Zimbabwe Music Rights Association V Simbisa Brands Zimbabwe [Private] Limited AND Zimbabwe Council OF Copyright Owners

### Preamble
HH 515-25
HCHC794-24
ZIMBABWE MUSIC RIGHTS ASSOCIATION
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ZIMBABWE MUSIC RIGHTS ASSOCIATION

versus

SIMBISA BRANDS ZIMBABWE [PRIVATE] LIMITED

and

ZIMBABWE COUNCIL OF COPYRIGHT OWNERS

HIGH COURT OF ZIMBABWE

MAFUSIRE J

HARARE, 05 March 2025

Date of judgment: 10 September 2025

Civil trial

Mr W.P. Zhangazha, and Ms E.T. Mandaza, for the plaintiff

Mr R.T. Mutero, for the first defendant

Mr V. Muza, for the second defendant

MAFUSIRE J

a	Introduction

[1]	The plaintiff’s claim is for the enforcement of copyrights in musical works in terms of the Copyright and Neighbouring Act [Chapter 26:05] [“the Act”].

[2]	In terms of the Act, both the plaintiff and the second defendant are what are called collecting societies. They are registered as such. Among other things, and in relation to musical works, they collect royalties from users of musical works and distribute them to the artistes, the original owners of such works, after deducting their administrative costs.

[3]	The plaintiff is also an agent for foreign collecting societies in terms of some international multilateral collecting societies agreement the acronym for which is CISAC [Confederation of Societies of Authors and Composers]. CISAC members pledge to work as agents for each other in their respective countries for reciprocal enforcement of copyrights in their respective jurisdictions.

[4]	The first defendant is a consumer or user of musical works. Among other things, it runs food outlets under several brand names like Chicken Inn, Pizza Inn, Creamy Inn, and so on.

[5]	Musical works originally belong to the artistes. They own the copyrights. But they can assign such copyrights to other people.

[6]	In a nutshell, the plaintiff’s claim against the first defendant is that between November 2023 and October 2024 the first defendant played at its various outlets musical works belonging to artistes who had assigned their copyrights in such works to the plaintiff, or were members covered under the CISAC agreement, but had neither paid any royalties for such music nor obtained a licence from the plaintiff for such use.

[7]	As against the second defendant, a competing collecting society, the plaintiff’s claim is for a declaratory order to the effect that it, the second defendant, has neither the right nor authority to license or authorise anyone to play music by artistes who have assigned their copyrights to the plaintiff.

[8]	Verbatim, the plaintiff’s prayer in the declaration reads:

“a)	It is hereby declared that 2nd Defendant has neither the right nor authority to license or authorise anyone to use musical works protected by copyright which belong to Plaintiff’s members as well as Plaintiff’s sister societies affiliated to the International Confederation of Societies of Authors and Composers [CISAC] and any license issued by 2nd Defendant only confers rights to use musical works of composers who are 2nd Defendant’s members. Such license by 2nd Defendant does not bar Plaintiff from collecting own royalty for own members from the same user licensed by 2nd Defendant.

b)	It is hereby order that 1st Defendant pays the sum of USD86 719.00 to Plaintiff, together with interest thereon from the date of demand, 9th April 2024 to the date of payment in full.

c)	Costs of suit on a legal practitioner-client scale.”

[9]	This is clumsy. Para a) is a draft judgment, not a draft order.

b	Background facts

[10]	By virtue of its registration in terms of the Act, the plaintiff could license users or consumers of musical works and obtain royalties on behalf of itself and those artistes from its stable whose music would have been played at such users’ outlets or premises. There is a prescribed tariff for such royalties depending on, among other things, the floor space, the seating capacity or the nature of the outlet.

[11]	The plaintiff’s licences are renewable annually. Prior to November 2023 the first defendant used to be licensed by the plaintiff. However, when the second defendant also got registered as a collecting society, the first defendant switched over to it because it considered the second defendant’s licence cheaper. Concomitantly, the first defendant stopped paying royalties to the plaintiff.

[12]	The plaintiff alleges that during the period in question, its inspectors visited the first defendant’s various outlets and found them playing a diverse range of musical works belonging to artistes from its stable or from CISA, yet the first defendant had no licence from the plaintiff that would permit it to play such music.

[13]	Considering the first defendant’s conduct as a breach of the Act warranting both criminal and civil sanctions, the plaintiff, after some demand, caused the arrest of some of the first defendant’s managers. It also instituted the present proceedings allegedly for the recovery of damages for breach of copyrights.

[14]	The amount claimed by the plaintiff in this suit is said to be the value of its licence for the period in question. According to it, payment of this amount would rectify the first defendant’s position of playing the plaintiff’s music without a licence from it.

