CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 192/22
In the matter between:
COCA-COLA BEVERAGES AFRICA (PTY) LIMITED Applicant
and
COMPETITION COMMISSION First Respondent
FOOD AND ALLIED WORKERS UNION Second Respondent
Neutral citation: Coca-Cola Beverages Africa (Pty) Ltd v Competition Commission
and Another [2024] ZACC 3
Coram: Zondo CJ, Chaskalson AJ, Dodson AJ, Kollapen J, Mathopo J,
Mhlantla J, Rogers J, Schippers AJ and Tshiqi J
Judgments: Dodson AJ (unanimous)
Heard on: 14 November 2023
Decided on: 17 April 2024
Summary: Competition Act 89 of 1998 — Rules for the Conduct of
Proceedings in the Competition Commission — standard of review
in special statutory review under rule 39(2)(b)
Competition Law — causation — merger approval conditions
prohibiting retrenchments as a result of merger — correct test for
determining causal link between merger and retrenchments
2
Competition Law — power of Competition Appeal Court to
interfere with decision of the Competition Tribunal
ORDER
On appeal from the Competition Appeal Court:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Competition Appeal Court is set aside and replaced with
the following order:
“(a) The appeal is dismissed.
(b) Each party must bear its own costs.”
4. Each party must bear its own costs in this Court.
JUDGMENT
DODSON AJ (Zondo CJ, Chaskalson AJ, Kollapen J, Mathopo J, Mhlantla J, Rogers J,
Schippers AJ and Tshiqi J concurring):
Introduction
[1] South Africa faces one of the highest unemployment rates in the world,
particularly amongst the younger members of society. 1 This was no doub t taken into
account by Parliament in formulating section 12A of the Competition Act (Act). 2 The
1 See the unemployment data of the International Labour Organisation placing South Africa’s unemployment rate
second after eSwatini ( 11 January 2024 ), available at https://ilostat.ilo.org/topics/unemployment-and-labour-
underutilization/.
2 89 of 1998.
DODSON AJ
3
section requires that, when deciding whether a merger is in the public interest, its effect
on employment must be taken into account. 3 If it is decided to ap prove the merger,
conditions may be imposed relevant to that impact. Here, conditions were imposed on
approval of a merger that restricted post -merger retrenchments. This application for
leave to appeal arises from a complaint that Coca -Cola Beverages Af rica (Pty) Ltd
(CCBA), the applicant, retrenched staff in breach of those conditions. CCBA seeks
leave to appeal against a judgment of the Competition Appeal Court. The Competition
Appeal Court overturned a decision of the Competition Tribunal (Tribunal), finding that
CCBA had substantially complied with the conditions.
[2] The first respondent, the Competition Commission (Commission), opposes the
application. The second respondent, the Food and Allied Workers Union (FAWU),
lodged the original complaint with the Commission and participated in the proceedings
in the Tribunal, representing the interests of its affected members. It did not, however,
participate in the proceedings before the Competition Appeal Court or in this Court.
The application is best un derstood against the backdrop of the statutory framework in
the Act, to which I now turn.
Statutory framework
[3] Chapter 3 of the Act regulates mergers.4 Section 12(1)(a) provides that “a merger
occurs when one or more firms directly or indirectly acquire or establish direct or
indirect control over the whole or part of the business of another firm”. Three categories
are recognised: small, intermediate and large mergers.5 Categorisation is with reference
to combined annual turnover or assets or a combination of these. 6 Here we are
concerned with a large merger. If the Commission receives notice of a large merger, it
must refer the notice and its recommendation to the Tribunal for consideration.7
3 Section 12A(3)(b) read with section 12A(1A) of the Act.
4 Under the heading “merger control”. It is made up by sections 11-18.
5 Section 11(5).
6 Section 11(1) and (5).
7 Section 14A(1)(a) and (b).
DODSON AJ
4
[4] The Tribunal’s consideration of the merger is regulated by section 12A of the
Act. Its first task is to determine whether the merger is likely to substantially prevent
or lessen competition. 8 If this is likely, the Tribunal must consider (a) whether the
merger is likely to result in a “technological, efficiency or other pro -competitive gain”
that offsets the anti-competitive impact and (b) whether the merger can be justified on
“substantial public interest grounds”. 9 Despite its determination on these issues, the
Tribunal must consider whether the merger is justifiable on public interest grounds. 10
Criteria for each of these evaluations are provided. 11 In considering justifiability on
public interest grounds in terms of section 12A(3)(b) the Tribunal “must consider the
effect that the merger will have on . . . employment” amongst other things. The Tribunal
must then decide whether the merger is to be approved, approved conditionally or
prohibited.12 In the present matter the approval was subject to conditions, which are
discussed later in the judgment.
[5] What if the merger conditions in respect of a large merger are breached? Upon
application by the Commission, the Tribunal “may revoke its own decision to approve
or conditionally approve a merger, or, in respect of a conditional approval, make any
appropriate decision regarding any condition relating to the merger, including the issues
in section 12A(3)(b) or (c)”.13 This it may do where, amongst others, “a firm concerned
8 Section 12A(1).
9 Section 12A(1)(a) and (b).
10 Section 12A(1A).
11 Section 12A(2) and (3).
12 Section 16(2)(a) to (c).
13 Section 16(3) of the Act, which provides:
“Upon application by the Competition Commission, the Competition Tribunal may revoke its
own decision to approve or conditionally approve a merger or, in respect of a conditional
approval, make any appropriate decision regarding any condition relating to the merger,
including the issues referred to in section 12A(3)(b) or (c), and section 15, read with the changes
required by the context, applies to a revocation or other decision in terms of this subsection.”
Section 12A(3)(b) relates to the effect of the merger on employment. Section 12A(3)(c) relates to the effect of
the merger on small and medium businesses or firms owned by historically disadvantage d persons. Section 15
governs revocation of the approval of a small or intermediate merger by the Commission. The effect is to add, as
grounds of revocation under section 16(3), a merger approval decision having been based on incorrect information
for which a party to the merger is responsible, or the approval having been obtained by deceit or a breach of a
merger condition.
DODSON AJ
5
has breached an obligation attached to the decision”.14 Alternatively, the Tribunal may
impose an administrat ive penalty15 “if the parties to a merger have . . . proceeded to
implement the merger in a manner contrary to a condit ion for the approval”. 16 The
penalties may be substantial, up to 10% of annual turnover in the preceding financial
year, including exports, for a first offender and 25% for a repeat offender. 17 Although
it is not necessary to decide here, another sanction might be divestiture. Where
“a merger is implemented in contravention of Chapter 3”, the Tribunal may either
“order a party to the merger to sell any shares, interest or other assets it has acquired
pursuant to the merger” or “declare void any provision o f an agreement to which the
merger was subject”.18
[6] A procedural framework has been established to deal with, amongst other things,
such a breach. The starting point is section 27, which provides:
“27 Functions of Competition Tribunal
(1) The Competition Tribunal may—
. . .
(b) adjudicate on any other matter that may, in terms of this Act, be
considered by it, and make any order provided for in this Act;
(c) hear appeals from, or review any decision of, the Competition
Commission that may in terms of this Act be referred to it; and
(d) make any ruling or order necessary or incidental to the performance of
its functions in terms of this Act.”
[7] The term “this Act” is defined to include “the regulations”. 19 The Minister of
Trade and Industry (Minister) may make regulatio ns relating to the functions of the
14 This is provided for in section 15(1)(c), which is incorporated into section 16(3) by reference.
15 Administrative penalties and di vestiture are dealt with in Part D of Chapter 5, under the heading
“Tribunal hearings and orders.”
16 Section 59(1)(d)(iii) of the Act.
17 Section 59(2) and (2A) of the Act.
18 Section 60(1)(a) and (b).
19 Section 1 of the Act. “Regulation” is defined in section 1 as “a regulation made under this Act”.
DODSON AJ
6
Commission and the Tribunal, including their “procedures”. 20 The Minister has done
so in the form of rules for each institution. 21 The most pertinent rule in this appeal is
rule 39 of the Commission Rules. It reads in relevant part as follows:
“39. Breach of merger approval conditions or obligations
(1) If a firm appears to have breached an obligation that was part of an approval
or conditional approval of its merger, the Commission must deliver to that firm
a Notice of Apparent Breach in Form CC 19, before taking any action—
(a) in terms of section 15(1)(c) to revoke that approval or conditional
approval;
(b) in terms of section 59 or 60.22
(2) Within 10 business days after receiving a Notice of Apparent Breach, a firm
referred to in sub-rule (1) may—
(a) submit to the Commission a plan to remedy the breach; or
(b) request the Competition Tribunal to review the Notice of Apparent
Breach on the grounds that the firm has substantially complied with its
obligations with respect to the approval or conditional approval of the
merger.
. . .
(5) The Commission may act in terms of section 15(1) to revoke the approval or
conditional approval of a merger referred to in sub -rule (1), or in terms of
section 59 or 60, only if—
(a) the firm concerned does not respond to the Notice of Apparent Breach
within 10 business days after receiving it, in the manner anticipated in
sub-rule (2).”
[8] The remaining provisions of rule 39 deal with the circumstances where a plan
has been submitted. In this matter, CCBA opted for a review in terms of rule 39(2)(b).
Accordingly, they are not directly relevant.
20 Sections 21(4) and 27(2) of the Act.
21 Rules for the Conduct of Proceedings in the Competition Commission, GG 22025, 1 February 2001, as amended
(Commission Rules). See also Rules for the Conduct of Proce edings in the Competition Tribunal GG 22025, 1
February 2001. Neither set of rules was published with a notice or regulation number.
