[46] Thus, the business of commissioning the work and deciding whether to broadcast such work are inextricably
bound with the exercise of the applicant's public functions in terms of the empowering provisions of the
Broadcast Act. However, not all decisions which exercise public functions or powers constitute administrative
action. There is no simple formula. The definition of a decision in PAJA is of little assistance as the examples
enumerated in subsections (a) to (g) of the definition are illustrative and not a numerus clausus. In Bhugwan v
JSE Ltd 2010 (3) SA 335 (GSJ) [also reported at [2009] JOL 23989 (GSJ) Ed]. Claassen J said at paragraph 8:
"What kind of action will constitute a decision, will depend on the circumstances of each case". Various tests
have been formulated. In Sokhela and others v MEC, Agriculture & Environmental Affairs (KwaZuluNatal) and
others 2010 (5) SA 574 (KZP) Wallis J said at paragraph 61 [also reported at [2009] JOL 23782 (KZP) Ed]:
"There is accordingly no mechanical process by which to determine whether a particular exercise of a public power or
performance of a public function will constitute administrative action. There will have to be determined in each
instance by a close analysis of the nature of the power or function and its source or purpose."
[47] It is argued by the applicant that it was acting in terms of its editorial policies in deciding not to broadcast the
work and that it is not uncommon for programmes commissioned by the applicant not to be broadcast.
Furthermore the applicant expressly reserved the right not to broadcast the work under clause 18 of the TPC
agreement which bound VIA. The TPC agreement also conferred physical ownership of the work and the
related materials as well as copyright. VIA thus had no rights in the work under the TPC agreement. It was
further argued that the decision not to broadcast did not adversely affect the rights of VIA and this excluded
the decision from the scope of administrative action. This is indeed so.
[48] The source and nature of both decisions sought to be reviewed are within the purview of the contractual
provisions of the TPC agreement, ie clause 18 and Schedule 5 clause 12.7. The processing of the Request for
Proposals and the selection of the proposal certainly constituted administrative action by the applicant. From
the stage of commissioning VIA and the signing of the TPC agreement, the subsequent production
relationship between the parties, the supervisory powers exercised by the
Page 641 of [2016] 4 All SA 623 (GJ)
applicant and the pursuant decisions are no longer administrative but contractual acts. In my view, the
applicant was exercising its contractual rights in making both decisions. The correctness of the decisions do
not play any role in determining the question whether they constitute administrative action. It is accepted
that the documentary is of public interest but this does not somehow transform the decision not to broadcast
or sell, into administrative action cognisable by PAJA. The decisions of the applicant and the remedies of the
aggrieved party lie fairly and squarely within contract.
[49] Furthermore the actions of the applicant in respect of both decisions are outside the arena of its exercise of
powers and functions as an authority in relation to a subordinate party or the public. The applicant in this
context is a private contractor on equal terms with VIA, the other private contracting party. This is illustrated
by Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC and others 2001 (3) SA 1013 (SCA)
at paragraph 18 [also reported at 2001 (10) BCLR 1026 (SCA) Ed]:
"The appellant is a public authority and, although it derived its power to enter into the contract with the first
respondent from statute, it derived its power to cancel the contract from the terms of the contract and the common
law. Those terms were not prescribed by statute and could not be dictated by the appellant by virtue of its position as
a public authority. They were agreed to by the first respondent, a very substantial commercial undertaking. The
appellant, when it concluded the contract, was, therefore, not acting from a position of superiority or authority by
virtue of its being a public authority and, in respect of the cancellation, did not by virtue of its being a public authority,
find itself in a stronger position, than the position it would have been in, had it been a private institution. When it
purported to cancel the contract, it was not performing a public duty or implementing legislation; it was purporting to
exercise a contractual right founded on the consensus of the parties, in respect of a commercial contract. In all these
circumstances ii cannot be said that the appellant was exercising a public power. S 33 of the Constitution is concerned
with the public administration acting as an administrative authority exercising public powers not with the public
administration acting as a contracting party from a position no different from what ii would have been in, had ii been a
private individual or institution."
See also Government of the RSA v Thabiso Chemicals [2009] 1 All SA 349 (SCA) at paragraph 18.
[50] The decisions sought to be reviewed are therefore not administrative actions under PAJA and this counter
application must fail.
The distribution interdict
[51] The applicant has established a right to the distribution interdict. It must satisfy the requirement of a
reasonable apprehension of irreparable harm and having no alternative remedy, both of which are disputed
by the respondents. They contend that Vollenhoven has not infringed the copyright and has given an
undertaking, as mentioned above. Had the matter ended there the outcome may have been different.
However subsequent to judgment having been reserved on 25 May 2016, the applicants filed an interlocutory
application for leave to file a supplementary affidavit. It was unopposed and leave to file was granted in an
order dated 24 June 2016.
Page 642 of [2016] 4 All SA 623 (GJ)
[52] The affidavit reported new facts and evidence which came to light after the matter had been argued. The
deponent, Mr DS Vilakazi, the acting legal services manager reported that on 25 May 2016 he became aware
of a video link on Vollenhoven's Facebook page of the work. On 30 May and 1 June 2016 both he and Ms
Mabaso of the applicant's attorneys of record were able to click on and actually view the video of the work on
her Facebook page. Mabaso filed a confirmatory affidavit. He also found on You Tube an internet video site