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[2015] ZASCA 159
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Premier Foods v Manoim NO (20147/2014) [2015] ZASCA 159; 2016 (1) SA 445 (SCA); [2016] 1 All SA 40 (SCA); [2015] 2 CPLR 335 (SCA) (4 November 2015)
THE
SUPR
EME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 20147/2014
In the matter between:
PREMIER FOODS (PTY)
LTD
APPELLANT
and
NORMAN MANOIM NO
FIRST
RESPONDENT
THE COMPETITION TRIBUNAL
SECOND
RESPONDENT
THE COMPETITION
COMMISSION
THIRD RESPONDENT
THE TRUSTEES FOR THE TIME BEING
OF THE CHILDREN’S RESOURCE
CENTRE
TRUST
FOURTH RESPONDENT
THE TRUSTEES FOR THE TIME BEING
OF THE BLACK SASH
TRUST
FIFTH RESPONDENT
CONGRESS OF SOUTH AFRICAN
TRADE
UNIONS
SIXTH RESPONDENT
NATIONAL CONSUMER
FORUM
SEVENTH RESPONDENT
TASNEEM
BASSIER
EIGHTH RESPONDENT
BRIAN
MPAHLELE
NINTH
RESPONDENT
TREVOR RONALD GEORGE
BENJAMIN
TENTH RESPONDENT
NOMTHANDAZO
MVANA
ELEVENTH RESPONDENT
FARIED
ALBERTU
TWELFTH RESPONDENT
Neutral
citation:
Premier
Foods v Manoim NO
(20147/2014)
[2015] ZASCA 159
(4 November 2015)
Coram:
Maya ADP, Shongwe and Petse JJA and
Gorven and Baartman AJJA
Heard
:
29
September 2015
Delivered:
4 November
2015
Summary:
Competition Law –
leniency under Corporate Leniency Policy – appellant
participated as a self-confessed member of a
cartel in complaint
proceedings before the Competition Tribunal – order by the
Tribunal finding that the appellant was involved
in a prohibited
practice – appellant excluded from the complaint referrals –
whether such order competent – Tribunal
having no power to make
any order against appellant – order relating to appellant a
nullity – no need to set aside
order – the Tribunal or
its Chairperson cannot issue a certificate under s 65(6)
(b)
of the Competition Act since order on which that certificate based a
nullity.
ORDER
On
appeal from
Gauteng
Provincial Division of the High Court, Pretoria (Kollapen J sitting
as court of first instance):
1 The
appeal is upheld with costs, including those consequent on the
employment of two counsel.
2 The
order of the court
a quo
dismissing the application with costs
is set aside and the following order substituted:
‘
1
Declaring that neither the first nor the second respondent can
lawfully issue a notice in terms of
section 65(6)
(b)
of the
Competition Act 89 of 1998
, certifying that the applicant’s
conduct has been found to be a prohibited practice under the Act in
Competition Tribunal
of South Africa case numbers 15/CR/Feb07 and
50/CR/May08.
2 The
second and third respondents are directed to pay the costs of the
Applicant.’
JUDGMENT
Gorven
AJA (Maya ADP, Shongwe and Petse JJA and Baartman AJA concurring):
[1]
Cartel activity is a form of practice prohibited by
s 4(1)
(b)
of the
Competition Act.
[1
]
Self-interest dictates that the cartel members close ranks. For this
reason, the third respondent, the Competition Commission (the
Commission) has adopted a corporate leniency policy (CLP).
[2]
This offers a:
‘
. . . self-confessing
cartel member, who is first to approach the Commission, immunity for
its participation in cartel
activity upon the cartel member
fulfilling specific requirements and conditions set out under the
CLP.’
[3]
It is
hoped by this to encourage cartel members to disclose cartel activity
and thus to contribute toward achieving the objects
of the Act.
[4]
[2]
The appellant, Premier Foods (Pty) Ltd (Premier) had been granted
conditional immunity under the CLP.
It gave evidence of the cartel
activity in complaints referred by the Commission to the second
respondent, the Competition Tribunal
(the Tribunal). This appeal
concerns an order granted by the Tribunal in those proceedings
declaring the conduct of Premier to
be a prohibited practice in
respect of its involvement in cartel activity (the declaration).
[5]
Premier says that the Tribunal was not empowered to make the
declaration because the conduct of Premier was not included in the
complaints referred to the Tribunal. Premier submits that the
declaration is therefore a nullity. As a result, the argument goes,
neither the Tribunal nor the first respondent, the Chairperson of the
Tribunal (the Chairperson), can lawfully certify the declaration
in
terms of
s 65(6)
(b)
(i)
of the Act.
[3]
The declaration came to be granted as follows. In December 2006, the
Commission received information
of an alleged bread cartel operating
in the Western Cape (the first complaint).
[6]
It initiated a complaint against Premier, Tiger Food Brands (Pty) Ltd
(Tiger) and Pioneer Foods (Pty) Ltd (Pioneer). Premier applied
for
leniency under the CLP, disclosing that it and the other two parties
had been operating a cartel in the Western Cape by fixing
selling
prices and other trading conditions.
[7]
Premier went further and disclosed that it, Pioneer and Foodcorp
(Pty) Ltd (Foodcorp) had operated a bread cartel in other parts
of
the country. This involved agreements to allocate territories.
[8]
As a result of this information, the Commission initiated a second
complaint (the second complaint).
[9]
The Commission referred the two complaints to the Tribunal. Only
Tiger and Pioneer were cited as respondents in the first complaint
and only Pioneer and Foodcorp were cited as respondents in the second
complaint. Relief was sought only against the cited respondents.
[4]
The two complaints were dealt with together by the Tribunal. The
founding affidavit to the referral
arising from the first complaint
explains why Premier was not cited as a respondent or relief sought
against it in the referrals:
‘
Although
[Premier] was also the subject of the [Commission’s]
investigation, it has not been joined as a respondent in these
proceedings because it has been granted conditional immunity from
prosecution (in terms of the [Commission’s] corporate leniency
policy) as a result of its co-operation with the [Commission] during
its investigation and confession of its role in the bread
cartel
activity involving the first and second respondents and [Premier]
itself in the Western Cape.’
[10]
[5]
After hearing the referred complaints, the Tribunal granted the
declaration. This declares that Premier
and the cited respondents had
contravened
s 4(1)
(b)
(i)
and (ii) of the Act in respect of the complaints. At the time the
declaration was made, both Tiger and Foodcorp had consented
to orders
under
s 49D
of the Act, which included administrative penalties.
