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[2012] ZASCA 134
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Agri Wire (Pty) Ltd and Another v Commissioner of the Competition Commission and Others (660/2011) [2012] ZASCA 134; [2012] 4 All SA 365 (SCA); 2013 (5) SA 484 (SCA) (27 September 2012)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case no: 660/2011
In the matter between:
AGRI WIRE (PTY) LTD
...........................................................
First
Appellant
AGRI WIRE UPINGTON (PTY) LTD
................................
Second
Appellant
and
THE COMMISSIONER OF THE
COMPETITION COMMISSION
.
.........................................
First
Respondent
MINISTER OF TRADE AND INDUSTRY
......................
Second
Respondent
CONSOLIDATED WIRE INDUSTRIES
(PTY) LTD
..............................................................................
Third
Respondent
CAPE GATE (PTY) LTD
....................................................
Fourth
Respondent
ALLENS MESHCO (PTY) LTD
...........................................
Fifth
Respondent
HENDOK (PTY) LTD
............................................................
Sixth
Respondent
WIRE FORCE (PTY) LTD
...............................................
Seventh
Respondent
AGRI WIRE NORTH (PTY) LTD
.....................................
Eighth
Respondent
CAPE WIRE (PTY) LTD
.
.....................................................
Ninth
Respondent
FOREST WIRE (PTY) LTD
................................................
Tenth
Respondent
INDEPENDENT GALVANISING (PTY) LTD
.............
Eleventh Respondent
ASSOCIATED WIRE INDUSTRIES (PTY) LTD
t/a MESHRITE
...................................................................
Twelfth
Respondent
THE COMPETITION TRIBUNAL
.............................
Thirteenth
Respondent
Neutral citation:
Agri Wire
(Pty) Ltd v The Competition Commissioner
[
2012] ZASCA 134
(660/2011)(27 September 2012)
Coram:
NUGENT, LEACH, TSHIQI, WALLIS et PILLAY
JJA.
Heard
: 30 AUGUST 2012
Delivered
: 27 SEPTEMBER 2012
Summary:
Cartel – reference to Competition
Tribunal in terms of
s 4(1)
of the
Competition Act 89 of 1998
–
reference arising from evidence obtained by the Competition
Commission under its corporate leniency policy – application
to
set aside reference on the basis that the
Competition Act provides
no
lawful basis for the adoption of the corporate leniency policy –
claim that evidence obtained by means of the corporate
leniency
policy obtained unlawfully – claim that this rendered reference
unlawful.
ORDER
On appeal from:
North Gauteng High Court (Zondo J
sitting as court of first instance):
The appeal is dismissed with costs, such costs to
include the costs of two counsel where two counsel were employed.
JUDGMENT
WALLIS and PILLAY JJA (NUGENT, LEACH and TSHIQI JJA
concurring)
[1] Cartel conduct, where ostensible competitors collude
to set prices, or terms of trade, or divide markets, fix tenders or
engage
in similar conduct, is one of the most difficult types of
anti-competitive behaviour to identify, prove and bring to an end.
This
is because a successful cartel is conducted secretly and its
continued success depends on its members not breaking ranks to
disclose
their unlawful behaviour to the competition authorities. In
a number of jurisdictions, the response of the competition
authorities
has been to introduce policies that offer either complete
or partial leniency to cartel participants, who break ranks and
disclose
the existence and nature of the cartel, and provide evidence
that enables the authorities to pursue and break the cartel, by
bringing
it before the appropriate tribunal.
[2] The Competition Commission (the Commission), which,
in the form of the Competition Commissioner, is the first respondent
in
this appeal, has adopted such a policy. This is the Corporate
Leniency Policy (CLP) that is in issue in this appeal. The
appellants,
to whom we shall refer as Agri Wire, challenge the legal
basis of the CLP. They contend that evidence obtained by the
Commission
from the third respondent, Consolidated Wire Industries
(Pty) Ltd (CWI), in terms of the policy was unlawfully obtained. They
say
that this, in turn, tainted the Commission’s referral of a
complaint of alleged cartel behaviour in the wire and wire related
products sector of the South African market to the Competition
Tribunal in terms of s 51 of the Competition Act 89 of 1998
(the
Act). Agri Wire accordingly sought to review and set aside the
referral, together with certain ancillary relief, in proceedings
before the North Gauteng High Court, which dismissed the application,
but granted leave to appeal to this court.
