"I have told you before that I think this is an important story and I will do my best to get it out there. My legal advice
is that the SABC cannot stop me from pursuing a current version of the story because the Corporation own only a
Documentary film made for them not the whole story and everything related to it, in perpetuity".
[39] The applicant concedes readily that the respondents have the right to tell the story in a different work and
have not attempted to stifle this form of expression. In truth the respondents' freedom of speech is not
impinged at all. What is impinged is the use of the work which the respondents sold to the applicant and were
substantially rewarded monetarily. The copyrights are vested by law in the applicants. This cannot be
conflated with an infringement of freedom of speech. Vollenhoven shows that she is alive to the distinction
between the work and the underlying story or idea and does not shirk from asserting her rights to exploit the
story as she is well entitled to do.
[40] The proposed wording of the respondents' reading is as follows: "No owner is entitled to enforce its copyright
if the owner has no intention to exploit that copyright, either commercially or otherwise, unless the owner is
the author". An alternative formulation is "No owner is entitled to enforce its copyright against the author if
the owner has no intention to exploit that copyright, either commercially or otherwise". Both these proposals
run foul of the statutory definition of authorship. VIA has no claim to be an author or coauthor.
[41] The respondents do not challenge the constitutionality with section 21 of the Act and acknowledge the choice
that VIA exercised in selling the rights of copyright ownership to the applicant. Their complaint is the limitation
of VIA's rights of freedom of expression under the Act, no
Page 639 of [2016] 4 All SA 623 (GJ)
matter how the applicant acquired those rights. This position ignores the very basic constitutional right which
underpins the Act which is the right of property in section 25 of the Constitution. Although intellectual property
rights are not recognised as a separate category in the Bill of Rights the courts have accepted that intellectual
property rights indeed are contemplated by section 25(4)(b) of the Constitution. Laugh It Off Promotions CC v
South African Breweries International (Finance) BV t/a Sabmark International and another 2006 (1) SA 144 (CC)
at paragraph 43 [also reported at 2005 (8) BCLR 743 (CC) Ed]. It may be remarked in passing, in that case
the court was concerned not with impugning the Trade Marks Act as unconstitutional but with a weighing of
conflicting rights ie freedom of expression v intellectual property rights in adjudicating a defence to trade mark
infringement. This case is on an entirely different footing as the respondents impugn the Act in principle as
curtailing freedom of expression.
[42] In saying that the contractual option under section 21 is beside the point and does not render the Act free of
unconstitutionality, the respondents' stance is untenable and in bad faith. They seek to be indemnified from
the consequences of alienating the work and the rights thereto but simultaneously accept the quid pro quo
under the TPC agreement. They are asking for the Act to be read or amended to override their own
consensual arrangements in the event that the applicant does not exploit the work a condition that could
have been but was not stipulated. This undermines the sanctity of contract pacta servanda sunt. It negates
the caveat subscriptor rule; George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A) [also reported at [1958] 3 All SA 1
(A) Ed]. Limitation of freedom is irreconcilable with the right of choice. For this reason alone, the
constitutional challenge is misconceived and should fail. The respondents could have reserved exploitation
rights in the work within the four corners of the Act without requiring any amendments at all, by contractual
arrangements to retain coownership or by a licencing agreement. The submission of the fifth respondent that
the Copyright does not infringe section 16 of the Constitution is based on this reasoning and is upheld.
[43] Even if my finding that the Act does not limit the rights under section 16 of the Constitution is incorrect, I am
of the view that the Act undoubtedly balances freedom of expression under section 16 with proprietary rights
under section 25 of the Constitution. The Act strikes an appropriate balance and is justifiable as a law of
general application as contemplated under section 36 of the Constitution. No reading in of section 24 of the
Act is required.
The review
[44] The respondents apply in terms of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA") for a review
of the applicant's decisions (i) not to broadcast the work and (ii) not to negotiate the sale of the work to the
second respondent. The applicants contend that the decisions do not constitute administrative action. Section
1 of PAJA in its definition of administrative action contemplates that the decision maker may be either an
organ of State (subsection (1)(a)) or:
"a natural or juristic person, other than an organ of state, when exercising a public power or performing a public
function in terms of an empowering
Page 640 of [2016] 4 All SA 623 (GJ)
provision, which adversely affects the rights of any person and which has a direct external legal effect."
[45] The applicant is a State owned public company regulated under the Charter of the Corporation contained in
the Broadcasting Act 4 of 1999. By definition the applicant is a provider of a public broadcasting service.
Section 6(4) provides that the programming must advance the national and public interest. The objectives of
the applicant are inter alia under section 8(g) to provide radio and television programmes and under section
8(i) "to commission . . . audio visual material as may be conductive to any of the objects of the Corporation."
The objects are wide ranging going far beyond broadcasting. These include under section 8(q) establishing
and maintaining libraries and archives of materials and to make these available to the public and under
section 8(o) to develop, purchase, acquire, use, sell or dispose of sound recordings films and materials.