CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 141/21
In the matter between:
COMPETITION COMMISSION OF SOUTH AFRICA Applicant
and
GROUP FIVE CONSTRUCTION LIMITED Respondent
Neutral citation: Competition Commission of South Africa v Group Five
Construction Ltd [2022] ZACC 36
Coram: Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J,
Mlambo AJ, Theron J, Tshiqi J and Unterhalter AJ
Judgments: Mlambo AJ (minority): [1] to [101]
Majiedt J (majority): [102] to [149]
Heard on: 3 May 2022
Decided on: 27 October 2022
Summary: Competition Act 89 of 1998 — interpretation and application of
section 62 — exclusive jurisdiction of Competition Tribunal —
High Court jurisdiction
ORDER
2
On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court
of South Africa, Gauteng Division, Pretoria):
1. Leave to appeal is granted.
2. The appeal is dismissed.
JUDGMENT
MLAMBO AJ:
Introduction
[1] This matter can be likened to a turf war. On the o ne side is the applicant, the
Competition Commission of South Africa (Commission), representing the
competition authorities,1 the Competition Tribunal (Tribunal), to be specific. The
contested turf is the review ambit of the Tribunal in relation to matters arising out of the
interpretation and application of chapters 2, 3 and 5 of the Competition Act2 (Act),
which are assigned for its exclusive jurisdiction. For want of appropriate phrasing, I
refer to these chapters as the exclusive jurisdiction chapters. On the other side is the
respondent, Group Five Construction Limited (Group Five) , a company incorporated
under the company laws of the Republic of South Africa, whose legal stance in the
present dispute is backed by judgments of the High Court of South Africa, Gauteng
Division, Pretoria (High Court) and Supreme Court of Appeal. Those Courts held that
the jurisdiction of the Tribunal is ousted in matters within the exclusive jurisdiction
chapters, which have been carved out to give the High Court jurisdiction. Group Five
asserts that this is one such matter in which the Tribunal is red-carded.
1 The Competition Tribunal and the Competition Appeal Court.
2 89 of 1998.
MLAMBO AJ
3
[2] The Commission, the regulatory body established in terms of section 19(1) of
the Act, applies for leave to appeal the judgment and order of the Supreme Court of
Appeal.3 That Court upheld a decision of the High Court, which found that it had
jurisdiction to determine a review application brought by Group Five in respect of a
referral to the Tribunal – of a complaint against it – by the Commission.4 The question
before this Court is whether the Supreme Court of Appeal and the High Court wrongly
pronounced on the scope of the competition authorities’ exclusive juri sdiction,
particularly that of the Tribunal, in terms of section 62(1) of the Act and the Rules for
the conduct of proceedings in the Competition Tribunal5 (Tribunal Rules).
[3] Section 62 of the Act provides:
“(1) The Competition Tribunal and Competition Ap peal Court share exclusive
jurisdiction in respect of the following matters:
(a) Interpretation and application of Chapters 2, 3 and 5, other than—
i. a question or matter referred to in subsection (2); or
ii. a review of a certificate issued by the Minister of Finance in terms
of section 18(2); and
(b) the functions referred to in sections 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;
(b) any constitutional matter arising in terms of this Act; and
(c) the question whether a matter falls within the exclusive jurisdiction
granted under subsection (1).
3 The Competition Commission of South Africa v Group Five Construction Limited [2021] ZASCA 37; 2021 JDR
0613 (SCA) (Supreme Court of Appeal judgment).
4 The Competition Commission of South Africa v Group Five Construction Limited , unreported judgment of the
High Court of South Africa, North Gauteng Division, Case No 74995/17 (28 October 2018) (High Court
judgment).
5 Rules for the conduct of proceedings in the Competition Tribunal, GN 12 GG 22025, 1 February 2001.
MLAMBO AJ
4
(3) The jurisdiction of the Competition Appeal Court—
(a) is final over a matter within its exclusive jurisdiction in terms of
subsection (1); and
(b) is neither exclusive nor final in respect of a matter within its
jurisdiction in terms of subsection (2).
