eMedia Investments Proprietary Limited v MultiChoice Proprietary Limited and Others

eMedia has supplied packaged television channels to MultiChoice since 2007 for broadcast on DStv. The parties concluded the Commercial Master Channel Agreement on 12 May 2017 for a five-year period ending 31 March 2022. During negotiations in November 2021, MultiChoice indicated it was only interested in acquiring rights to the ENCA channel and eNews bulletin, not the entertainment channels (eChannels) it had been carrying. On 25 February 2022, the parties concluded an agreement for ENCA and eNews, but MultiChoice made clear it would no longer broadcast the eChannels from 1 April 2022. eMedia initiated a complaint alleging abuse of dominance under sections 8(1)(c) and 8(1)(d)(ii) of the Competition Act and sought urgent interim relief under section 49C(1). The Tribunal dismissed the application on 31 May 2022, and MultiChoice removed the eChannels. The Competition Appeal Court upheld eMedia's appeal on 1 August 2022 and granted interim relief under section 49C(2)(b). On 31 January 2023, the Tribunal extended this interim relief by agreement for six months or until finalisation of the complaint hearing. On 20 June 2023, the Competition Commission issued a notice of non-referral, finding no exclusionary conduct or anti-competitive effects. eMedia indicated it would self-refer its complaint to the Tribunal. MultiChoice refused to agree to a further extension of interim relief, asserting that the Tribunal had no power under section 49C(5) to grant more than one extension beyond the initial six-month period.

• Whether section 49C(5) of the Competition Act limits the Competition Tribunal to granting only one extension of interim relief beyond the initial six-month period, or whether the phrase 'a further period' includes the plural and permits multiple extensions
• Whether the Competition Appeal Court has jurisdiction to determine constitutional matters arising under the Competition Act outside the context of appeals or reviews under sections 37 and 62
• Whether section 49C(5), if interpreted to permit only one extension, would be unconstitutional for violating section 34 of the Constitution (right of access to courts)
• What constitutes the proper constitutional interpretation of section 49C(5) in light of section 39(2) of the Constitution

1. It is declared that the words 'a further period' in section 49C(5) of the Competition Act do not limit the power of the Competition Tribunal to granting only one extension to the interim relief granted under section 49C. 2. The Competition Tribunal is directed to determine eMedia's application for a further extension of its interim relief in accordance with section 49C(5) on the papers filed before the Court, provided eMedia files its application with the Tribunal by 16h00 on 31 July 2023. 3. Pending the Tribunal's determination, MultiChoice is directed to maintain the status quo and is interdicted from removing the following channels from DStv: eExtra, eToonz, eMovies, and eMovies Extra. 4. Subject to eMedia's compliance with filing obligations, the Tribunal order of 19 December 2022 is extended until the earlier of: (a) finalisation of the Tribunal's determination, (b) conclusion of the hearing into the alleged prohibited practice, or (c) a further period not exceeding six months. 5. No order as to costs.

The binding legal principle is that section 49C(5) of the Competition Act 89 of 1998 does not limit the Competition Tribunal to granting only one extension of interim relief beyond the initial six-month period. The phrase 'a further period not exceeding six months' must be interpreted, in accordance with section 39(2) of the Constitution, to permit multiple extensions where good cause is shown, with each individual extension not exceeding six months. When a statutory provision is capable of more than one plausible interpretation, courts must adopt the interpretation that is most congruent with section 34 of the Constitution (right of access to courts) and least limiting of constitutional rights. An interpretation that would deny parties access to interim relief after 12 months, potentially resulting in irreparable harm despite eventual success on the merits, cannot reflect the legislature's intention. The 'good cause' requirement in section 49C(5) operates as a safeguard, requiring the Tribunal to review the justification for ongoing interim relief every six months based on current market conditions and evidence, preventing automatic or indefinite extensions. The Competition Appeal Court has jurisdiction under section 62(2)(b) of the Competition Act, read with section 172(1)(b) of the Constitution, to decide constitutional matters arising under the Act and to make any order that is just and equitable, including as a court of first instance and not only on appeal or review.

The Court made several non-binding observations. First, it noted that the obiter dictum in Business Connexion (Pty) Ltd v Vexall (Pty) Ltd stating that the Tribunal is empowered to regulate competition 'for a six or twelve month period' has been incorrectly embraced by the Tribunal in subsequent cases as establishing a 'one extension rule', but this interpretation is not correct. Second, the Court observed that constitutional engagement in statutory interpretation is not limited to cases where constitutional invalidity is declared, but extends to interpreting provisions in a manner congruent with the Constitution's spirit, purport and objects. Third, the Court commented that had the applicant launched a constitutional challenge earlier while interim relief was still in place, it would likely have been criticized for bringing an application without proper basis. Fourth, the Court observed that the purpose of section 49C interim relief is to preserve the competitive process in a defined market and prevent irreparable damage to the competitive position of an applicant before the Tribunal can make a final determination. The Court noted that relief cannot be granted unless a prima facie case is established showing an arguable case that competitive dynamics in the defined market can be detrimentally affected. Fifth, the Court observed that concerns about indefinite extensions based on a prima facie standard (as opposed to the balance of probabilities standard in section 68) must be balanced against the equally compelling concern of premature termination of relief causing business destruction despite eventual success on the merits. The Court also observed that the 'good cause' standard requires regular review and prevents automatic renewal, addressing concerns about de facto final relief. Finally, on costs, the Court stated that given the manner in which the application was justified in the founding papers (as a direct constitutional challenge) versus the basis on which the order was ultimately granted (statutory interpretation), no award of costs was the most equitable outcome.

This judgment is significant for establishing the proper interpretation of section 49C(5) of the Competition Act regarding extensions of interim relief. It clarifies that the Competition Tribunal has discretion to grant multiple extensions of interim relief beyond the initial 12-month period (six months plus one extension), provided each extension does not exceed six months and good cause is shown. The judgment demonstrates the application of constitutional interpretation principles under section 39(2), requiring courts to interpret legislation to promote the Bill of Rights where possible, rather than immediately declaring provisions unconstitutional. It confirms that the Competition Appeal Court has jurisdiction under section 62(2)(b) to decide constitutional matters arising under the Competition Act as a court of first instance, not only on appeal or review. The judgment balances the need to protect competition and prevent irreparable harm to complainants against concerns about indefinite interim relief based on a prima facie standard. It establishes that where a statute is capable of two interpretations, courts should adopt the interpretation that is least limiting of constitutional rights, particularly the section 34 right of access to courts. The decision is important for competition law enforcement, ensuring that interim relief mechanisms remain effective even in protracted competition disputes, while preserving the Tribunal's discretion to review extensions based on changing market dynamics and the continued satisfaction of the good cause standard.