About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Competition Appeal Court
SAFLII
>>
Databases
>>
South Africa: Competition Appeal Court
>>
2023
>>
[2023] ZACAC 4
|
|
eMedia Investments Proprietary Limited v Multichoice Proprietary Limited and Others (248/CAC/JUL23) [2023] ZACAC 4; [2023] 3 CPLR 32 (CAC) (16 August 2023)
IN
THE COMPETITION APPEAL COURT OF SOUTH AFRICA
CASE
NO: 248/CAC/JUL23
In
the matter between:
eMEDIA
INVESTMENTS PROPRIETARY LIMITED
Applicant
And
MULTICHOICE
PROPRIETARY LIMITED
First
Respondent
THE
COMPETITION COMMISSION
Second
Respondent
THE
MINISTER OF TRADE AND
INDUSTRY
AND COMPETITION
Third
Respondent
MINISTER
OF JUSTICE AND CORRECTIONAL
SERVICES
Fourth
Respondent
REASONS
THE
COURT
Introduction
[1]
On 28 July 2023 this Court issued the
following order: ‘Having heard counsel for the parties, the
following is ordered:
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 of the Competition Act;
2.
The Competition Tribunal is directed to
determine the Applicant’s (“
eMedia’s
”)
application for a further extension of its interim relief in
accordance with section 49C(5) on the papers filed before
this Court;
provided that the Applicant files its application with the Tribunal
by no later than 16h00 on 31 July 2023; and
3.
Pending the
finalisation
of
the
Competition Tribunal’s determination
of
eMedia’s
application for a further extension of its interim relief, the First
Respondent (“
MultiChoice
”)
is directed to maintain the
status quo
,
and is interdicted from removing the following channels from the
bouquet of channels on the DStv platform of which they currently
form
part:
3.1.
eExtra;
3.2.
eToonz;
3.3.
eMovies; and
3.4.
eMovies Extra.
4.
Subject to the Applicant complying with its
filing obligations in terms of paragraph 2, the Tribunal order
granted on 19 December
2022, under case number
IR194Mar22/EXT151Nov22, is extended until the earlier of:
4.1.
the finalisation of the Competition
Tribunal’s determination of the application,
4.2.
the conclusion of the hearing into the
alleged prohibited practice; or
4.3.
a further period not exceeding six months.
5.
There is no order as to costs.’
[2]
Given the urgency of the matter an order
was granted without accompanying reasons which now follow.
[3]
To the extent that it is relevant for the
provision of reasons the factual background can be summarised thus:
The first respondent
operates DStv a subscription television
broadcasting service.
Since
2007 the applicant has supplied certain packaged television channels
to the first respondent which are broadcast by it as
part of its DStv
service.
On 12
May 2017 the parties concluded the Commercial Master Channel
Agreement which was designed to regulate the content and channels
provided by applicant to first respondent for a five year period
which in terms of the contract was to end on 31 March 2022.
[4]
During
November 2021 negotiations to conclude a further agreement commenced
during which time first respondent made it clear that
it was only
interested in the acquisition of the rights in respect of the ENCA
channel and eNews bulletin.
It
was not interested in the acquisition of rights in respect of a
variety of other entertainment channels or
eChannels,
which it had been carrying up until then.
[1]
On
25 February 2022 the parties concluded an agreement in respect of the
acquisition of rights in respect of the ENCA channel and
eNews
bulletin.
At
the same time, it was made clear by first respondent that it will no
longer broadcast the eChannels from 1 April 2022.
[5]
It was at this point that applicant
initiated a complaint that first respondent’s conduct
constituted an abuse of dominance
in contravention of ss 8(1)(c) and
8(1) (d)(ii) of the Competition Act of 1998 (the Act).
At the same time the applicant instituted
an urgent application before the Tribunal in which it sought interim
relief in terms of
s 49C(1) of the Act.
The
relief sought in terms of s 49C(2) of the Act was that, pending the
final conclusion of the Tribunal’s hearing into the
complaint
initiated by the applicant, or for a period of six months after the
date of the interim order so granted, the first respondent
would be
interdicted from removing the eChannels from the bouquet of channels
shown on the DStv platform.