22 See the discussion of sections 59 and 60 at para [5] above.
DODSON AJ
7
[9] A failure to successfully review a Notice of Apparent Breach does not
automatically result in the imposition of revocation or other penalties. Further, Tribunal
proceedings against the offending firm are required. 23 Against this statutory
background, it is now appropriate to set out the factual background.
Factual background
[10] The dispute has its origins in a large merger that was approved by the Tribunal
on 10 May 2016 (me rger decision). 24 The merger created a single bottling entity,
Coca-Cola Beverages South Africa (Pty) Ltd (CCBSA), from four, previously
independent, authorised bottlers for The Coca-Cola Company (TCCC).25 CCBSA was
established as a subsidiary of CCBA. I will refer to CCBSA and CCBA interchangeably
as Coca-Cola, unless it is necessary to distinguish between them. Pre -merger, TCCC
supplied concentrate and beverage bases to each of the four bottlers. 26 They were
Amalgamated Beverage Industries (ABI), Coca -Cola Sabco (Pty) Ltd (Sabco),
Coca-Cola Shanduka Beverages South Africa (Pty) Ltd (Shanduka) and
Coca-Cola Canners (Pty) Ltd (Canners). The bottlers were each separately authorised
to prepare, package, distribute and sell the Coca -Cola products in a partic ular
geographic area. There was no overlap. So the bottlers did not compete.
[11] A number of interested parties participated in the merger proceedings. 27
Negotiations took place between them. The merging parties negotiated settlement
23 In this regard, rule 37 of the Tribunal’s rules provides in relevant parts as follows:
“37 Revocation of approval or conditional approval
(1) In respect of a merger that has been app roved or conditionally approved by the
Tribunal, the Commission may file a Notice of Motion in Form CT 6 to revoke the approval or
conditional approval of that merger provided, if the proposed revocation is based on
section 15(1)(c), that it has taken the steps set out in rule 39 of the Competition Commission
Rules.”
24 Coca-Cola Beverages Africa Limited v Various Coca -Cola and Related Bottling Operations [2016] ZACT 68
(Coca-Cola merger decision).
25 TCCC is a company incorporated in accordance with the laws of the United States and listed on the New York
Stock Exchange.
26 These are described, along with their holding companies, at paras 21 -6 of the Coca-Cola merger decision.
27 Coca-Cola merger decision above n 24 at paras 8-9.
DODSON AJ
8
agreements with the Mi nister and FAWU respectively, shortly before the hearing was
to commence.28 The settlements were based on conditions to be attached to the approval
of the merger. The Commission was satisfied with them. 29 In considering the merger,
the Tribunal agreed wit h the merging parties that the merger had a neutral impact on
competition “as the relevant bottling operations already form part of the TCCC
system”.30
[12] In relation to the public interest, the Commission stipulated a number of
employment-related conditions. The Minister raised objections to these. As a result of
his intervention, and as observed by the Tribunal, “FAWU successfully negotiated a
strengthening of the employment conditions”. 31 These were then extended to
employees who were members of the National Union of Food, Beverage, Wine, Spirits
and Allied Workers (NUFBWSAW) in a separate but identical agreement. 32 On the
basis of the agreed conditions, the Tribunal approved the merger. 33 Consequent upon
the merger, the consolidated bottling operation was held as to 11.3% by TCCC, 57% by
SABMiller plc and 31.7% by Gutsche Family Investments (Pty) Ltd.
[13] The conditions included—
(a) as condition 9.1: the maintenance of the aggregate employee numbers
from the four operations, as at approval date, for a period of three years;
(b) as condition 9.2: that no retrenchments of “bargaining unit employees ”34
were to be effected “as a result of the merger” and that retrenchments
28 Id at para 16.
29 Id at para 17.
30 Id at para 34.
31 Id at para 55.
32 Id at paras 50-5.
33 Id at para 56.
34 “Bargaining unit employees” are defined in the conditions of the Coca-Cola merger decision above n 24 at para
1.9 as—
“those employees of the Merging Parties falling within the respective bargaining units as defined in the
various recognition agreements of the Merging Parties in terms of the Labour Relations Act”.
DODSON AJ
9
outside of the bargaining units were limited to 250 employees in category
Hay Grade 12 and above;35
(c) as condition 9.4.5: that retrenchments precluded by condition 9 did not
include “necessary steps taken by the Merging Parties in terms of
section 189 of the Labour Relations Act 36 (LRA) should operational
requirements in the ordinary course of business that are not merger
specific necessitate that such steps be taken”; and
(d) as condition 11.2: that in the event of any “conflict of interpretation”
between the conditions and the union agreements, the agreements would
prevail.
[14] Clause 3.2 of the union agreements further required harmonisation of
employment conditions across all four bottlers within four years to no less than those
attaching to the equivalent posts in ABI, one of the four bottling companies.
[15] A further merger at holding company level was approved on 27 September 2017.
This involved the purchase by TCCC of SABMiller plc’s 54% shareholding in CCBA.
The conditions from the first merger remained in place. The three -year period in
condition 9.1, requiring the maintenance of a minimum level of employme nt, started
running afresh from the date of the second merger.
[16] Following the second merger, according to Coca-Cola, things took a turn for the
worse. During 2017 economic conditions deteriorated. With effect from 1 April 2018
the Health Promotion Levy o n Sugary Beverages, colloquially known as the
“sugar tax”, was imposed.37 Input prices, particularly of sugar, rose sharply. Economic
35 The definition adopted by the Commission in its merger report was as follows:
“According to the Hay Correlation Table, the positions graded at Hay Grade 12 and above . . . are skilled
positions which include the following positions: specialised, skilled, technical specialist and senior
supervisory, middle . . . management, high level advisory etc.”
36 66 of 1995.
37 The Health Promotion Levy on Sugary Beverages was introduced in terms of the Rates and Monetary Amounts
and Amendment of Revenue Laws Act 14 of 2017.
DODSON AJ
10
conditions in the country continued to deteriorate . Sales volumes were affected and
competitors continued to gain market share. The upshot was that Coca-Cola wrote to
the Commission on 19 January 2019 informing it of the challenges faced and warning
that retrenchments for operational requirements may be required.
[17] On 21 January 2019 Coca-Cola addressed notices to FAWU and NUFBWSAW
in terms of section 189(3) of the LRA .38 It referred in the notice to the adverse
conditions, including the impact of the sugar tax. These developments required it to
restructure, particularly within logistical and commercial functions, which would result,
amongst others, in the reduction of labour costs. It gave the assurance that there would
be “no forced merger-related retrenchments within the bargaining units of the CCBSA
group”. However, if the proposals to restructure were implemented, ret renchments
might be necessary. Before taking any decisions in this regard, C oca-Cola wished to
consult on possible measures to avoid or minimise retrenchments, or their impact if they
were to take place, and on selection criteria and severance pay if avoi ding the
38 The letter refers to “section 189 (A)”, but the letter is clearly the notice contemplated in section 189(3) of the
LRA. Section 189(3) reads as follows:
“(3) The employer must issue a written notice inviting the other consulting party to consult
with it and disclose in writing all relevant information, including, but not limited to—
(a) the reasons for the proposed dismissals;
(b) the alternatives that the employer considered before proposing
the dismissals, and the reasons for rejecting each of those
alternatives;
(c) the number of employees likely to be affected and the job categories
in which they are employed;
(d) the proposed method for selecting which employees to dismiss;
(e) the time when, or the period during which, the dismissals are likely
to take effect;
(f) the severance pay proposed;
(g) any assistance that the employer proposes to offer to
the employees likely to be dismissed;
(h) the possibility of the future re -employment of the employees who
are dismissed;
(i) the number of employees employed by the employer; and
(j) the number of employees that the employer has dismissed for
reasons based on its operational requirements in the preceding
12 months.”
DODSON AJ
11
retrenchments was impossible. In the event that the retrenchments proceeded, Coca -
Cola would use a two -phase approach. Impacted employees would first be given an
opportunity to consider voluntary retrenchment or early retirement. If operational
requirements were not met thereby, it would move to involuntary retrenchments.
Consultations with the unions followed, with the CCMA provid ing facilitation ,
presumably, in terms of section 189A(3) to (8) of the LRA.
[18] On 16 April 2019, the Commission noti fied Coca-Cola that it had received a
complaint from FAWU of a breach of condition 9.1 of the merger conditions. It
requested information on a number of issues pertaining to the possible retrenchments.
Coca-Cola responded on 6 May 2019 , pointing out inter alia that the total number of
employees continued to exceed the number required in condition 9.1, that commercial,
regulatory and operational factors gave rise to the need for retrenchments and that the
sugar tax had, in the nine months since its introduction in April 2018, already cost
Coca-Cola approximately R2.1 billion. It emphasised that the retrenchments were “for
reasons unrelated to the merger” and denied any breach of the merger conditions.
[19] On 28 May 2019, the Commission wrote to Coca-Cola asking it to supplement
its response of 6 May 2019. The Commission asked how Coca -Cola intended to
maintain the employee headcount, as required by condition 9.1, at the same time as
effecting retrenchments. It also wanted to know how the sugar tax was causally linked
to the retrenchments. Financial statements and demand volumes were requested.
