A copyright infringement dispute has emerged in South Africa over the use of the amapiano song Ngixolele by Boohle and Busta 929, which featured in 275 episodes of the popular telenovela The Black Door.
Mokima Music and Publishing Ltd filed proceedings in the Gauteng High Court, Johannesburg, against production company Black Brain Pictures, alleging unauthorized use of the song as the show’s theme music. The track was created by Hlengiwe Manyathi, known professionally as Boohle, and Tapelo Ndou, known as Busta 929.
Mokima claims ownership of the copyright through administration agreements with the song’s authors. The company alleges that Black Brain used the song across 275 episodes without its consent and is seeking R11 million in damages.
Black Brain admitted using the song but argued that it had obtained a licence from Thupa Industry (Pty) Ltd, which it believed granted the necessary copyright permissions. The company also relied on a warranty from Thupa and argued that Mokima delayed asserting its rights for 16 months.
However, Mokima challenged this defence, arguing that Section 24(2) of the Copyright Act requires a defendant to lack knowledge that copyright exists in a work, not merely lack knowledge about who owns the copyright.
Judge Brad Wanless agreed with Mokima, ruling that Section 24(2) provides only a narrow exception to strict liability for copyright infringement. He stated that the provision applies only where a defendant is unaware that copyright subsists in a work, not where the defendant mistakenly believes someone else owns the copyright.
The judge noted that Black Brain’s reliance on warranties, invoicing, and public promotion of the song demonstrated awareness that copyright existed. He stated that a belief that permission was granted or that another party owned the copyright necessarily acknowledges the existence of copyright.
“The plain wording of the section is clear. It creates a narrow exception to the general rule of strict liability and it does so only in respect of a defendant’s awareness of the subsistence of copyright. It says nothing about knowledge of the owner’s identity,” Judge Wanless said.
The court upheld Mokima’s exception, finding Black Brain’s defence legally insufficient. The judge granted Black Brain 15 days to amend its plea. If the company fails to do so, that portion of its defence will be struck out.
The underlying copyright infringement dispute will proceed at a later stage.