This left Pioneer as the remaining opposing respondent. A total
administrative
penalty of some R195 million was imposed on Pioneer.
Premier, as mentioned, had been granted conditional immunity under
the CLP.
Premier was granted final immunity from prosecution as a
result of the evidence it gave.
[6]
This appeal has arisen because the 4
th
to 12
th
respondents (the claimants), who regard themselves as having been
injured by the cartel activity, wish to sue the four entities
for the
damages they say they have sustained as a result. They may only
institute action if they file with the Registrar or Clerk
of the
Court a notice in terms of
s 65(6)
(b)
of the Act from the Chairperson of the Tribunal.
Section
65(6)
provides as follows:
‘
A
person who has suffered loss or damage as a result of a
prohibited
practice
–
(a)
may not commence an action in a
civil
court
for the assessment of the
amount or awarding of damages if that person has been awarded damages
in a consent order confirmed
in terms of
section 49D(1)
; or
(b)
if entitled to commence an action
referred to in paragraph
(a)
,
when instituting proceedings, must file with the Registrar or Clerk
of the Court a notice from the Chairperson of the Competition
Tribunal, or the Judge President of the Competition Appeal Court, in
the
prescribed
form
–
(i)
certifying that the conduct constituting
the basis for the action has been found to be a
prohibited
practice
in terms of
this
Act
;
(ii)
stating the date of the Tribunal or
Competition Appeal Court finding; and
(iii)
setting out the section of
this
Act
in terms of which the Tribunal
or the Competition Appeal Court made its finding.’
It is
s 65(6)
(b)
which applies here. The crucial requirement is certification in terms
of
s 65(6)
(b)
(i)
that the conduct on which the action is based has been found to be a
prohibited practice in terms of the Act.
[7]
The claimants obtained such notices in respect of Tiger and Pioneer.
They thereupon launched proceedings
in the Western Cape Division of
the High Court
[11]
to institute a class action against Premier, Tiger and Pioneer.
[12]
This application was dismissed. One of the three bases for dismissing
it was that no
s 65(6)
(b)
notice had been filed in respect of Premier.
[13]
[8]
The claimants then applied to the Tribunal for a
s 65(6)
(b)
notice in respect of Premier. This was opposed. The Chairperson
convened a pre-hearing conference. He there expressed the view
that,
in his capacity as Chairperson, it was he, rather than the Tribunal,
who should issue the notice. He invited the parties
to submit heads
of argument on the issue. This application is still pending because
Premier then approached the court below for
the following relief:
‘
Declaring
that neither the First nor the Second respondent can lawfully issue a
notice in terms of
section 65(6)
(b)
of the
Competition Act 89 of 1998
, certifying that the Applicant’s
conduct has been found to be a prohibited practice under the Act in
Competition Tribunal
of South Africa case numbers 15/CR/Feb07 and
50/CR/May08’.
[14]
[9]
The application was dismissed with costs by Kollapen J in the
Gauteng
Division of the High Court, Pretoria.
[15]
He held that the declaration was competent and, because an order in
terms of
s 58(1)
(a)
(v)
had been granted, a notice in terms of
s 65(6)
(b)
could be issued in respect of Premier.
Leave
to appeal was granted by this court
after
the court
a quo
refused an application for leave to
appeal against that decision. This is the appeal which is before us.
Only the Commission and
the claimants oppose the appeal.
[10]
It is as well to
sketch
the basic contours of the Act at this point.
A
prohibited practice is defined to mean one prohibited in terms of
Chapter 2.
[16]
Cartel activity is dealt with in this chapter in
s 4(1)
(b)
.
A ‘complainant’ is defined as ‘a person who has
submitted a complaint in terms of
section 49B(2)
(b)
’.
[17]
A ‘respondent’ is defined as ‘a
firm
against whom a complaint of a
prohibited
practice
has been
initiated in terms of
this
Act
’.
[18]
The Act establishes three specialist bodies: the Commission,
[19]
the Tribunal
[20]
and the Competition Appeal Court (the CAC).
[21]
[11]
The Commission
inter
alia
investigates
complaints of alleged prohibited practices which have been
initiated.
[22]
Once the complaint has been investigated, the Commission is limited
to three courses of action. If it is of the view that no prohibited
practice has been established, it must issue a certificate of
non-referral.
[23]
Where it is of the view that a prohibited practice has been
established, it has two options. First, it can ‘agree on the
terms of an appropriate order’ with the respondent to the
complaint.
[24]
Secondly, if it does not do so, it must refer the complaint to the
Tribunal.
[25]
If the terms of an order are agreed, the Tribunal may confirm the
agreement as a consent order without hearing evidence.
[26]
If that order includes an award of damages to the complainant, the
complainant must consent to the damages.
[27]
The consent order does not preclude a complainant from applying for a
declaration in terms of, inter alia, s 58(1)
(a)
(v).
[28]
If no damages were awarded in the consent order, a complainant is not
precluded from claiming damages.
[29]
[12]
Where a referral takes place, the Commission may refer all or only
some of the particulars of the complaint
in terms of s 50(3).
[30]
If it refers only some particulars, it must then issue a certificate
of non-referral in respect of those which it does not refer.
[31]
If it does not refer a complaint or issue such a certificate within a
year after the complaint was submitted, the Commission must
be
regarded as having issued a notice of non-referral.
[32]
The complainant may thereupon refer the complaint, or that part of it
which was not referred, to the Tribunal.
[33]
[13]
On referral of the complaint, the Tribunal must conduct a
hearing.
[34]
This encompasses ‘every matter referred to it in terms of
this
Act
.’ At the
conclusion of the hearing, the Tribunal must make an order and give
written reasons.
[35]
One order it can make is set out in s 58(1)
(a)
(v)
which reads:
‘
(1)
In addition to its other powers in terms of
this
Act
, the Competition Tribunal may –
(a)
make an appropriate order in relation
to a
prohibited practice
,
including –
. . .
(v)
declaring conduct of a
firm
to be a
prohibited
practice
in terms of
this Act
, for purposes of
section 65;
. . . .’
This is
the order whose declaration to that effect must be certified in the
notice in terms of s 65(6)
(b)
.
Another order the Tribunal can grant is to
impose
an administrative penalty in the circumstances set out in s 59.