[15]	The plaintiff justifies its claim for costs on the higher scale on the basis that its claim being grounded on the provisions of the Act, it is really unassailable yet the defendants have purported to defend it and have in the process unjustifiable caused it to incur considerable costs.

[16]	Both defendants have vigorously contested the claim. The first defendant’s defence is that having been licensed by the second defendant, an equally registered collecting society, and following advice from the office of the Chief Registrar of Deeds, Companies and Intellectual Property, which is the regulatory authority for copyrights issues under the Ministry of Justice, Legal and Parliamentary Affairs [“the Ministry”], it was not obliged to get another licence from the plaintiff or obtain its authority to play music from any stable.

[17]	The first defendant admits playing at its various outlets, music from various artists but claims that it had paid the necessary royalties to the second defendant. It disputes that the music played belonged to the plaintiff’s members.

[18]	The first defendant also challenges both the quantum of the plaintiff’s claim and the basis of the computation.

[19]	The second defendant’s defence is that the plaintiff’s claim for a declaratur is misconceived because having been equally registered as a collecting society in terms of the Act it was equally competent to issue licences to users of musical works who would require no further licensing from other competing societies like the plaintiff.

c	Issues for trial

[20]	The issues for determination at the trial were settled as follows:

whether or not the first defendant played music belonging to the plaintiff’s members in the period under claim;

whether or not the first defendant had any right to play the said music from [the] plaintiff’s members;

whether or not the first defendant is liable to pay the claimed amount or any amount to the plaintiff;

whether or not licences issued by collecting societies in terms of the Act are general licences or works-specific licences, and

which party is liable to pay costs and at what scale.

d	The plaintiff’s case

[21]	The plaintiff called two witnesses. The first, Polisile Ncube-Chimhini [“Polisile”], was at all relevant times its Executive Director. The second, Servious Matiza [“Servious”], was at all relevant times, the head of the plaintiff’s licensing department.

[22]	The gist of Polisile’s evidence was this. The plaintiff is a registered non-profit making organisation. In its stable, is a total of 4 520 members. Copies of various deeds of assignment by various artistes in terms of which they assigned all the copyrights in their works to the plaintiff were produced.

[23]	Polisile said the first defendant played music at its various locations in Zimbabwe by both local and international artists from its stable. The plaintiff is mandated to collect royalties for such music. Not having been licensed by the plaintiff, the first defendant is liable to the plaintiff for royalties in the sum of USD86 719 for the period in question

[24]	A schedule of various copyright infringements showing musical works that the first defendant was allegedly caught playing at each venue was submitted. The schedule reflects the date of the infringement, the venue where such music was played, the various invoices that the plaintiff’s inspectors issued and the amounts charged per each invoice.

[25]	Polisile stated that the second defendant had no right or mandate to collect royalties over musical works by artistes from the plaintiff’s stable. She further said the plaintiff’s members have incurred damages because of the defendants’ conduct and that they must be compensated.

[26]	Servious’ evidence largely corroborated Polisile’s. Play logs of the music allegedly played by the first defendant were produced. He alleged that they were compiled contemporaneously with the inspectors’ visits and shown to the first defendant’s managers at the offending outlets.

e	The first defendant’s case

[27]	The first defendant called one witness, Bonnet Mandla Moyo [“Bonnet”]. At all relevant times he was employed by the first defendant as an accountant.

[28]	The gist of Bonnet’s evidence was this. The reason why the first defendant switched organizations for licence renewals was because the second defendant offered more competitive rates than the plaintiff. Because of that, the first defendant naturally found the second defendant’s rates more attractive.

[29]	Bonnet further said that before switching over, the first defendant first checked with the Ministry the status of the second defendant’s registration. Having been satisfied, the first defendant was now free to choose which association or body to do business with.

[30]	Lastly, Bonnet testified that after the numerous visits to its various outlets and the issuing of renewal licences by the plaintiff’s inspectors, he wrote a letter of complaint to the Ministry. The letter was produced.

f	The second defendant’s case

[31]	The second defendant also called one witness, one Tafadzwa Masembura [“Tafadzwa”]. At all relevant times he was the Executive Director for the second defendant.

[32]	The gist of Tafadzwa’s testimony was that the second defendant, at the relevant time, by virtue of its registration as a collecting society, was mandated to license members of the public to play music from  various artists in public places.

[33]	Tafadzwa further testified that the first defendant was duly licensed by the second defendant for the period in question and that such licence enabled the first defendant to play works of music from various artists. The second defendant would receive royalties for such works and distribute them to the artists.

g	Legal analysis

[34]	In terms of s 9 of the Act as read with s 2, a copyright is a real right in a work. A work includes any musical work. A copyright entitles its owner exclusively to do, or authorise others to do, such things as the Act designates in relation to such work.

