A carriage agreement between South Africa’s public broadcaster SABC and pay-TV operator MultiChoice struck in 2013 and which saw MultiChoice carry SABC’s channels on its system has emerged from a legal problem.South Africa’s Competition Tribunal on April 14th said it had dismissed an “exception application” brought by MultiChoice over a channel-supply agreement with the SABC, which it signed during the Jacob Zuma presidency 12 years ago. The Tribunal says the dilemma it has examined was whether the agreement was – in essence – a merger.“The case arises from a complaint lodged by Caxton and CTP Publishers and Printers, the SOS Support Public Broadcasting Coalition and the Media Monitoring Project Benefit Trust,” the tribunal said in a statement.“The applicants allege that a commercial and master channel distribution agreement, concluded between MultiChoice and the SABC in 2013, constituted a notifiable merger under the Competition Act, and that the parties failed to notify the Competition Commission as required by the act,” it explained. “In terms of the agreement, the SABC agreed to let MultiChoice carry its unencrypted free-to-air channels on MultiChoice’s subscription platforms in exchange for payment, with a clause allowing MultiChoice to terminate or suspend the agreement and claim a refund if the SABC encrypted its free-to-air channels.”The lead complainant (Caxton) first approached the Competition Tribunal over 10 years ago – in February 2015 – in an effort to compel MultiChoice and the SABC to notify the channel-supply agreement as a merger, which would have invited significant scrutiny from regulators, including the Competition Commission. The two broadcasters opposed the application, which was dismissed in February 2016.The dispute has been bouncing back and forth with various appeals since then and rising as far as the country’s Constitutional Court, which has – no doubt – generated plenty of cash for the lawyers.The latest position is that the agreement stays in place. The tribunal said in its findings: “We are not satisfied that on all possible readings of the facts, as set out in the commission’s affidavits, its report, and the affidavits of Caxton, Media Monitoring and SOS, that no cause of action has been made out that the conclusion of the agreement gave MultiChoice the power to influence the policy of SABC, which if established, would constitute a merger in terms.”
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