[6]
The Tribunal heard this application on 21
and 26 April 2022 and dismissed the application on 31 May 2022 at
which point the first
respondent removed the eChannels from the DStv
packages on the same date.
[7]
The applicant then appealed to this court,
the majority of which upheld its appeal on 1 August 2022 and granted
the applicant the
relief that it had sought in terms of s 49C(2)(b).
[8]
On 31 January 2023 the Tribunal extended
this interim relief by agreement between the parties until the
finalisation of a complaint
hearing by the Tribunal or
for a period of six months whichever
occurred earlier.
[9]
On 20 June 2023 the Competition Commission
concluded an investigation of the complaint and issued a notice of
non-referral.
The
reasons for its finding were briefly that the first respondent’s
decision not to renew the eChannels did not amount
to
an exclusionary act and did not give rise to anti-competitive effects
It held further that to compel first respondent to continue
to carry
channels of third parties may have unintended negative consequences
in respect of the participation of other historically
disadvantaged
persons which produced products of the same content and first
respondent’s decision to acquire content from
other third
parties.
[10]
It appears that applicant approached first
respondent to agree to a further extension of the interim relief
which was refused.
Following
the non-referral by the Commission of applicant’s complaint, Mr
Antonio Lee ,the Chief Financial Officer of applicant,
informed this
Court in his founding affidavit that the applicant would self- refer
its complaint to the Tribunal in the next few
days.
Application before this
Court
[11]
Pursuant to these developments ,the
applicant launched an application in two parts.
Part A is an application for interim
introductory relief in which it seeks an order that pending the
finalisation of Part B of the
application first respondent is
directed to maintain the
status quo
and
be interdicted from removing a series of
channels from the bouquet of channels on the DStv platform, eExtra,
eToonz, eMovies and
eMovies Extra.
In
terms of Part B the applicant has launched a constitutional challenge
to s 49 C(5) of the Act in that it contends that the section
failed
to provide for more than one extension of an interim relief order
granted in terms of s 49C of the Act.
In
terms of Part B, apart from the declaration of unconstitutionality
being sought in relation to s49 C(5), the applicant seeks
an interim
reading in of the words ‘or further periods’ following
the words ‘a further period’ in s 49C(5)
and a further
interim interdict that pending the finalisation of the Tribunal’s
hearing into the complaint or six months
from
the
date of this Court’s order, whichever is the earlier, first
respondent is directed to maintain the status quo and is interdicted
from removing the various channels to which reference has been made
from the bouquet of channels on the DStv platform of which
they
currently form part.
[12]
In his founding affidavit, Mr Lee refers to
correspondence between the applicant and first respondent concerning
a proposal to
an
extension
of
interim relief
to
which first respondent recorded that ‘the
Tribunal has no power under the
Competition Act to
grant a further
extension of interim relief that has been granted under
s 49C(4)
and
extended for a period of six months under
s 49C(5).
Responding thereto, Mr Lee stated that,
given the first respondent’s approach to s 49C(5) of the Act
and in the absence of
any undertaking that it would retain the
relevant
eChannels
on the DStv platform pending the finalisation of the Tribunal’s
hearing into the self-referral, it had no alternative
but to approach
this Court on an urgent basis to challenge the constitutionality of
the limitation on the power of the Tribunal
to grant interim relief
for a period of more than twelve months. Applicant contended that the
matter was urgent in that the interim
relief which was granted by the
Tribunal would lapse on 31 July 2023.
The key dispute before
this Court
[13]
Although the affidavits filed by the
parties accompanied by the heads of argument by counsel for both
applicant and first respondent
canvassed not only the interpretive
question concerning s 49C but whether, on the facts, there was
justification for this Court
to grant further interim relief in terms
of the requirement of
s
49C, the
key
question
was
the
meaning
of
s
49C(5)
and
what
was
referred
to
as
‘the
one extension’ rule.
[14]
Section 49C(5) provides thus ‘if an
interim order has been granted and a hearing into that matter has not
been concluded within
six months after the date of that order, the
Competition Tribunal, on good cause
may
extend the interim order for a further period not exceeding six
months.
