S.O.S. Support Public Broadcasting Coalition v South African Broadcasting Corporation (Soc) Limited

• Jurisdiction: South Africa
• Judge: DM Davis JP and Rogers JA and Victor AJA
• Judgment Date: 28 April 2017
• Docket Number: 140/CAC/Mar16
• Court: Competition Appeal Court
• Hearing Date: 28 April 2017
• Citation: 2017 JDR 0832 (CAC)

Davis JP:

Introduction

[1]

On 24 June 2016 this Court held that an agreement entitled "Commercial and Master Channel Distribution Agreement" ('the agreement') concluded between first and second respondents in July 2013 did not give rise to a merger within the meaning of s 12 (1) of the Competition Act 89 of 1998 ('the Act').

[2]

However, this Court expressed reservations that the Competition Tribunal (Tribunal), against whose decision the appeal to this court had been lodged, did not enjoy the benefit of an investigation of the agreement by the third respondent; in particular whether the agreement fell within the scope of s 12 (1) of the Act.

[3]

The Court noted that the agreement involved a public broadcaster and hence it was 'in the public interest for transactions involving the public broadcaster to be examined with a particular consideration of the purpose of the Act'. It also observed that there was a considerable lack of clarity concerning a number of factual aspects in the record which were relevant to the ultimate determination of whether s 12(1) of the Act was applicable. In this connection the Court was critical of the approach adopted by the Tribunal:

'There are many questions regarding disputed factual contentions which we have raised in this judgment which could have been better answered if an inquisitorial approach had been adopted and a more sustained line of questioning been implemented by the Tribunal in the hearing before it.' (para 110)

[4]

It is for this reason that the Court issued the following order:

1.

'The order of the Tribunal of 11 February 2016 is set aside.

2.

[Multichoice) and [the SABC] are directed to provide the Competition Commission within 21 days of this judgment [copies] of all documentation including but not limited to all correspondence, board minutes, internal memoranda pertaining to the negotiation, conclusion and implementation of the agreement of 3 July 2013.

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3.

The Competition Commission is directed within 30 days of the receipt of the aforesaid information and documentation to file a report with the Competition Tribunal recommending whether or not the agreement gives rise to a notifiable change of control.

4.

In the event that the Competition Commission recommends that the agreement gives rise to a notifiable change in control which falls within the definition of [a] merger in terms of s 12 of the Act, it is directed that a rehearing of the matter shall be conducted by the Tribunal to determine whether the conclusion of the agreement did entail such a merger as defined.'

[5]

On 13 October 2016 the applicants brought an urgent application before this Court in which they sought the following relief:

1.

A declaration that first and second respondents are in breach of the order to provide the documentation as set out in this Court's order on 24 June 2016;

2.

an order for first respondent to provide information and documentation to third respondent ;

3.

an order for second respondent to provide documentation, alternatively a schedule to third respondent ;

4.

authorisation either by way of a declaration of variation of the order or a new order for third respondent to exercise investigative powers as set out in Part B of Chapter 5 of the Act for the purposes of discharging its reporting obligations in terms of the June 2016 order.

The matter was argued before this Court on 2 December 2016 and judgment was reserved.

[6]

On 7 December 2016 an enquiry into the management and performance of first respondent commenced in Parliament. On 8 and 9 December 2016 erstwhile representatives of first respondent, including former board member Mr Krish Naidoo (who, subsequent to this application being launched, was appointed to the new interim board of first respondent) and former group GEO,

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Ms Lulama Makhobo testified under oath before the parliamentary enquiry, which investigation included an examination of the agreement.

[7]

The applicants adopted the view that portions of this testimony were directly relevant to the issues that were debated before this court on 2 December 2016. Accordingly, in a further application to this Court, they sought admission of these proceedings into evidence. In a supplementary affidavit deposed to by Mr William Bird, director of the second applicant, detailed reference was made to the testimony of Mr Naidoo and Ms Makhobo before the enquiry which took place in Parliament. Mr Bird then stated:

'It is in the interests of justice that the Commission should be able to have regard to additional evidence and oral testimony that has emerged during the current inquiry conducted by an ad hoc parliamentary committee, and should be in a position to conduct its own detailed interviews with the relevant witnesses into issues such as the exclusive licensing of the SABC's archival programming and the clauses in the Multichoice Agreement relating to encryption.'

The core issue

[8]

Mr Budlender, who appeared with Mr Kelly on behalf of the applicants, correctly noted that the core issue to be resolved in this application is the proper interpretation of the 24 June 2016 order granted by this Court. In this connection there is a well-established test for the interpretation of court orders, as set out in Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 at 304:

'Thus, as in the case of a document, the judgment or order and the court's reasons for giving it must be read as a whole in order to ascertain its intention. If, on such a reading, the meaning of the judgment or order is clear and unambiguous, no extrinsic fact or evidence is admissible to contradict, vary, qualify, or supplement it. Indeed, it was common cause that in such a case not even the court that gave the judgment or order can be asked to state what its

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subjective intention was in giving it (cf. Postmasburg Motors (Edms.) Bpk. v Peens en Andere, 1970 (2) SA 35 (NC) at p. 39F-H). Of course, different...