Times Media Ltd v South African Broadcasting Corporation

• Jurisdiction: South Africa
• Judge: Van Schalkwyk J
• Judgment Date: 09 February 1990
• Citation: 1990 (4) SA 604 (W)
• Hearing Date: 09 February 1990
• Court: Witwatersrand Local Division

Van Schalkwyk J:

The applicant is a publisher of newspapers and the owner of the Sunday Times. In 1988 when the price of the Sunday Times was last increased, the sales of the newspaper dropped from about B 510 000 to approximately 480 000 copies. As a result of this experience the applicant decided that when price increases occur in the future they should be accompanied by a promotional campaign.

During 1989 the applicant undertook such a campaign, which was called C the 'Finder's Keeper's Competition', which was very successful. Because the applicant envisages a price increase for the Sunday Times within a short while it plans to repeat the competition, which is intended to coincide with the price increase.

The promotion of the competition includes a 30 second television advertisement which has been made at a cost of R35 000. It was intended D by the applicant that this advertisement was to be broadcast on the national network of the respondent's television service. The respondent, however, has refused to broadcast the advertisement because it ends with a reference to M-Net which is a competitor of the respondent. The respondent has taken the attitude that it will not advertise the services of its competitor. The applicant seeks an order compelling the E respondent to broadcast the advertisement.

The difficulty which the applicant has encountered is the formulation of the appropriate legal basis upon which the order sought might be granted. Mr Levin, for the applicant, contended that it was a species of unlawful competition and he referred, inter alia, to the American law as F well as to the concept of an unlawful boycott in our own law. He also argued that the doctrine could be invoked, as in this case, by a party which was not directly in competition with the transgressor but also by someone who suffered harm indirectly by virtue of his relationship with the victim of the transgression. G

At the heart of the applicant's argument, however, lay the contention that the respondent's decision not to broadcast the advertisement affected the applicant's goodwill - 'werfkrag'. The respondent was, according to this argument, the only national television service in the country. It possessed - so it was contended - a virtual monopoly and H had been created by an Act of Parliament in the public interest. The applicant, a member of the public, had the right to insist that the respondent serve its interests also.

There was some debate in the affidavits whether and to what extent M-Net could be described as a competitor of the respondent. The M-Net transmission can only be received by a television set which is fitted I with a special decoder, as a result of which the M-Net service is substantially more expensive than the service offered by the respondent...