[36]
[14]
The Tribunal and the CAC are the only bodies that can make an order
declaring that a firm has engaged in
a prohibited practice. Unless
they do so, no such declaration can be made. This is clear from
s 62(1)
(a)
,
which provides that the Tribunal and CAC have exclusive jurisdiction
in respect of the interpretation and application of Chapter
2 of the
Act. An order made by the Tribunal may be served, executed and
enforced as if it were an order of the High Court.
[37]
Section 65(2) ousts the jurisdiction of a civil court to
consider whether conduct prohibited by the Act has taken place and,
if so, to make a declaration.
[38]
A civil court is obliged to apply the determination of these
specialist bodies.
[39]
Once a declaration has been made by the Tribunal or CAC, it therefore
renders
res judicata
the issue of the wrongful conduct of the firm in question.
Section 65(9)
(a)
provides that a ‘person’s right to bring a claim for
damages arising out of a
prohibited
practice
comes into
existence’ on the date that the Tribunal or CAC makes a
declaration. Without a declaration, no right to claim
damages comes
into existence. Once a declaration has been made, a s 65(6)
(b)
notice can be obtained by a person wishing to claim damages. Such a
notice ‘is conclusive proof of its contents, and is binding
on
a
civil court
.’
[40]
Without that notice, therefore, a claim for damages cannot be
prosecuted.
[15]
Having sketched an outline of the relevant aspects of the Act, it
will be helpful to briefly consider the
provisions of the CLP. An
applicant for immunity such as Premier (a leniency applicant) must
acknowledge culpability and fully
disclose all relevant facts.
Immunity is conditional until the Tribunal has made a final
determination in relation to the reported
cartel activity.
[41]
Immunity means:
‘
. . . t
hat the
Commission would not subject the successful applicant to
adjudication before the Tribunal for its involvement
in the
cartel activity, which is part of the application under
consideration. Furthermore, the Commission would not propose to
have
any fines imposed to that successful applicant.’
[42]
Footnote 4 to
this clause explains that:
‘
Adjudication
means a referral of a contravention of chapter 2 to the Tribunal by
the Commission with a view of getting a prescribed
fine imposed on
the wrongdoer. Prosecution has a similar import to adjudication
herein.’
[16]
In the context of this matter, accordingly, all that is offered to a
leniency applicant is immunity from
the application of the provisions
of s 59. The CLP expressly provides that leniency applicants do
not enjoy immunity in civil
actions.
[43]
No immunity is therefore offered from a declaration because this is
what gives rise to the right to claim damages. It is clear
that,
unless a declaration can be made concerning a leniency applicant, the
provisions of clauses 5.9 and 6.4 are rendered nugatory.
[17]
Premier submits that the crisp issue for decision is whether the
Tribunal had the power to grant an order
under s 58(1)
(a)
(v)
declaring Premier’s conduct to be a prohibited practice. In the
first place, it submits that the Tribunal had no such
power.
Secondly, it says that the effect of this is that the declaration is
a nullity and does not need to be set aside. There
is therefore, the
argument goes, no order containing a determination capable of
certification. I shall deal with these submissions
in turn.
[18]
Did the Tribunal have the power to grant the order? The Tribunal is a
creature of statute. It has only those
powers given to it by the Act
and must exercise its functions in accordance with the Act.
[44]
The Commission investigates, refers and prosecutes complaints. The
Tribunal determines those complaints which have been referred
to it.
Its power to determine a complaint only arises on referral in terms
of the Act, generally by the Commission.
[45]
Put another way, the referral by the Commission is ‘a
jurisdictional fact for the exercise of the Tribunal’s powers
in respect of prohibited practices.’
[46]
In
Competition
Commission of South Africa v Senwes Ltd
,
[47]
the Constitutional Court held:
‘
The question
whether the complaint that was found to have been established by the
Tribunal adequately canvassed that which was referred
to it must be
determined with reference to the terms of the referral.’
[48]
The
Tribunal is only empowered to make a declaration on matters falling
within terms of a referral. The Commission submits that
the question
‘is whether a complaint against a particular party is properly
referred to and before the Tribunal when that
party is not formally
cited as a respondent.’ For reasons which will become apparent,
my view is that the question goes beyond
the issue of citation.
[19]
When the Commission refers a complaint to the Tribunal in terms of
s 50(2)
(a)
,
it is entitled to refer only some of the particulars of a complaint.
This is clear from s 50(3). If this is done, the Tribunal’s
power is limited to those particulars referred to it by the
Commission. In
Agri
Wire (Pty) Ltd & another v Commissioner of the Competition
Commission & others
,
[49]
this court upheld the right of the Commission to exclude one or more
cartel members from a referral to the Tribunal. That decision
is not
challenged by the Commission or the claimants. In that matter, the
following was said:
‘
If, at the
conclusion of the investigation, the Commissioner decides to refer
the complaint to the Tribunal, the Act specifically
provides that the
Commissioner may refer all or some of the particulars of the
complaint and may add particulars to the complaint
submitted by the
complainant. One of the central particulars in respect of cartel
conduct is the identity of the members of the
cartel. If the
complaint is that A and B and C have engaged in cartel behaviour the
Commissioner may decide to refer only A and
B. In that way, the
Commissioner exercises the express statutory power to exclude certain
particulars, namely C, from the referral.’
[50]
[20]
In
Agri Wire
,
the party referred to as CWI had been given conditional immunity
under the CLP. It was cited as a respondent in the complaint
referral
but no relief was sought against it. Agri Wire and nine others were
cited as respondents against whom relief was sought.
As is clear,
this court arrived at the conclusion that CWI could properly be
excluded from the referral by interpreting ‘particulars
of the
complaint’ in s 50(3) to include the parties alleged to be
involved in the cartel activity.
[21]
In support of its contention that the Tribunal was empowered to make
the declaration, the Commission relies
on
Senwes
. It makes the
following submissions:
‘
The Court
found that, as a question of fact, the Commission had indeed failed
to specify the particular complaint against the parties
in the
referral.’
and
‘
But, the
Court held that the Tribunal nevertheless had jurisdiction to
determine the matter. The Tribunal determined a complaint
not
originally referred but which was brought to its attention during the
course of deciding a referral.’
These
submissions do not reflect the finding in
Senwes
.
The issue in
Senwes
was whether the complaint on which the Tribunal ruled was covered by
the referral. This court held that the conduct fell outside
of the
ambit of the referral
[51]
but the majority in the Constitutional Court held that it was
included. In this regard, Jafta J said:
[52]
‘
It
was this same complaint which the Tribunal found to have been
established in evidence. As it appears below, the error made by
the
Tribunal was to call it a margin squeeze. In my respectful view, the
Supreme Court of Appeal erred when it held that the Tribunal
considered a complaint which was not covered by the referral.’
