IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) Reportable Yes Case Number: 2024 / 092117
(2) Of interest to other Judges: Yes
(3) Revised: Yes
-
23/03/2026
Signature Date
In the matter between:
EMEDIA INVESTMENTS (PTY) LTD
and
THE INDEPENDENT COMMUNICATIONS AUTHORITY
OF SOUTH AFRICA
MUL TICHOICE (PTY) LTD
MUL TICHOICE SOUTH AFRICA (PTY) LTD
SUPERSPORT INTERNATIONAL (PTY) LTD
SOUTH AFRICAN BROADCASTING CORPORATION
SOC LIMITED
MEDIA MONITORING AFRICA
SOUTH AFRICAN RUGBY UNION
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
Page 2
NATIONAL SOCCER LEAGUE Eighth Respondent
NETFLIX INTERNATIONAL B.V. Ninth Respondent
JUDGMENT
LABUSCHAGNE J
[1] The first respondent (ICASA) is in the process of conducting a n ongoing
market inquiry in terms of sec 67 of the Electronic Communications Act ,36 of
2005, in respect of competition in the field of broadcast television. The
applicant and the second respondent (MultiChoice) are participating in the
market inquiry.
[2] MultiChoice submitted written submission s which contain information it
regards as confidential. It requested ICASA to classify such information as
indicated as confidential and ICASA, acting under its powers in terms of
Section 4 D of the ICASA Act ,13 of 2000, proceeded to classify such
information as confidential.
[3] The applicant contends that, in order for it to make meaningful submissions to
the enquiry, it requires insight into the confidential information. However, it
proposes a confidentiality regime which provides for the confidential
information to be provide d by means of limited disclosure to the applicant’s
legal representatives and experts.
[4] ICASA has adopted the position that the empowering Act, Section 4D of the
ICASA Act, does not permit ICASA to enter into a confidentiality regime. It
Page 3
however abides the decision of the court and accepts a draft order on the
premise that the court finds that the court is entitled to order such a
confidentiality regime. MultiChoice opposes the relief.
[5] A tailored draft order was agreed between eMedia Investments and ICASA
(on the strict premise that it is limited to the facts of this matter and is
dependent on the court finding that the court has the power to direct such a
confidentiality regime) which was provided to the court after conclusion of the
argument.
[6] The applicant’s position is that the ICASA Act empowers ICASA to disclose
information categorised as confidential in terms of Section 4D, subject to a
confidentiality regime. ICASA disagrees and so does MultiChoice. The
alternative argument is that the court possesses such a power.
BACKGROUND FACTS
[7] On 11 July 2016 ICASA launched an inquiry into subscription broadcasting
services in terms of Section 67 of the Electronic Communications Act in order
to assess the state of competition and market dynamics in the pay -television
sector.
[8] MultiChoice made submissions and ICASA granted MultiChoice confidentiality
over three sets of submissions.
[9] On 07 March 2025 ICASA granted MultiChoice confidentiality over written
submissions dated 15 February 2024 . S ome 275 lines have partial or
Page 4
complete redactions. The redactions have not been explained or categorised.
The applicant contends that one can infer that the reductions concern
MultiChoice’s revenue, forms of operational funds, subscription numbers and
costs.
[10] On 05 June 2025 ICASA granted MultiChoice confidentiality over written
submissions dated 24 March 2025. Some 167 lines of the text have been
redacted, either wholly or partially. eMedia, based on a contextual reading,
contends that the reductions concern subscriber behaviour, effectiveness of
competition, competition constraints, eMedia’s “Openview” service and
expenditure.
[11] On 22 August 2025 ICASA granted MultiChoice confidentiality over written
submissions dated 04 August 2025. The red actions relate to a consumer
survey conducted by MultiChoice, subscriber disconnections or downgrades,
evidence of subscribers downgrading DStv subscriptions and taking up OTT
subscription.
[12] There is a dispute between eMedia and ICASA whether ICASA’s reliance on
MultiChoice’s confidential information resulted in a change in position on its
part. ICASA contends that the information was assimilated in the course of
an inquiry in progress and denies any change of stance based on such
information.
Page 5
IS ICASA EMPOWERED TO RELEASE CONFIDENTIAL INFORMATION
SUBJECT TO A CONFIDENTIALITY REGIME?
[13] ICASA is a creature of statute, and its powers derive from a battery of statutes,
including the ICASA Act 13 of 2000 and the Electronic Communications Act .