[15]
In
Business
Connexion (Pty) Ltd v Vexall (Pty) Ltd and another
[2020]
ZACAC 4
at para 18 Unterhalter AJA referred to this section and
stated ‘the Tribunal is empowered to regulate how competition
in
the market is to take place for a six or twelve month period’.
(para 18)
[16]
It appears to be that the
obiter
dictum
in the
Vexall
case has been accepted by the Tribunal
as permitting an extension of the order under s 49 C only for a
further six months after
the initial order was granted. (See in this
regard the embrace of this
dictum
by
the Tribunal in
Apollis Studios (Pty)
Ltd and another v Audat SA (Pty) Ltd and another
(Case
number: IR198Mar23) and
Industrial Gas
Users Association of South Africa v Sasol Gas (Pty) Ltd and others
(IR095Aug22).
In short, on the approach taken in these
cases, interim relief can only be for a maximum period of twelve
months.
It is
this approach
to
the section which has informed the
present
application before this Court in terms of both Part A and Part B of
the application.
The key issues for
determination
[17]
It follows that the determination of the
dispute turns on the answer to a series of issues
being;
1.
Is s 49C(5) in breach of the Republic of
South African Constitution of 1996 and in particular as contended for
by applicant in breach
of s34 of the Constitution?
2.
In order to make this determination, this
Court must seek to interpret the section by way of the fidelity to
the words employed
in the section and recourse to the purpose and
context thereof.
3.
If this interpretation accords with the
obiter dictum
set
out in
Vexall
then
the further question arises as to whether the section is in breach of
the Constitution and in particular s 34 thereof.
4.
If this section can be interpreted in a
manner which permits the Tribunal, in its discretion, to extend
relief envisaged in s 49C
beyond the period of one year, then should
this Court engage with the further requirements set out in s 49 C or
should it remit
the matter for determination in terms of the proper
interpretation of the section to the Tribunal?
5.
If the Court is so inclined does it have
the jurisdiction to make any such order?
The proper interpretation
of s 49C(2)
[18]
This Court in
Vexall
helpfully engaged with the purpose of s
49C where Unterhalter AJA said at para 21:
‘
The
need for intervention is a function of the probability of serious or
irreparable damage occurring, if no intervention is ordered
by the
Tribunal before it can make a final determination as to whether the
alleged prohibited practice has taken place.
It is the damage to the competitive
position of the applicant that the prohibited practice may cause that
marks out this inquiry.’
[19]
Expressed in
general terms, the key purpose of the Act
is to preserve, protect and
enhance
the
competitive
process
in
a
defined
market.
Hence
s49C
should
be
interpreted
within the context of this purpose.
Section
49C envisages that the Tribunal is obliged ‘to make a summary
assessment before granting the interim relief’.
This assessment is only at the
prima
facie
level.
It must consider the evidence as to the
alleged practice.
There
is usually no time to delve
too
deeply into theories of irreparable harm
but at the very least it must be assessed in the context of whether
there is a prima facie
right at the interim level.
As long as there is clear and non
speculative evidence about possible anti-competitive effects, then
serious consideration must
be given to the granting of the relief.’
Media Investments (Pty) Ltd of South
Africa v Multichoice (Pty) Ltd and another
[2022]
ZACAC at 9.
Relief
cannot be granted under s 49C unless a
prima
facie
case has been established which,
in turn, implies that an applicant has put up an arguable case that
the state of competition, that
is the competitive dynamics
in the defined market can be detrimentally
affected by the alleged conduct or practice of a respondent.
[20]
That the section envisaged that the relief
should only be granted for six months and that a further extension
could only be granted
for a maximum of a further six months is
predicated on the dynamic features of a market, where the balance of
convenience may well
have shifted during the six month period.
The facts on which the initial relief was
granted may have so altered due to the changes in the market that the
possible detrimental
effects to the competitive process no longer
exist in sufficient weight to justify an extension of the order.
The wording of s 49 C (5)
[21]
It
is
now
possible to
return to an engagement with
the
wording of s 49C(5), namely ‘if an interim order has been
granted and a hearing into that matter has not been concluded
within
six months after the date of that order the Competition Tribunal, on
good cause shown, may extend the interim order for
a further period
not exceeding six months.’
