Maedza v Mogotsi, Case No. Civ Case No 1178 of 2000, reported as 2007 (1) BLR 182 (HC)

Facts

Maedza (Plaintiff) was a student at Orapa Community Junior Secondary School in 1988 and 1989, where Mogotsi(Defendant) taught her agriculture and served as her class teacher. From a young age, the Plaintiff loved Setswana poetry. She started by reciting poems at public gatherings, and later began writing her own.

While the Plaintiff was studying at Letlhakane Senior Secondary School in 1990, her former teacher the Defendant approached her with a request. He asked her to hand over her poems so he could edit them and advise her whether they were good enough to publish. The Plaintiff agreed and gave him her original handwritten poems. The understanding between them was that if the poems were publishable, they would co-author a book together and share the proceeds.

But the Defendant never got back to the Plaintiff. She tried writing to him and even made a special trip to Orapa in 1994 to find out what happened to her poems. The Defendant had promised to meet her later but never showed up. The Plaintiff’s phone calls went unanswered, and eventually she gave up. Then one day while visiting her home village of Bobonong, the Plaintiff’s sister recited a poem she had studied at school. The Plaintiff immediately recognized the words as her own. 

After investigating, the Plaintiff discovered a Setswana poetry book called Mmopa Khukhu that listed the Defendant as the author. The book contained 61 poems, and 30 of them were hers, the very ones she had given him in 1990. The book had become a prescribed textbook for Form 1 students across Botswana, meaning it was being sold to schools nationwide.

The Plaintiff took legal action in May 2000, demanding that the court declare that the Defendant had used her work without authorization.

Issues

The court had to answer several important questions:

• Whether the Plaintiff actually wrote the 30 poems she claimed were hers?
• Whether the Defendant had infringed (violated) the Plaintiff’s copyright by publishing her poems without permission?
• Was the Plaintiff’s case filed too late? (The Defendant had argued that because the book was published in the early 1990s, she had missed the legal deadline to sue him)
• What are the remedies for Copyright infringement in this case?

Court Ruling

Justice Marumo carefully examined the evidence and ruled in favour of the Plaintiff. Here’s how the court reached its decision:

• Whether the Plaintiff actually wrote the 30 poems she claimed were hers?

The court found convincing evidence that the Plaintiff wrote the 30 poems. She could explain the meaning and inspirations behind each poem in detail. For example, many poems referenced places in the Bobirwa District where the Plaintiff was born and raised; places like Bobonong and Mabolwe. One poem called “Bothakga” even contained the line “far away in the Bobirwa District, where I was born” and discussed traditional dancing, something the Plaintiff was passionate about.

The Plaintiff also called four witnesses: her secondary school friend Witness 1 (who accompanied her when she handed the poems to the Defendant in 1990), her classmate Witness 2 (who had read her poems during their school days), her teacher Witness 3 (who testified that the Defendant had also taken her poems under similar circumstances), and Witness 4 being a government officer from the Department of Secondary Education (who confirmed the book was a prescribed textbook).

The Defendant, on the other hand, in comparison could not explain the poems even though he alleged he wrote them. He also could not explain the inspiration behind each poem. The court noted that he came across as dishonest and gave confusing answers. The court found him “not worthy of belief.”

• Was the Plaintiff’s case filed too late?

The Defendant argued that the Plaintiff waited too long to sue citing Section 18(5) of the Copyright Act (Cap 68:01), which states: “No action in respect of an infringement of copyright shall be commenced after the expiration of a period of six years from the date at which the right of action accrued.” The Defendant claimed this meant six years from when the book was published (around 1990).

However, the court disagreed. The Judge ruled that the six year countdown should start from when the Plaintiff first discovered the unauthorized use which was around September or October 1994 when her sister mentioned the poem. The Court stated that since the Plaintiff filed her case in May 2000, she was well within the six year window. The Judge explained it wouldn’t be fair to penalize someone who had no idea their work was stolen.

Whether the Defendant had infringed (violated) the Plaintiff’s copyright by publishing her poems without permission?The Copyright Violation (Section 3(5) of the Copyright Act (Cap 68:01):

The court confirmed that the Plaintiff’s poems were protected by copyright law as “literary work” as per section 3(5) of the Copyright and Neighbouring Rights Act. Therefore, by reproducing the Plaintiff’s poems in Mmopa Khukhu and selling the book to the public without her permission, the Defendant had clearly infringed her copyright.

What are the remedies for Copyright infringement in this case?

The court declared that Plaintiff owned the copyright upto 50% of the material in Mmopa Khukhu (since 30 out of 61 poems were hers). The court ordered the Defendant to:

• Provide a full account of all money he made from selling the book.
• Pay the Plaintiff 50% of all past profits.
• Pay the Plaintiff 50% of any future earnings and royalties from the book.
• Pay interest on the money owed.
• Pay the costs of the legal case.

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