[53]
The
enquiry, therefore, is whether the complaint ruled upon in any one
matter fell within the ambit of the referral.
[54]
This is a fact based enquiry.
[22]
In the present matter, in the light of
Agri
Wire
, the issue is
whether the particulars of the complaint relating to Premier’s
conduct fell within the ambit of the referrals.
The Commission and
the claimants accept that Premier was not cited as a respondent in
the complaint referrals. They further accept
that no relief was
sought against Premier in the referrals. They say, however, that the
particulars of the complaint relating to
Premier nevertheless fell
within the ambit of the referrals.
[23]
In support of this contention, the claimants submit that Premier was
a respondent as defined in the Act because
it formed part of the
complaint initiation. They, and the Commission, submit that Premier’s
conduct formed part of the referral
because Premier participated as a
party to whom conditional immunity had been granted on the basis of
its admitted involvement
in the cartel activity. Of the seven
witnesses called, five were employees of Premier. All gave evidence
of the cartel activity
which included Premier. The only reason the
commission sought no relief against Premier in the referrals was
because conditional
immunity had been extended to Premier. The
Commission summed up by saying:
‘
The
boundaries of the Tribunal’s powers are therefore not
determined by whether or not the leniency applicant was formally
cited in the referral. They are determined by the fact of the
leniency applicant’s participation in the hearing, the material
facts set out in the referral affidavit and the evidence adduced by
and about it.’
[24]
None of this means that Premier’s conduct fell within the ambit
of the referrals. Although it was a
respondent as defined in the Act,
this also does not mean that it was included in the referrals. That
must be determined by construing
the ambit of the referrals
themselves. In
Agri Wire
, CWI participated on the same basis
as did Premier in the present one except that it was also cited as a
respondent in the referral.
It was a party to whom conditional
immunity had been extended on the basis of its admitted involvement
in cartel activities. It
gave evidence of its involvement in the
cartel activities and that of the other respondents at the enquiry.
But, because no relief
was sought against it, this court held that
its particulars had not been included in the referral for the
following reasons:
‘
Clause
9.1.1.3 [of the CLP] warns that, at any stage until total immunity is
granted, the Commission reserves the right to revoke
the grant of
conditional immunity for lack of co-operation and pursue a
prosecution before the Tribunal. That signals quite clearly
that a
party that has been afforded conditional immunity, is not before the
Tribunal for the purposes of the latter making a determination
against it, including the imposition of an administrative penalty. It
will only be referred to the Tribunal for the purpose of
an adverse
determination and the imposition of an administrative penalty if the
Commission revokes its conditional immunity.’
[25]
The judgment in
Agri
Wire
thus
distinguishes between a determination and the imposition of an
administrative penalty. When it refers to a determination,
it does
not refer to one for the purpose of imposing an administrative
penalty alone. It includes such a determination but makes
it clear
that this is not the only determination from which the referral
excluded CWI. What is then meant by other types of determination?
The
only places where the Act refers to a determination in this context
is in s 65(2)
(a)
and s 65(9). The former relates to a determination concerning
conduct that is prohibited in the Act. The latter relates to
a
determination for the purposes of a claim for damages arising from a
prohibited practice. Both of these therefore relate to what
I have
referred to as a declaration, which is an order in terms of
s 58(1)
(a)
(v)
of the Act. This means, accordingly, that CWI was before the Tribunal
as a cited respondent, but had been excluded from the
referral ‘for
the purposes of’ seeking any relief at all against it, whether
by way of an order in terms of s 58(1)
(a)
(v)
or the imposition of an administrative penalty under s 59.
[26]
In the present matter, as is accepted by the Commission and the
claimants, the Commission neither cited Premier
as a respondent nor
did it seek any relief, including a declaration, against it. The
referrals were covered by Form CT1(1) as was
required by the
rules.
[55]
The forms were headed ‘The Competition Commission seeks an
order granting the following relief’ with the explanation
below
‘(Concise statement of the order or relief sought:)’. In
the second referral, the Commission wrote in that space:
‘SEE
THE ATTACHED AFFIDAVIT OF AVISHKAR KALICHARAN’. The affidavit
in question concluded with a prayer for the relief
sought by the
Commission. This comprised orders against only the cited respondents,
Pioneer and Foodcorp, in terms of s 58(1)
(a)
(v),
that they desist from such conduct and that an administrative penalty
be imposed on them. In the first referral, the relief
was set out in
the covering form as well as in the prayer to the affidavit. It
sought identical relief to that in the second referral,
but also only
against the cited respondents, Pioneer and Tiger. As I have already
noted, the Commission itself said that it had
deliberately not cited
Premier as a respondent. Premier’s position in the present
matter thus corresponds to that of C in
the example given in
Agri
Wire
.
[56]
Unlike in
Senwes
,
the Commission consciously exercised its right to exclude certain
particulars, namely the involvement of Premier in the cartel
activity, from the referrals. There was thus only a partial referral
of the complaints to the Tribunal as is allowed by s 50(3)
(a)
(ii).
[27]
The Commission says that s 58(1)
(a)
(v)
distinguishes between a ‘firm’ and a ‘party’.
Accordingly, it submits that the firm against whom such
an order is
made need not be a party. Because Premier participated in the
proceedings on the basis of its admitted involvement
in the cartel
activity, an order could be made against it. It says that no
prejudice to Premier ensued. But this ignores the approach
in
Agri
Wire
and
Senwes
,
both of which require the subject matter of the order to fall within
the ambit of the complaint referral, failing which the Tribunal
has
no power to make a declaration. As I have indicated, my view is that
Premier’s conduct is not covered by the referrals.
The Tribunal
thus had no power to make the declaration. The issue of prejudice
does not arise since the Tribunal was not empowered.
[28]
The decision not to cite Premier as a respondent in the referrals
provides an additional basis why the Tribunal
was not empowered to
make the declaration. In this regard, Premier differs from the
position of CWI, which was cited as a respondent
in
Agri
Wire
. This point is
illustrated in a different context by
National
Union of Metalworkers of South Africa v Intervalve (Pty) Ltd &
others
.
[57]
In that matter, a single party was referred to a Bargaining Council
in a dispute over unfair dismissals. When conciliation did
not result
from the referral, the dispute was referred to the Labour Court, also
with only one party being cited. However, the
Union then sought to
join two other parties in the Labour Court. The difficulty was
that, in terms of the
Labour Relations Act 66 of 1995
, if there has
been no referral to conciliation, the Labour Court has no
jurisdiction over such a dispute. The Labour Court nevertheless
allowed the joinder.
