The Constitutional Court on Friday set aside a 2017 Competition Appeal Court ruling and said the Competition Commission is entitled to investigate whether a channel licensing agreement between the SABC and MultiChoice, dating from 2013, was in fact a notifiable merger.

‘MultiChoice agreed in terms of the agreement to pay the SABC fees of more than R500m over a period of five years, in exchange for which the SABC undertook that the entertainment channel, to be broadcast on the MultiChoice platform, would consist mainly of content from the SABC’s substantial archive of programmes (SABC archive),’ the ruling said, according to a News24 report.

It added that the agreement had been the subject of a hearing at the tribunal and three separate hearings in the Competition Appeal Court. At issue was whether the agreement amounted to a notifiable merger as defined in the Competition Act.

Caxton, the Save Our SABC Coalition and Media Monitoring Africa had applied for leave to appeal in the Constitutional Court.

In the ruling, Judge Fayeeza Kathree-Setiloane wrote that although the agreement between MultiChoice and the SABC ended in July 2018, it does not diminish the necessity for the commission to investigate whether the agreement constitutes a notifiable merger.

‘We were informed that the agreement may be renewed or a similar one may be concluded between the SABC and MultiChoice, having regard especially to the ongoing debates on encryption regarding SA’s migration to DTT (digital terrestrial television). ‘It is essential, for this reason, that clarity be obtained from the competition authorities on whether the agreement constitutes a notifiable merger as defined in the Competition Act. Accordingly, the interests of justice require that leave to appeal be granted.’

Full News24 report

S.O.S Support Public Broadcasting Coalition and Others v South African Broadcasting Corporation (SOC) Limited and Others