eMedia Investments Proprietary Limited v MultiChoice Proprietary Limited

eMedia Investments (eMedia) and MultiChoice had a commercial relationship since 2007 whereby eMedia supplied television channels (the eChannels: eToonz, eMovies, eMovies Extra, and E.tv Extra) to MultiChoice's DStv platform. In 2017, they concluded a five-year agreement for the provision of content and channels, due to expire on 31 March 2022. During negotiations in November 2021 for a replacement agreement, MultiChoice indicated it was only interested in acquiring rights to the ENCA channel and eNuus bulletin, not the eChannels, even when offered for free. MultiChoice advised it would cease broadcasting the eChannels from 1 April 2022. eMedia initiated a complaint alleging abuse of dominance and sought urgent interim relief from the Competition Tribunal to prevent MultiChoice from removing the eChannels pending final determination of the complaint. The eChannels were among the most popular on DStv, with two ranking in the top ten. eMedia earned revenue from advertising associated with these channels on the DStv platform. MultiChoice has overwhelming market dominance (72%) in the basic satellite services market.

• Whether eMedia established a prima facie case of a prohibited practice under section 8(1)(d)(ii) of the Competition Act (refusal to supply scarce goods or services)
• Whether eMedia established a prima facie case under section 8(1)(c) of the Competition Act (exclusionary conduct)
• Whether the Competition Tribunal correctly applied the test for granting interim relief under section 49C(2) of the Competition Act
• Whether MultiChoice's refusal to continue broadcasting the eChannels constituted a refusal to supply a scarce service
• Whether the conduct had anti-competitive effects that outweighed any pro-competitive gains
• Whether eMedia demonstrated serious or irreparable harm
• Whether the balance of convenience favored granting interim relief
• The proper approach to interpreting competition law provisions in light of the transformative objectives of the Competition Act

The appeal was upheld. The Competition Appeal Court ordered: (1) Pending final determination of the complaint, MultiChoice is interdicted from removing eToonz, eMovies, eMovies Extra, and E.tv Extra from the DStv platform bouquet of which they formed part prior to the Tribunal's ruling; (2) MultiChoice shall pay eMedia's costs including costs of two counsel.

A dominant firm's refusal to continue providing access to a platform (such as a broadcasting service) that enables a competitor to reach customers and earn revenue can constitute a refusal to supply a scarce service under section 8(1)(d)(ii) of the Competition Act where: (1) the platform cannot be easily duplicated without significant capital investment; (2) the dominant firm has overwhelming market power; and (3) no objective business justification is provided for the refusal. When considering interim relief under section 49C(2), the Competition Tribunal must apply a prima facie standard, not the standard for final relief, and must contextualize the relief within the transformative objectives of the Competition Act, including promoting broader economic participation and assisting small and medium-sized enterprises to compete. The balance of convenience in interim competition matters must consider not only commercial harm to individual parties but also the effect on competition in the market, particularly where historical patterns of economic concentration may be entrenched by the conduct of dominant firms.

The majority made several important observations: (1) Competition authorities must be sufficiently agile to meet the needs of fast-paced economies when considering interim orders, as delay until final determination may result in irreparable harm; (2) The jurisprudential and transformative principles of the Competition Act apply at both interim and final relief stages; (3) Institutions created to give effect to the Competition Act must never allow what the Act exists to undo to elude them through legal sophistry or inhibitive jurisprudential innovations; (4) The achievement of equality goes to the bedrock of South Africa's constitutional architecture and informs all law; (5) In South Africa's context of historical economic exclusion, competition law must incorporate equality considerations; (6) Maximizing the overlap between equitable and efficient competition requires greater appreciation of exclusionary conduct and its harmful effects; (7) Anti-competitive effects need not be significant or substantial - once there is an anti-competitive effect without justification, the exclusionary aspect must be carefully balanced; (8) The minority observed that granting an interdict in such circumstances could be tantamount to imposing a duty on a dominant firm to acquire content, which raises novel issues about extending duties beyond traditional refusal to supply scenarios.

This case is significant for several reasons: (1) It clarifies the approach to interim relief in competition law matters, emphasizing that a prima facie standard applies rather than requiring certainty to the level of final relief; (2) It reinforces that competition law must be interpreted and applied within the transformative constitutional framework, giving effect to the Competition Act's purposes of promoting broader economic participation and assisting small and medium-sized enterprises; (3) It expands the understanding of "refusal to supply scarce services" under section 8(1)(d)(ii) to include situations where a dominant firm provides access to a platform or customer base that cannot be easily duplicated; (4) It demonstrates judicial willingness to intervene where dominant firms exercise market power in ways that may entrench historical economic concentration; (5) It shows that dominant firms cannot rely solely on commercial autonomy arguments when their conduct has exclusionary effects, particularly where no objective business justification is provided; (6) It illustrates the importance of interim relief in fast-moving markets where waiting for final determination could cause irreparable competitive harm; (7) It applies and reinforces the principles from Mediclinic regarding the imperative to confront historical economic exclusion through competition law enforcement.