[29]
An appeal to the Labour Appeal Court to set aside the joinder
succeeded. The Constitutional Court agreed
with the Labour Appeal
Court. It held that joinder was not permissible because those two
parties had not been referred to the Bargaining
Council. This meant
that the Labour Court had no jurisdiction in relation to them. This
was so even though all three parties had
notice of the conciliation
proceedings. In so finding, the majority judgment of Cameron J said:
‘
Formal
service puts the recipient on notice that it is liable to the
consequences of enmeshment in the ensuing legal process. This
demands
the directness of an arrow. One cannot receive notice of liability to
legal process through oblique or informal acquaintance
with it.’
[58]
He concluded:
‘
So the
purpose of the statutory provision – to tell those on the line
that the impending legal process might make them liable
to adverse
consequences – was not fulfilled. That the three companies’
shared HR services, and the companies’
attorney, knew about the
referral against Steinmüller did not mean that they knew, or
should have concluded, that the dispute
against Intervalve and BHR
had also been referred for conciliation. On the contrary, the
referral against Steinmüller alone
told them the opposite.
Intervalve and BHR were left out. The ensuing legal process did not
encompass them.’
[59]
[30]
Premier knew that the other members of the cartel had been cited as
respondents and that relief was sought
against them. This does not
mean that it should have anticipated that relief would be sought
against it since the referral told
it the opposite. In the words of
Cameron J, it was not notified that it was ‘
liable
to the consequences of enmeshment in the ensuing legal process.’
The submission that, because Premier
was involved as a leniency applicant in which it clearly admitted its
culpability, a finding
could be made against it, attempts to invoke
precisely that ‘
liability
to legal process through oblique or informal acquaintance’
which was rejected by the Constitutional Court. Citation
as a party
is necessary so that that person can invoke all the rights of a party
against whom relief is sought.
[31]
The position of Premier is not dissimilar to that of a witness under
s 204
of the
Criminal Procedure Act 51 of 1977
where immunity
from prosecution can be granted if the witness fulfils certain
criteria. If the witness does not do so, the court
has no
jurisdiction to convict the witness because the witness was not an
accused before the court. A court would have jurisdiction
to do so
only if the witness was subsequently charged before it and was thus
accorded all of the rights of an accused person.
[60]
[32]
In all the circumstances, therefore, I hold the view that the
Tribunal lacked the power to make the declaration.
This brings into
focus the second issue as to the consequence of that lack of power.
[33]
What, then, is the effect of the lack of power of the Tribunal to
make the declaration? In this regard, Kollapen
J in the court a quo
held that ‘for as long as the finding of the Tribunal remains
unchallenged, then the issue of the certificate
as proof of such
finding is not only permissible but also in my view peremptory.’
[61]
The Commission and the claimants support this approach. Premier
submits, however, that, because the Tribunal did not have the power
to make the declaration, it is a nullity. It is therefore not
necessary to set it aside. The notice in terms of
s 65(6)
(b)
accordingly cannot be issued because it would amount to certifying a
nullity.
[34]
In support of this submission, Premier relies on a line of
authorities stretching back over one hundred years.
These were
reaffirmed by this court in
The
Master of the High Court (North Gauteng High Court, Pretoria) v
Motala NO & others
,
[62]
which said:
‘
As
long ago as 1883 Connor CJ stated in
Willis
v Cauvin
4 NLR 97
at 98 –
99:
“
The
general rule seems to be that a judgment, without jurisdiction in the
Judge pronouncing it, is ineffectual and null. . .”
Willis
v Cauvin
was cited with approval
in
Lewis & Marks v Middel
1904
TS 291
; and
Sliom v Wallach's
Printing & Publishing Co, Ltd
1925
TPD 650.
In the former, Mason J (with whom Innes CJ and Bristowe J
concurred) held at 303:
“
It
was maintained that the only remedy was to appeal against
the decision of the Land Commission; but we think that the
authorities
are quite clear that where legal proceedings are
initiated against a party, and he is not cited to appear, they are
null and void;
and upon proof of invalidity the decision may be
disregarded, in the same way as a decision given without
jurisdiction, without
the necessity of a formal order setting it
aside (Voet, 2, 4, 14; and 66; 49, 8, 1, and 3; Groenewegen,
ad
Cod
. 2; 41; 7, 54;
Willis
v Cauvin
,
4 N.L.R. 98
;
Rex
v Stockwell
,
[1903] T.S. 177
;
Barnett & Co. v Burmester & Co.,
[1903]
T.H. 30).
”’
These
authorities confirm two bases for nullity: lack of jurisdiction to
make an order and non-citation of a person against whom
an order is
granted. This further underscores the approach mentioned above in
NUMSA v Intervalve
that citation is a necessary prelude to an order granted against an
entity.
[35]
In
Lewis & Marks
v Middel
,
[63]
the
plaintiffs sued for cancellation of a diagram of the defendant’s
farm insofar as it encroached on that of the plaintiffs’
farm.
The diagram of the plaintiffs’ farm had been confirmed in 1870
and, in 1882, the defendant lodged a protest against
that diagram
which came before the Land Commission. The Land Commission awarded
the disputed ground to the defendant who had his
farm surveyed in
accordance with the award. This diagram was confirmed and, although
the report of the Land Commission was published,
no appeal was noted
against it. The court upheld the plaintiffs’ challenge to the
defendant’s diagram on the basis
that, because the plaintiffs
had not been given notice of the sitting of the Land Commission, the
proceedings before it were null
and void.
[36]
In a footnote to
MEC
for Health, Eastern Cape & another v Kirland Investments (Pty)
Ltd t/a Eye & Lazer Institute
,
[64]
the Constitutional Court approved this approach:
‘
In
The
Master of the High Court (North Gauteng High Court, Pretoria) v
Motala NO and Others
2012
(3) SA 325
(SCA) the Supreme Court of Appeal, reaffirming a
line of cases more than a century old, held that judicial decisions
issued
without jurisdiction or without the citation of a necessary
party are nullities that a later court may refuse to enforce (without
the need for a formal setting-aside by a court of equal standing).
This seems paradoxical but is not. The court, as the fount of
legality, has the means itself to assert the dividing line between
what is lawful and not lawful. For the court itself to disclaim
a
preceding court order that is a nullity therefore does not risk
disorder or self-help.’