[35]	One of the things designated by the Act in relation to works is that the copyright in them can, in terms of s 45, be transmitted as incorporeal movable property by, among others, assignment. In terms of s 46 of the Act, the owner of a copyright in a work may assign his or her economic rights in the work to any other person. In this context, to assign is to transfer the owner’s copyright in a work to someone else.

[36]	In terms of s 51[1] of the Act, a copyright in a wok is infringed when a person who is not an owner of the copyright, without the owner’s authority, does, or causes another person to do, an act which the owner has the exclusive right to authorise.

[37]	In terms of s 51[4] of the Act, the copyright in a musical work is infringed where a person permits a place of public entertainment to be used for the performance of the work in public, unless that person was not aware that the performance would be an infringement of the copyright or had no reason to be believe so.

[38]	In terms of s 52 of the Act as read with s 56, the owner of a copyright which has been infringed is entitled to bring an action for damages. The computation of such damages takes account of, among other things, the amount of the reasonable royalty which would have been payable under the circumstances, the extent and nature of the infringement, the market value of the work concerned, the flagrancy of the infringement, the need to deter persons from committing further infringements, and so on.

[39]	The Act defines a collecting society in s 2 as a society or organization whose main objects include acting for a collection of owners of copyrights in the management of their rights, representing them in negotiating and the administration of licence schemes as defined, or negotiating or granting licences as owners or agent of the owner of the copyright. They cannot do so in respect of only one artist. They must have a collection of artists under them. In terms of s 91 of the Act, collecting societies have to be registered.

[40]	In terms of s 128 of the Act, a copyright subsists exclusively in terms of the Act or any other enactment. That means that a copyright is a statutory right. Among other things, the rights and obligations of persons in respect of copyrights start and end with the Act or any other enactment. There is no copyright under the common law.

h	Applying the law to the facts

i/	Whether or not the first defendant played music belonging to the plaintiff’s members in the period under claim

[41]	The first defendant blew hot and cold over this aspect. Clearly it did play music the copyright of which had been assigned to the plaintiff.

[42]	Firstly, in terms of the various deeds of assignment and the schedule of artists displayed in court, nearly all the famous singers and composers on the Zimbabwean discography, male or female, dead or alive, well-known or lesser-known and covering virtually every genre,  have assigned their copyrights to the plaintiff. The question is not who did, but rather, who has not. From Alick Macheso, to Jah Prayzah, Baba Harare, Nutty O, Killer T, Freemen, Holly Ten, Winky D, Oliver Mutukudzi, Paul Matavire, to mention but a few, all belong to the plaintiff’s stable. The plaintiff’s assertion that it has over 4500 artists in its books has not been contested at all.

[43]	Thus, given the plaintiff’s extensive coverage, it is difficult to see whose music the first defendant was playing at its outlets, also given the fact that the plaintiff’s stable includes international artists under CISAC. The first defendant did not say whose music it was playing.

[44]	Secondly, the first defendant’s plea, both in its original form, and as amended, is critically equivocal on the question whether it admits or denies playing the music from the plaintiff’s musicians. It admits playing music from various artists but does not say whose. On a balance of probabilities, the first defendant played music the copyrights in which had been assigned to the plaintiff.

[45]	Thirdly, the thrust of the defendants’ defence and cross-examination was their assertion that the second defendant, being an equally registered collecting society, and the first defendant having preferred to be licensed by the second defendant, the first defendant was free to play any music virtually under the sun. This aspect is dealt with more fully later. For now, it suffices to say this approach is contradictory. You cannot, in one breath say, “I did not play”, but in the next say, “look, I was entitled to play it”.

[46]	Fourthly, the plaintiff’s evidence that the list of copyright violations was compiled contemporaneously was not seriously contested. The court accepts that assertion as fact. Among other things, the first defendant wrote a letter of complaint to the Ministry about the plaintiff sending inspectors to its outlets to issue so-called tickets for the copyright infringements by the first defendant. On a balance of probabilities, the plaintiff’s inspectors would compile the list of artists whose music was being played at the first defendant’s outlets at the time of their visits.

ii/	Whether or not the first defendant had any right to play the music from the plaintiff’s members

[47]	In terms of the Act, the first defendant had no right to play any music from the plaintiff’s members unless authorised to do so. The copyright in music exclusively vests in the owner, the composer or the lyricist or the singer. He or she can assign the copyright to anyone else. The music that was played at the first defendant’s outlets belonged to artists who had assigned their copyrights to the plaintiff.

[48]	The defence by the defendants that the second defendant having been equally registered by the Ministry as a collecting society and could therefore issue out licences to members of the public as well, is ill-conceived. The issue is not about being registered as a collecting society. It is about who has the copyright in the music played for public consumption.