The referral
[3] CWI is a member of a larger group of companies
operating generally in the steel industry. Its parent company was the
subject
of an investigation by the Commission. A decision was taken
at group level to undertake an internal audit aimed at identifying
all anti-competitive conduct by the parent company or any other
company in the group. Pursuant to this audit CWI indicated that
it
had been involved in a cartel, and identified the other members as
being Agri Wire and the fourth to twelfth respondents, none
of which
have played any part in this litigation. CWI accordingly approached
the Commission under the CLP and disclosed the existence
of the
alleged cartel and the information it had relating to the operation
of the cartel. In consequence of that disclosure the
Commission
granted it leniency on a conditional basis in terms of the CLP,
conducted an investigation and referred the allegations
concerning
the cartel to the Competition Tribunal (the Tribunal).
[4] In its referral to the Tribunal, the Commission
cited Agri Wire and the fourth to twelfth respondents. It claimed an
order declaring
that they had contravened s 4(1)
(b)
(i),
(ii) and (iii) of the Act; an order directing them to refrain from
engaging in the conduct constituting those alleged contraventions
and
the imposition of an administrative penalty of ten per cent of the
annual turnover of each participant in the 2008 financial
year. CWI
was also cited as a respondent but no relief was sought against it.
The Commission explained that this was because it
had sought and been
granted conditional leniency in terms of what it described as the
‘Applicant’s corporate leniency
policy’. In those
circumstances it had been cited ‘purely for the interest it may
have in these proceedings’.
Agri Wire’s complaints
[5] In attacking the grant by the Commission of
conditional leniency to CWI, Agri Wire sought an order declaring that
the grant
was ‘not authorised by any law and unlawful’.
It also sought an order that the evidence obtained from CWI pursuant
to the grant of conditional immunity was unlawfully obtained, and an
order declaring that the complaint referral to the Tribunal
was
unlawful and should be set aside. In the founding affidavit it
described the main issue as being:
‘…
whether or not it was competent
for the [Commission] to make promises of conditional immunity to
[CWI] to obtain evidence and, if
it was not competent for it to do
so, whether such evidence is inadmissible in subsequent proceedings.’
The argument was developed on the
basis that the Commission is a creature of statute and has only those
powers conferred upon it
under the Act. It was said that the Act does
not permit the Commission to be selective in deciding which
participants in a cartel
it investigates and makes the subject of a
reference to the Tribunal, nor does it authorise the Commission to
grant immunity from
a referral and a possible adverse adjudication,
including the imposition of an administrative penalty, in
consideration for the
furnishing of information under the CLP. If it
refers a complaint concerning participation in a cartel to the
Tribunal, it is obliged,
so the argument went, to refer the complaint
in respect of all participants and to seek relief against all of
them. The most that
it can do to ameliorate the position of a
‘whistleblower’ is to ask the Tribunal to take its
co-operation into account
in assessing the amount of any
administrative penalty, as it is entitled to do under s 59(3)
(f)
of the Act.
The Corporate Leniency Policy (CLP)
[6] It is convenient at this stage,
in order to understand the arguments on behalf of Agri Wire, to deal
briefly with the contents
of the CLP. The policy is embodied in a
document that has been published for information in the Government
Gazette.
1
It records that it is difficult to
detect or prove the existence of a cartel and that the CLP has been
developed to encourage participants
to break ranks and disclose
information that enables the Commission to tackle cartel behaviour.
This information is furnished ‘in
return for immunity from
prosecution’, the latter being the term used in the policy for
a reference to the Tribunal and adjudication
on a complaint of cartel
activity, in which an administrative penalty is sought. Clause 3.1
says that the CLP outlines the process
through which ‘the
Commission will grant a self-confessing cartel member …
immunity for its participation in cartel
activity’. That
immunity is granted in return for full disclosure and full
co-operation in pursuing the other cartel members
before the
Tribunal. For the avoidance of doubt, clause 4.2 states that immunity
refers to immunity from prosecution before the
Tribunal in relation
to the alleged cartel that is the subject of the application for
immunity.
