It has taken years. But finally, at 10.00 am the Johannesburg Supreme Court will hand down a judgement on the Spear case. This is a story that is truly stranger than fiction…and involves billions of dollars…but if you love a good yarn – read on!
First I am posting what I wrote three years ago and then the last time this came to court in March this year.
It leaves one asking, why on earth the present South African government is so determined to protect apartheid era sanctions-busters?
The story goes something like this. During the apartheid years, several South African and foreign banks were involved in busting sanctions imposed by the international community.
Some – including the bank that is now called Absa – got into difficulties, and were bailed out by the Reserve Bank. So far so good.
In 1994 the ANC comes to power under Nelson Mandela and starts looking at the books, only to discover that this money is still outstanding.
It asks a British investigative firm to look into the matter. The firm – Ciex – discovers that squillions are still owed to the South African government.
In fact, according to the Cape Town based investigative magazine, Noseweek, these are the sums owed to the Reserve Bank:
- R3.2bn from Absa
- R3bn to R6bn from Sanlam and Rembrandt
- Up to R5.5bn from Aerospatiale/Daimler-Chrysler
Yet – amazingly – rather than pursue the money, the investigation was shelved, even though Ciex offered to pursue the matter for just a percentage of the funds recovered.
In September 2010 Noseweek ran the story with this opening paragraph:
“The ANC government was told in a secret report how apartheid-era government operatives stole hundreds of billions from the State – and how vast sums could be recovered from those responsible and the European bankers who helped them hide the loot. But mysteriously, the Mbeki cabinet and the Reserve Bank decided to do nothing about it. Why?”
Fast forward to the present.
One of South Africa’s outstanding investigative journalists, Sylvia Vollenhoven, was commissioned by the state owned broadcaster, the SABC, to make a film about this strange story.
This was completed, the film shown to the SABC and a date for transmission was set.
Her film, entitled “Project Spear” was to have been the launch programme, scheduled for 23 September 2012 at 9pm, of an SABC2 series of six documentaries, ironically titled “Truth be Told”.
Then, at the last minute, the film was pulled. An SABC editorial compliance officer explained that the film constituted “unfair trial by the media.”
Vollenhoven says that in September 2012 she received an email from the SABC. “We got an email from Thando Shozi, acting head of ‘factual’ commissioning, who said she had a few problems. One of the quotes from her email was that ‘The government is not going to take kindly to being asked, why are we walking away from recovering so much money?’”
When Sylvia Vollenhoven and Noseweek attempted to show the film at the Franschoek festival near Cape Town in May, the SABC had a judge on standby and a lawyer at the planned screening to prevent the showing going ahead.
Now, the SABC has gone further. It is taking Vollenhoven to court demanding that she hands over all of the raw footage, annotated scripts, and research material related to the film, as well as the master recordings.
Vollenhoven, initially thrown by these developments, is fighting back.
She is determined to re-make the film, with new footage.
And she has launched her own challenge in the courts. She has the support of the Committee to Protect Journalists and the Freedom of Expression institute (FXI). And the Legal Resources Centre is fighting her case.
Sheniece Linderboom, the head of the FXI’s law clinic, said: “We definitely will be showing our support in any way we can. It’s an issue of freedom of expression.
“We are particularly concerned about the fact that Vollenhoven is not allowed to make an adaptation of the documentary. That is too extreme.
“The Copyright Act gives exemption when it comes to reporting on current events. That’s where public interest comes in.”
Meanwhile, the sums involved are now astronomical. It is estimated that R60 billion ($6 billion) is the current value of the funds siphoned off by the apartheid state.
Further coverage on this story from the Huffington post.
This is a truly extraordinary story – of how the ANC government is still protecting racketeers that were operating under the apartheid government.
I wrote about first it in 2013. Now, at last, the government broadcaster, the SABC, is being brought to court for censorship.
The filmmaker Sylvia Vollenhoven is having her case heard in the Johannesburg High Court from 23rd to 26th May 2016.
Below is her press release, complete with links to all documents and a background story from Professor Anton Harber.
‘Project Spear’ Documentary Banning Landmark Court Case
SABC given ultimatum & Copyright Law Challenged
In a landmark case filmmaker and journalist Sylvia Vollenhoven has given the SABC an ultimatum and is challenging the Copyright Act in the Supreme Court. This comes in the wake of the Corporation censoring her documentary film Project Spear.
Vollenhoven’s lengthy affidavit filed in the South Gauteng High Court says the Corporation’s decision not to broadcast the documentary as well as their refusal to sell her the rights are “unconstitutional, unlawful and fall to be reviewed and set aside”.
The Corporation’s attempts at censorship have been dealt a serious blow by the fact that a copy of the ‘banned’ film has now been submitted as part of the court record. The matter has been set down for hearing in the Johannesburg High Court from 23rd to 26th May 2016.
And in another bold move the affidavit that runs to 77 pages, 241 paragraphs and 46 annexures, is accompanied by a counter application. [see below] This application calls on the SABC to either broadcast Project Spear or sell the rights within 60 days.
The counter application challenges the SABC’s use of the Copyright Act in its original notice of motion earlier this year. However, if the SABC is rightfully employing the Copyright Act to suppress the Project Spear story, the application asserts, the Act could be “inconsistent with the Constitution”.