[20] Coca-Cola responded in a letter dated 7 June 2019.39 A table provided showed
that, whilst the minimum employment level had dropped below the required level for a
number of months as a result of “natural attrition” and voluntary retrenchments,
recruitment of 1067 employees in May 2019 into “newly created roles” had restored the
numbers to above the required minimum by the end of that month . As t o the causal
link, the retrenchments were required in order to mitigate the losses arising from the
39 Sent on 10 June 2019.
DODSON AJ
12
sugar tax and to ensure profitability. An extract from the 2018 income statement was
provided, with comments pointing out that sales volumes had declined by 2%, discounts
in order to remain competitive had increased by R850 million, gross profit had
decreased by R300 million and the various adverse circumstances had led to a profit
decline for a third consecutive year. Coca-Cola expressed its surprise at FA WU’s
stance, given that FAWU had previously joined it in opposing the sugar tax on account
of its potential to cause job losses.
[21] While this exchange of correspondence with the Commission took place,
Coca-Cola implemented retrenchments. A considerable num ber of employees opted
for voluntary retrenchment. Ultimately 368 employees from within the bargaining
unit40 were involuntarily retrenched with effect from 31 May 2019. In response, FAWU
launched unfair dismissal proceedings in the Labour Court on 6 Sept ember 2019, but
these appear not to have been persisted in. NUFBWSAW also launched unfair
dismissal proceedings in two separate cases. In one of those cases, the Labour Court
dismissed the claim and leave to appeal was refused by the Labour Court and
Labour Appeal Court. At the time the replying affidavit was filed in this Court, the
other case had not been finalised, but it appears that the Labour Court subsequently
dismissed the claims of 13 employees and upheld the claim of a fourteenth employee,
to whom Coca-Cola was ordered to pay compensation.41
[22] On 24 October 2019 , and acting in terms of Commission rule 39(1), the
Commission issued a Notice of Apparent Breach, presenting Coca-Cola with the two
options in rule 39(2)(a) and (b) as referred to earlier. The covering letter alleged that
“the retrenchment . . . took place during the moratorium period prescribed in clause 9.2
of the merger conditions”. The merged entity was therefore in breach of that clause.
Here the letter was in error. Only condition 9.1 has a moratorium period. Condition 9.2
operates indefinitely.
40 See para 13(b) above.
41 National Union of Food Beverage Wine Spirits and Allied Workers v Coca -Cola Beverages South Africa (Pty)
Ltd [2022] ZALCJHB 268.
DODSON AJ
13
[23] Coca-Cola’s attorneys responded on 11 November 2019 by seeking an extension
of the 10 -day time limit in rule 39(1) to enable it to “address a formal written
submission”. The extension wa s granted. A submission was made on
20 December 2019 setting out Coca-Cola’s case, asserting that the retrenchments were
not merger specific and requesting that the notice be withdrawn.
[24] On 9 April 2020 the Commission responded. It changed its stance. Now it
asserted that (a) Coca-Cola’s duty to harmonise terms and conditions and (b) the cost
cutting “in the very areas where duplications arose from the merger (i.e. bottling
operations)” were the true reasons for the retrenchments, not the sugar tax. This pointed
to a complaint based on condition 9.2 rather than 9.1. The Commission also observed
that “[c]uriously, in parallel with that retrenchment process, the merged entity hired new
employees in the same/similar positions but for less wages and less benefits than the
employees who had been retrenched”.
[25] A supplementary submission by C oca-Cola’s attorneys on 20 April 2020 in
response was to no avail. On 29 April 2020, the Commission put Coca-Cola to terms
to submit a plan , failing which Coca-Cola would have to approach the Tribunal for
appropriate relief. Coca-Cola opted for the latter. On 14 May 2020 it applied to the
Tribunal in terms of rule 39(2)(b) to review the notice of apparent breach.
Before the Competition Tribunal
[26] The Tribunal,42 pointed out that it has general appeal and review powers under
section 27(1)(c). 43 However, the Constitutional Court recognised in Sidumo44 that
section 33 of the Constitution does not preclude “speci alised legislative regulation of
42 Coca-Cola Bevera ges Africa (Pty) Ltd v Competition Commission of South Africa [2021] ZACT 101
(Tribunal decision).
43 Id at para 32.
44 Sidumo v Rustenburg Platinum Mines Ltd [2007] ZACC 22; 2008 (2) SA 24 (CC); 2008 (2) BCLR 158 (CC).
DODSON AJ
14
administrative action”.45 Rule 39(2)(b) provides for “a separate and context specific
form of review” to determine breaches of merger approval conditions.46
[27] The Tribunal reasoned as follows. As regards the test for determi ning whether
the retrenchments were “as a result of the merger” or “merger specific”, the Tribunal
referred to Aveng.47 That judgment concerned whether the reason for certain dismissals
was a refusal by employees to accept a demand of the employer on a mat ter of mutual
interest (which would have rendered the dismissals automatically unfair in terms of
section 187(1)(c) of the LRA) or whether the reason was Aveng’s operational
requirements. The Tribunal in the present case considered that the “delictual test” for
causation adopted in the first judgment in Aveng48 to ascertain the true reason for the
retrenchments was inappropriate in the present context. 49 The approach in the second
judgment in Aveng50 was to be preferred. The latter approach characterises the enquiry
as one related simply to proof. W here conflicting reasons are proffered for the
retrenchments, the true reason for them is a factual question to be resolved on the
probabilities, applying Stellenbosch Farmers’ Winery.51 This approach , in the
Tribunal’s view, was consistent with the Tribunal’s judgment in BB Investment.52
[28] The argument that the retrenchments sought to undermine the harmonisation
obligation arising from the merger did not hold , according to the Tribunal, because,
45 Id at para 91.
46 Id at para 35.
47 National Union of Metalworkers of South Africa v Aveng Trident Steel (a division of Aveng Africa (Pty) Ltd)
[2020] ZACC 23; (2021) 42 ILJ 67 (CC); 2021 (2) BCLR 168 (CC).
48 Id at paras 69-92. The Court divided evenly on the test for determining the reason for the dismissal.
49 Tribunal decision above n 42 at para 42.
50 Id at paras 106-136.
51 Stellenbosch Farmers’ Winery Group Ltd v Martell et Cie [2002] ZASCA 98; 2003 (1) SA 11 (SCA)
(Stellenbosch Farmers’ Winery’).
52 BB Investment Company (Pty) Ltd v Adcock Ingram Holdings (Pty) Ltd [2014] 2 CDLR 451 (CT)
(BB Investment).
DODSON AJ
15
amongst other things, there was no evidence to show that the replacement of higher-paid
employees with those who were lower-paid had in fact impacted on the harmonisation.53
[29] The Tribunal accepted that , if the retrenchments had been aimed at removing
positions that were duplicated as a result of the merger, this would be merger specific.54
However, there was “insufficient evidence to demonstrate that a principal reason for the
retrenchments was the removal of duplicate roles” arising from the merger. 55 The
probabilities favoured Coca-Cola’s reasons for the retrenchments, namely the need to
reduce costs to address the impact of the sugar tax, adverse macroeconomic
circumstances and rising input prices. 56 The Tribunal accordingly granted an order
declaring that C oca-Cola had substantially complied with condition 9.2 and set aside
the notice of apparent breach.
Before the Competition Appeal Court
[30] The Commission appealed to the Competition Appeal Court. 57 That Court
identified, as the main questions for decision , the nature of t he review under
section 27(1)(c) read with rule 39(2) and the correct test for deciding whether
retrenchments were “merger specific” rather than due to operational requirements.58 As
regards the test on review, the Competition Appeal Court held that the Tr ibunal had
erred in holding that section 27(1) conferred anything other than ordinary review
powers.59 It said that the decision to issue a Notice of Apparent Breach is administrative
action.60 The Competition Appeal Court said that, a lthough the Tribunal had held that
the rule 39(2) enquiry “necessarily involves whether the decision to issue the notice is
53 Tribunal decision above n 42 at para 62.
54 Id at para 57.
55 Id at para 76.
56 Id at para 79.
57 Competition Commission v Coca-Cola Beverages Africa (Pty) Ltd [2022] ZACAC 4; (2022) 43 ILJ 1971 (CAC)
(CAC judgment).
58 Id at para 1.
59 Id at para 54.
60 Id at para 55.
DODSON AJ
16
lawful, reasonable and procedurally fair”, it had only “paid lip service to its own
injunction”.61 The question was whether the Commission acted reasonably in deciding
that there was an apparent breach.62
[31] The Competition Appeal Court criticised the Tribunal for imposing an
evidentiary burden on the Commission, because the merged party had the full facts and
should be able to demonstrate compliance with the merger conditions if that was the
case.63 Further, it said that the correct approach to causation was the test laid down in
BB Investment. T hat is, “an outcome that can be shown as a matter of probability to
have some nexus associated with the incentives of the new controller”. 64 Adopting a
“causal connection” or “principal reason” test would erode the safeguards afforded to
employees by section 12A(3) of the Act.65
[32] This nexus , the Competition Appeal Court said, quoting the Tribunal in
BB Investment, is m ore easily established where merging firms are engaged in
overlapping activities.66 It said that the letter of 20 December 2019 from Coca-Cola’s
attorneys, acknowledging that the retrenchments “sought to reduce the cost of
employment . . . including the re moval of unproductive duplication of roles”, was
significant. The Competition Appeal Court found compelling the Commission’s
argument that—
“where . . . a merger involves four entities, there will be a well-founded expectation of
duplication, and incentive on the part of the merged entity to retrench. Based on
BB Investment, the probability of a nexus will be accentuated and easily established
61 Id at para 56.
62 Id at para 62.
63 Id at para 69.
64 Id at para 82.
65 Id at para 83.
66 Id at para 84; BB Investment above n 52 at para 60.
DODSON AJ
17
because it is not likely that a firm would continue to employ more people for a job that
requires one person.”67
[33] The Competition Appeal Court noted that, despite the extended operation of the
conditions following the second merger, TCCC as the new controller effecte d the
retrenchments.68 It said that “[t]he incentives of the new controlling shareholder are
highly implicated in the circumstances”.69 The Competition Appeal Court accordingly
overturned the decision of the Tribunal and ordered Coca-Cola to pay the Commission’s
costs.