[49]	The first defendant violated the copyright in the musical works played at its outlets during the period in question. Such copyright had been assigned to the plaintiff. It was the plaintiff which had the exclusive right to do what the owner of a copyright is permitted to do in terms of the Act.

iii/	Whether or not the first defendant is liable to pay the claimed amount or any amount to the plaintiff

[50]	The plaintiff’s computation of the amount of its claim and the quantum thereto are ill-conceived.

[51]	The rights of a victim of a copyright infringement are located within the four corners of the Act. As analysed above, the Act directs how such damages are computed. They are compensation for the prejudice suffered by the victim of copyright infringement. For example, it must be shown what amount of royalties the victim would have been entitled to in the circumstances, taking into account the market value of the works, the extent of the copyright violation, and so on.

[52]	Works of music by different artists cannot possibly have the same value. The plaintiff has done nothing to assess the level of damages suffered by it on behalf of its musicians. All it has done in this suit is to purport to issue out the licence that it would have issued had the first defendant continued to do business with it. It then claims amounts on the basis of the rates of royalties that would have been payable for the defendant’s outlets, taking into account, among other things, the nature of the outlets and the seating capacities. But that is not how it is done under the Act.

[53]	It goes without saying that the plaintiff has failed to prove the amount of its claim. The quantum bears no relationship to the prejudice that it allegedly suffered as a result of the copyright infringement by the first defendant during the period in question.

[54]	The plaintiff’s situation is compounded by the fact it appears that some artists were registered with both the plaintiff and the second defendant. Although the number seems infinitesimal, the fact remains that on a proper assessment of the quantum of its claim, the plaintiff would have had to exclude the royalties due in respect of double registrations. It has not done that.

iv/	Whether or not licences issued by collecting societies in terms of the Act are general licences or works-specific licences

[55]	There was an argument about a generic licence and a work-specific licence, with the defendants alleging that the licence issued by the second defendant to the first defendant was a generic one which allowed the first defendant to play any type of music during the period covered by the licence, but with the plaintiff rejecting such a notion.

[56]	This aspect has already been dealt with above. The issue is not about types of licences. It is about copyright infringement. As the Act stipulates, anyone wanting to register as a collecting society has to produce a list of the artists registered with it. Evidently, a collecting society can only collect royalties in respect of the artists registered with it. The second defendant’s licence could not possibly permit the first defendant to play music from artists registered with the plaintiff.

v/	Which party is liable to pay costs and at what scale

[57]	The general rule about costs is that they follow the result and that they are entirely within the discretion of the court.

[58]	The plaintiff has insisted on costs on the higher scale on the basis that despite clear evidence that they infringed the plaintiff’s copyrights, the defendants have defended this suit to the hilt. It is alleged that the defendants hatched a dishonest plan to exploit works protected by copyrights.

[59]	However, even before this judgment announces the manner of the disposition of this matter, it is hardly a basis for claiming costs on the higher scale in any suit that a litigant has been forced to litigate.

[60]	Costs on the higher scale are generally reserved for serious misbehaviour by a litigant or its legal representative. In the present matter, it is difficult to understand any conduct by either of the defendants as would be characterized as culpable. It was quite legitimate for them to defend the suit.

[61]	At any rate, it should now be obvious that whilst a finding has been made that there was copyright infringement by the first defendant, the plaintiff has failed to prove the amount of damages as may be due it. Thus, each of the parties has won something and lost something. Therefore, on this basis again costs on the higher scale would not be warranted.

i	Disposition

[62]	The plaintiff’s prayer in the summons is inelegant, too widely cast and open ended. It is one that a court cannot possibly grant in its form.

[63]	The plaintiff must be content with the finding and pronouncement that the second defendant cannot possibly authorize any person to play music that is protected by copyright.

[64]	The plaintiff has failed to prove the damages that it might have been entitled to and the first defendants is entitled to be absolved from this aspect of the plaintiff’s claim.

[65]	The issue of damages constituted a significant aspect of the plaintiff’s claim. Having failed to establish such damages, it is only fair that only the second defendant be ordered to pay the plaintiff’s ordinary costs and that as between the plaintiff and the first defendant, each party bears their own costs.

[66]	In the premises, the following order is hereby made:

The second defendant shall not authorise any person to play music that is protected by copyright in terms of the Copyright and Neighbouring Rights Act [Chapter 26:05] or the International Confederation of Societies of Authors and Composers [CISAC].

The first defendant is hereby absolved from the plaintiff’s claim.

The second defendant shall bear the plaintiff’s costs.

As between the plaintiff and the first defendant, each party shall bear their own costs.

10 September 2025

Chinogwenya & Zhangazha, legal practitioners for the plaintiff

Lunga Mazikana Attorneys, legal practitioners for the defendant

Muza & Nyapadi, legal practitioners for the second defendant