[6] The matter was not resolved and was escalated to Mr G Pretorius, Programme Manager: SABC Television. On
11 October 2012, he wrote to Vollenhoven expressing enthusiasm for the work but describing it, inter alia, as
containing emotive and sweeping statements which are not necessarily 100% accurate. He stated that there
are gaping holes in the film. He also was concerned about exposure of the applicant to litigation. He
requested a fully annotated script and proof of sources for each statement of fact. Vollenhoven objected that
a script was not a contractual deliverable and sought specific itemisation of the "gaping holes". She
nevertheless complied with the request for the annotated script. An internal review of the work was held by
the applicant and a Regulatory and Compliance Report was sent to her on 15 October 2012. The report was
also enthusiastic about the film but concluded that it digressed from the guidelines of the editorial policy by
which the applicant was bound. The review identified 16 critical points which it found problematic. The review
required major changes to the film. On 16 October 2012, Ms V Barnard a compliance officer of the applicant
wrote a lengthy comment about the film to Vollenhoven stating:
"Based on the EC Act, BCCSA Code of Conduct, SABC Editorial Policies and the ICASA CCC Code I am in agreement
that this documentary goes against the SABC Editorial Policies, our mandate and our broadcasting legislation. She
concluded thus:
'Given the absence of satisfactory truth or reasonableness, I conclude that the programme is defamatory of all
accused parties. Legitimate public interest cannot save the programme. Given the obvious deficiencies (in the
programme) I am, furthermore, of the view that the producer was negligent in having commissioned the
programme.'"
[7] In the interim the screening did not proceed and on 27 September 2012 the applicant announced in a media
release that the work would be broadcast on SABC 2 on 4 November 2012. A private screening of the
Page 628 of [2016] 4 All SA 623 (GJ)
work was planned for 19 October 2012 but this did not take place. On 22 October 2012, Vollenhoven made
proposals for a compromise which would involve the applicant meeting her halfway. On 29 October 2012, Mr
Pretorius advised her that the project would be escalated to the head of television for a final decision by the
end of the week. No final decision was communicated to her by the applicant. The film was not broadcast on 4
November 2012. On 19 November 2012, Vollenhoven then wrote to Mr Pretorius that in view of the applicant
not wishing to broadcast the film, she expressed interest in the producer buying the rights back from the
applicant as there were some interested buyers to whom the maker could sell the work. On 29 November
2012, Mr Pretorius informed her that a business plan was being circulated for signature and Henk Lamberts
will contact her to conclude. The applicant did not contact her at all.
[8] The applicant became aware that Vollenhoven intended to screen the work at the Franschoek literary festival
which took place on 18 and 19 May 2013. The applicant's attorneys wrote to Vollenhoven and the producer
claiming the applicant's copyright and seeking an undertaking from them not to screen the film. Such an
undertaking was given and complied with. Vollenhoven also asked about the progress of the business plan of
the applicant to finalise the buy back of the rights. It emerged that Noseweek was in possession of a final edit
of the film and after a similar demand by the applicant's attorneys an undertaking was given by the fourth
respondent and was honoured.
[9] In an interview on Talk Radio 702 on 20 May 2013 ("702 interview") Vollenhoven stated: "We've been
showing this to industry people to people involved with the documentary, to small private audiences." She
went on further:
"So, when you say we're determined to get the story out there, yes, despite all of this and despite what the SABC has
done this weekend, we are very determined to get this story out there, and I promise you, with the modern means of
communication, the SABC is in such an old fashioned mode of thinking, it still thinks of Big Brother; they can decide
what the South��Africans can see. With modern means of communication that's just not the truth. We can get the story
out there and we, and we will get it out there somehow."
[10] In a letter dated 21 June 2013 the applicants' attorneys wrote to the first and second respondents alleging
that they were in breach of the agreement by not handing over all materials in respect of the work, by
providing copies and other copyright materials to the fourth respondent and by threatening to broadcast the
work in the 702 interview. The applicant also advised them that it did not intend to sell any of its rights in the
work to them. It sought an undertaking by close of business on 26 June 2013 together with delivery up of
specified materials failing which it gave notice of its intention to launch this application. The form of the
undertaking sought was as follows ". . . never to broadcast and/or deal with the Production and related
materials in any form or manner whatsoever or provide anyone with copies of the production and all materials
created and/or acquired for the purposes of the production."
Page 629 of [2016] 4 All SA 623 (GJ)
VIA's undertakings
[11] A similar letter was sent by the attorneys to the fourth respondent who gave an undertaking not to broadcast
the work but he insisted on keeping the DVD explaining that one day he could show it to his grandchildren or
use it when he wrote his memoirs. He admitted that he and the third respondent had a free showing of the
work to a small audience of less than 100 Noseweek readers about a year previously. Vollenhoven responded
after the expiry date of the applicant's ultimatum in an email dated 28 June 2013 sent at 12:39. She gave
following undertaking: "I hereby give you an undertaking never to broadcast the documentary "Project Spear"
commissioned by the SABC nor to distribute it. She refused to give an undertaking never to deal with the
"related materials" as she required clarity what this meant. She regarded research materials in her
possession as being in the public domain. She further stated that undertaking not to deal with related