[7] A conspicuous feature of the CLP
is that, wherever it refers to immunity being granted, it identifies
the Commission as the
party that grants immunity. Thus, in clause 5.3
it says, in regard to cartel activity outside South Africa, that
immunity granted
by another competition authority would not
‘automatically qualify the applicant for immunity by the
Commission’. In
clause 5.6 it is said that parties to cartels,
who ‘come clean’ after the initial disclosure, do not
qualify for immunity
but the Commission will explore with them the
possibility of them receiving a reduced fine.
2
Clause 6.4 warns those to whom ‘the
Commission has granted immunity’ that a grant of immunity does
not prevent third
parties from seeking civil or criminal remedies
against them. In dealing with the immunity process, clause 9.1 states
that at the
initial stage ‘conditional immunity is given to an
applicant … to create a good atmosphere and trust between the
applicant
and the Commission’. As conditional immunity is
granted prior to any reference to the Tribunal, only the Commission
can grant
conditional immunity. Clause 9.1.1.2 is important. It
provides that:
‘
Conditional immunity therefore precedes
total immunity or no immunity. The Commission will give the applicant
total immunity after
it has completed its investigation and referred
the matter to the Tribunal and once a final determination has been
made by the
Tribunal or the Appeal Court, as the case may be,
provided the applicant has met the conditions and requirements set
out in the
CLP on a continuous basis throughout the proceedings.’
Clause 9.1.1.3 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.
[8] Quite extraordinarily, in the face of these explicit
provisions, both the Commission and CWI sought to argue that under
the
CLP all that the Commission undertook to do was not to seek
relief against CWI in the referral proceedings before the Tribunal.
It was submitted that in the end result, after taking account of the
Commission’s stance, the Tribunal would take the final
decision
whether to grant relief against CWI. Reference was made to clause 3.3
of the CLP, which reads:
‘
Immunity in this context means that 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.’
Although this appears to leave the grant of immunity in
the hands of the Commission, we were referred to a footnote
explaining (in
extremely fine print) that:
‘
Adjudication means a referral of a
contravention of chapter 2 to the Tribunal by the Commission with a
view to getting a prescribed
fine imposed on the wrongdoer.
Prosecution has a similar import to adjudication herein.’
It was argued that this footnote clarified that the
Commission was only promising not to seek an adjudication involving
the imposition
of administrative penalties against the person
receiving conditional immunity, but that this did not preclude the
Tribunal from
imposing such a penalty.
[9] There is no merit in this argument. It flies in the
face of the provisions of the CLP that state expressly that it is the
Commission
that grants immunity. Nowhere does it suggest that the
entitlement to total immunity is dependent on the Tribunal, acting
within
its own unfettered discretion, not imposing a penalty on the
applicant for immunity. The distinction drawn between conditional
immunity and total immunity makes no sense if the Tribunal is
entitled to ignore the Commission’s grant of conditional
immunity
and impose administrative penalties upon the party to whom
such immunity had been granted. On the suggested construction the
following
absurd situation could arise. Conditional immunity has been
granted and the recipient has co-operated fully in the investigation
and the Tribunal proceedings, thereby qualifying for total immunity
under clause 9.1.1.2. Nonetheless it is compelled to pay
administrative
penalties imposed by the Tribunal. What meaning is to
be given to the concept of total immunity in that situation? It would
be
small comfort to the recipient to know that it had received total
immunity if it had nonetheless been ordered to pay ten per cent
of
its annual turnover during the years of the cartel’s existence
as an administrative penalty. We venture to suggest that
the CLP
would be far less effective, if not entirely useless, if it contained
a disclaimer to the effect that the Commission would
not seek an
order against the party seeking leniency, but that the Tribunal would
be free to impose such administrative penalty
as the Act permitted
against them. Hard-headed businessmen, contemplating baring their
souls to the competition authorities, will
generally want a more
secure undertaking of a tangible benefit, before furnishing the
co-operation that the Commission seeks from
them.
