|This case dealt with a final interdict whereby the Applicants sought the following relief:
1. that any agreement between the First Respondent and the Third, Fourth, Fifth and Sixth Respondents for the production of the late Brenda Fassie movie be declared null and void;
2. that the termination notice, dated 14 December 2017, which terminated the joint venture agreement between the Applicants and the First and Second Respondents, be set aside with no force and effect;
3. an order declaring the purported agreement between the First, Second and Third Respondents entered into with third parties, null and void;
4. that the respondents be interdicted and/or restrained from concluding any agreement, directly or indirectly through third parties with anyone for the production of the Brenda Fassie movie…
The Third Respondent is Bongani Fassie (the “Third Respondent”), the son and sole heir of the late Brenda Fassie (the “Deceased”) whose deceased estate is in question in the Application. On 06 October 2011, the Applicants and the First Respondent (represented by the Third Respondent) entered into a joint venture agreement (“the First Agreement”) for purposes of production of a movie on the life of the Deceased (“the Movie”). The terms of the First Agreement were, inter alia, that:
1. the Applicants would finance the production of the Movie;
2. the Third Respondent would furnish the Applicants with production material (including photographs and videos) of the Deceased;
3. the Applicants would collectively be entitled to 90% (ninety percent) and the Third Respondent would be entitled to the remaining 10% (ten percent) of the proceeds of profits derived from the Movie;
4. the First Respondent would grant the Applicants non-exclusive rights to use the Deceased’s trademark;
The Applicants conceded that the First Agreement was invalid in that at the time it was concluded, the deceased estate was still in the executor’s control and had not yet been wound up. Although the Third Respondent was the sole heir of the Deceased estate, rights to the Deceased estate had not vested on him yet. There was no link between the First Respondent and the Deceased estate. Accordingly, the First and Second Respondents could not claim to transfer any rights to the Applicants. As such, prayer 2 above in relation to the First Agreement was abandoned by the Applicants.
On or about 24 May 2012, following the conclusion of the First Agreement, the Applicants concluded another joint venture agreement (“the Second Agreement”) with Themba Mthembu (“the Executor”). The Applicants acknowledged, in this agreement, that the rights to the Deceased’s name were an asset of the deceased estate. Furthermore, the Second Agreement granted the Applicants non-exclusive rights to use the Deceased’s trademark and the right to produce, edit, market and distribute the Movie.
The Applicants allegedly started preparations for the production of the Movie, apparently with the full knowledge of the Third Respondent who was updated of all developments in relation to the production of the Movie. No proof to this effect was furnished. The Applicants further submitted that the Second Agreement was valid by the advices of the Executor that the Third Respondent had consented to the conclusion of the Second Agreement. The Third Respondent, however, contended that he was never aware of the Second Agreement until the Fifth Respondent (his manager) obtained a copy of same from one Mr. Twala following the finalisation of the Deceased estate during or about October 2017.
Section 47 of the Administration of Estate Act 66 of 1965 (the “Act”) states that:
“Unless it is contrary to the will of the deceased, an executor shall sell property (other than property of a class ordinarily sold through a stockbroker or a bill of exchange or property sold in the ordinary course of any business or undertaking carried on by the executor) in the manner and subject to the conditions which the heirs who have an interest therein approve in writing…”
The Respondents submitted that the Second Agreement was invalid given that the Executor concluded same with the Applicants without seeking the Third Respondent’s written consent which was in contravention with Section 47 of the Act. The Applicants, however, contended that Section 47 of the Act was not applicable as the Second Agreement did not constitute a “sale” and therefore, written consent was not required. Accordingly, the issue to be determined was whether the Second Agreement was validly entered into by the Executor.
|In conclusion, the Court held that the Executor by granting the Applicants the Deceased estate’s intellectual property in exchange for a share in profits made through the use of the Deceased’s name and other material, same constituted a sale of property. The Court further held that the Executor was required to obtain the Third Respondent’s written consent prior to concluding the Second Agreement with the Applicants. Although the Executor claimed to have obtained permission from the Third Respondent, the alleged permission was not in writing as contemplated by Section 47 of the Act. Therefore, such failure to obtain written consent of the Third Respondent rendered the Second Agreement invalid ab initio.|
Further, the Court held that the Applicants’ submissions that the Second Agreement remained valid and until it was set aside by the Court was incorrect in that the Second Agreement was invalid ab initio due to a contravention with a peremptory legislative provision. Due to the fact that both agreements were not validly concluded, the Court did not make any ruling in respect of the termination notice and accordingly, the application was dismissed.
When a person dies, his or her deceased estate resides with the Master of the High Court until such time an executor is appointed. As such, assets forming part of the deceased estate cannot be sold or transferred without the Master or Executor’s consent which is further subject to the heirs giving consent to the executor to act as such. A trademark of a person also constitutes an asset of that person’s deceased estate which can only be alienated with written consent of the heirs.
Written by Mohau Ledwaba and Musa Mathebula