[22]
First respondent, on the strength of the
BCI, dictum
,contends
that the meaning of the phrase, ‘may extend the interim of the
order for a further period not exceeding six months
envisages that
only one further period can be granted and
that at the end of a twelve month cycle this section can no longer be
applied to grant
a party such as applicant any further relief.
[23]
By contrast, the applicant contends that
the reference in s 49 C (5) to a single further period should be read
to include the plural.
In
its view the phrase ‘for a further period not exceeding six
months is one that gives rise to the constitutional difficulties
because it appears to contemplate only a single further period for
which an extension may be granted.
Invoking
s 6 (b) of the Interpretation Act 33 of 1956 which provides that ‘in
every law unless the contrary intention appears
words in a singular
number include the plural and words in the plural number include the
singular’,
counsel
for the applicant contended that the phrase ‘for a further
period’ is capable of being construed to include
the two
further periods.
[24]
The solution to this clash of
interpretation can
be
guided by a
dictum
of
Moegoeng CJ in
Independent Institute of
Education (Pty) Ltd v KwaZulu – Natal Law Society and others
2020 (2) SA 325
(CC) at para 2 when
referring to the mandated interpretative exercise, the Chief Justice
said:
‘
Section
39(2) of the Constitution dictates that ‘when interpreting any
legislation ... every court, Tribunal or forum must
promote the
spirit, purport and object of the Bill of Rights.
Meaning, every opportunity the courts have
to interpret the legislation must be seen and utilised as a platform
for the promotion
of the Bill of Rights by infusing its central
purpose into the very essence of the legislation itself.’
[25]
Significantly, in
Independent
Institute of Education, supra
the
Court was faced with a declaration by the High Court of the
constitutional invalidity of s 26(1)(a) of the Legal Practice Act
because it excluded private higher education institutions duly
registered and accredited to offer LLB degree.
Examining the declaration of invalidity by
the High Court, the Constitutional Court, per Moegoeng CJ, said:
‘
There
is in my view no sound reason for not giving the word “university”
its ordinary grammatical meaning and for not
concluding that its
contextual and purposive construction ought to save s 26 (1) (a) from
constitutional invalidation.
To
do otherwise would be absurd.’
(para
13)
[26]
The Chief Justice concluded:
‘
Put
bluntly if when considering the constitutionality of a particular
legislation becomes apparent that its provisions were consistent
with
or will promote the Bill of Rights there would be no need to still
ascertain whether its provisions are consistent with those
of another
related legislation.’ (para 15 )
[27]
In summary, this judgment
of the Constitutional Court enjoins an
engagement with the interpretation of the section which has been
subjected to a
challenge
of constitutional
validity
being
s
49C(5)
and
to
decide
whether
a
constitutionally
compatible
interpretation can be given to the words in question, particularly an
interpretation guided by the spirit, purport and
objects of the Bill
of Rights.
[28]
Viewed in this context, the task of this
Court is to engage with the words of s49 C (5) through the prism of s
39(2) of the Constitution.
This
conclusion also provides an answer to first respondent counsel’s
argument that the case made out by the applicant in
its
papers was based exclusively on
a direct attack on the constitutional
validity of s 49C(5) and that the interpretive solution was only
raised in applicant’s
heads of argument as an afterthought.
In other words, the case which the first
respondent had come to meet was
based
on a
direct
attack on the constitutional validity of the section and not on a
process of statutory interpretation.
[29]
But once this Court, as we have indicated,
on the basis of the authority of
Independent
Institute of Education (Pty) Limited
is
enjoined to engage in the interpretation of the impugned section as
part of the process of determining its constitutional invalidity,
it
follows that the interpretive question will have to be debated. The
outcome thereof is an initial requirement to the further
engagement
as to the possibility of constitutional invalidity.
For this reason, the complaint about being
ambushed by having to deal with the interpretive argument therefore
has no merit.
[30]
The
question
therefore
arises
as
to
the
proper
interpretation
of
s
49C(5).
Applicant has invoked s 34 of the
Constitution ‘every has the right to have any dispute that can
be resolved by the application
of law decided in a fair public
hearing before a court or where appropriate another independent an
impartial Tribunal or forum.
[31]
Section 34 was canvassed in a similar,
albeit not equivalent, circumstance by the Constitutional Court in
Competition Commission of South Africa v
Pickfords Removals SA (Pty) Ltd
[2020]
ZACC 14.