[14] In order to determine the powers of ICASA, a process of statutory
interpretation needs to be embarked upon. It is trite that this process is a
unitary process attributing meaning to the empowering provisions considering
text, context and purpose.
THE TEXT OF THE ICASA ACT
[15] Section 4D of the ICASA Act sets out the process of determining confidentiality
of documentary submissions. In terms of Section 4D(1) a person submitting
information may make a written request that the information be treated
confidentially.
[16] ICASA then has 14 days from receiving the request for confidentiality to make
a determination whether or not confidentiality will be granted and to provide
written reasons for such determination.
[17] Section 4D(3) allows the person who submitted information with a request for
it to be treated as confidential, to withdraw such information if ICASA does not
determine that the information is confidential.
[18] Section 4D(4) prescribes when ICASA must treat information as confidential.
From the aforesaid statutory process, it is apparent that the issue of whether
Page 6
that information is categorised as confidential or not is between the person
submitting the request for confidentiality and ICASA.
[19] ICASA contends that that is the end of the process and the end of its powers.
Once information is categorised as confidential, it is to be treated as
confidential and may not be disclosed.
[20] eMedia contends that ICASA’s power to disclose confidential information
subject to a confidentiality regime arises from a conspectus of the Act,
including Section 4C, and particularly Section 4C(5). The latter provision
reads:
“The person presiding at an inquiry may, after hearing representations from any person
present at and connected to the inquiry and having regard to –
(a) any reasonable apprehension of prejudice or harm to the person to be
questioned;
(b) the rights of reply and rebuttal of any person whose rights may be adversely
affected; and
(c) whether it is in the interest of the achievement of the objects of the inquiry
determine that any part of the inquiry be held behind closed doors and direct that
the public or any class thereof may not be present.”
[21] eMedia interprets the aforesaid section as an indicator that , if meetings may
be held behind closed doors , that information presented may similarly be
removed from public scrutiny by a confidentiality regime.
Page 7
[22] Textually, this is a bridge too far. Section 4C(5) pertains to in camera
hearings where the circumstances for such hearings are warranted under the
Act. It is a procedural step aimed at excluding public participation. It is not on
the face of it a provision which deals with substantive evidence -ie, pertaining
to disclosure of confidential information. A further indicator that Section 4C(5)
cannot be assigned the meaning attached to it by the applicant, is the fact that
it relates to proceedings which are chaired by a counsellor of ICASA . It does
not relate to the powers of ICASA sitting as a plenary body.
THE CONTEXT OF SECTION 4D
[23] Section 4D of the ICASA Act is part of provisions governing ICASA’s power to
conduct inquiries.
[24] Sections 4B(3) and (4) grant third parties the right to inspect and obtain copies
of written representations submitted in an inquiry. Since those subsections
are however expressly subject to Section 4D, they do not permit the disclosure
of confidential information.
[25] Section 4D operates as a mechanism for identifying confidential information
and also provides a statutory limitation on third party access to such
information. The section governs both the determination and protection of
confidential information.
[26] As the purpose of Section 4D is to identify and protect confidential information,
it is apparent that there is no express provision permitting disclosure of
confidential information to third parties.
Page 8
[27] The applicant argues with reference to related legislation, particularly the
Competition Act (which does provide for confidentiality regimes) that such a
power to disclose confidential information is implicit, particularly where the
market inquiries pertain to the very issue of competition.
[28] The process of statutory interpretation does not entail interpreting a specific
statute in the light of another. Statutes that deal with the same subject matter
should be construed harmoniously, but limitations imposed in one Act cannot
be ignored due to the absence of such limitations in another.
[29] Section 67 of the Electronic Communications Act governs competition matters
in the context of the electronic communications industry. Section 67(4B)
expressly defers to the confidentiality regime established by the ICASA Act:
“Subject to section 4D of the ICASA Act, licensees must provide to the Authority any
information specified by the Authority in order that the Authority may carry out its duties
in terms of this section.”
[30] The Electronic Communications Act does not curtail nor supplement ICASA’s
powers in terms of Section 4D of the ICASA Act.
THE COMPETITION ACT
[31] ICASA and the Competition Commission have concurrent jurisdiction over the
Electronic Communications Sector. The Competition Act and the ICASA Act
are related statutes in this sector. In terms of Part A of Chapter 5 of the
Competition Act, Section 44 gov erns the right of informants to claim
Page 9
confidentiality. Claiming confidentiality is similar to Section 4D(1) of the
ICASA Act.
[32] However, in terms of Section 44(3) of the Competition Act, the Competition
Commission may:
“(a) Determine whether the information is confidential information; and
(b) If it finds that the information is confidential, make any appropriate determination
concerning access to that information.”