[65]
[37]
In attempting to address this, the Commission relies on the following
passage in
Kirland
:
‘
[98] The outcome does not change if we
consider the approval from the perspective of whether the
decision-maker acted within
her jurisdiction in granting approval.
Jurisdictional facts refer broadly to preconditions or conditions
precedent that must exist
before the exercise of power, and the
procedures to be followed when exercising that power. It is true
that we sometimes refer
to lawfulness requirements as “jurisdictional
facts”. But that derives from terminology used in a very
different, and now
defunct, context (namely where all errors, if
they were to be capable of being reviewed at all, had to be construed
as affecting
the functionary's “jurisdiction”). In
our post-constitutional administrative law, there is no need to find
that
an administrator lacks jurisdiction whenever she fails to comply
with the preconditions for lawfully exercising her powers. She
acts,
but she acts wrongly, and her decision is capable of being set
aside by proper process of law.
[99] So the absence of a jurisdictional fact does
not make the action a nullity. It means only that the action is
reviewable, usually
on the grounds of lawfulness (but sometimes also
on the grounds of reasonableness). Our courts have consistently
treated the
absence of a jurisdictional fact as a reason to set the
action aside, rather than as rendering the action non-existent from
the
outset. The absence of jurisdictional facts did not entitle Mr
Boya to withdraw the approval, but only to approach a court to set
it
aside.’
[66]
On the
strength of this, the Commission says that, even if it is found that
the Tribunal lacked power, the declaration must be set
aside before
Premier can succeed. This also accords with a long line of authority
concerning the effect of invalid administrative
action. In such a
case, the administrative decision cannot be ignored because it exists
in fact and has legal consequences until
set aside.
[67]
[38]
As I see it, the
dictum
relied upon by the Commission in no way detracts from the approach in
Motala
and the line of authorities there
referred to.
Premier
has not simply ignored the declaration. Nor is it contending that the
Chairperson or Tribunal should do so. It may convincingly
be argued
that the declaration could not be ignored by the Chairperson or the
Tribunal because neither of these is a court of law
and this would
amount to self-help. This may well be correct but it is not necessary
to deal with that issue.
[39]
The reason for this is that the footnote in
Kirland
says that the right of a court to ignore as a nullity other court
orders does not amount to self-help. The court
a
quo
was thus in a
different position to the Chairperson and the Tribunal. It was
requested to declare that the order against Premier
could not
lawfully be certified.
It
must be borne in mind that, in the present matter, the declaration
had the force and effect of a High Court order.
[68]
If the court
a quo
disclaimed the declaration, which is a nullity, it ‘therefore
does not risk disorder or self-help’.
[69]
This is because, ‘as the fount of legality, [the court
a
quo
had] the means
itself to assert the dividing line between what is lawful and not
lawful.’
[70]
On this basis, the court
a
quo
was surely
entitled to regard the declaration as a nullity and grant the relief
sought by Premier. In
my
view, it was not necessary to first set the declaration aside.
[40]
The Commission further submits that a notice under
s 65(6)
(b)
has only three requirements. These are a finding as to conduct, a
date of the finding, and a section of the Act which was transgressed.
It submits that Premier seeks, in its approach, to read in a fourth
requirement - that of the need to be cited as a respondent
in a
referral to the Tribunal. The argument goes that this is not
permissible because the meaning of the section does not lead
‘to
some absurdity, inconsistency, hardship or anomaly which . . . the
Legislature could not have intended’.
[71]
[41]
In the first place, it seems to me that there is, in effect, only one
requirement for the issue of a notice,
but three aspects which must
be dealt with in it. The single requirement is an order in terms of
s 58(1)
(a)
(v)
which declares conduct of the party concerned to be a prohibited
practice in terms of the Act. The other two matters give details
of
when such order was granted and the section of the chapter which was
found to have been contravened. Be that as it may, the
submission
misconceives the approach of Premier. It is not that it seeks to read
in a fourth requirement. Its argument is that
the declaration is a
nullity. There is therefore nothing capable of certification.
[42]
The Commission and the claimants submit that the approach of Premier
to the interpretation of
s 58(1)
(a)
(v)
and
s 65(6)
(b)
results in the claimants being non-suited because they are unable to
procure a certificate concerning Premier’s self-confessed
conduct. They submit that, in line with s 39(2) of the
Constitution, an interpretation of these sections which least limits
the right of access of the claimants to court should be favoured. The
approach set out in
Cool
Ideas 1186 CC v Hubbard & another
,
[72]
should be followed:
‘
A
fundamental tenet of statutory interpretation is that the words in a
statute must be given their ordinary grammatical meaning,
unless to
do so would result in an absurdity. There are three important
interrelated riders to this general principle, namely:
(a)
that statutory provisions should always be interpreted purposively;
(b)
the relevant statutory provision must be properly contextualised; and
(c)
all statutes must be construed consistently with the Constitution,
that is, where reasonably possible, legislative provisions
ought to
be interpreted to preserve their constitutional validity. This
proviso to the general principle is closely related to
the purposive
approach referred to in (a).’
[73]
[43]
This approach to interpretation cannot be faulted. But the enquiry in
the present matter does not have to
do with the interpretation of
s 58(1)
(a)
(v)
or s 65(6)
(b)
or, ultimately, with the question of access to the courts. It has to
do with whether the declaration was a nullity and, accordingly,
whether there was anything which could be certified in terms of
s 65(6)
(b)
.
[44]
It is not clear that the claimants are non-suited as is their
contention. This aspect was not canvassed in
the papers and cannot be
decided here. If, however, the claimants are non-suited, it is not
the interpretation of the sections
of the Act and CLP in this matter
or the conduct of Premier which leads to this situation. It is the
decision of the Commission
not to include Premier in the referrals,
or any referral, for the purposes of seeking an order in terms of
s 58(1)
(a)
(v)
of the Act.
[45]
Agri Wire
says that ‘a party that has been afforded conditional immunity,
is not before the Tribunal for the purposes of the latter
making a
determination against it, including the imposition of an
administrative penalty.’
[74]
As I have said earlier, the reference to a ‘determination’
must needs cover an order in terms of s 58(1)
(a)
(v)
of the Act. I see no reason in principle why a leniency applicant
cannot be referred for this purpose. Such an order is, after
all,
necessary for the prosecution of a damages claim and the CLP
expressly states that immunity will not affect the right of persons
to bring such a claim. It may be, therefore, that the above
dictum
goes too far but that need not be decided here.