Project Spear is a 48-minute documentary, commissioned by the SABC that deals with the largescale corruption of the apartheid government and its impact on South Africa today. After giving its full support to the production process of Project Spear – this included approving a final script – the SABC decided at the last minute to remove the documentary from its schedule in 2012.
There has never been a public explanation for this.
The plethora of mails from the organisation intimated that the Spear film was not good enough. Ironically the SABC subsequently commissioned Vollenhoven to produce a four-part mini series called Striking A Chord. An Episode in this series has received two nominations (best documentary and best director) in the 2016 SA Film & TV Awards.
When Vollenhoven and Noseweek magazine Editor Martin Welz tried to show the Spear documentary to a small audience at the Franschhoek Literary Festival earlier this year, the SABC took legal steps to stop the screening. Subsequently the Corporation applied for a Supreme Court interdict against Vollenhoven, Welz and both their companies.
If granted the interdict would have forced them both to hand over all and any material related to Project Spear and it would have prevented Vollenhoven from “making an adaptation”.
“This is going to be a court case that will forever change the relationship between the SABC and independent filmmakers. It is high time that somebody lit a fire under the smug posterior of the public broadcaster. This legal challenge is just the kind of bonfire the Corporation needs to realize that it has a duty to the public and should not be beholden to party political interests or personal agendas,” says Vollenhoven who is a member of the Editorial Board of the Journal of African Cinema and an award winning journalist.
In her court battle with the SABC Vollenhoven has the support of the Freedom of Expression Institute (FXI) as well as the Khulumani Support Group. The Legal Resources Centre (LRC) is representing her and the instructing attorney is Sheldon Magardie.
The full affidavit is available on Google docs at the following link:
The counter application is on Scribd:
Contact: Sylvia Vollenhoven (021) 762-4921 and e-mail firstname.lastname@example.org
Censorship and intrigue in ‘Project Spear’ case
By Anton Harber
SOMETIMES censorship arrives at the front door and then we confront it. At other times, it comes around the back and tries to sneak inside unnoticed. Sometimes it dresses up in funny clothes. My story is about censorship disguised as copyright protection. It involves Absa Bank, the South African Broadcasting Corporation (SABC), a documentary film maker, a muck-raking magazine, a literary festival, two lawyers, apartheid and a barrel-load of intrigue.
Apartheid is part of the story because it always is. Absa is involved because it was implicated in financial shenanigans in the dying days of apartheid. The muck-raking magazine, Noseweek, ran the original story. The documentary maker is Sylvia Vollenhoven, who made Project Spear, which apparently tells of a former British intelligence man who offers to recover many billions of rand secreted overseas in the dying days of apartheid and to do it on spec. To his surprise, there was no interest from the new South African government, raising interesting questions.
Vollenhoven made her film for an SABC series called If Truth be Told. Well, it was not. She says she had the approval of her commissioning editor, but when it was finished and shown to the political heavyweights, they wanted major — and impossible — last-minute changes. They chose not to show it and — without explanation to her or the audience — screened in its place a rerun.
Vollenhoven says she entered into discussions to buy the film from the SABC. And she and Noseweek’s Martin Welz decided to show it to a tiny audience at the Franschhoek Literary Festival earlier this year.
Enter the two lawyers. Not only do they fly to the Western Cape and put a judge on weekend standby to stop them showing the film to a handful of people, but they serve court papers demanding that no one ever show it, that they return all copies and every bit of footage and never even make “an adaptation” of it. In other words, not content with not screening it, the SABC is trying to block it out entirely and prevent anyone ever seeing it, or making another version of it, or even possessing a copy of it. It doesn’t even want another version made of the same story.
That is called censorship.
I have no idea if the film is any good or a load of baloney. I can’t see it because now I am not allowed to. But you have to think that if someone goes to so much trouble to ensure that no one ever sees it, it probably has something juicy in it.
But why should the SABC, which is in the business of showing such films, not suppressing them, and which does not have money to throw around on legal action, care so much?
Vollenhoven thinks it is the result of “fear, insecurity and juniorisation” at the SABC, rather than a grand conspiracy.
SABC spokesman Kaizer Kganyago has been quoted as saying the SABC’s concern is only with the principle of who owns the film. “We own this material. We have commissioned it and paid for it and we want all of it to be returned…. It’s a matter of principle,” he said.
“People are making it sound as if it’s about the content. This has got nothing to do with the content. The fact is it doesn’t belong to them and they’re showing it to people,” he said. Really? The SABC would go to these lengths to keep control of a film it doesn’t even want to show?
The root of the problem is an archaic clause in SABC agreements with independent producers that gives it total and open-ended ownership of all material, even if it never uses it. That clause is confining a range of material to the archives, hidden forever unless the SABC finds a use for it. The effect is to suppress information and material.
Vollenhoven is defending her case, with the support of the Freedom of Expression Institute, and is challenging the SABC to sell copyright to her. It will be a fascinating case to watch. Hopefully, we will get to see the film. And the SABC will be pushed to modernise its contracts with producers that would pull it into line with international norms.
- Harber is Caxton Professor of Journalism at Wits University and chairman of the Freedom of Expression Institute.