S.O.S Support Public Broadcasting Coalition and Others v South African Broadcasting Corporation (SOC) Limited and Others (CCT121/17) [2018] ZACC 37; 2018 (12) BCLR 1553 (CC); 2019 (1) SA 370 (CC); [2018] 2 CPLR 411 (CC) (28 September 2018)

S.O.S Support Public Broadcasting Coalition and Others v South African Broadcasting Corporation (SOC) Limited and Others (CCT121/17) [2018] ZACC 37; 2018 (12) BCLR 1553 (CC); 2019 (1) SA 370 (CC); [2018] 2 CPLR 411 (CC) (28 September 2018)

The Constitutional Court held that the Competition Commission's statutory investigative powers under Part B of Chapter 5 of the Competition Act remain intact and were not curtailed by the June 2016 order of the Competition Appeal Court. The Commission is authorised to exercise both coercive and non-coercive powers, including interviewing witnesses and compelling production of documents, in investigating whether the SABC-MultiChoice agreement constitutes a notifiable merger. The June 2016 order did not expressly or impliedly restrict the Commission to a desktop review of documents. The Competition Appeal Court erred in its interpretation and in refusing declaratory relief. Applications to...

Citation
[2018] ZACC 37
Parties
Applicant: S.O.S Support Public Broadcasting Coalition; Applicant: Trustees for the Time Being of the Media Monitoring Project Benefit Trust; Applicant: Caxton and CTP Publishers and Printers Limited; Respondent: South African Broadcasting Corporation (SOC) Limited; Respondent: MultiChoice (Pty) Limited; Respondent: Competition Commission of South Africa
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
28 September 2018
Case Number
CCT121/17
Procedural Posture
Leave to Appeal / Appeal From Competition Appeal Court
Outcome
Appeal upheld. The Competition Appeal Court's order of 28 April 2017 is set aside and replaced with a declaratory order confirming the Commission's powers. Applications to adduce new evidence on appeal are dismissed with no order as to costs.
Judges
Cameron, Froneman, Jafta, Kathree-Setiloane, Kollapen, Madlanga, Mhlantla, Theron, Zondi
Legal Topics
Notifiable Merger, Competition Commission Powers, Investigation Procedures, Court Order Interpretation, Public Interest in Merger Control, Admission of New Evidence
Competition Law Commercial and Corporate Administrative Law Notifiable Merger Competition Commission Powers Investigation Procedures Court Order Interpretation Public Interest in Merger Control +1 more

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Parties

S.O.S Support Public Broadcasting Coalition

Applicant

Trustees for the Time Being of the Media Monitoring Project Benefit Trust

Applicant

Caxton and CTP Publishers and Printers Limited

Applicant

South African Broadcasting Corporation (SOC) Limited

Respondent

MultiChoice (Pty) Limited

Respondent

Competition Commission of South Africa

Respondent

Procedural Posture

Leave to Appeal / Appeal From Competition Appeal Court

Legal Issues

  1. 1 Whether the Competition Commission is authorised under the Competition Act to exercise its full investigatory powers in determining if the SABC-MultiChoice agreement constitutes a notifiable merger.
  2. 2 Whether the June 2016 order of the Competition Appeal Court precludes the Commission from exercising coercive and non-coercive investigative powers.
  3. 3 Whether the Competition Appeal Court should have varied or issued a new order to clarify the Commission's powers.

Ratio Decidendi

The Constitutional Court held that the Competition Commission's statutory investigative powers under Part B of Chapter 5 of the Competition Act remain intact and were not curtailed by the June 2016 order of the Competition Appeal Court. The Commission is authorised to exercise both coercive and non-coercive powers, including interviewing witnesses and compelling production of documents, in investigating whether the SABC-MultiChoice agreement constitutes a notifiable merger. The June 2016 order did not expressly or impliedly restrict the Commission to a desktop review of documents. The Competition Appeal Court erred in its interpretation and in refusing declaratory relief. Applications to...

Court Disposition

Appeal upheld. The Competition Appeal Court's order of 28 April 2017 is set aside and replaced with a declaratory order confirming the Commission's powers. Applications to adduce new evidence on appeal are dismissed with no order as to costs.

Orders

  • Leave to appeal is granted.
  • The appeal is upheld, and the Competition Appeal Court’s order of 28 April 2017 is set aside and replaced with a declaratory order that the Commission may exercise its non-coercive and coercive investigative powers under Part B of Chapter 5 of the Competition Act for purposes of discharging its obligations under...