Southernport Developments (Pty) Ltd v Transnet Ltd [2005] 2 All SA 16
(SCA) Referred to
643
Stiff v Reid Daly 2004 BIP 240 (W) Referred to
636
Canada
Society of Composers Authors and Music Publishers of Canada (SOCAN) v
Bell Canada 2012 SCC 36 Referred to
United Kingdom
637
Pro Sieben Media AG v Carlton UK Television Ltd [1999] 1 WLR 605
Referred to
637
Page 626 of [2016] 4 All SA 623 (GJ)
United States of America
Salinger v Random House Inc 811 F.2d 90 (2d Cir. 1987) Referred to
635
Judgment
NOWOSENETZ AJ:
[1] The applicant, the SABC, concluded a written Television Production Commissioning Agreement (the "TPC
agreement") with the first respondent, a close corporation conducting business as a film production house
("VIA") in which it commissioned VIA to make two documentary film episodes called "Truth Be Told: Project
Spear". The second respondent Ms SE Vollenhoven ("Vollenhoven") is a film maker and member of the first
respondent. The first and second respondents are for convenience referred to as the respondents. The fifth
respondent opposes the respondents' constitutional challenge but no other relief is sought.
[2] The applicant purchased the copyright in the films for the amount of R559 169 which was duly paid to VIA.
One episode was broadcast on 28 October 2012 and the other entitled "Project Spear: Stolen billions, spies
and lies" (the "work") has not been broadcasted by the applicant to date and is the subject matter of this
dispute. The applicant seeks a final interdict against the first and second respondents from infringing the
applicant's copyright in the work ("distribution interdict") and delivery up of specified production materials
("delivery interdict"). It relies on the protection afforded under the Copyright Act 98 of 1978 (the "Act") as well
as the agreement. No relief is sought against the third, fourth and fifth respondents. Argument was
addressed on behalf of the fifth respondent relating to the constitutional challenge. The amicus curiae
withdrew from these proceedings and played no role.
The copyright dispute
[2] The applicant's founding affidavit, deposed to by Ms N Shozi, acting head of factual genre, the issue was
described thus: During 2010, the applicant released a public Request for Proposals for the commissioning of
television programmes to fit the channel and genre criteria of the applicant. The applicant represented its
factual genre as an opportunity for ordinary South Africans to tell their story truthfully and honestly; that
public broadcasting was crucial to a healthy broadcasting; to use story telling as a nation building tool; that
controversy was embraced. The intention was to present a subject with in the security that the information
has integrity to create empowerment of the audience. The evaluation criteria were for South African
innovative and cutting edge material. In short an investigative documentary.
[3] Vollenhoven had certain reports which were in the public domain which she had researched and which
revealed an intrigue regarding "lifeboats" ie illegal financial assistance given by the previous government
through the South African Reserve Bank to major South African financial institutions. These advances had
allegedly never been or recovered by the new democratic government. This story formed the basis of the
proposal made to the applicant and it was accepted.
Page 627 of [2016] 4 All SA 623 (GJ)
[4] The TPC agreement was signed on 24 November 2011. Film production began about May 2012. Shozi was the
commissioning editor and was involved in the management of this project. She states that she received a
rough cut of the work only two days before receiving the final mix. By 3 September 2012, it is common cause
that the Beta SP tape transmission master and FCC sheet was delivered to the applicant. It is also not in
dispute that the applicant has paid the producer for the work.
[5] On 24 August 2012, Shozi confirmed the transmission date on 30 September 2012 for the work to
Vollenhoven. On 4 September 2012, the first objection to the work was received by Vollenhoven from Shozi in
a lengthy email. Her objections were based on the first viewing of the documentary. She found the work to be
unacceptable in style and quality. She regarded the end product as deviating from the proposed product in
the TPC. She expressed, inter alia, reservations about unbalanced reportage, excessive reliance of material
from Noseweek (the third and fourth respondent being publisher and editor respectively), incrimination of
certain public figures such as Mr T Manuel and Ms G Marcus without the right of reply and placing the applicant
at risk of liability for defamation. Correspondence was exchanged by them with suggestions by Vollenhoven to
implement changes.