that the work was posted on it in December 2013 being after the undertaking by Vollenhoven on 28 June
2013. An urgent application for an interim interdict pending this judgment was brought by the applicant and
was granted by Wepener J on 7 June 2016 (case number 2016/18766). The interdict restrained the
respondents from broadcasting, reproducing, publicly showing, adapting and letting or selling the work
pending this judgment.
[53] The respondents did not oppose the interdict and filed a notice to abide. However, Vollenhoven filed an
affidavit explaining that she did not place the video on You Tube and she denied that the work could be
accessed from her Facebook page. She avers that the deponent and the attorney could only have seen a
screenshot and it was impossible to see the video itself. An adverse inference is drawn from her failure to
oppose the urgent application since her affidavit is inconsistent with abiding by the interdict. Credibility issues
are not lightly made in motion proceedings but due weight must be placed on corroboration by the applicant's
attorney, as an officer of this Court. It is accepted that "it would play" means exactly that. As a professional
film producer it is also somewhat unlikely that Vollenhoven would lack the expertise and skill to ensure
compliance in totally removing the work from social media. The version of the applicants is accepted. No
reliance can be placed on the undertaking given by Vollenhoven who has subsequently been shown to be
unreliable. The harm is in the intrinsic infringement of the applicant's lawful copyright in the work and in the
contractual breach by the respondents. Damages are not appropriate as a remedy in this situation. No
commercial loss is involved.
The delivery interdict
[54] The applicant's claims for delivery of a variety of production materials is based on the Act and the TPC
agreement. It concedes that Vollenhoven has already delivered to it one TX Master Tape, one DVD of TX
Masters and one FC sheet. It claims delivery of: (a) one copy of these items (b) two protection masters, (c)
two music cue sheets, (d) cost reports and (e) all raw footage. The respondents dispute some of these items
and it is necessary to resolve which items the applicant has made out a case for an interdict. Several disputes
are raised. The respondents deny that they have in their possession any further copies of items (a). This is
not challenged by the applicants. The respondents say that there is no obligation to provide protection
masters and that they are no longer needed as the footage is in digital format. The applicant insists on them
for reasons of storage space. The respondent say that the music cue sheets are also unnecessary as the
music is not subject to intellectual property rights. Only stock and specially composed music was used. The
applicant says it requires these to
Page 643 of [2016] 4 All SA 623 (GJ)
know what music was used, deal with queries by the composer and royalty issues. In respect of (d)
Vollenhoven sent a cost report in an email dated 28 March 2013. The applicant says it is inadequate but is
vague as to the queries that the applicant required to be addressed. This is insufficient reason in my view.
The respondents tendered to provide the raw footage in the papers but at the time of the hearing had not
yet done so. The disputes in respect of (b) and (c) cannot be resolved on the papers. The first time the
applicant requested delivery of items (a) to (d) was in the letter of demand prior to instituting these
proceedings. Prior thereto it paid in full for what it now complains is incomplete delivery. This inconsistency
also weighs with me in exercising my discretion against an interdict for (a) to (d) and (f). An interdict should be
granted only in respect of the raw footage (e).
The contractual counterapplication
[55] Having found that the applicant has no actual intention of exploiting the work, clause 12.7 of Schedule V of
the TPC agreement must be considered. Two years have elapsed since the work was delivered. The
applicants contend that this did not constitute final delivery because delivery was incomplete. However the
applicant accepted this delivery, as stated above by making full payment and this argument is rejected. The
clause provides that the reasons for not broadcasting the work should be within the control of the applicant.
The respondents have shown that Vollenhoven offered to cooperate with the applicant in implementing the
changes it required in terms of clause 19 which states:
"In the event that the PRODUCER fails to implement the changes as requested by the SABC, the SABC shall not be
obliged to either broadcast and/or pay for such PRODUCTION and/or episode or programme as the case may be".
[56] It was within the power of the applicant to ensure that the changes were made to its satisfaction and the
respondents cannot be held responsible for the changes not being implemented which led to the applicant
failing to broadcast the work. The applicant had final editorial control. Thus, the conditions for the applicant to
negotiate in good faith with VIA have been fulfilled. The clause does not stipulate that the negotiations should
be specifically based on the applicant selling the work and its rights to VIA. This is undoubtedly included in the
intent of the clause but is not exhaustive. The parties may agree on a licencing arrangement or any other
commercially sound quid pro quo. The purport of the clause is sufficiently clear and does not fall foul of the
caveat sounded in Southernport Developments (Pty) Ltd v Transnet Ltd [2005] 2 All SA 16 (SCA) that a promise
to negotiate which is too illusory, vague or uncertain cannot be enforced.
[57] The issue is whether the agreement to negotiate (pactum de contrahendo) is enforceable absent a deadlock
breaking mechanism in the TPC agreement. There have been conflicting decisions. In Premier Free State and
others v Firechem Free State (Pty) Ltd 2000 (4) SA 413 (SCA) it was held at paragraph 35 [also reported at
[2000] 3 All SA 247 (SCA) Ed] that the parties had an absolute discretion to agree or disagree and an
agreement to negotiate to conclude an agreement could not be enforced. In Everfresh
Page 644 of [2016] 4 All SA 623 (GJ)