures of domestic legislation limited to the territory of the granting state. (3) The characterization of copyright as 'immovable' is justified not only on principle but also on practical grounds including: avoiding clashes of IP policies between countries, preventing interference with foreign jurisdictions, discouraging forum-shopping, and respecting the absence of any international regime for mutual recognition of copyright jurisdiction and judgments. (4) The court noted that the international community has deliberately refrained from creating a system for international litigation of copyright by courts of a single state, which could have involved mutual recognition of copyright jurisdiction and judgments. (5) The court observed that while the term 'sovereignty' is sometimes used in relation to intellectual property rights, this is not accurate in a realistic sense - the grant of a patent or trademark is simply a bureaucratic act like granting a trading licence, while copyright exists naturally by virtue of local legislation without administrative intervention.

This is a landmark case in South African private international law and intellectual property law. It establishes definitively that South African courts lack jurisdiction to adjudicate claims for infringement of foreign copyright, regardless of whether the defendant resides in South Africa. The case clarifies that: (1) Intellectual property rights are territorial in nature and each country's copyright law creates separate, independent rights limited to that territory. (2) Copyright constitutes an immovable incorporeal under South African law. (3) The forum rei sitae has exclusive jurisdiction over such rights, meaning only the courts of the country whose copyright is alleged to have been infringed can adjudicate such claims. (4) The mere presence or residence of a defendant within the jurisdiction does not confer subject-matter jurisdiction over foreign copyright claims. The decision aligns South African law with Commonwealth jurisdictions (particularly England, Australia and New Zealand) on this issue and has significant implications for international copyright litigation, requiring plaintiffs to pursue infringement claims in each country where infringement occurred under that country's laws. It prevents forum-shopping and respects the territorial nature of intellectual property rights in the global legal order.