In this Court
Issues
[34] The main issues raised are these:
(a) Is this Court’s jurisdiction engaged on the substantive issues identified
below?
(b) Is it in the interests of justice to grant leave to appeal?
(c) What is the nature and standard of the review under rule 39(1) and (2) of
the Commission Rules?
(d) Where merger approval is conditional on there being no retrenchments as
a result of the merger, what is the test for determining whether subsequent
retrenchments are causally linked to the merger or merger specific?
(e) Was the Competition Appeal Court entitled to interfere in the Tribunal’s
factual findings?
67 Id at para 87.
68 Id at para 88.
69 Id.
DODSON AJ
18
Jurisdiction
[35] The application raises constitutional matters. 70 Section 33(3)(a) of the Bill of
Rights requires the passing of legislation that gives effect to the right of judicial review
of administrative action before a court or impartial tribunal.71 Here national legislation,
the Competition Act, confers a general power of review on a tribunal. Subordinate
legislation under it arguably creates a bespoke form of review. How is the subordinate
legislation to be interpreted in relation to both the national legislation and the right to
administrative justice in the Promotion of Administrative Justice Act 72 (PAJA), in
determining the nature and standard of review? This is a constitutional question.
[36] The matter also raises arguable points of law of general public importance. 73
What is the test when the Tribunal decides under rule 39(2) whether a firm has
substantially complied with a merger condition imposed under section 12A(3)(b) of the
Act which restricts retrenchments? That in turn raises questions in regard to the test for
causation that are similarly points of law of general public importance.
Leave to appeal: interests of justice
[37] As pointed out by Zondo J (as he then was) in Dengetenge74—
“[t]his court grants leave to appeal if it is in the interests of justice to do so. The factors
that it normally takes into account include the importance of the issues raised by the
matter, the prospects of success and the public interest.”75
70 The first jurisdictional basis in section 167(3)(b)(i) of the Constitution.
71 Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd [2022] ZACC 44; 2023 (4) SA 325
(CC); 2023 (5) BCLR 527 (CC) at para 237.
72 3 of 2000.
73 The second jurisdictional basis in section 167(3)(b)(ii) of the Constitution. On the interpretation of this
provision, see Paulsen v Slip Knot Investments 777 (Pty) Limited [2015] ZACC 5; 2015 (3) SA 479 (CC); 2015
(5) BCLR 509 (CC) at paras 13-28.
74 Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining & Development Co Ltd [2013] ZACC 48; 2014 (5)
SA 138 (CC); 2014 (3) BCLR 265 (CC).
75 Id at para 52.
DODSON AJ
19
[38] For reasons that will become apparent below, the appeal has reasonable
prospects of success. The matter raises important issues pertaining to the test on review
in terms of rule 39(1) and (2) of the Commission Rules and the test for a causal nexus
between a merger and retrenchments. The Tribunal and the Competition Appeal Court
relied on the sa me Tribunal authority (mainly BB Investment) on the test for causal
nexus, but came to different conclusions in this regard. This creates uncertainty in an
important area of the regulation of the economy, that impacts beyond the immediate
parties to the dispute. A judgment of this Court may help to resolve it. It is accordingly
in the public interest that the matter be considered. As said in Pickfords76—
“[t]he matter raises novel and complex questions that this Court has not as yet
pronounced on. And, as will be seen later, there are strong prospects of success. It is
therefore in the interests of justice that leave to appeal be granted.”77
[39] There is a complaint that the applicant shifted ground in the Tribunal,
Competition Appeal Court and this Court, with the consequence that new arguments
are advanced for the first time in this Court. On this basis, the Commission argued that
leave should be refused.
[40] However, the primary stance of the applicant in this Court as to the nature and
standard of review was set out in its founding affidavit in the Tribunal. The argument
of the applicant on appeal to this Court, that the review is a special statutory review, is
entirely consistent with the reasoning of the Tribunal. So it is not a point argued for the
first time in this Court. Likewise, the test for causation was considered in both the
Tribunal and the Competition Appeal Court. No substantial prejudice has been
demonstrated by the Commission arising out of the shifting stance of Coca-Cola.
[41] I am a ccordingly satisfied that leave to appeal should be granted . A
consideration of the merits follows.
76 Competition Commission of South Africa v Pickfords Removals SA (Pty) Limited [2021] ZACC 49; 2020 (10)
BCLR 1204 (CC); 2021 (3) SA 1 (CC).
77 Id at para 18.
DODSON AJ
20
Merits
Applicant’s submissions
[42] Coca-Cola, in the main, supports the reasoning of the Tribunal. The review
contemplated by rule 39(2) is , it submits, a special statutory review in which the sole
question, to be decided afresh, is whether in fact the firm has substantially complied
with its merger conditions. It submits that it is not a conventional administrative law
review of the Commission’s decision to issue the notice, based on whether it was lawful,
reasonable and procedurally fair. The Competition Appeal Court , Coca-Cola argues,
erred in holding otherwise.
[43] The test for causation in this instance is , according to Coca -Cola, the same as
that applied in the law of insurance. Coca-Cola submits that f actual causation, based
on the question “but for the merger would the retrenchments have taken place?” , is the
first inquiry. If so, one must then ask whether the merger was the proximate, real or
dominant cause.78 The Tribunal’s test which sought the “true reason” for the
retrenchments was akin to this. The Competition Appeal Court , so Coca-Cola argues,
erred in applying a test that sought only “some nexus associated with the incentives of
the new controller”. On the facts, the merger did not cause the retrenchments. Their
proximate, real and dominant cause was the adverse circumstances that Coca-Cola
referred to.
Respondent’s submissions
[44] The Commission supports the reasoning of the Competition Appeal Court on
both the nature of the review and the test for causation. It submits that, on Coca-Cola’s
approach, the rule 39(2) review is a reconsideration or appeal , which is inconsistent
with the use of the word “review” in rule 39(2)(b) and with our legal system’s steadfast
insistence on drawing a clear distinction between appeal and review.
78 Guardrisk Insurance Co v Café Chameleon CC [2020] ZASCA 173; 2021 (2) SA 323 (SCA)
(Guardrisk Insurance) at paras 37-40.
DODSON AJ
21
[45] On merger specificity, the test is objective , so submits the Commission . One
asks if there was an incentive on the part of the new controller to engage in
retrenchments. If so, the merged entity must put up evidence to show that the
retrenchments were motivated by something other than the merger, such as operational
reasons. This balances the rights of employee and employer.
[46] Here four firms carrying out overlapping functions were collapsed into one, so
duplication was, according to the Commission, to be expected and there was an
incentive to retrench. Yet no adequate explanation was provided by Coca-Cola. Indeed,
its attorneys’ submission of 20 April 2020 conceded that certain of the retrenchments
were occasioned by the removal of duplication. The Competition Appeal Court did not
interfere impermissibly with the Tribunal’s factual findings.
The nature and standard of review
[47] The particular review remedy in question is created exclusively by rule 39(1) and
(2).79 No party has challenged its constitutional validity. The rule must therefore be
taken as valid. Its meaning must be discerned based on the interpretive requirements
emanating from section 39(2) of the Constitution, paying particular attention to its text
and always having due regard to its context and purpose .80 Applying section 39(2)
requires that the values of fairness and justification 81 underlying the right to
administrative justice in section 33 be promoted. As to purpose, the rule manifests a
proactive approach to ensuring compliance with merger conditions. As soon as it
appears to the Commission on the basis of its investigations that there is a breach, it
must raise a flag. If the firm acknowledges the breach, a plan must quickly be submitted
79 Rule 39 is set out in relevant part in para 7 above.
80 Chisuse v Director-General, Department of Home Affairs [2020] ZACC 20; 2020 (6) SA 14 (CC) ; 2020 (10)
BCLR 1173 (CC) (Chisuse) at paras 46-59 and the authorities there referred to.
81 Mureinik “A Bridge to Where? Introducing the Interim Bill of Rights” (1994) 10 SAJHR 31 at 32, often cited
in the judgments of this Court – see for example Chisuse above n 80 at para 18.
DODSON AJ
22
and agreed to remedy it. If it does not, a procedure is available to test this expeditiously,
but fairly.
[48] As to context, this must take into account the Rules’ source in the Act, namely
sections 21(4) and 27(2). They empower the Minister to make regulations for matters
relating to the functions of the Commission and the Tribunal respectively. This includes
the power to make regulations for their “procedures”.82 Context must also factor in the
parts of the statute that lay down the Tribunal’s powers.
[49] The Competition Appeal Court approached the matter on the basis that the
relevant empowering provision was section 27(1)(c), which empowers the Tribunal to
“review any decision of the Competition Commission”. The Competition Appeal Court
appeared to regard section 27(1)(c) as predominating in the interpretive process because
“it is not permissible to look to . . . rule 39 to give scope and meaning to the Act which
created the rule”. The Competition Appeal Court was of the view that section 27(1)(c)
contemplated only an “ordinary” judicial review of administrative action, here
constituted by the Commission’s decision to issue the rule 39(1) notice. Rule 39 had to
be interpreted accordingly.