[33] The powers of the Competition Commission to direct disclosure of confidential
information subject to a confidentiality regime are express and are formulated
in wide terms. Such a provision is not to be found in the ICASA Act.
PROMOTION OF ADMINISTRATIVE JUSTICE ACT, 3 OF 2000
[34] The provisions of PAJA apply where relevant and enabling legislation is silent
on the subject of fair procedures. PAJA’s provisions will therefore be read into
an enabling statute where it is feasible, but not where the legislation is
inconsistent with PA JA (Zondi v MEC for Traditional and Local Government
Affairs 2005 (3) SA 589 (CC) at paragraph [101]).
[35] The provisions of PAJA regulations which deal with public enquiries, make no
provision for confidential information. Chapter 2 governs public hearings and
in this context the issue of confidentiality is mentioned. Regulation 15(1)
provides for public participation in hearings, except:
Page 10
“(a) legislation applicable to the hearing provides for the hearing to take place in
closed session; or
(b) a matter is raised during the hearing which is –
(i) …
(ii) confidential in terms of legislation; or
(iii) of such a nature that its confidential treatment is for any other reason
reasonable and justifiable in an open and democratic society.”
[36] PAJA defers to other legislation on the issue of confidentiality. It consequently
defers to Section 4D in the ICASA Act.
DOES ICASA HAVE IMPLIED POWERS TO RELEASE CONFIDENTIAL
INFORMATION SUBJECT TO A CONFIDENTIALITY REGIME?
[37] The principle of implied powers does not permit such powers beyond what is
necessary to achieve the purpose of the provision and all such powers remain
subject to legality and rationality review ( Minister of Police v AmaBhungane
Centre for Investigative Journalism 2021 (3) SA 246 (CC), paragraph [64];
Minister of Police and Others v Fidelity Security Services (Pty) Limited 2023
(3) BCLR 270 (CC), paragraph [54]).
[38] The applicant contends, with reference to I ndependent Communications
Authority of South Africa v Open Heaven Community Radio 2026 (1) SA 70
(SCA) that ICASA does have implied statutory power. That case is however
distinguishable on the facts. The SCA found that a power to condone (not
expressly provided for in the Electronic Communications Act) could be implied:
Page 11
“… where condonation is not incompatible with public interest and if such condonation
is granted by the body for whose benefit the powers were enacted.”
[39] The SCA found that Section 19(2) of the ECA was enacted for the benefit of
ICASA and therefore its power to condone a late application could be implied.
[40] By contrast, Section 4D of the ICASA Act was not merely enacted for the
benefit of ICASA, but also for the benefit of the owner of confidential
information.
[41] The ICASA Act does not provide for a right to withdraw confidential
information by the person who submitted it, where such information is sought
to be disclosed under a confidentiality regime. This right exists if ICASA
refuses to classify information as confidential.
[42] The absence of such a check on the potential harm to be suffered by a person
trusting that its confidential information would be treated as such, points away
from an implied power to release confidential information in terms of the
ICASA Act.
[43] It suffices to state that I agree with the interpretation of Section 4D advanced
by ICASA and MultiChoice and find that the interpretation advanced by
eMedia offends against the text, context and purpose of Section 4D of the
ICASA Act. ICASA does not have the power to disclose con fidential
information to third parties.
Page 12
THE COURT’S POWER TO ORDER DISCLOSURE OF CONFIDENTIAL
INFORMATION SUBJECT TO A CONFIDENTIALITY REGIME
[44] As an alternative to its main proposition, the applicant contends that the court
has the power to direct the release of confidential information subject to a
confidentiality regime which protects competing rights. ICASA agrees. Both
parties contend that this power arises from Section 172(1)(b) of the
Constitution.
[45] Section 172(1)(a) of the Constitution is a provision which compels a court in
constitutional matters to declare conduct which is inconsistent with the
Constitution unconstitutional. Section 172(1)(b) then triggers a court’s power
to grant relief that is just and equitable in the circumstances. It is in this latter
power that the applicant and ICASA find a constitutional basis for a court’s
power to direct the disclosure of confidential information , subject to a
confidentiality regime. The rider however i s that it must relate to exceptional
circumstances.
RELEVANT CASE LAW
[46] Multichoice contends that sec 4D of the ICASA Act is not being challenged
as unconstitutional. ICASA contends that it has not acted in breach of the
Constitution in a constitutional matter .This is usually required before sec
Page 13
172(1)(b) becomes operative. In light thereof, the question arises whether a
just and equitable remedy in terms of Section 172(1)(b) may nevertheless be
crafted.
