OpenView HD victory against SABC interdict

An application to prevent OpenView HD from broadcasting SABC 1, 2, and 3 was dismissed with costs in the South Gauteng High Court and the written judgement delivered on Monday, 25 August 2014.

The South African Broadcasting Corporation (SABC) brought a notice of motion against Platco Digital, which operates OpenView HD, and its sister company E-tv, asking for a final interdict. As an alternative, it asked for an interim interdict.

This High Court application from the SABC follows a war of words between the two broadcasters in September 2013 regarding the availability of the SABC’s channels on OpenView HD.

It is still not clear why the SABC would decline free carriage of its channels on the new subscription-free direct-to-home satellite TV service.

The judgement goes into the he-said-she-said exchange between E-tv and the SABC, stating that the “disputes of fact are irresoluble on the papers”.

High Court Judge MP Tsoka dismissed the application on technical legal grounds, explaining that the relief sought by the SABC was not appropriate.

Tsoka said that he had to take into account the issue of “balance of convenience”:

  • If the interdict was refused, the available evidence reveals that the SABC will not, for a period of 18 months, suffer any prejudice.
  • Should the interdict be granted, however, substantial prejudice will be suffered by Platco and E-tv.
  • Granting the interdict would also cause harm to the broader public interest, as viewers unable to receive SABC 1, 2, and 3 normally would then also not be able to access the channels for free via OpenView HD.

For these reasons, among others, Tsoka said that the balance of convenience favours Platco and E-tv.

Tsoka also highlighted that the SABC’s affidavits are silent as to why damages are not suitable as an alternative remedy to an interdict.

He added that in lieu of damages, the SABC may be awarded an amount calculated on the basis of reasonable royalty which would have been payable for licensing its content.

“To argue and submit, as it does, that the carrying and broadcasting of its channels on Platco and E-tv’s OpenView HD platform would expose it to breach of contract to third parties is without basis and factually incorrect,” Tsoka said.

The application was dismissed, with Tsoka ruling that the SABC must also pay E-tv’s cost for the additional counsel it needed to address constitutional issues that were raised in the SABC’s Heads of Argument.

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OpenView HD victory against SABC interdict