[50] At the level of context, there are the following difficulties with this approach:
(a) This leaves out of account that the Minister has the power under the Act
to prescribe regulations that include “procedures” relating to the functions
of the Commission.
(b) It overlooks section 27(1)(b), which separately confers on the Tribuna l
the power to “adjudicate on any other matter that may, in terms of this
Act,83 be considered by it”. This wording would cover the performance
by the Tribunal of the review function provided for in rule 39(2).
82 Section 21(4)(h).
83 The words “the Act” are italicised in the original statute to show that the definition in section 1 applies. That
definition includes regulations made in terms of the Act as part of the statute.
DODSON AJ
23
(c) Even if it did not, the word “review” is empl oyed as a verb in
section 27(1)(c) in a way that is wide and unqualified. It applies to the
review of “any decision of the . . . Commission that may in terms of this
Act84 be referred to it”. This could include any review under the Act and
Rules, whatever its particular characteristics. It is a generic or umbrella
empowering provision that does not dictate the nature of each review
falling within its ambit.
[51] On this basis, the meaning of section 27(1)(c) is not dictated by the particular
features of the r eview under rule 39(2)(b), as sugge sted by the
Competition Appeal Court. Section 27(1)(c) would readily include a special statutory
review. It is a form of review that is well recognised in South African administrative
law.85 In this regard, Hoexter and Penfold86 say the following:
“The legislature may and often does confer on the courts a statutory power of review.
This is ‘special’ because it differs from ‘ordinary’ judicial review in the administrative-
law sense. The adjective also helps to distinguish other statutory reviews from PAJA
review, which is of course statutory too.
Statutory review is often a wider power than ordinary review, and thus more akin to an
appeal, but it may well be narrower, with the court being confined to particular grounds
of review or particular remedies. While in Johannesburg Consolidated Investment Co87
Innes CJ spoke of the statutory review power as being ‘far wider’ than the first two
kinds of review mentioned by him, it is clear that the precise extent of the power always
depends on the particular statutory provision concerned.” (Emphasis added.)
84 Again these two words are italicised in the original statute to show that the definition in section 1 applies.
85 See below.
86 Hoexter and Penfold Administrative Law in South Africa 3 ed ( Juta & Co Ltd, Cape Town 2021) at 143 -4,
154-6. They also cite Nel N.O. v The Master [2004] ZASCA 26; 2005 (1) SA 276 (SCA) at para 23 and Fesi v
Ndabeni Communal Property Trust [2018] ZASCA 33; [2018] 2 All SA 617 (SCA) at para 54.
87 Johannesburg Consolidated Investment Co v Johannesburg Town Council 1903 TS 111 at 116.
DODSON AJ
24
[52] As to text, the wording of rule 39(1) and (2) is largely left out of account in the
judgment of the Competition Appeal Court. Yet, the following features of the wording
are significant:
(a) The words “appears” and “apparent” in the introductory part of
subsection (1) are all-important. As soon as there is the appearance of a
breach of a condition, the Commission is obliged to act in terms of the
rule by placing the firm on terms either to submit a plan to remedy the
breach or to “review the Notice of Apparent Breach”.
(b) The relevant dictionary definition of “appear” in this context is as follows:
“Seem to the mind, be perceived as, be considered; seem outwardly or
superficially (but not in reality)”.88
(c) Rule 39(1), in providing for the delivery of a Notice of Apparent Breach,
is not framed as a self -contained, discretionary decision -making
provision. It is more in the nature of a notification of intended action, or
a precursor to a decision-making process.
(d) Rule 39(2)(b) provides for the review of the notice, not the underlying
decision of the Commission to issue it.
(e) It sets out a single basis for the envisaged review, that is, proof to the
Tribunal that the accused firm “has substantially complied with its
obligations with respect to the . . . conditional approval of the merger”.
(f) It contains no provision for remittal to the Commission for decision afresh
if the firm is successful.
(g) It is framed so as to be objectively justiciable, requiring the applicant to
demonstrate actual substantial compliance, rather than to demonstrate any
flaws in the procedure or reasoning process of the Commission.
(h) And, finally, rule 39(2)(b) is at once both broad and narrow – whilst it
limits the applicant to a single review ground, on its clear terms there is a
full opportunity to prove to the Tribunal substantial compliance with the
merger condition.
88 Kendall J Shorter Oxford English Dictionary on Historical Principles 6 ed vol 1 (Oxford University Press,
Oxford 2007) at 101.
DODSON AJ
25
[53] Nor is a decision on the merits by a court or tribunal on review, as the text of
section 39(2) seems to require, an alien concept in administrative law. This category of
reviews was recognised 120 years ago in Johannesburg Consolidated as conferring the
power to decide the matter de novo (afresh).89 Deciding a matter on the merits is to a
degree what takes place when a court substitutes its decision for that of the
decision-maker in ter ms of section 8(1)(c)(ii)(aa) of PAJA, albeit on the basis of the
evidence already before a court. A more intrusive and less-deferential degree of review
is appropriate where the reviewing court or tribunal enjoys specialised expertise in the
area in question. The Tribunal is a specialist adjudicator in the competition field and is
well-acquainted with the applicable law, economics and policy.90
[54] Taking into account the foregoing analysis, and viewed holistically, rule 39
operates as follows:91
(a) The Commission receives information that a firm may have breached a
merger condition.
(b) It might seek the comment of the firm on this information to see if there
is an innocent explanation. Whether or not it is compelled to do so need
not be decided here.
(c) If it appears on the basis of the information that there has been a breach,
then the Commission issues a Notice of Apparent Breach to the firm. The
89 Id at page 117. The judgment must be read subject to the qualification referred to by Hoexter and Penfold (see
paragraph 51 above) to the effect that each statutory review power must be interpreted on its particular wording.
Such a power might not be conferred if the wording of the statute suggests as much. Examples of special statutory
reviews that involve a decision on or full reconsideration of the merits include those in section 151 of the
Insolvency Act 24 of 1936 and sections 35(10) and 95 of the Administration of Estates Act 66 of 1965.
90 See in this regard A.C. Whitcher (Pty) Ltd v Competition Commission of South Africa [2009] ZACAC 2 where
the Competition Appeal Court said at para 24:
“[A]s David Mullan 2006 Acta Juridica 42 at 50 has noted, an important criterion in assessing
the level of deference owed in a review application is the expertise of the reviewing court
relative to that of the administrative body. In this case, the Tribunal has significant economic
expertise and knowledge of competition matters. It was set up for the purpose of constituting a
specialist body. It is in an entirely different position from a general court, whose members are
not appointed, as is the case with those of the Tribunal, because of their specific expertise in the
field upon which they are called to review.”
91 I leave out of account here the scenarios where the firm opts to submit a remedial plan, but fails to co -operate
in adapting it to the satisfaction of the Commission or in implementing it. See rule 39(3) to (5).
DODSON AJ
26
Notice will have to provide sufficient information for the firm to be able
to appreciate the nature of the breach complained of.
(d) The firm then has an election. If it concedes the breach, rule 39(2)(a)
affords it the opportunity to submit a remedial plan. If it does not concede
the breach, it may request the Tribunal to review the Notice of Apparent
Breach.
(e) Rule 39(2)(a) then provides a single permissible ground for the review,
namely that the firm has substantially complied with its obligations; in
other words, that there was no breach. That is then the objective inquiry
that the Tribunal undertakes.
(f) The firm must place the requisite evidence before the Tribunal to
demonstrate substantial compliance. It bears the onus. If it discharges
the onus, that is the end of the matter.
(g) If it fails to discharge the onus, the Commission may proceed to take
action against the firm in terms of section 15(1)(c), 59 or 60 of the Act.
[55] The decision of the Tribunal in this matter is largely consistent with this approach
to the interpretation of rule 39(1) and (2) and the review standard contemplated by it.
The judgment of the Competition Appeal Court is not. The Competition Appeal Court’s
confinement of the review to assessing whether the Commission acted lawfully,
reasonably and procedurally fairly in deciding to issue the Notice of Apparent Breach
is irreconcilable with the spec ific wording of rule 39(2)(b) – in fact it ignores it and
replaces the special review ground it stipulates with the ordinary administrative -law
review grounds. To do this is to legislate, not adjudicate, something the Constitution
does not permit.92
[56] The Competition Appeal Court’s interpretation has potentially grave and unjust
consequences for a merged firm. The firm may have to provide and implement a plan
92 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) at
para 18. Endorsed in Airports Company South Africa v Big Five Duty Free (Pty) Ltd [2018] ZACC 33; 2019 (2)
BCLR 165 (CC); 2019 (5) SA 1 (CC) at para 29.
DODSON AJ
27
for remedying the apparent breach or fac e punitive proceedings for revocation, an
administrative pe nalty or, possibly, divestiture, 93 in circumstances where the
Commission reasonably but wrongly believed there to have been a breach ; or where
there was an apparent, but not an actual breach. That would sanction an injustice and a
breach of the rule of law. There is no support in the Act for holding a firm liable on the
basis of an apparent breach. Section 15(1)(c), 59(1)(d)(iii) and 60(1) all require an
actual breach.
[57] The Competition Appeal Court’s approach provides no convincing basis for
rejecting the conception of rule 39(1) and (2)(b) as providing for a special statutory
review. Accordingly, the Competition Appeal Court’s judgment cannot stand on this
aspect. The test for review is simply that laid down in the text of rule 39(2)(b) –
objectively, h as Coca-Cola substantially complied with its obligations under the
conditions attached to the merger?