[10] The case must therefore be approached on the basis
of Agri Wire’s contention, namely, that the Commission has
granted
CWI conditional immunity under the CLP and that it is not
pursuing CWI before the Tribunal. As explained in the Commissioner’s
affidavit, CWI has been joined in the light of the Commission’s
view, on the correctness of which we express no opinion,
that such
joinder is necessary to preserve the right of third parties to bring
civil proceedings against it if they see fit to
do so. That argument
is based on a construction of ss 65 and 67 of the Act, but it is
unnecessary for the purposes of this case
to deal with it.
[11] We thus arrive at the central issue in this case,
namely, whether the CLP is lawful and whether the Act permits the
Commission
to refer a complaint to the Tribunal in respect of cartel
behaviour, without citing and seeking relief against all the members
of the cartel. However, before dealing with that question it is
necessary to divert to deal with a challenge raised by both the
Commission and CWI to the jurisdiction of the high court, and hence
this court on appeal from it, to deal with and determine these
issues. That challenge was upheld in the court below but on a basis
that ultimately was not pursued in this appeal. It must be
dealt with
at this stage because any question of jurisdiction is logically
anterior to a consideration of the merits.
3
Jurisdiction
[12] In the Commissioner’s affidavit the objection
to the jurisdiction of the high court was based on s 27(1)
(c)
of the Act. This section provides that the Competition Tribunal may:
‘
hear appeals from, or review
any decision of, the Competition Commission that may in terms of
this
Act
be
referred to it.’
In its heads of argument the Commission contended that
this section conferred on the Tribunal a general power to review any
decision
of the Commission taken in terms of the Act that falls
within its jurisdiction. The weakness of that argument is illustrated
by
the facts of this case. Agri Wire wishes to review and set aside
the referral to the Tribunal. There is no need for the Act to confer
on the Tribunal the power to review a decision to refer a matter to
it. If the referral is improper for any reason, the Tribunal
can
dismiss it on that ground. If it is thought desirable to do that at
an early stage of the proceedings, before substantial costs
are
incurred, the Tribunal can adjudicate the point before it holds a
hearing into the merits. That is consistent with the powers
given to
the Tribunal by s 55(1) of the Act to adopt a procedure that it
deems appropriate with due regard to the circumstances
of the case.
This places ‘an emphasis on speed, informality and a
non-technical approach to its task’.
4
Accordingly, had Agri Wire approached the Tribunal to determine
whether the referral to it was lawful, the Tribunal could have
determined that question in the exercise of its functions in dealing
with referrals under Part D of Chapter 5 of the Act. There
was no
need for it to have resort to s 27(1)
(c)
for that purpose.
[13] The Commission’s purpose in invoking
s 27(1)
(c)
was not to identify the source of the
Tribunal’s power to deal with Agri Wire’s complaints, but
to advance an argument
that the high court’s jurisdiction is
excluded. In our view that is not the effect of the section. Its
language refers to
appeals against and reviews of decisions by the
Competition Commission. In determining the scope of this provision it
is best to
start with those provisions of the Act that, in terms,
provide for the Commission to take decisions. These are s 10(2),
under
which the Commission grants exemptions; s 13(5)
(b)
dealing with the approval or prohibition of small mergers; s 14(1)
(b)
dealing with the approval or prohibition of intermediate mergers; and
s 15 dealing with the revocation of merger approval.
5
In the absence of a provision such as s 27(1)
(c)
any
challenge to these decisions would have to be brought before the high
court and not the Tribunal or the Competition Appeal
Court. That is
an unsatisfactory situation as it departs from the hierarchy of
decision-making under the Act and removes matters
that are
appropriate for decision by those bodies from their purview. To make
those decisions subject to appeal to, or review by,
the Tribunal is
therefore consistent with the general scheme of the Act.
