IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETOR IA
(11 REPORTABLE: YES/NO
(21 OF INTEREST TO OTHER JUCGES: YES/NO
(31 REVISED.
SIGNATURE
. .. 27/08/2026 ....
DATE
In the application for leave to appeal of:
MUL TICHOICE (PTY) LTD
and
ICASA
EMEDIA INVESTMENTS (PTY) LTD
In re:
EMEDIA INVESTMENTS (PTY) LTD
and
ICASA
AND OTHERS
Case Number: 156263/25
Applicant
First Respondent
Second Respondent
Applicant
First Respondent
Page 2
APPLICATION FOR LEAVE TO APPEAL: JUDGMENT
LABUSCHAGNE J
[1] ICASA has been conducting a market enquiry into the effectiveness of
competition in subscription television broadcasting since 2016. It granted
Multichoice confidentiality in respect of three portions of its submissions and
incorporated redacted references to these submissions in a supplementary
discussion document published in the Government Gazette 51848 of 6
January 2025. It in vited Emedia to comment on the re dacted refere nces.
Emedia applied for access to the unredacted confidential information, subject
to a confidentiality regime , similar to what is available under the Competition
Act. ICASA contended that it does not have the power to release information
classified by it as confidential under sec 4D of the ICASA Act. It posited that ,
if the Court however has such a powe r, it will comply. Emedia and IC ASA
formulated a draft order in case I were to find that either the ICASA Act permits
such a confidentiality regime (Emedia’s primary contention) or that the Court
has such power.
[2] Multichoice opposed, contending that the source of ICASA’s powers are in the
ICASA Act, a nd that the sanctioning of a confid entiality reg ime required a
challenge to the constitutionality of sec 4D of the ICASA Act, which challenge
was not made.
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[3] I found that the ICASA Act does not empower ICASA to release confidential
information subject to a confident iality regime, but that the Court has s uch
power in terms of sec 1 72 (1)(b), even in the a bsence of a finding o f
constitutional invalidity.Such power is to be exercised sparingly and required
exceptional circumstances.I made the order Emedia and ICASA had crafted
and gave my reasons for doing so.
GROUNDS FOR LEAVE TO APPEAL
[4] Multichoice filed an application for leave t o appeal w hich is based on three
themes. First ly, that the order was n ot compete nt in the a bsence of a
constitutional challenge to sec 4D of the ICASA Act. The second was that sec
172 of the Cons titution as a basis was n ot proper ly develo ped in the
papers.The third is that there were no exceptional circumstances warranting
a sec 172 (1)(b) remedy. There are further grounds based on the wording of
the order, to the effect that it is limited to the facts of this matter and does not
constitute a precedent.
THE TEST FOR LEAVE TO APPEAL
[5] The application for leave to appeal was argued on 21 August 2 026. The
applicant contends that there are reasonable prospects on appeal on a
number of points , including the question whether a court regulated
confidentiality regime, as ordered by me, is competent in law.It also contends
that there are compelling grounds for the appeal to be heard.
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[6] The test for lea ve to appeal has been th e sub ject of many judg ments
suggesting that a higher standard has been se t in sec 17 of the S uperior
Courts Act, compared to its predecessor. I follow the approach set out in the
SCA judgment of Ramakatsa v African National Congress [2021]ZASCA
31 at par 10.
[7] It reads: “[10] Turning the focus to the relevant provisions of the Superior
Courts Act (the SC Act), leave to appeal may only be granted where the judges
concerned are of the opinion that the appeal would have a reasonable
prospect of success or there are compel ling reasons which exist why the
appeal should be heard such as the interests of justice This Court in Caratco
concerning the provisions of s 17(1)(a)(ii) of the SC Act pointed out that if the
court is unpersuaded that there are prospects of success, it must still enquire
into whether there is a compelling reason to entertain the appeal. Compelling
reason would of course include an important question of law or a discreet issue
of public importance that will have an effect on future disputes. However, this
Court correctly added that ‘but here too the merits remain vitally important and
are often decisive’ I am mindful of the decisions at high court level debating
whether the use of the word ‘would’ as opposed to ‘could’ possibly means that
the threshold for granting the appeal has been raised. If a reasonable prospect
of success is established, leave to appeal should be granted. Similarly, if there
are some other compelling reasons why the appeal should be heard, leave to
appeal should be granted. The test of reasonable prospects of success
postulates a dispassionate decision based on the facts and the law that a court
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of appeal could reasonably arrive at a conclusion different to that of the trial
court. In other words, the appellants in this matter need to convince this Court
on proper grounds that they have prospects of success on appeal. Those
prospects of success must not be remote, but there must exist a reasonable
chance of succeeding. A sound rational basis for the conclusion that there are
prospects of success must be shown to exist.”