The test for causal nexus or merger specificity
[58] The Tribunal rejected what it described as the “delictual test ” involving the
two-stage enquiry into fact ual and legal causation. 94 Its test for determining whether
there was a sufficient nexus between the merger and the retrenchments for a finding of
breach of the merger conditions was to ask whether, on an assessment of the
probabilities, the preceding merger, on the one hand, or the alleged operational
93 See rule 39(1)(a) and (b) of the Commission Rules and the sections of the Act referred to there.
94 Although nothing ultimately turns on this, the Tribunal was incorrect in characterising the two -stage test for
causation as applying only to the law of delict. As was pointed out in Napier v Collett [1995] ZASCA 44; 1995
(3) SA 140 (A) at para 143E-G—
“Despite the differences between various branches of the law, the basic problem of causation is
the same throughout. The theoretical consequences of an act stretch into infinity. Some means
must be found to limit legal responsibility for such consequences in a reasonable, practical and
just manner.”
The theoretical consequences of an act are those that would be identifiable through the but -for test. Finding the
means to limit legal responsibility is what takes place in assessing legal causation or finding the legal cause of the
harm or other consequences complained of. The two -stage enquiry thus applies across the different branches of
the law.
DODSON AJ
28
requirements, on the other, was the true reason for the retrenchments. It adopted this
approach from the following passage in the second judgment in Aveng:
“The determination of the true reason for the dismissal appears to me to be simply a
matter of fact, which is established in accordance with the rules applicable to the
evaluation of evidence. Where an employee proffers a contrary version regarding the
true reason for the dismissal, a court must resolve the dispute of fact by evaluating the
evidence and by making a finding as to which of the two versions is to be preferred on
a preponderance of probabilities, and why. Where there ar e two conflicting,
irreconcilable versions before it, a court must apply the well-established approach laid
down in Stellenbosch Farmers’ Winery.”95
[59] The Competition Appeal Court rejected the Tribunal’s approach. To seek the
“true reason” would, in its vie w, erode the safeguards afforded to employees by
section 12A(3) of the Act. The Competition Appeal Court preferred, as a test, asking
whether there is “some nexus between the retrenchments and the merger” or, as stated
in BB Investment, whether the “outcome . . . can be shown, as a matter of probability,
to have some nexus associated with the incentives of the new controller ”.96 There are
at least the following difficulties with the Competition Appeal Court’s test.
[60] Firstly, given that the effect of a merger is generally that the newly-merged firm
attains control over the enterprise, there will always be “some nexus” between the
merger, on the one hand, and the incentives of, and subsequent decisions and outcomes
in, the merged enterprise. This is so even if there are other more immediate, more
logical or more dominant reasons for them. On an approach that only requires
“some nexus”, a finding of merger specificity and breach is inevitable. Its effect is to
treat the “but-for” enquiry as a complete test for causation.
[61] Secondly, to link outcomes with incentives in the present context is not entirely
appropriate. In BB Investment, the Tribunal was concerned with whether retrenchments
95 Aveng above n 47 at para 119.
96 BB Investment above n 52 at para 56.
DODSON AJ
29
that were foreshadowed post -merger would be merger specific. An examinat ion of
incentives is appropriate in those circumstances. Here we are concerned with
retrenchments that have already taken place. Whilst evidence of incentives would be
relevant, it is actual decisions and conduct of the merged firm that must be tested fo r a
causal nexus with the merger. Moreover, the test must be applied at the time of the
alleged breach, taking into account all that has transpired since the merger, including
the time lapse. The longer the lapse, the less probable the link with the merger.
[62] Thirdly, the test extracted by the Competition Appeal Court from BB Investment
is only part of the test actually applied in that case. The nature of the test laid down
there can only be discerned if regard is had to it in full. 97 This includes, as part of the
97 The full test is set out at paras 54-67 of BB Investment as follows:
"54. The public interest requirements in section 12A(3) of the Act are implicated only if the ‘merger
will have an effect on . . .’ the various factors which are then listed, amongst which, relevant to
this case, is employment. This requirement has been interpreted in the case law as founding
jurisdiction to intervene on public interest grounds if the effect is ‘merger specific’.
55. What does merger specific mean?
56. It means conceptually an outcome that can be shown, as a matter of probability, to have some
nexus associated with the incentives of the new controller.
57. But firms are dynamic institutions. Not every change that results post -merger is necessarily
attributable to the merger. Such an approach is far too mechanistic. Thus, we can conceive of
changes in a firm’s behaviour even post-merger that would have happened in any event and can
be thought of as not being merger specific.
58. Translated to considerations of the public interest effect on employment, the practice thus far
has been to distinguish, post -merger, between employment loss associated with the merger
nexus, referred to as ‘merger specific’ employment loss and those in the secon d category of
non-merger specificity, often referred to as ‘operational’ employment loss.
59. The Competition Act intervention is jurisdictionally premised on the former ‘merger specific’,
but not the latter ‘operational kind’, which is considered to be purely the sphere of labour law.
60. Most cases where we have imposed conditions relating to employment have involved firms with
overlapping activities. Here the nexus is more easily established because the inference of
merger specificity is highly probable, when merging firms are engaged in overlapping activities.
Why would the firm continue to employ two people to do the same job, when employing one
would suffice?
61. The nexus becomes more complicated evidentially, but not conceptually, and this distinction is
important not to lose sight of, when the target firm and its acquirer do not have overlapping
activities, as in the present case.
62 Does this mean that in the absence of merger created overlaps we can never determine that
employment loss is merger specific? We think such an approach would be going too far. It
may well be that a particular controller may be more likely to shed jobs than others and hence
have an incentive to cut jobs than might another firm or the target firm’s management prior to
the merger.
DODSON AJ
30
test, examination of the “pre -merger counterfactual” ,98 that is, what would have
happened if the merger had not taken place; and whether the impugned decision-making
was “sufficiently closely related to the merger”. 99 These paragraphs were not fully
considered, nor were they applied in the Competition Appeal Court’s judgment.
[63] Finally, the test for a breach of a merger condition must be applied in the context
of, and with due regard to, the purpose and wording of the Act, which contemplates an
actual breach of a condition before punitive action may be taken. 100 Of particular
importance is the wording of the merger condition. A merger condition that
contemplates breach only where retrenchments are “as a result of the merger”, or
“merger specific” is incompatible with a test based on “some nexus”. Can it be said
that there is a breach where the principal reason for the firm’s actions had nothing to
do with the merger? The answer must surely be “no”. Yet this is the effect of the
Competition Appeal Court’s test.
63. In Walmart the Tribunal decided that an acquiring firm’s history as being hostile to collective
bargaining justified imposing a condition on the merged firm to protect existing collective
bargaining rights.
64. This case was taken on appeal and one of the issues related to the protection of employees who
had been retrenched prior to the notification of the merger. Despite this not being a case where
there was evidence of redundancies, and where the merger had not been implemented, the Court
nevertheless ordered their reinstatement holding:
‘A retrenchment, which takes place shortly before the merger is consummated may
raise questions as to whether this decision forms part of the broad merger decision
making process and would, accordingly, be sufficiently closely related to the merger
in order to demand that the merging parties must justify their retrenchment decision.’
65. Although in Walmart the employees in question had already been retrenched, the CAC’s
reasoning would apply equally to contemplated retrenchments. We recognise however that the
evidence would need to be robust to justify such a conclusion.
66. In competition analysis in mergers we typically compare the pre -merger counterfactual with
that of the post-merger scenario. Such an approach seems equally sound in evaluating the public
interest provided any inferences sought to be drawn are arrived at carefully.
67. On this approach, pre-merger management plans in operation already or proposed may be useful
to compare to the plans the firm has post-merger if available. If the differences are stark, and
particularly if the change in plans takes place within a short period of time, then it is reasonable
to infer that the post-merger plans of the acquirer reflect a different set of incentives to those of
the pre-merger management and hence can be considered merger specific.”
98 BB Investment above n 52 at para 66.
99 Id at para 64, citing Walmart Stores Inc v Massmart Holdings Limited [2011] ZACT 429 (Walmart).
100 See para 56 above.
DODSON AJ
31
[64] It is important to bear in mind that Aveng was decided in the context of
section 187(1)(c) of the LRA. It expressly requires the question to be asked whether
“the reason for the dismissal is . . . a refusal by employees to accept a demand in respect
of any matter of mutual interest”. 101 The second judgment in Aveng was at pains to
emphasise this wording as a distinguishing feature in deciding that the ordinary
two-stage causation test did not apply. 102 Here we are principally concerned with the
wording of condition 9.2 which obliged Coca-Cola “not [to] retrench any Bargaining
Unit Employees as a result of the Merger” and condition 9.4.5, which in effect permits
retrenchments that are not “merger specific”.