[14] It was suggested by CWI that, in referring to
decisions ‘that may in terms of
this Act
be referred to
it’, s 27(1)
(c)
is referring to decisions that must
be referred to the Tribunal in terms of the Act. But, as it pointed
out, there are no such
decisions. This led CWI to proffer a
construction of the section that ignores these words. However, that
is not a permissible approach
to statutory interpretation, save in
rare and extreme situations. There is no need for it in this
instance. Whilst the section
is clumsily worded, if one accepts that
it is referring to decisions that the Act provides must be taken by
the Commission, the
reference to decisions that may in terms of the
Act ‘be referred to it’ is a reference to those
decisions, which are
referred to the Commission for it to make in
terms of the Act. In other words the ‘it’ in the section
is the Commission
not the Tribunal.
6
That is consistent with the powers of the Commission as set out in
ss 21(1)
(d)
and
(e)
of the Act.
[15] On this approach the procedural provisions of rule
42 of the rules of the Tribunal are irrelevant in order to give
meaning
to s 27(1)
(c)
. However, it is necessary to say
that the approach of the high court, that it is permissible to look
to the rules in order to ascertain
the scope of s 27(1)
(c)
,
is not correct. Whilst, for definition purposes, ‘the Act’
is defined as including the rules made under the Act, that
cannot
mean that the Tribunal can, by promulgating rules, confer a
jurisdiction on itself that is not to be found in the Act itself.
It
is appropriate to recall that a definition section is always to be
read in context and applies unless that context otherwise
indicates.
7
The jurisdiction of the various statutory bodies set up under the Act
is defined in the Act. It is not for them to determine their
own
jurisdiction by way of the rules under which they perform their
statutory functions. That would be entirely inconsistent with
the
rule of law and the principle of legality that underpins our
Constitution.
[16] In any event it was insufficient for the
Commission’s purpose for s 27(1)
(c)
to confer
appellate and review jurisdiction on the Tribunal. It was also
necessary for it to show that any such jurisdiction was
exclusive. It
sought to do this by relying on s 62 of the Act, which provides that;
‘
(1) The Competition Tribunal
and the Competition Appeal Court share exclusive jurisdiction in
respect of the following matters:
Interpretation and application of Chapters 2, 3 and 5,
other than –
a question or matter referred to in subsection (2); or
…
the functions referred to in section 21(1), 27(1) and
37, other than a question or matter referred to in subsection(2).
(2) In addition to any other jurisdiction granted in
this Act
to the Competition Appeal Court, the Court has
jurisdiction over –
(a)
the question whether an action taken or
proposed to be taken by the Competition Commission or the Competition
Tribunal is within
their respective jurisdictions in terms of
this
Act
…’
Section 62(3)
(b)
provides that the jurisdiction
of the Competition Appeal Court in respect of matters set out in
s 62(2) of the Act ‘is
neither exclusive nor final’.
[17] Whilst there would be no difficulty in recognising
an exclusive jurisdiction vested in the Tribunal and the Competition
Appeal
Court if s 27(1)
(c)
is confined to the situations
referred to in paragraph 13, supra, it becomes problematic when it is
extended to a challenge to the
validity of a referral, because that
is a question whether the referral is an action within the
jurisdiction of the Commission.
Unlawful actions are not within its
jurisdiction and an unlawful referral would accordingly not be within
its jurisdiction. But,
whether an act by the Commission is within its
jurisdiction is a matter within s 62(2)
(a)
of the Act and is
therefore not within the exclusive jurisdiction conferred by
s 62(1)
(b)
of the Act.
[18] Those considerations led counsel for the Commission
to abandon the argument based on s 27(1)
(c)
in favour of one
based on s 62(1)
(a)
of the Act. However that argument
foundered on two points. The first was that the section confers
exclusive jurisdiction only in
respect of matters arising under
Chapters 2, 3 and 5 of the Act. Agri Wire’s objections
were advanced on the basis that
the Commission’s powers are set
out in Chapter 4 of the Act and, properly construed, those provisions
do not permit the Commission
to adopt the CLP in its present form.
The second was that in any event the challenge was one under
s 62(2)
(a)
of the Act where there is no exclusive
jurisdiction.
[19] The argument that the high court’s
jurisdiction was excluded in favour of an exclusive jurisdiction
conferred on the
Tribunal under the Act was therefore incorrect.
