Sunday, May 9, 2021

Ruling in Joe Thomas case postponed for second time

For the second time, Justice Nthomiwa of the Lobatse High Court has postponed a ruling on absolution in an intellectual property case in which a local music promoter is wrangling with Kgalagadi Breweries Limited.
Midway through the first round of evidence in March, KBL lawyer, John Carr-hartley, made an application for absolution (to have the case thrown out), ruling on which was to be made on April 24. The date was then moved to May 29 (this past Friday) and has been postponed for the second time to August 14. BP Implements is suing KBL for the sum of P800 000 for what it alleges to be unauthorised use of its business idea. The idea was of a music concert headlined by an American R&B star, Joe Thomas, who is better known as Joe. When the matter first came before the High Court in 2013 as an urgent application, Justice David Newman, who has just been appointed Botswana’s Ambassador to the United States, ruled against the urgency, noting in his order that the aggrieved party could seek damages after the show. This is the course of action that BP Implements, through its managing director, Kgosietsile Buti Mariri, is now pursuing. Carr-hartley made the application for absolution after Mariri took the stand. He submitted that the claim for damages for loss of profit was misguided as it had to be claimed through a court of equity which the High Court is not. He also argued that against a standard that says that confidential information should be novel, original and deserving of protection, BP Implements’ claim for breach of confidentiality was baseless. The test for absolution that he quoted from some legal authority is that that circumstances under which information is shared must impose a duty of confidentiality on the recipient and that the latter subsequently used it. During cross-examination, Mariri had conceded that he gave KBL the idea for a Joe show without conditions, that the proposal was unsolicited and that no contract was signed. Carr-hartley argued that on such basis, the duty of confidentiality didn’t arise. On score of the fact some other international artists have played in Botswana (Eric Clapton, UB 40, Paul Simon and Kenny Lattimore were cited as examples), he further argued that Mariri’s idea to host Joe was not novel. Rising to her client’s defence, Merapelo Mariri, quoted an authority who stated that those who obtain classified information are enjoined from using it as a “springboard” to the detriment of the source. (Lawyer and client are related) The larger point was that KBL had obtained classified information from BP Implements and used it to stage the Joe show. In countering KBL’s defence that it didn’t appropriate her client’s idea, she asserted that internationally, intellectual property cases typically take the form of the alleged offender saying that an idea they appropriated was, after all, in the public domain. In his evidence in chief, Mariri stated that unless one has contact details, it is “very, very difficult to get in touch with the artist.” In her submission, attorney Mariri stressed the point that KBL was able to establish contact with Joe because her client gave one of its employees, Kopano Pontsho, a commodity with economic value ÔÇô the email of Joe’s manager, Kedar Massenburg. It was through this email that KBL was able to establish contact with Joe and secure his services, the lawyer argued.

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