[65] The phrase “as a result of” is recognised causal terminology .103 In the context
of a statute containing this phrase, it has been held to invoke the two-stage enquiry into
factual and legal causation, but subject to a constitutionally compliant, purpos ive and
context-sensitive approach to the interpretation of the instrument in which the words
are to be found.104 In the contractual setting, the approach to causation was described
in Concord Insurance105 as follows:
“Legal causation is not a logical concept and the law does not ascribe causative effect
to every logical sine qua non (cf International Shipping Co (Pty) Ltd v Bentley 1990
(1) SA 680 (A) at 700E-I). Basically this is so because complex legal questions – often
involving considerations of policy – cannot be solved satisfactorily by a general
positive application of the simple logical proposition that a particular fact or state of
affairs cannot be regarded as the cause of another unless the former is a sine qua non
for the latter. Such questions usually arise where several factors concurrently or
101 Emphasis added.
102 Aveng above n 47 at paras 117, 119 and 129.
103 Hart and Honoré Causation in the Law 2 ed (Clarendon Press, Oxford 1985) at 87. The Court in Department
of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd [2007] ZACC 12; 2007 (6) SA 199 (CC) ; 2007 (10)
BCLR 1027 (CC) ( Goedgelegen) at paras 48 -55 and 67 -9 confirmed that “as a result of” in section 2(1) of the
Restitution of Land Rights Act 22 of 1994 requires a “causal enquiry”, but emphasised the importance of
nonetheless ensuring a constitutionally compliant, purposive and context-sensitive approach to the interpretation
of the statute in which the words are to be found.
104 See also Minister of Land Affairs v Slamdien 1999 (4) BCLR 413 (LCC); [1999] 1 All SA 608 (LCC) at paras
35-9, referred t o by this Court in Goedgelegen at footnotes 44 and 45. See also the authorities referred to in
Slamdien at paras 36-9.
105 Concord Insurance Co Ltd v Oelofsen N.O. 1992 (4) SA 669 (A).
DODSON AJ
32
successively contribute to a single result and it is necessary to decide whether any
particular one of them is to be regarded legally as a cause. In criminal law and the law
of delict legal policy may provide an answer but in a contractual context, where policy
considerations usually do not enter the enquiry, effect must be given to the parties' own
perception of causality lest a result be imposed upon them which they did not
intend.”106
[66] In the more recent case of Guardrisk Insurance,107 the Supreme Court of Appeal
was concerned with an insurance policy that indemnified the insured for “loss . . .
resulting in interruption (of) the business due to notifiable disease”. The question was
whether the policy ind emnified the insured against losses caused by the lockdown
consequent upon the Covid -19 pandemic.108 The Supreme Court of Appeal said that
“[t]he general approach to causation also applies to insurance law” and begins with
factual causation as the first enq uiry and legal causation as the second. 109 It said that
“[i]n the contractual context it has long been accepted that causation rules should be
applied ‘with good sense to give effect to, and not to defeat the intention of the
contracting parties”110 and went on to hold that the legal causation enquiry involved
identifying a proximate cause . . . as a matter of “reality, predominance [and]
efficiency”.111 That in turn is ascertained by “applying good business sense”. These
judgments in my view correctly state the approach to causation in a contractual setting.
[67] The setting in which the causation enquiry arises in this case is an amalgam of
statute and contract – statute because the rule 39 enquiry is a precursor to sanction under
the relevant sections of the Act; and contractual because the merger conditions imposed
by the Tribunal were the product of written agreements between Coca -Cola and the
106 Id at 673H-674B.
107 Guardrisk Insurance above n 78.
108 Id at paras 3-4.
109 Id at paras 37-43.
110 Id at para 39.
111 Id at para 48.
DODSON AJ
33
trade unions. The first enquiry is one based purely in logic. It is in the second enquiry
that the contemplation of both the Legislature and the parties must be ascertained.
[68] Textually, the exclusion in condition 9.4.5 from the prohibition on retrenchments
of those that are not “merger -specific” points to the need to link the retrenchments
directly, or at least predominantly, to the merger for there to be a breach. Contextually,
the circumstances in which these merger conditions were formulated included that they
had been strengthened in the employees’ favour. 112 That strengthening may well have
been motivated b y concerns about the high level of unemployment in South Africa.
That aligns with the likely purpose of section 12A(3)(b) of the Act. Strict compliance
with the conditions would therefore be expected of Coca -Cola. And close scrutiny of
its conduct would follow if a breach was alleged. At the same time a context -sensitive
approach must take into account the severe impact of the consequences that would flow
in terms of the Act in the event that Coca -Cola was found to be in breach. This calls
for a blend of rigour and fairness in applying the second leg of the causation enquiry.
Did the Tribunal apply the causation test correctly?
[69] Although the wording of the conditions did not in my view warrant the
application of the second judgment in Aveng, the Tribuna l ultimately asked itself the
right questions. It said, quoting BB Investment, that—
“‘firms are dynamic institutions’ and ‘not every change that results post -merger is
necessarily attributable to the merger’. That approach it held ‘is far too mechanist ic’
and changes can be conceived of ‘a firm’s behaviour even post-merger that would have
happened in any event and can be thought of as not being merger specific’”.113
[70] That observation on the part of the Tribunal aligns with the but-for test, the first
stage of the enquiry. In then seeking to identify the “true reason” for the retrenchments,
112 An indication of this is condition 11.2, which provides:
“In the event of any conflict in interpretation between the terms of these conditions and the Union
Agreements, the terms of the Union Agreements shall prevail.”
113 Tribunal decision above n 42 at para 47, quoting BB Investment above at n 52 at para 57.
DODSON AJ
34
the Tribunal tested for the requisite link between the merger and the retrenchments and
found this wanting. Its reasoning was consistent with the authorities relating to the test
for causation in the contractual and statutory settings . The Tribunal’s analysis of the
facts114 reflected the rigour and fairness required in the context of these particular
conditions, as is elaborated upon below. To the extent explained abov e, the
Competition Appeal Court was accordingly wrong in finding that the Tribunal applied
the incorrect test for a causal nexus.
Was the Competition Appeal Court entitled to interfere in the Tribunal’s factual
findings?
[71] As pointed out by this Court in Mediclinic,115 the Competition Appeal Court
“does not have unbridled powers to interfere with the decision of the Tribunal”, 116
particularly in relation to the latter’s findings of fact. In Mediclinic, this Court applied
the Competition Appeal Court’s reasoni ng in Imerys.117 Imerys holds that the
Competition Appeal Court must take into account the composition, role and expertise
(on policy, financial and economic issues) of the Tribunal and apply a measure of
deference to it. Additionally, the Competition Appe al Court must, as an appeal court,
apply the general rule that an appellate court will not lightly interfere with the factual
findings of a court of first instance.118
[72] Was the Competition Appeal Court entitled to interfere with the Tribunal’s
decision on the facts, as it did? This must be assessed with reference to the three main
grounds on which the Commission alleged breach of the merger conditions, namely
(a) the reduction of staff costs through retrenching and rehiring at lower wages, (b) the
alleged breach or circumvention of the merger condition pertaining to the harmonisation
of employment conditions and (c) the alleged misuse of the retrenchments to reduce
114 Tribunal decision above n 42 at paras 48 to 79.
115 Mediclinic Southern Africa (Pty) Ltd v Competition Commission [2020] ZACAC 3; [2020] 1 CPLR 66 (CAC).
116 Id at para 44.
117 Imerys South Africa (Pty) Ltd v The Competition Commission [2017] ZACAC 1.
118 Id at paras 40-1. See also Rex v Dhlumayo 1948 (2) SA 677 (A) at 705-6.
DODSON AJ
35
staff through the elimination of posts or roles that were duplicated because of the
merger. On each, the Tribunal found in favour of Coca-Cola.
Retrenching and rehiring at lower salaries
[73] On the issue of the alleged retrenching and rehiring of staff at lower salaries in
the same posts, the Tribunal considered the rehiring issue to be tied up inextricably with,
and indistinguishable from the argument that the retrenchments sought to eliminate
posts that were duplicated consequent upon the merger. The duplication issue is dealt
with below.
[74] Staying with this topic, if employees were retrenched and th en rehired (or
replaced by new employees) in the same roles but at lower salaries, the end result would
be that no duplicate posts were eliminated, only a change in their terms and conditions.
This may be unfair under the LRA,119 but that would have no bearing on whether or not
the retrenchments were in breach of condition 9.2. Indeed, it tends to confirm that
Coca-Cola did not seek to retrench employees so as to eliminate duplication resulting
from the merger, but rather to reduce its labour costs.
Alleged breach of harmonisation condition
[75] The Commission alleges that “it is plausible that the underlying reasons for
retrenching employees and rehiring in the same roles at lower costs is an attempt by
Coca-Cola to avoid the higher employment costs that are associated with . . . [c]lause 11
of the 2016 merger conditions [which] requires [Coca-Cola] to harmonise working
terms and conditions”. The observation that must immediately be made is that, once
again, this is self -defeating for the Commission’s cas e. If posts or roles have been
refilled at lower pay levels, they have not been eliminated through merger -specific
retrenchments of those in duplicate roles, but rather to save costs by paying lower wages
in straitened circumstances.
119 I express no view on that.
DODSON AJ
36
[76] A fundamental difficulty facing the Commission on this point is that there was
no complaint of breach of the harmonisation condition made against Coca-Cola in the
Notice of Apparent Breach. To then find non-compliance with that condition would be
in breach of Coca-Cola’s fundamental right to procedural fairness. The Commission’s
argument before this Court , that Coca-Cola was obliged in terms of the wording of
rule 39(2)(b) to prove substantial compliance with all conditions, regardless of what is
alluded to in the Notice of Apparent Breach, is not sustainable and would similarly give
rise to procedural unfairness. Supporting the view that there was no intention to bring
a complaint regarding the harmonisation condition, the Commission’s answering
affidavit says “[r]egarding harmonisation, the Team correctly noted that ‘it was not able
to assess whether a breach of the Conditions has transpired’”.
Elimination of duplicated posts or roles
[77] The Commission’s primary case for a breach of condition 9.2 was based on
Coca-Cola’s having used the retrenchments to eliminate duplication of posts that arose
from the merger.