[47] In Corruption Watch NPC and Others v President of the Republic of South
Africa and Others the following is stated at paragraph [68] per Madlanga J:
“[68] There is no preordained consequence that must flow from our declarations of
constitutional invalidity. In terms of section 172(1)(b) of the Constitution we
may make any order that is just and equitable. The operative word “any” is
as wide as it sounds. Wide though this jurisdiction may be, it is not unbridled.
It is bounded by the very two factors stipulated in the section – justice and
equity. This Court has laid down certain principles in charting the path on the
exercise of discretion to determine a just and equitable remedy.
[69] What must be paramount is the relief that a court grants in the vindication of
the rule of law. The effect of that is the reversal of the consequences of the
constitutionally invalid conduct.”
[48] However, where is there no unconstitutional conduct, does this principle find
application?
[49] In Head of Department: Mpumalanga Department of Education and Others v
Hoërskool Ermelo 2010 (2) SA 415 (CC) the Constitutional Court found that a
declaration of constitutional invalidity was not always necessary for relief
under sec 172(1)(b).
Page 14
[50] In Economic Freedom Fighters and Others v Speaker of the National
Assembly and Another 2018 (3) BCLR 259 (CC) at paragraph [210] the
following is stated:
“[210] However, this Court’s remedial power is not limited to declarations of
invalidity. It is much wider. Without any restrictions or conditions, section
172(1)(b) empowers courts to make any order that is just and equitable. In
Hoërskool Ermelo the Court said about a just and equitable remedy:
‘The power to make such an order derives from section 172(1)(b) of the
Constitution. First, section 172(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 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 a particular dispute.’
[211] The power to grant a just and equitable remedy is so wide and flexible that it
allows courts to formulate an order that does not follow prayers in the notice
of motion or some other pleading. This power enables courts to address the
real dispute between the parties by requiring them to take steps aimed at
making their conduct to be consistent with the Constitution. In Hoërskool
Ermelo Moseneke DCJ declared:
‘A just and equitable order may be made even in instances where the
outcome of a 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 that would place
substance above mere form by identifying the actual underlying dispute
Page 15
between the parties and by requiring the parties to take steps directed at
resolving the dispute in a manner consistent with constitutional requirements.
In several cases, this Court has found it fair to fashion orders to facilitate a
substantive resoluti on of the underlying dispute between the parties.
Sometimes orders of this class have taken the form of structural interdicts or
supervisory orders. This approach is valuable and advances constitutional
justice particularly by ensuring that the parties themselves become part of the
solution’.”
[51] In Blind SA v President of the Republic of South Africa 2025 (7) BCLR 757
(CC) the Constitutional Court stated:
“[41] In Hoërskool Ermelo , this Court held that in deciding on the remedy in a
constitutional matter within the Court’s power, the litmus test will be whether
considerations of justice and equity in a particular case dictate that the order
be made’. The Court further held that th e power to order just and equitable
relief is available even though the case is not one in which a court makes a
declaration of invalidity nor one in which the outcome hinges on constitutional
invalidity. To do this, the Court reasoned, places substance over form.”
[52] From the aforesaid it is apparent that the court has the power, even in the
absence of the need to declare conduct unconstitutional in a constitutional
matter, to formulate a just and equitable remedy. It is however a power to be
exercised only in exceptional circumstances.
[53] The court therefore has the power in terms of Section 172(1)(b) to grant just
and equitable relief in the absence of a constitutional challenge. MultiChoice
contended that the absence of a constitutional challenge to Section 4D of the
ICASA Act stands as a bar to the crafting of a Section 172(1)(b) remedy.
Page 16
Whilst such a challenge to the constitutionality of the section under Section
172(1)(a) would normally be the trigger for the exercise of a court’s powers
under Section 172(1)(b), the Constitutional Court has opened the door to just
and equitable relief in the absence of such a constitutional challenge.
[54] Having found that it is not necessary for Section 4D to be challenged before
relief under Section 172(1)(b) becomes competent, the question is whether it
is appropriate to grant such relief. It is axiomatic that relief under Section
172(1)(b) on the basis of justice and equity is not there for the asking. The
facts and circumstances need to be exceptional.