[8] The import of Ramakatsa is that there has not been a higher test for leave to
appeal since the introduction of Act 10 of 2013. The test remains a reasonable
prospect of success on appeal.
[9] Multichoice contends that a confidentiality regime in terms of section 4D of
the ICASA Act can only be granted if the section is declared unconstitutional.
Properly interpreted, it does not provide ICASA with the power to approach a
court for a confidentiality regime and consequently, a court does not have the
power to do so. In order to afford the court the power to grant a confidentiality
regime, Multichoice contends that section 4D should have been subjected to
a constitutionality challenge, which it was not. This is a point of law and does
not require the applicant to identify a misdirection on the part of the judgment
appealed against.
[10] The applicant also contends that there is a compelling reason why the appeal
should be heard. This is for purposes of clarity as such matters will serve
before ICASA again in future and clarity is required.
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[11] ICASA has abided the proceedings all along, and this includes the application
for leave to appeal. However, during argument, ICASA deviated from its
aforesaid position and suggested that there are compelling reasons why the
appeal should be heard by the SCA. This resulted in a strong response from
eMedia, who had not been apprised of this shift in position.
[12] DISCUSSION
I disagree with the contention that the source of a court’s power to grant an
order for access to co nfidential information under a confidentiality regime
needs to be section 4D of the ICASA Act. I found that it is a power that the
court would have in terms of section 172 of the Constitution and proceeded to
deal with the matter on that basis.
[13] The contention of the applicant that a just and equi table remedy in t erms of
sec 172(1) (b) was not properly developed in the papers is without merit. It is
raised expressly and is developed.
[14] Further, the applicant’s contention that a sec 172(1)(b) remedy could only be
granted after a declaration of constitutional invalidity of sec 4D is contradicted
by Constitutional Court authority- See Head of Department: Mpumalanga
Department of Education v Hoërskool Ermelo 2010 (2) SA 415 (CC) at
[97]; Economic Freedom Fighters v Speaker of the Na tional Assembly
2018 92) SA 571 (CC) at 210-211; Blind SA v President of the RSA 2025
(7) BCLR 757(CC) par 41.
[15] Multichoice challenges the finding that there were exceptional circumstances
justifying the exercise of the court’s power under se ction 172(1)(b). This is
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however a ma tter in whi ch the court exercises a true dis cretion- see
Sustaining the Wi ld Coast NPC v Minister of Mineral Res ources and
Energy [2026] ZACC 33 (CC) par [86]. The threshhold for interference with
such a d iscretion is high, and the application for leave does not r ise to that
level.
[16] There is no reasonable prospect of success on appeal on these grounds.
[17] Despite the a foresaid fi nding I nee d to determin e whether the re is not a
compelling reason why the a ppeal should be heard. Due to the fact that my
order has b een limited, to cover the con cerns of ICASA, to the facts of this
matter, means that the issues r aised in this matter will arise again bef ore
ICASA. That may be why it changed its stance from abiding to supporting the
granting of lea ve to appea l. The resulting delay in granting leav e will be
countered by certainty if this issue is determined by the SCA. It will avert future
appeals and resultant delays.
[18] I was at ICASA’s request that I limited t he order to this matter. I considered
that a legitimate concern and fac tored that concern into weighing the
appropriateness of the limitat ion. A subsequent change of heart by ICASA
cannot reopen that debate. I am not inclined to grant leave to appeal in this
matter to determine whether this is the appropriate response to the
interpretation that I made of section 4D of the ICASA Act and of the order
made.
[19] I have considered all the grounds for leave and the arguments raised by the
parties. As I am not inclined to grant leave on the basis that there are
Page 8
reasonable prospects of success or that there are compelling reasons to do
so.
[20] In the premises I make the following order:
1. The application for leave to appeal is dismissed with costs
2. The costs will inc lude the c osts of t wo counse l, one of whom is a
senior , on Scale C.
_
LABUSCHAGNE J
JUDGE OF THE HIGH COURT