[78] This complaint must be assessed on a conspectus of the evidence. This includes
the very substantial evidence put up by Coca-Cola regarding the three primary reasons
it advanced for the retrenchments, namely the poor macro-economic climate, the sugar
tax, and the sharp increase in raw material prices.
[79] There was an attempt by the Commission to suggest that the sugar tax was
already a known problem at the time of the mergers. However, the Tribunal
demonstrated that this was not so, pointing out that the first merger was notified in
March 2015 and approved in May 2016, whereas the sugar tax was first raised as a
single, unquantified line item in the Minister of Finance ’s budget speech in
February 2016 and formed the subject matter of a National Treasury Policy Paper in
July 2016. It then had to make its way through Parliament. Both Coca-Cola and FAWU
made a series of oral submissions to Parliament’s Standing Committee on Finance
regarding the proposed sugar tax, pointing out its potential for causing job losses
DODSON AJ
37
amongst other things. 120 It was only once the legislative process had been completed
by publication of the Rates and Monetary Amounts and Amendment of Revenue La ws
Act121 on 14 December 2017 that the impact of the tax could be quantified. By then,
both mergers were complete.
[80] As the Tribunal noted, the evidence regarding the challenges faced by Coca-Cola
was uncontested. The Commission’s stance was rather that a s ubstantially reduced
profit was still a profit , leaving the Commission’s case for disguised merger -specific
retrenchments intact. However, on the basis of the evidence of the challenges faced,
Coca-Cola established at least a prima facie case that the operational requirements, not
the merger, caused the retrenchments. Notwithstanding the concession in this Court by
Coca-Cola that it bore the onus, the effect of Coca-Cola having made out a prima facie
case was to impose an evidentiary burden of rebuttal on the Commission. The Tribunal
was correct in recognising that the Commission faced this evidentiary burden.
[81] The Competition Appeal Court criticised the imposition of an evidentiary burden
on the Commission as being erroneous because Coca-Cola had all the information at its
disposal and it is not provided for in rule 39. 122 But the rules regarding onus and
evidentiary burdens are part of the law of evidence. 123 They need not be expressly
sourced in legislation, save perhaps for a reverse onus. The Tribunal did not impose
any reverse onus. The Commission has exceptionally wide investigative powers under
the Act124 and these provide more than adequate tools for the Commission to gather the
evidence to satisfy a burden of rebuttal.
120 In one submission, FAWU predicted as many as 8000 job losses.
121 14 of 2017.
122 CAC judgment above n 57 at para 69.
123 See Zeffertt and Paizes, “Chapter 3: The Onus of Proof” and “Chapter 5: Cogency and Proof, Aspects of the
Onus of Proof, the Evidentiary Burden, th e Meaning of Prima Facie and other Topics relating to Proof ” in their
The South African Law of Evidence 3 ed (Lexis Nexis Butterworths, Durban 2017).
124 Chapter 5 parts A and B.
DODSON AJ
38
[82] Part of the evid ence that the Commission relied on to demonstrate that the
retrenchments were as a result of the merger was information contained in its merger
report prepared at the time that the first merger was under consideration. It is dated
11 December 2015. It describes the immediate effect of the then -proposed merger on
employment. It points out that “the merging parties submit that the proposed merger
will result in the duplication of about 387 functions and hence there will be
retrenchments post -merger. In to tal [the bottling companies] have about 7 549
employees.” A table then sets out how those 7 549 employees are divided up between
the different bottling companies, listed in the top row of the table, with employee
numbers provided, row by row, for the vari ous parts of each enterprise, that is, human
resources, finance, marketing, sales, manufacturing, logistics, management and
administration. The right-hand column of the table gives the total employees for each
part and the total in the bottom right -hand corner of the table reconciles with the total
of 7 549 employees.
[83] In the paragraph following the table, it is pointed out that 2 688 of the 7 549
employees are non-bargaining unit employees and the remaining 4 861 employees fall
within the bargaining unit. It then states—
“[t]he merging parties have indicated that the implementation of the proposed
transaction will result in the duplication of about 387 positions (non -bargaining unit
employees) at an executive, managerial, administrative and technical level. The parties
have however reduced the number of job losses from 387 to 250.”
[84] What underlay these retrenchments, already envisaged at the time of the merger,
is that the combining of the various bottling companies’ head offices would lead to
duplication at that level. Hence the provision in condition 9.2 that “any retrenchments
of employees outside of the bargaining units shall be limited to 250 employees within
the category of Hay Grade 12 and above.” Retrenchments were not then envisaged in
the job categories below this level, because each bottling company operation continued
as it had done before the merger, employing the same staff in the same roles. Given
DODSON AJ
39
that there was no geographical overlap of these operations, there was at that time no
prospect that the merger would lead to a duplication of positions.
[85] The Commission’s conclusion that the present retrenchments from within the
bargaining unit were as a result of the merger was based substantially on a memorandum
dated 30 August 2019 “to inform the Competition Commission Meeting . . . of a
complaint alleging a breach of the Merger conditions . . . by the Merged Entity”. Central
to its reasoning was the following:
“11.3 The team notes that the retrenchments are taking place in the bottling
operations of the Merged Entity. . . . These are the same roles where duplications
occurred as a result of the merger and this is what the Conditions aimed to avoid. Below
is a table from the Commission’s merger report in relation to the Merger indicating the
roles where duplications would occur as a result of the merger.”
[86] The identical table from the 2015 merger report is then set out. The
memorandum then continues as follows:
“11.4 From the above table, the Team notes that the merger resulted in dupli cations
of roles, but the roles which had a high number of duplications were roles such as
manufacturing, logistics and sales and those are the same roles where retrenchments
have largely taken place. This indicates that the retrenchments are merger specific as
the employees that have been mostly affected by the retrenchments are in the same
roles where most of the duplications occurred as a result of the merger.”
[87] The drafters of the memorandum were seriously mistaken. The table extracted
from its earlier merger report was not one showing where duplications would occur. It
was a table giving a breakdown of the entire workforce at each of the bottling plants.
Hence its total of 7 549 employees. The table did not give any indication of where the
duplications would take place. The high numbers in manufacturing, logistics and sales
are simply high total numbers of employees in those roles at the time of the merger, as
one would expect in bottling and distribution operations. The retrenchments envisaged
at the time of the merger were not from these categories. Condition 9.2 itself makes
DODSON AJ
40
that clear. It envisaged any retrenchments being limited to employees within the
categories of Hay Grade 12 and above, namely managerial and administrative staff and
the like.
[88] In truth, the merger report is evidence against the Commission’s case. It points
to the retrenchments foreseen as a result of the merger as being located at head -office
level. This is logical. Head office functions can be, and were in fact, ration alised and
consolidated into a single head office. A centralised head office was placed in control
over all the operations in the different parts of the country. Not so in the case of
employees engaged in operations. No duplication was envisaged in thei r ranks as a
result of the merger because their operations would continue as before in each of their
different regions with the same staff.
[89] What would give rise to duplication in operations in different regions would be
a decline in production; or a restr ucturing to achieve greater efficiency to save costs.
Functions that might have required, say, three persons doing the same job at a higher
level of production, might now require only one at a lower level of production or
following a restructuring. The evidence bears this out. Those subject to retrenchments
included warehouse operators, janitors, cleaners, wash -bay attendants, truck helpers,
fleet artisans, panel beaters and so on in the regional bottling businesses. These are not
the type of functions that, on the multi-regional logic of this merger, became duplicated
because of it.
[90] In a similar vein, the Commission, with support in the judgment of the
Competition Appeal Court, 125 seized upon a paragraph from Coca-Cola’s attorneys ’
written submission to the Commission of 20 December 2019. The attorneys said—
“CCBSA recognises that certain job losses were occasioned by the removal of
duplication so as to reduce staff costs, and to change the nature of employment within
the firm so as to reduce overall costs in view of unforeseen events post-merger.”
125 CAC judgment above n 57 at paras 77 and 85.
DODSON AJ
41
[91] This is not a concession that the retrenchments targeted duplication as a result of
the merger. It is an assertion that the need to eliminate duplication followed the
unforeseen events that followed the merger, which led to the need to reduce overall
costs. It lacks any concession of the causal connection with the merger for which the
Commission contends.
[92] In these circumstances, there was no basis for the Competition Appeal Court to
interfere in the factual findings of the Tribunal. The Tribunal’s analysis of the facts was
cogent and revealed no misdirection, nor any clear error.
Conclusion
[93] The Competition Appeal Court mischaracterised the nature of the appeal and
applied the wrong tests in respect of both review and causation. There was no basis in
law or fact for overturning the judgment of the Tribunal. The appeal therefore succeeds.
[94] Coca-Cola sought costs against the Commission in the Competition Appeal
Court and in this Court. This would only be appropriate if the Commission had acted
unreasonably, frivolously or vexatiously.126 Coca-Cola has not made out any such case.
[95] The following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Competition Appeal Court is set aside and replaced with
the following order
“(a) The appeal is dismissed.
(b) Each party must bear its own costs.”
4. Each party must bear its own costs in this Court.
126 Competition Commission of South Africa v Pioneer Hi-Bred International Inc [2013] ZACC 50; 2014 (2) SA
480 (CC); 2014 (3) BCLR 251 (CC) at para 28.
For the Applicant:
For the First Respondent:
W Trengove SC and M Engelbrecht SC
instructed by Bowman Gilfillan
Incorporated
T Ngcukaitobi SC, T Charlie and S
Quinn instructed by Maenetja Attorneys