Kodisang and Others v THK Gallery and Others (2025/066625) [2025] ZAWCHC 214 (21 May 2025)

Kodisang and Others v THK Gallery and Others (2025/066625) [2025] ZAWCHC 214 (21 May 2025)

The applicants established a clear right to the intellectual property embodied in the exhibition 'YOUR BEAUTY IS MY CONCERN' through prior public acclaim, commercial success, and association with the concept. The respondents' exhibition, 'YOUR BEAUTY IS OUR CONCERN', is substantially similar in title and theme, creating a likelihood of confusion and amounting to misappropriation and passing off. The applicants demonstrated ongoing harm to their goodwill and creative legacy, which cannot be remedied by damages. The urgency was justified by the ongoing nature of the exhibition and attempts to resolve the dispute. The joinder of THK Gallery was proper as the cause of action arose at its...

Citation
[2025] ZAWCHC 214
Parties
Applicant: Kelebogile Tsholofolo Sylia Kodisang; Applicant: Dahlia Maubane; Applicant: Fhulufelo Mobadi; Applicant: Bongiwe Phakhati; Applicant: Fiona Davhana; Applicant: Simphiwe Julia Thabede; Respondent: THK Gallery; Respondent: Trevor Stuurman; Respondent: Trevor Stuurman Foundation
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
21 May 2025
Case Number
2025/066625
Procedural Posture
Urgent Application / Part A: Application for Interim Interdict Pending Final Relief
Outcome
Interim interdict granted in favour of the applicants pending final determination of Part B.
Judges
Da Silva Salie
Legal Topics
Passing Off, Interim Interdict, Artistic Goodwill, Plagiarism, Misappropriation of Creative Work
Intellectual Property Civil Procedure Passing Off Interim Interdict Artistic Goodwill Plagiarism Misappropriation of Creative Work

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

Kelebogile Tsholofolo Sylia Kodisang

Applicant

Dahlia Maubane

Applicant

Fhulufelo Mobadi

Applicant

Bongiwe Phakhati

Applicant

Fiona Davhana

Applicant

Simphiwe Julia Thabede

Applicant

THK Gallery

Respondent

Trevor Stuurman

Respondent

Trevor Stuurman Foundation

Respondent

Procedural Posture

Urgent Application / Part A: Application for Interim Interdict Pending Final Relief

Legal Issues

  1. 1 Whether the applicants have established a clear right to the intellectual property in question.
  2. 2 Whether the respondents' exhibition constitutes passing off and misappropriation of the applicants' creative concept.
  3. 3 Whether the requirements for an interim interdict are satisfied, including urgency and absence of alternative remedy.

Ratio Decidendi

The applicants established a clear right to the intellectual property embodied in the exhibition 'YOUR BEAUTY IS MY CONCERN' through prior public acclaim, commercial success, and association with the concept. The respondents' exhibition, 'YOUR BEAUTY IS OUR CONCERN', is substantially similar in title and theme, creating a likelihood of confusion and amounting to misappropriation and passing off. The applicants demonstrated ongoing harm to their goodwill and creative legacy, which cannot be remedied by damages. The urgency was justified by the ongoing nature of the exhibition and attempts to resolve the dispute. The joinder of THK Gallery was proper as the cause of action arose at its...

Court Disposition

Interim interdict granted in favour of the applicants pending final determination of Part B.

Orders

  • The respondents are interdicted and restrained from disseminating, exhibiting and proceeding with the presentation of the exhibition titled 'Your Beauty is My Concern' including 'Your Beauty is Our Concern', pending the final determination of the relief sought in Part B of this application, including removal of any...
  • The respondents are interdicted and restrained from selling, transferring or otherwise disposing of any artworks associated with the exhibition under the theme 'Your Beauty is My Concern' including 'Your Beauty is Our Concern' pending the final determination of the relief sought in Part B of this application.