Counsel then submitted that nonetheless the high court should defer
to the Tribunal
and allow the challenge to be dealt with by that
body. For this they relied upon two passages in the judgment of this
court in
Competition Commission of South Africa v Telkom SA Ltd &
another
.
8
The first, in which it was observed that the legislature had
established the competition authorities as the primary regulator in
competition matters, is disposed of quite easily. The court there
dealt with the concurrent jurisdiction of different regulatory
agencies and not with concurrent jurisdiction between the Tribunal
and the high court. The second merely indicates that, where
the
legislature has created specialist structures to resolve particular
disputes effectively and speedily, it is best to use those
structures. The court went on to hold, on the facts of that case,
that the court before which the review proceedings were brought
should have exercised its discretion to decline to grant relief by
way of review and left the issues in the case to be dealt with
by the
Tribunal in the course of the referral. That is a different matter
from the court declining to exercise the jurisdiction
with which it
is vested by law. Save in admiralty matters, our law does not
recognise the doctrine of
forum non conveniens
, and our courts
are not entitled to decline to hear cases properly brought before
them in the exercise of their jurisdiction.
9
[20] For those reasons the challenge to the high court’s
jurisdiction was misconceived and should have been rejected. We turn
therefore to deal with the merits of Agri Wire’s case.
Authority to issue the CLP
[21] In the high court the argument was accepted that,
in providing for conditional immunity to whistleblowers, the CLP does
no
more than embody an undertaking by the Commission that it will not
seek an order from the Tribunal imposing an administrative penalty
on
the party afforded immunity. The court held that notwithstanding the
grant of such immunity the Tribunal was not precluded from
making
such an order. This was erroneous for the reasons set out in paras 6
to 9, supra. The question is whether the Act vested
the power in the
Commission to formulate the CLP in terms that involved it in granting
first conditional, and then final, immunity
to whistleblowers in
cartel cases?
[22] Although this was the central issue in the case,
and in the heads of argument it was said that the Act did not empower
the
Commission to adopt the CLP, there was no real debate that, apart
from one argument, the Act does, in general terms empower the
Commission to adopt a CLP in these terms. In our view there can be no
doubt that this is so. The purpose of the Act, as set out
in s 2
thereof, is to promote competition in South Africa. To that end the
Commission is empowered to promote market transparency
(s 21(1)
(a)
)
and to investigate and evaluate alleged contraventions of Chapter 2
of the Act, under which cartels fall (s 21(1)
(c
)).
Breaking up cartels serves to promote market transparency, as cartel
behaviour is the antithesis of transparency in the market
place.
Investigating contraventions of the Act must entitle the Commission
to put in place measures that will enable it to perform
this
function. That is the whole purpose of the CLP. Accordingly, and
subject only to the argument that follows, the Commission
was
empowered under the Act to adopt and implement the CLP by giving
conditional and total immunity to parties who make disclosure
and
provide evidence that enables it to pursue cartels and bring them to
an end.
[23] Agri Wire contended that, whilst the adoption of
the CLP may have been permissible in general terms, it was
impermissible for
it to provide that immunity would be granted by the
Commission. That according to it is the prerogative of the Tribunal
when exercising
its powers in determining an appropriate penalty
under s 59 of the Act. It relied for this argument on two
propositions. First
it said that when the Commission refers a
complaint to the Tribunal under s 51 of the Act it is obliged to
refer the entire
complaint and that means, in the context of cartel
behaviour, that it is obliged to refer all members of the cartel to
the Tribunal
for the latter to adjudicate upon their conduct and
determine what order should be made and what penalty imposed. It
complained
that otherwise the playing fields were not level and the
party that obtained leniency would be unfairly advantaged. Second it
said
that the provisions of s 59(3)
(f)
require the
Tribunal to take into account the degree to which a participant in a
cartel has co-operated with the Commission and
the Tribunal and that
this indicates that it is the Tribunal, and not the Commission, that
must determine whether any immunity
should be granted.
