April 14, 2025 — The Competition Tribunal has dismissed an exception application by MultiChoice (Pty) Ltd in an ongoing dispute over an alleged notifiable merger between MultiChoice and the South African Broadcasting Corporation (SOC) Ltd (SABC).
The case stems from a 2015 complaint lodged by Caxton and CTP Publishers and Printers Limited, the S.O.S Support Public Broadcasting Coalition, and the Media Monitoring Project Benefit Trust. The applicants claim that a 2013 Commercial and Master Channel Distribution Agreement between MultiChoice and the SABC constituted a merger under the Competition Act, and that the parties failed to notify the Competition Commission as required.
Under the agreement, MultiChoice was allowed to carry the SABC’s unencrypted free-to-air channels on its subscription services (such as M-Net) in return for payment, with conditions attached if the SABC chose to encrypt its channels.
Initially, the Tribunal dismissed the applicants’ complaint in 2016, a decision upheld by the Competition Appeal Court (CAC) — but with instructions that all related documents be submitted to the Commission for a full investigation. After years of legal wrangling, including a 2018 Constitutional Court ruling affirming the Commission’s subpoena powers, the Commission concluded that MultiChoice’s agreement gave it influence over the SABC’s strategic direction, potentially constituting a notifiable merger.
In response to these findings, MultiChoice filed an exception application seeking to dismiss the case without a full hearing. However, the Tribunal found that there were complex disputes of fact and law, particularly regarding whether the agreement gave MultiChoice sufficient influence over the SABC to amount to a merger under section 12(2)(g) of the Act.
“We are not satisfied that on all possible readings of the facts… no cause of action has been made out,” the Tribunal stated, emphasizing that issues of control, fact, and public interest in this case must be properly tested through oral evidence.
The Tribunal also pointed out that allowing the exception would contradict previous orders from the CAC and the Constitutional Court, both of which emphasized the need for a full reconsideration of the matter using the Tribunal’s inquisitorial powers.
As a result, the main application will proceed to a full hearing on its merits. The Tribunal’s full reasons for dismissing the exception application will be published once confidentiality considerations have been resolved.