[46]
Having said this, that issue did not arise in
Agri
Wire
since the
referral there was construed as excluding the grant of any relief
against CWI. The issue of a limited referral was clearly
not fully
canvassed or dealt with in that matter. Nor, for the same reason,
does the issue arise here. I raise it only as an indication
that
Agri
Wire
does not
necessarily offend against the right of persons such as the claimants
to pursue a civil claim. The issue whether a firm
which has been
granted conditional immunity may be referred to the Tribunal for the
purpose of a finding and can, thus, be subject
to an order under
s 58(1)
(a)
(v),
must therefore stand over until it arises squarely.
[47]
To sum up, the following is the position. Based on the fact that the
conduct of Premier was not part of the
referral to the Tribunal, the
Tribunal had no power to grant any order against it. In addition,
Premier was not cited as a respondent.
The declaration is accordingly
a nullity. Premier was not obliged to have the order containing the
declaration set aside. Being
a nullity, it is competent for a court
to find that there is simply no declaration to certify. This in turn
means that, in this
matter, no notice in terms of s 65(6)
(b)
should be issued. As is clear from what I have said above, however,
it was necessary for Premier to approach a court. Premier,
the
Commission, the Tribunal and the Chairperson were not entitled to
simply ignore the declaration.
[48]
I therefore respectfully differ from the court
a
quo
that the
finding made against Premier in the declaration was capable of
certification. It should have granted, the order sought
by Premier.
The appeal must accordingly succeed.
[49]
The following order is made:
1
The appeal is upheld with costs, including those consequent on the
employment of two counsel.
2
The order of the court
a quo
dismissing the application with
costs is set aside and the following order substituted:
‘
1
Declaring that neither the first nor the second respondent can
lawfully issue a notice in terms of
section 65(6)
(b)
of the
Competition Act 89 of 1998
, certifying that the applicant’s
conduct has been found to be a prohibited practice under the Act in
Competition Tribunal
of South Africa case numbers 15/CR/Feb07 and
50/CR/May08.
2
The second and third respondents are directed to pay the costs of the
Applicant.’
________________________
T
R Gorven
Acting
Judge of Appeal
Appearances
For the Appellant:
D Unterhalter SC (with him M Du Plessis and L Kelly)
Instructed by:
Nortons Inc., Sandton
McIntyre & Van der Post,
Bloemfontein
For the 3
rd
Respondent:
G J Marcus SC (with
him C Steinberg)
Instructed by:
Cheadle Tomson & Haysom Inc., Johannesburg
Webbers Attorneys, Bloemfontein
For the 4
th
to 12
th
Respondents: M M Le Roux
Instructed by:
Abrahams Kiewitz Attorneys, Cape Town
Honey Attorneys, Bloemfontein
[1]
Competition Act 89 of 1998
. The Act makes use of
italics, which have been retained in quotes from the Act. Section
4(1)
(b)
reads as follows:
‘
(1)
An
agreement
between,
or
concerted practice
by,
firms
,
or a decision by an association of
firms
,
is prohibited if it is between parties in a
horizontal
relationship
and if –
. . .
(b)
it involves any of the following
restrictive
horizontal practices
:
(i)
directly or indirectly fixing a purchase or selling price
or any
other trading condition;
(ii)
dividing markets by allocating customers, suppliers, territories,
or
specific types of
goods or services
; or
(iii)
collusive tendering.’
[2]
Corporate Leniency Policy, GN 628,
GG
31064, 23 May 2008, as amended by GN 212,
GG
35139, 16 March 2012. The adoption by the commission of the CLP was
upheld as valid and lawful in
Agri Wire
(Pty) Ltd & another v Commissioner of the Competition Commission
& others
[2012] ZASCA 134
;
2013
(5) SA 484
(SCA) para 22.
[3]
Paragraph 3.1 of the CLP, footnotes omitted.
[4]
The relevant details of the CLP will be discussed
more fully later in this judgment.
[5]
The
order was granted
in
terms of s 58(1)
(a)
(v)
of the Act which provides for an order ‘
declaring
conduct of a
firm
to be a prohibited practice . . . for purposes of section 65’
.
Section 65(6)
(b)
(i)
requires a notice certifying that the conduct in question ‘has
been
found
to be a
prohibited practice
’.
Section 65(9)
(a)
refers to the date of ‘a
determination
in respect of a matter that affects that person’. The
underlined words are my emphases. These terms seem to me to be
interchangeable. For the sake of consistency, I have used the word
‘declaration’ for all of these.
[6]
This was allocated case number 15/CR/Feb07.
[7]
In contravention of s 4(1)
(b)
(i)
of the Act.
[8]
In contravention of s 4(1)
(b)
(ii)
of the Act.
[9]
This was allocated case number 50/CR/May08.
[10]
There is a similar paragraph in the referral of
the second complaint.
[11]
It was designated the Western Cape High Court,
Cape Town at the time.
[12]
See
The Trustees for
the Time Being of the Children’s Resource Centre Trust &
others v Pioneer Foods (Pty) Ltd & others;
Mukaddam &
others v Pioneer Foods (Pty) Ltd & others
[2011]
ZAWCHC 102.
[13]
Two appeals from this judgment were heard by this
court. The first resulted in the matter being referred back with
leave given
to supplement the papers to deal with the requirements
for certification in class actions set out by this court in that
judgment.
It was held that prior certification by a court is
necessary for the institution of a class action. See
Children’s
Resource Centre Trust & others v Pioneer Food (Pty) Ltd &
others
[2012] ZASCA 182
;
2013 (2) SA
213
(SCA). The second held that the applicants had not made out a
case for an ‘opt-in’ class action. See
Mukaddam
v Pioneer Foods (Pty) Ltd & others
[2012] ZASCA 183
;
2013 (2) SA 254
(SCA). The Constitutional Court
heard an appeal from the second of these. See
Mukaddam
v Pioneer Foods (Pty) Ltd & others
[2013] ZACC 23
;
2013 (5) SA 89
(CC).
[14]
Premier also sought costs.
[15]
It was known as the North Gauteng High Court,
Pretoria, at the time.
[16]
Section 1 of the Act.
[17]
Ibid.
[18]
Ibid.
[19]
In terms of
section 19.
[20]
In terms of
section 26.
[21]
In terms of
section 36.
[22]
Section 49B.
[23]
If this is done, the complainant is entitled in
terms of s 51(1) to refer the complaint to the Tribunal,
subject to its procedural
rules.