The
Court was concerned to interpret s 67 (1) of the Act which then
provided:
‘The
complaint in respect of a prohibited practice may not be initiated
more than three years after the practice was ceased.’
At para 32, the Court engaged with the
wording of s 67 of the Act and said that it was open to two possible
interpretations, one
being a substantive time bar and another being a
procedural time bar which can be condoned by the Tribunal in terms of
its powers
set out s 58 (1)(c)(ii) of the Act.
[32]
Significantly, Majiedt J then
said:
‘Both
interpretations undoubtedly limit the right of access to Courts as
enshrined in s 34 of the Constitution’.
It then held that the Court must determine
‘which of the two possible interpretations is the least
limiting of the right of
access to Courts’. (para 37)
Viewed through the prism of s 34 the Court
held that an interpretation of s 67(1) of the Act as a procedural
time bar was to be
preferred over an inflexible substantive time bar
because the interpretation of the section as an absolute time bar
would not only
limit the Commission’s access to the Tribunal
but also access to a civil court for potential claim for
consequential damages arising from a
prohibited practice.
[33]
In this case an interpretation which does
not restrict the meaning of s 49C(5) to only one extension and offers
the possibility
that a party with a case which shows
prima
facie
that is the subject to
anti-competitive conduct such as abuse of dominance
in
terms of s 8 would continue to have access to a court to obtain
interim relief.
[34]
Were the contrary interpretation to be
preferred an
applicant
would have no recourse to any relief.
If
subsequent to the expiration of the twelve month period, the Tribunal
(or this Court) held the respondent
to
be liable for
having
committed a breach of s 8 of the Act,
in
the absence of any interim relief ,the business of the applicant
could be so impaired that only pyrrhic
victory would have been obtained by it.
Its success on the merits would have come
after its business could have
been
destroyed as a consequence of the abuse of dominance . This would
represent so gross and injustice
that
it
could not have
been intended by the legislature in its promulgation of the
provisions of section 49C(5) of the Act. In essence,
the alternative
interpretation amounts to giving the applicant relief with one hand
and, upon expiry of the twelve months’
period, taking it away
with the other hand without the applicant being afforded any recourse
to prevent disastrous consequences
that flowed from
an abuse of dominance
established by the Tribunal
[35]
An argument pressed
by the first respondent was that such an
interpretation would mean that an applicant could get indefinite
extensions and thus in
effect what amounted to final relief based on
the lesser burden of a prima facie case as opposed to the more
exacting burden of
balance
of probabilities provided in section 68 of the Act. That section
states: ‘In any proceedings in terms of this Act,
other than
proceedings in terms of section 49C or criminal proceedings, the
standard of proof is on a balance of probabilities.’
[36]
But the concerns of a de facto regime of
final relief if the one extension interpretation is not favoured must
be balanced by an
equally compelling concern of the consequences of
the premature termination of interim relief for no other reason than
a year has
elapsed. The fears of an interminable period of relief
premised on only
a prima facie standard
must be put in proper perspective. Interim relief orders are reviewed
every six months, as discussed earlier,
subject to a good cause
standard. This means the Tribunal is regularly required to review the
ongoing relief – it is not
a
fait
accompli
that it will always be
renewed.
[37]
Viewed through the prism of s 39(2) in
general and s 34
of
the Constitution in particular,
this
Court is faced with
the
wording of section s 49C(5) which is capable of more than one
plausible interpretation.
An
interpretation which is more congruent with these constitutional
provisions, in our view, is also congruent with the core purpose
of
the interim relief envisaged in the s 49C as we have set out above.
Hence the phrase, ‘for a
further period not exceeding six months’
can be read to extend beyond a single further period for which an
extension may be
granted to mean that any further period even beyond
twelve months may be granted provided that any single such order can
only be
for a
maximum of six months.
[38]
This conclusion leads to the further issue
concerning the power of this Court to make such a determination and
to grant any appropriate
order which flows therefrom.
The jurisdictional debate
[39]
First Respondent contended that in terms of
s170 read with s 166(e) of the Constitution this Court may decide any
matter determined
by an Act of Parliament.
