Media24: Final victory in predatory pricing matter – Werksmans

Firm says judgment gives clarity as to how to ensure that businesses are not in breach of rules

Media24: Final victory in predatory pricing matter

9 July 2019

This week Media24, represented by Werksmans Attorneys, enjoyed a major (and final) victory before the Constitutional Court in Media24's long-running predatory pricing matter against the Competition Commission. 

In 2010 the Commission commenced an investigation alleging that Media24 had engaged in abuse of dominance in the form of predatory pricing.  Over the course of the proceedings the Commission's case became increasingly complex, as it sought to widen the meaning of predation and to rely on price-cost tests far-removed from conventional tests. The Commission treated the matter as a test case which it hoped would apply to all sectors of the economy, and devoted considerable resources to it – using two senior counsel and a third counsel, an external firm of attorneys and one of the top international firms of economic experts specialising in competition litigation. 

The original hearing involved thirteen witnesses over 32 days. 

After Media24 successfully appealed the Competition Tribunal's ruling to the Competition Appeal Court (CAC), the Commission applied directly to the Constitutional Court for leave to appeal. The appeal record consisted of 6500 pages. The Court handed down four judgments, with differing views on whether or not to grant leave to appeal and on the merits of the appeal. On the tally, a majority of judges dismissed the Commission's appeal.

The judgement is the most far-reaching one to date on predation emanating from the South African courts, and gives clarity to business people as to how to ensure that they are not in breach of the predatory pricing provisions of the Competition Act. Significantly, the Commission was ordered to pay Media24's costs in the appeal. 

The two key Werksmans directors in the matter were Amanda Armstrong and Rudolph Raath. 

Issued by Werksmans Attorneys, 9 July 2019