[24] Counsel was unable to point to anything in the Act
itself, beyond the general words providing that the Commission refers
a
complaint to the Tribunal, to support this argument. He submitted
that a complaint involving a cartel must necessarily involve all
the
members of the cartel. Otherwise, so he submitted, the complaint
would not have been referred as required by the Act. There
is no
merit in these submissions. A complaint is initiated under s 49B,
either by the Commissioner or by a third party. The
complaint is then
investigated. 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.
Equally, when the Commissioner decides to add D as a participant in
the cartel, that is in accordance
with the express provisions of the
statute.
[25] That is also a sensible construction of the Act. It
is easy to envisage situations in which it will be impossible, say
because
one of the participants has been liquidated, or merged into
another entity, to refer all the participants to the Tribunal. It is
also easy to conceive of situations where it would be undesirable to
do so, as for example where a small participant might go into
liquidation if a penalty was imposed upon it or where the costs of
pursuing a particular participant were out of proportion to
the
advantages to be gained from doing so.
[26] As to s 59(3), the fact that the Tribunal can
take a party’s co-operation into account in determining an
administrative
penalty does not have as a corollary that the
Commission may not grant immunity. Accordingly the challenges to the
CLP; the grant
of conditional immunity to CWI; the admissibility of
the evidence obtained from CWI by way of the grant of conditional
immunity
and the validity of the referral were all without merit. The
application was correctly dismissed, albeit for reasons other than
those of the court below, and the appeal must likewise be dismissed.
[27] The appeal is dismissed with costs, such costs to
include the costs of two counsel, where two counsel were employed.
M J D WALLIS
JUDGE OF APPEAL
R PILLAY
JUDGE OF APPEAL
Appearances
For appellant: S J du Plessis SC (with him Kevin
Hopkins)
Instructed by:
Roestoff and Kruse, Menlo Park, Pretoria
Symington & De Kok, Bloemfontein
For first and second
respondent: Gilbert Marcus SC (with him Isabel Goodman)
State Attorney, Pretoria and Bloemfontein.
For third respondent: Wim Trengove SC (with him J Wilson
and M M le Roux)
Instructed by:
Nortons Incorporated, Johannesburg
McIntyre & Van der Post, Bloemfontein.
1
GN
195
GG
25963
of 6 February 2004 and GN 628
GG
31064
of 23 May 2008.
2
This
can only be a reference to s 59(3)
(f)
of the Act.
3
Makhanya
v University of Zululand
2010 (1) SA
62
(SCA) para 29.
4
Competition
Commission of South Africa v Senwes Ltd
[2012] ZACC 6
;
2012 (7)
BCLR 667
(CC) at para 69.
5
No
other decisions in this sense were identified by counsel in response
to questions from the Bench. If there are other decisions
of the
Commission under the Act of a similar type, that does not affect the
matter.
6
There
is a dictum in
Competition Commission of South Africa v Telkom SA
Ltd & another
[2010] 2 All SA 433
(SCA) para 38 that may
suggest a wider meaning of s 27(1)
(c)
, but the point was
not argued in that case and it was unnecessary for the actual
decision. Similarly the two cases in the Competition
Appeal Court to
which counsel referred us in support of the argument about the
Tribunal’s review jurisdiction (
AC Whitcher (Pty) Ltd v The
Competition Commission of SA & another
[2009] 2 CPLR 291
(CAC) paras 16-17 and
Africa Media Entertainment Ltd v Lewis NO &
others
[2008] 1 CPLR 1
(CAC)) do not support the argument.
7
Town
Council of Springs v Moosa & another
1929 AD 401
at 416-417.
8
Competition
Commission of South Africa v Telkom SA Ltd & another
, supra,
paras 27 and 36.
9
Makhanya
v University of Zululand
, supra, paras
33 and 34;
Longman Distillers Ltd v Drop Inn Group of
Liquor Supermarkets (Pty) Ltd
[1990] ZASCA 39
;
1990 (2) SA 906
(A) at 914E-G;
Standard Credit Corporation Ltd v Bester & others
1987
(1) SA 812
(T) at 815E-F and 819D-E;
Marth NO v Collier &
others
[1996] 3 All SA 506
(C) at 508e-f.