In the view of the
first respondent these sections are
restricted to matters which are provided for in s 37 and s 62 of the
Act .It thus followed that
this
Court would have no jurisdiction to determine the matter unless it
fell specifically within the ambit of these two sections.
[40]
Section 37(2) of the Act provides that the
Competition Appeal Court may give any judgment or make any order
including an order to:
(a)
confirm,
amend
or
set
aside
the
decision
or
order
of
the
Competition
Tribunal; or
(b)
permit the matter to the Competition
Tribunal for a further hearing on any appropriate terms.
[41]
To the extent relevant, s 62(1)(a) provides
that the Competition Tribunal and Competition Appeal Court share
exclusive jurisdiction
in respect of the following matters:
1.
Interpretation and application of Chapters
2, 3 and 5…(2) in addition to any other jurisdiction granted
in this Act to the
Competition Appeal Court the Court has
jurisdiction over:
(a)
the question whether an action taken or
proposed to be taken by the Competition Commission or the Competition
Tribunal is within
their respective jurisdictions in terms of this
Act;
(b)
any constitutional matter arising in terms
of the Act; and
(c)
the question whether a matter falls within
the exclusive jurisdiction granted under subsection (1).
[42]
The first respondent contends that the one
section to which applicant turns , namely s 62(1)(b) which empowers
this Court to determine
any constitutional issue must arise
only in an appeal or a review contemplated
in s 37 of the Act.
To
a considerable
extent,
this
submission
overlooks
the
judgment
of
the
Constitutional Court in
Competition
Commission of South Africa v Group Five Construction Ltd
2023
pp. (1) BCLR 1 (CC) where in dealing with s
62(2) of the Act , the majority of the Constitutional Court said:
‘
Unlike
the Tribunal the Competition Appeal Court which has a status similar
to that of a High Court does have jurisdiction to hear
a PAJA and
legality reviews in terms of two provisions of the Act.
First the Competition Appeal Court is
expressly empowered to review any decisions of the Tribunal –
this power is limited
to decisions of the Tribunal and does not
include decisions of the Commission.
Second, in addition to any other
jurisdiction granted in the Act it has jurisdiction at the
Constitutional matters arising in terms
of the Act.
That includes the power to review the
exercise of Commission’s public powers derived from the Act.’
(at para 132)
[43]
It is clear from this
judgment in
Group
Five
that this Court can, as a court of
first instance, decide matters which fall within the scope of s 62(2)
and that further this Court
is entitled to adjudicate upon
constitutional matters which, as indicated above, includes the
constitutional validity of the wording
of sections within the Act.
[44]
The question is to what constitutes a
constitutional matter for the purpose of the Court’s
jurisdiction in the context of
this kind of dispute was settled in
Head of the Department: Mpumalanga
Department of Education and another v Hoerskool Ermelo and another
2010 (2) SA at 415 (CC) paras 96-97
where Moseneke DCJ said thus:
‘
The
power to make such an order derives from s172(1)(b) of the
Constitution.
First,
s172(1)(a) requires a court, when deciding a constitutional matter
within its power to declare any law or conduct that is
inconsistent
with the Constitution invalid to the extent that of its
inconsistency.
Section
172(1)(b) of the Constitution provides that when this Court decides a
constitutional matter within its power it may make
any order that is
just and equitable.
The
litmus test will be whether considerations of justice and equity in a
particular case dictate that the order be made.
In other words the order must be fair and
just within the context of the particular statute. It is clear s
172(1)(b) confirms wide
remedial powers on a competent court
adjudicating a constitutional matter.
The
remedial power envisaged in s 172(1)(b) is not only available when a
court makes an order of constitutional invalidity of a
law or conduct
within s 172(1)(a).
A
just and equitable order may be made even in instances where the
outcome of the Constitutional dispute does not hinge on
Constitutional
invalidity of legislation or conduct.
This ample and flexible remedial
jurisdiction in constitutional disputes permits a court to forge an
order to place substance above
form by identifying the actual
underlying dispute between the parties and requiring the parties to
take steps directed at resolving
the dispute
in a manner consistent with constitutional
requirements.’