(4) An appeal from a decision of the Competition Appeal Court in respect of a
matter within its jurisdiction in terms of subsection (2) lies to the
Constitutional Court, subject to section 63 and its respective rules.
(5) For greater certainty, the Competition Tribunal and the Competition Appeal
Court have no jurisdiction over the assessment of the amount, and awarding,
of damages arising out of a prohibited practice.” (Own emphasis.)
Background
[4] The underlying factual dispute in this matter relates to a complaint initiated by
the Commission into collusion between construction companies in the process of
bidding for tenders to construct stadia for the 2010 Soccer World Cup. Group Five was
alleged to have been one of the construction companies involved in the collusive
conduct. On 12 November 2014, the Commission, acting in terms of sections 49B6 and
50(1)7 of the Act, referred a complaint to the Tribunal against Group Five and other
construction companies for possible collusive conduct in contravention of
section 4(1)(b)(i) and (ii) of the Act. The allegation was that Group Five had engaged
in pervasive anti-competitive conduct in the construction industry. It was alleged that
6 Section 49B of the Act provides:
“(1) The Commissioner may initiate a complaint against an alleged prohibited practice.
(2) Any person may—
(a) submit information concerning an alleged prohibited practice to the
Competition Commission, in any manner or form; or
(b) submit a complaint against an alleged prohibited practice to the Competition
Commission, in the prescribed form.
(3) Upon initiating or receiving a complaint in terms of this section, the Commissioner
must direct an inspector to investigate the complaint as quickly as practicable.”
7 Section 50 of the Act provides:
“(1) At any time after initiating a complaint, the Competition Commission may refer the
complaint to the Competition Tribunal”.
MLAMBO AJ
5
Group Five, together with other members of an alleged cartel, had: (a) allocated projects
for the construction of various World Cup stadia between themselves; (b) had submitted
cover prices agreed amongst themselves; and (c) had recovered net profits of 17.5% per
project.8
[5] Upon receipt of the complaint, Group Five sought and was granted information
in terms of the Rules for the conduct of proceedings in the Competi tion Commission9
(Commission Rules). Thereafter, instead of complying with rule 1610 of the
Tribunal Rules, i.e., to file an answering affidavit within 20 days responding to the
complaint, Group Five launched a review application in the High Court. Group Five
initiated its review application in terms of the Promotion of Administrative Justice Act11
(PAJA) and the principle of legality , asserting that the matter fell to be determined by
the High Court in terms of section 62(2)(a) read with section 62(3)(b) o f the Act. The
basis for this assertion was that the Tribunal is not a court as defined in PAJA and as
such has no jurisdiction to entertain the review. Group Five’s underlying objection was
that the Commission had previously granted it immunity from pro secution through its
Corporate Leniency Policy. This policy is aimed at encouraging those involved in
cartels to disclose prohibited practices to the Commission in order to combat offensive
conduct. In Group Five’s view, the about-face by the Commission to refer a complaint
to the Tribunal and seek a penalty against it, was oppressive, vexatious and motivated
by bad faith.
8 Supreme Court of Appeal judgment above n 3 at para 7.
9 Rules for the conduct of proceedings in the Competition Commission GG 22025 1 February 2001.
10 Rule 16(1) of the Tribunal Rules provides:
“(1) Within 20 business days after being served with a Complaint Referral filed by the
Commission, a respondent who wishes to oppose the Complaint Referral must—
(a) serve a copy of their Answer on the Commission; and
(b) file the Answer with proof of service.”
11 3 of 2000.
MLAMBO AJ
6
Litigation history
High Court
[6] Group Five launched the application in the High Court, on 7 November 2017, to
review the Commission’s referral of the complaint to the Tribunal. Group Five sought,
inter alia, orders to—
(a) declare that the initiation of the complaint was unlawful;12
(b) declare that the Commission granted Group Five immunity from
prosecution for contravening the Act; and
(c) review and set aside and declare invalid the Commission’s decision to
refer the complaint and/or seek an administrative penalty against
Group Five.