[24]
Section 49D(1).
[25]
Section 50(1) read with s 50(2)
(a)
and s 50(5).
[26]
Section 49D(1).
[27]
Section 49D(3).
[28]
Section 49D(4)
(a)
.
[29]
Section 49D(4)
(b)
.
[30]
Section 50(3) reads:
‘
(3) When
the Competition Commission refers a complaint to the Competition
Tribunal in terms of subsection (2)
(a)
,
it –
(a)
may-
(i)
refer all the particulars of the complaint as submitted
by
the
complainant
;
(ii)
refer only some of the particulars of the complaint as submitted
by
the
complainant
; or
(iii) add
particulars to the complaint as submitted by the
complainant
;
and
(b)
must issue a notice of non-referral as
contemplated in subsection (2)
(b)
in
respect of any particulars of the complaint not referred to the
Competition Tribunal.’
[31]
As can be seen, s 50(3)
(a)
(iii)
also allows the Tribunal to add particulars to a complaint.
[32]
Section 50(5). This time period can be extended
by agreement with the complainant or by application to the Tribunal
in terms of
s 50(4).
[33]
In terms of
s 51(1).
[34]
Section 52(1).
[35]
Section 52(4).
[36]
For the sake of completeness, it is noted that i
t
can also make other orders in terms of s 60 relating to mergers
which will not be dealt with here.
[37]
Section 64(1).
[38]
Defined as a High Court or Magistrates Court in
s 1.
[39]
Section 65(2)
(a)
.
If no such order has been made at the time the
court is approached, the court is obliged to refer the issue of
prohibited conduct
to the Tribunal except in circumstances which do
not apply here. See s 65(2
)
(b)
.
[40]
Section 65(7).
[41]
Clause
3.1 read with
clause 9.1.1.2 of the CLP.
[42]
Clause 3.3 of the CLP. Footnotes omitted.
[43]
Clause
5.9 of the CLP,
as
underscored by clause 6.4 of the CLP,
which provides that ‘[n]othing in the CLP shall limit the
rights of any person who
has been injured by cartel activity in
respect of which the Commission has granted immunity under the CLP
to seek civil or criminal
remedies’.
(footnotes
omitted)
[44]
Section 26(1)
(d)
.
[45]
As indicated, complainants may also refer
complaints in certain circumstances under s 51(1) but this does
not apply to the
present matter.
[46]
Per Harms DP in
Woodlands
Dairy (Pty) Ltd & another v Competition Commission
[2010] ZASCA 104
; 2010 (6) SA 108 (SCA) para 12.
[47]
Competition Commission of South Africa v
Senwes Ltd
[2012] ZACC 6
;
2012 (7)
BCLR 667
(CC) para 36.
[48]
In the majority judgment by Jafta J. The minority
judgment did not comment on this approach, but applied it when it
held that
the matter should be referred back to the Tribunal for it
to rule on the ambit of the referral.
[49]
Agri
Wire (Pty) Ltd & another v Commissioner of the Competition
Commission & others
[2012] ZASCA
134
;
2013 (5) SA 484
(SCA).
[50]
Paragraph 24.
[51]
Senwes Ltd v Competition Commission of South
Africa
[2011] ZASCA 99
para 46.
[52]
Paragraph 39.
Mogoeng
CJ, Moseneke DCJ, Nkabinde, Skweyiya, Van der Westhuizen, Yacoob JJ
and Zondo AJ concurred in the judgment of Jafta J.
[53]
Froneman J, in
whose
judgment Cameron J concurred,
held that
the referral was open to more than one reasonable interpretation and
should be referred back to the Tribunal for a ruling
on its ambit.
[54]
This remains the case when the Commission acts in
terms of s 50(3)
(a)
(iii)
and adds particulars to a complaint as submitted by the complainant.
[55]
Competition Tribunal Rules,
GG
22025, 1 February 2001 (Note: the
Notice Number was omitted in the publication of these Rules.)
[56]
See paragraph 19 above.
[57]
National Union of Metalworkers of South Africa
v Intervalve (Pty) Ltd & others
[2014]
ZACC 35
;
2015 (2) BCLR 182
(CC).
[58]
Paragraph 53.
[59]
Paragraph 58.
[60]
By this rough analogy, I do not seek to suggest
that the power of the Tribunal to determine the terms of the
referral should be
narrowly or restrictively construed. See note 6
of the minority judgment in
Competition
Commission of South Africa v Senwes Ltd
[2012]
ZACC 6
;
2012 (7) BCLR 667
(CC)
, where it
was said that such an approach would be more appropriate to the
investigative powers of the Commission than to those
of the
Tribunal. See also
Woodlands Dairy
(Pty) Ltd & another v Competition Commission
[2010] ZASCA 104
; 2010 (6) SA 108 (SCA) para 10.
[61]
Premier Foods (Pty) Ltd v Manoim NO &
others
[2013] ZAGPPHC 236 para 45.
[62]
The Master of the High Court (North Gauteng
High Court, Pretoria) v Motala NO & others
[2011] ZASCA 238
;
2012 (3) SA 325
(SCA) para 12.
[63]
Lewis & Marks v Middel
1904
TS 291.
[64]
MEC for Health, Eastern Cape & another v
Kirland Investments (Pty) Ltd t/a Eye & Lazer Institute
[2014] ZACC 6
;
2014 (3) SA 481
(CC) at 512, note 78.
[65]
Per the majority judgment of Cameron JA.
[66]
Paragraphs 98 and 99, references omitted.
[67]
Oudekraal Estates (Pty) Ltd v City of Cape
Town & others
[2004] ZASCA 48
;
2004 (6) SA 222
(SCA) para 26.
[68]
Section 64(1) of the Act.
[69]
Kirland
above at
512, note 78.
[70]
Ibid.
[71]
Bhyat v Commissioner for Immigration
1932 AD 125
at 129, cited with approval in
Poswa
v Member of the Executive Council for Economic Affairs, Environment
and Tourism, Eastern Cape
[2001] ZASCA
31
;
2001 (3) SA 582
(SCA) para 10.
[72]
Cool Ideas 1186 CC v Hubbard & another
[2014] ZACC 16
;
2014 (4) SA 474
(CC) para 28. The judgment
quoted from is that of Majiedt AJ, in whose judgment four other
justices concurred. The other
two judgments did not question the
approach to interpretation enunciated in this dictum but differed on
other matters.
[73]
References omitted.
[74]
Paragraph 7.