[55] A consideration in favour of permitting a confidentiality regime in this case
arises from the nature of the inquiry being conducted. It is a Section 67 inquiry
in terms of the Electronic Communications Act, where the issue of competition
and an inquiry into its ramifications is central to the process that ICASA has
embarked upon. The comparative statutory position between ICASA and the
Competition Tribunal comes into stark focus. The Competition Tribunal is
empowered by statute to order a confidentiality regime whereas ICASA is not.
This however appears to be a legislative choice.
[56] However, in order for ICASA to have the benefit of meaningful submissions in
discharging its statutory role, the facts of this matter present circumstances
where the inability of eMedia’s experts and attorneys to assess confidential
information may very well undermine the cogency of deliberations by ICASA
in respect of the information before it in the inquiry. I regard the disparity of
positions between ICASA and the Competition Tribunal as a consideration as
Page 17
to why, on the facts of this matter, the court should exercise its powers to order
a confidentiality regime.
[57] This is not to say that this is of general application in all matters pertaining to
Competition inquiries. eMedia has asserted its interests in this particular
inquiry as far as those identified portions of confidential information, accepted
as such by ICASA, relates.
[58] The inability of eMedia to access (subject to a confidentiality regime)
information required for its legal representatives and experts to digest and
respond to, may undermine the fairness of the process followed in the inquiry.
More importantly, it may ad versely affect ICASA’s deliberations on the
cogency of material before it.
[59] I am therefore persuaded that the circumstances of this specific matter are
exceptional and warrant an order providing for a protected disclosure of
confidential information.
[60] The draft order drafted between eMedia and ICASA balances the interests of
affected parties, particularly those of MultiChoice. I am satisfied that such an
order is appropriate and agree with the proposed cost order.
CONCLUSION
[61] In the premises I make the following order:
Page 18
1. This order shall apply strictly to the dispute between the parties in this
matter and shall not in any way constitute precedent for the purposes
of any other matter or process not considered by the court.
2. Subject to eMedia’s attorneys signing the confidentiality undertaking
annexed to this draft order marked “A”, ICASA is ordered to furnish
the attorneys of eMedia with unreduced copies of the following
documentation within 14 (fourteen) working days of this order:
2.1 ICASA’s supplementary discussion document for the inquiry into
subscription television broadcasting services, published in
Government Gazette (No. 51848) on 06 January 2025 (“2025
Draft Discussion Document”);
2.2 MultiChoise’s 15 February 2024 Response to ICASA’s
November 2023 Questionnaire;
2.3 MultiChoise’s response to ICASA’s 2025 Draft Discussion
document published on ICASA’s website on or about April 2025;
2.4 MultiChoise’s supplementary submissions in response to the
2025 Draft Discussion document (including Answers to Question
Posed to MultiChoise by eMedia in advance of oral hearings of
July 2025) that were filed on 4 August 2025.
Page 19
3. On the copy of each document referred to in paragraph 1, ICASA shall
mark or record that part of the document over which ICASA has
previously granted confidentiality in terms of Section 4D of the ICASA
Act (“confidential information”).
4. Save for purposes of consulting with counsel or an independent
expert, who will be required to sign the confidentiality undertaking
annexed marked “A”, eMedia’s attorneys shall not disclose the
confidentiality information to any other party, including eMedia.
5. The confidential undertaking concluded in terms of this order shall be
an order of court and any unauthorised disclosure of the confidential
information shall constitute a violation of the court order.
6. Should eMedia dispute any claim to confidentiality and should the
parties be unable to resolve such dispute, eMedia shall on notice to
the first to fourth respondents and to any person having an interest
therein, have the right to approach a Judge of the Pretoria High Court
in Chambers for a ruling on the dispute.
7. eMedia shall be afforded a period of 60 (sixty) working days from the
date of the provision of the information identified in Prayer 1 to make
supplementary submissions to ICASA.
8. ICASA is directed not to take steps to finalise its inquiry unless and
until the requested confidential information and submissions have
been provided to eMedia’s attorneys in terms of this order, eMedia
Page 20
has had an opportunity to comment on the information within the
period stipulated in paragraph 7 of this order, and ICASA has taken
those submissions into account.
9. Each party is directed to bear its own costs.
LABUSCHAGNE J
JUDGE OF THE HIGH COURT
APPEARANCES
COUNSEL FOR APPLICANT : ADV MAX DU PLESSIS SC
ADV PUDIFIN-.JONES
ATTORNEY FOR APPLICANT NORTON INC
COUNSEL FOR RESPONDENT : ADV STEINBERG SC
ADV RAMOGALE
ATTORNEY FOR RESPONDENT : MKHABELA HUNTLEY ATTORNEYS INC