IN THE HIGH COURT OF SOUTH AFRICA (SOUTH GAUTENG, JOHANNESBURG) Case No: 13/23293 In the matter between:

THE SOUTH AFRICAN BROADCASTING CORPORATION SOC LTD Applicant

and

VIA-VOLLENHOVEN & APPOLLIS INDEPENDENT CC SYLVIA ELIZABETH VOLLENHOVEN CHAUCER PUBLICATIONS (PTY) LTD MARTIN SYLVESTER WELZ

First Respondent Second Respondent Third Respondent Fourth Respondent

NOTICE OF COUNTER-APPLICATION

TAKE NOTICE THAT the first and second respondents intend to make counterapplication, at a date and time to be arranged with the Registrar of the above Honourable Court, for an order in the following terms:

1.

To the extent necessary, the first and second respondents non -compliance with the Rules of Court and section 7(1) of the Promotion of Administrative Justice Act 3 of 2000 in respect of the institution of this counter-application is condoned.

In the first instance, as the primary relief sought by the first and second respondents in the counter-application: 2. The decision taken by the applicant on an unknown date after 29 October 2012 not to broadcast the documentary called Project Spear Stolen billions, spies and lies (the documentary) is reviewed and set aside. 3. The decision by the applicant communicated to the first and second respondents on 21 June 2013 to refuse to negotiate the sale of the rights to the documentary to the first and second respondents is reviewed and set aside. 4. The decisions referred to in paragraphs 2 and 3 are remitted to the applicant for reconsideration and the applicant is directed to make a decision either to broadcast the documentary or to sell the rights to the documentary to the first and second respondents within 60 days of the date of this order. In the alternative to paragraphs 2 to 4 above: 5. It is declared that the conduct of the applicant referred to in paragraphs 2 and 3 constitutes breach of the Production Commissioning Agreement concluded on 24 November 2011.

6.

The applicant is directed either to broadcast the documentary or to negotiate in good faith to sell the rights to the documentary within 60 days of the date of the order.

In any event, whether an order is made in terms of paragraph 2 to 4 or in terms of paragraphs 5 to 6 or neither: 7. It is declared that in terms of the Copyright Act 98 of 1978, a non-author copyright owner may not enforce its copyright if the owner has no intention to exploit the copyright. 8. In the alternative to paragraph 7 above, it is declared that the Copyright Act is inconsistent with the Constitution and invalid to the extent that it permits an owner of copyright other than the author to enforce its copyright in circumstances where it is proved that the owner does not intend to exploit the copyright, commercially or otherwise. 9. In order to remedy the unconstitutionality referred to in paragraph 8 of the order, the following provision is read into the Copyright Act as section 24(5): No owner is entitled to enforce its copyright if it is proved that the owner has no intention to exploit that copyright, either commercially or otherwise, unless the owner is the author. 10. The first and second respondents are granted such further and/or alternative relief as the Court deems just and equitable. 11. The applicant and any party opposing the counter-application are ordered to pay the costs of the application.

TAKE

NOTICE

FURTHER

THAT

the

answering

affidavit

of

SYLVIA

VOLLENHOVEN dated 17 September 2013 in the main application will be used in support hereof.

TAKE NOTICE FURTHER THAT the applicant is hereby called upon, in terms of Uniform Rule of Court 53(1)(a), to show cause why the decisions referred to in prayers 2 to 4 above should not be reviewed and corrected or set aside.

TAKE NOTICE FURTHER THAT in terms of Rule 53(1)(b) of the Uniform Rules of Court the applicant is hereby called upon to dispatch, within 15 days after receipt of this Notice of Motion, to the Registrar, the record of all documents and all electronic records (including any correspondence, contracts, memoranda, departmental advices, recommendations, evaluations and the like) that relate to the decisions referred to in prayers 2 to 4 above which are sought to be reviewed and set aside, together with such reasons as the applicant is by law required or may desire to give or make, and to notify the first and second respondents attorneys that it has done so.

TAKE NOTICE FURTHER that within ten (10) days of receipt of the record from the Registrar, the first and second respondents may, by delivery of a notice and accompanying affidavit, amend, add to or vary the terms of the notice of motion and supplement the affidavit in support of this application in terms of Rule 53(4) of the Rules of this Honourable Court.

TAKE NOTICE FURTHER THAT the first and second respondents have appointed the address of their attorneys as set out below as the address at which they will accept service of all process in these proceedings.

TAKE NOTICE FURTHER THAT if the applicant intends to oppose this application it is required: (i) within 15 days after receipt of this Notice of Counter-Application or any amendment thereto as contemplated in Rule 53(4) of the Uniform Rules of the High Court to deliver a notice to the first and second respondents attorneys that such the applicant intends so to oppose and in such notice to appoint an address within 8 kilometres of the office of the Registrar of this Honourable Court at which it will accept notice and service of all process in these proceedings; and (ii) within 30 days after the expiry of the time referred to in Rule 53(4), to deliver any affidavits the applicant may desire in answer to the allegations made by the first and second respondents.

TAKE NOTICE FURTHER THAT if no notice of intention to oppose is given, application will be made for the relief set out in the Notice of Counter-Application Motion on Tuesday 15 October 2013 at 10h00 or as soon thereafter as Counsel may be heard.

DATED AT CAPE TOWN ON THIS 18TH DAY OF SEPTEMBER 2013

______________________________ LEGAL RESOURCES CENTRE First and Second Respondents Attorneys 3rd Floor, 54 Shortmarket Street CAPE TOWN Tel: 021 481 3000 Fax: 021 423 0935 Email: sheldon@lrc.org.za Ref: Mr S G Magardie c/o: LEGAL RESOURCES CENTRE Constitutional Litigation Unit 15th Floor Bram Fisher House 20 Albert Street Marshalltown JOHANNESBURG 2000 Tel: 011 836 9831 Fax: 011 836 8680 Ref: Mr B Sibiya

TO:

THE REGISTRAR South Gauteng High Court JOHANNESBURG

AND TO:

WERKSMANS INC Applicants Attorneys 155 5th Street Sandown Ref: Ms P K Mabaso/va/SOUT5167.37