- Court finds publisher breached contract
- The applicant says the Publisher and Distributor failed to pay royalties
- Ministry caught in between
- Ministry suffers consequences of Publisher’s breach
FRANCISTOWN: The High Court has interdicted the Ministry of Education, Skills and Development from purchasing a Setswana novel titled “Le Phirimela go Tlhaba” from Pentagon Publishers or any of the agents.
The interdict was issued after the author Kedikilwe Oageng, represented by Uyapo Ndadi made an application to court alleging that Pentagon Publishers breached the terms of their publication contract. The contracted, dated May 27th, 2009 between Oageng and Pentagon Publishers, who were also the distributor of the book, provided that the company would pay royalties to Oageng for each book sold. Court documents reveal that Oageng claimed that Pentagon Publishers had previously failed to pay the agreed royalties at the rate of 15 percent per sold copy resulting in an initial law suit to recover money due to him in 2014. In spite of the successful litigation to recover the royalties, Oageng initiated fresh proceedings alleging that the publisher fell into arrears once again in March of the same year.
The Attorney General, representing the Ministry of Education, Skills and Development argued that Oageng could not initiate fresh proceedings arising from the same facts as those upon which he based his earlier litigation. Despite the provisions of State Proceedings Act, which prohibits the Court from issuing an Order interdicting government, Oageng wanted the High Court to interdict and restrain the Ministry of Education Skills and Development from procuring as well as purchasing the novel from Pentagon Publishers or any of its agents. The Court found that the author had sought an Order cancelling the contract between Pentagon Publishers and himself, arising from a breach of contract that arose after the initial judgement for royalties and dismissed the Attorney General’s argument on the legal point. The Court, without making reference to the State Proceedings Act, in addition granted the interdict against the Ministry.
According to Oageng’s Affidavit “on the 27th May 2009, I entered into a written agreement for the publishing and distributing of the Setswana novel with Pentagon Publishers, the terms of agreement was that the Publisher would pay royalty in 15 percent of every single copy sold. The Amounts are payable annually by the 15th March. Further the agreement stated that the Author is entitled to terminate the agreement in the event that the publisher fails to comply with any of the terms of the agreement giving the publisher three months’ notice.” By agreement between the legal representatives for Oageng and the Attorney General the facts were not disputed.
In the court papers the Author of the Setswana Novel submitted that the Ministry and Pentagon Publishers have a long-standing agreement from 2009, in terms of which the Publishers sells the novel to the Ministry at an agreed price and that the author would recover the royalties of all copies sold from it. “The Pentagon Publisher then breached the agreement we entered into and failed to pay the royalties as agreed. The Publisher fell into arrears and failed to pay the royalty for the accounting year of the 1st of March 2013 to the 28th of February 2014 and from March 2015 to date despite having sold copies of the novel to the Ministry and other customers. Consequently, I successfully sued Pentagon Publishers to recover the amount of in royalties. Unfortunately, I have not been able to successfully execute and recover the debt owed to me and the Publisher continues to be arrears of payment of royalties that are due post the judgement being issued by the court,” the author claimed in his court papers.
As a result of the continuing breach of the contract Oageng issued a letter of demand to the Publisher on 12th December 2015 for breach of contract, demanding outstanding royalties and further cancelling the agreement. “The Publisher and the Ministry were informed of this cancellation of the agreement on the 28th January 2016 and as such asked to cease and desist from purchasing the book. Despite the cancellation of the agreement between Pentagon Publisher and myself, the latter continues to sell the novel to the Ministry and I do not get paid the royalties that is due to me,” the author explained.
Delivering Judgment High Court Judge Tshepo Motswagole restrained and interdicted the Ministry from procuring and purchasing the novel from Pentagon Publishers or any of the agents. “I am satisfied that the Respondent’s defences are untenable and lack merit, especially in the face of a formidable case put up by the Applicant. To permit such defenses to stand in the circumstances of this case will be tantamount to the legitimating of wrongful conduct, resulting in unjustly enriching the guilty party at the expense of the innocent. No evidence has been put before court to show that the Applicant renounced the right to benefit from the sweat of his labour as an Author, and that he has by conduct permitted the Respondent to take full benefit of the sale of the book. Therefore, the Applicant must accordingly succeed. It is hereby declared that the contract between the Applicant and Pentagon Publishers is cancelled. An order is hereby made interdicting and restraining the Ministry from purchasing and procuring a book titled “Le Phirimela go Tlhaba” from Pentagon Publishers or any of the agents,” Motswagole ordered when delivering judgement.
At the time of press the Attorney General was not in a position to advise as to whether it would appeal the judgement and the interdict.