[45]
Further support for the power of this Court
to make an order in the present dispute is to be found in
Mwelase
Brothers v Director Genera for the Department of Rural Development
and Land Reform and another
2019 (6) SA
597
(CC) at para 65 where Cameron J said:
‘
This
Court has held that the Labour Court although not expressly so
invested enjoys jurisdiction to strike down a statute on the
grounds
of constitutional invalidity.
By
parallel reasoning it follows that the Constitution affords the Land
Claims Court extensive powers, when deciding constitutional
matter
within its powers to “make any order that is just and
equitable”.
Any
order that is just and equitable!
That
is no invitation to judicial hubris.
It
is an injunction to do practical justice as best and humbly as the
circumstances demand.
[46]
It follows that this Court must stand in
the same position, namely when constitutional issues are engaged ,
the Court
has the
power to make an order that is
just and
equitable.
A
constitutional dispute in this connection is not only restricted to a
declaration of constitutional invalidity but to a clear
engagement
with the Constitution in order to justify an interpretation which is
congruent with the spirit, purport and objects
of the Constitution.
This is precisely the approach which we
have adopted.
Conclusion
[47]
The primary inquiry required of this Court
to determine the appropriate meaning of s 49C(5).
Confronted with two competing
interpretations of the section, this Court, as enjoined by s 39(2) of
the Constitution, has interpreted
this section in a manner which is
congruent with the spirit, purport and objects of the Constitution as
sourced in
s 34
of the Constitution as well as to ensure an interpretation that
reflects and promotes the objectives of s 49C in general.
This required the kind of constitutional
engagement which affords this Court the power to make an order which
is just and equitable
in the circumstances of this case.
[48]
There was a considerable debate about
urgency and thus the time
at
which
this application was brought.
In
essence, the first respondent contends that this is a case of
self-induced urgency.
In
its view, applicant should have launched a constitutional challenge
to s 49C(5) earlier because it was aware, at least on 31
January
2023, when it obtained an extension of interim relief pursuant to s
49C(5) that it could not be granted a further extension.
[49]
As the applicant’s counsel submitted,
had applicant instituted a constitutional challenge
earlier, it would have been criticised for
having brought an application that had no
basis in that, when brought, an interdict was still in place.
Furthermore on 14
June
2023 applicant asked first respondent for an extension of the current
interim relief or undertaking that it would not remove
or close
channels from the DStv platform;
that
is a full six weeks before the expiry of the interim relief.
A week later, on 21 June 2023, first
respondent indicated that it would not agree to any such extension.
In these circumstances the argument of lack
of urgency which was designed to persuade this Court not to hear this
case, clearly
stands to be rejected .The applicant had not remained
supine but upon a failure to procure an agreement regarding an
extension
of interim relief, its only option was to launch the
present application.
[50]
On the basis of the interpretation of s 49
C (5) as set out by this Court, the appropriate relief is to remit
the entire application
for a further extension of the interim relief
pursuant to s 49 C (5) as now defined, to the Tribunal in order for
it to consider
whether, on the current facts, a further extension
of interim relief can be legally justified.
Furthermore, pending the finalisation of
the Tribunal’s determination, it is just and equitable to
maintain the status
quo
and
thus prevent first respondent from removing the various channels from
the bouquet of channels on the DStv platform. The maximum
period for such an interdict should be no
longer than six months.
[51]
In its discretion, this Court decided that
no cost order should be made. Given the manner in which the
application was justified
in the founding papers and the order
ultimately granted on the interpretation of S49C as opposed to the
direct challenge to the
constitutionality of the section, no award of
costs was the most equitable outcome.
Manoim
JP
pp
Davis AJA
pp
Nkosi AJA
Appearances
Counsel
for Applicant: Adv
G Marriot, Adv N Ferreira,
Adv Catherine Kruyer, Adv
S Pudifin
Jones and Adv S Nelani
Instructed
by: Nortons
Inc
Counsel
for First Respondent: Adv
W Trengove SC, Adv M Norton
Adv J Wilson SC,
Adv M Mbikiwa and Adv
Ntlakana
Instructed
by: Webber
Wentzel
Date
of hearing: 28
July 2023
Date
of order: 28
July 2023
Date
of judgment: 16
August 2023
[1]
These
eChannels are described in paragraph 11 below.