[7] In response to the review proceedings, the Commission lodged an application in
the High Court in terms of rule 30 of the Uniform Rules of Court ,13 to declare and set
aside the proceedings on the basis that they constituted an irregular step insofar as the
12 The complaint had been preceded by a detailed “research project” and Group Five submits that the Supreme
Court of Appeal, in Woodlands Dairy (Pty) Ltd v Competition Commission [2010] ZASCA 104; 2010 (6) 108
(SCA) (Woodlands Dairy), has determined that preliminary investigations prior to the initiation of a complaint
will render the complaint unlawful.
13 Rule 30 of the Uniform Rules of Court states:
(1) A party to a cause in whic h an irregular step has been taken by any other party may
apply to court to set it aside.
(2) An application in terms of subrule (1) shall be on notice to all parties specifying
particulars of the irregularity or impropriety alleged, and may be made only if—
(a) the applicant has not himself taken a further step in the cause with knowledge
of the irregularity;
(b) the applicant has, within ten days of becoming aware of the step, by written
notice afforded his opponent an opportunity of removing the cause of
complaint within ten days;
(c) the application is delivered within 15 days after the expiry of the second
period mentioned in paragraph (b) of subrule (2).
(3) If at the hearing of such application the court is of opinion that the proceeding or step is irregular
or improper it may set it aside in whole or in part, either as against all the parties or as against
some of them, and grant leave to amend or make any such order as to it seems meet.
(4) Until a party has complied with any order of court made against him in terms of this rule, he
shall not take any further step in the cause, save to apply for an extension of time within which
to comply with such order.”
MLAMBO AJ
7
High Court lacked jurisdiction to adjudicate the matter . The Commission contended
that the Tribunal had exclusive jurisdiction under the Act to consider the issues raised
in the review, and that there was pending litigation before the Tribunal on the same
cause of action and in respect of the same subject matter.
[8] Before considering Group Fiv e’s review application, the High Court had to
consider the Commission’s challenge to its jurisdiction to entertain Group Five’s review
application.14
[9] On this issue, the Commission based its argument on section 62(1)(a) of the Act,
read with section 169(1)(a)(ii)15 of the Constitution. The Commission argued that based
on section 62(1)(a), the High Court lacked jurisdiction because the matter fell within
the provisions of chapter 2 of the Act , which it contended fell within the exclu sive
jurisdiction of the Tribunal.
[10] The High Court disagreed, finding that while it is common cause that the
High Court lacks jurisdiction in matters pertaining to the interpretation and application
of chapters 2, 3 and 5 of the Act, with respect to matter s pertaining to section 62(2)(a),
the Tribunal’s jurisdiction is ousted. In short, the High Court reasoned that in matters
concerning a challenge to the lawfulness and validity of a referral, the High Court, and
not the Tribunal, has the requisite jurisdiction.16 Accordingly, the High Court held that
there was no merit to the Commission’s objection to the jurisdiction of the High Court.
14 A second issue which the High Court considered, which is not relevant for purposes of this appeal, was whether
the rule 30 procedure adopted by the Commission was appropriate for raising its objection to Group Five’s review
application. See High Court judgment above n 4 at para 14. On this issue, relying on Cochrane v City of
Johannesburg [2010] ZAGPJHC 61; 2011 (1) SA 553 (GSJ), the High Court held that while the Commission
should have raised its objections by way of a special plea rather than in te rms of rule 30, it could nevertheless
determine the merits of the rule 30 application. The High Court found against the Commission on this issue.
15 Section 169(1)(a)(ii) of the Constitution provides that “[t] he High Court of South Africa may decide any
constitutional matter except a matter that is assigned by an Act of Parliament to another court of a status similar
to the High Court of South Africa”.
16 High Court judgment above n 4 at para 22.
MLAMBO AJ
8
Supreme Court of Appeal
[11] The Commission subsequently appealed the High Court’s judgment to the
Supreme Court of Appeal, having been granted leave by the High Court. The question
before the Supreme Court of Appeal was whether the High Court was correct in holding
that it had jurisdiction to entertain the review application.
[12] The Commission persisted in arguing that the issue s on review fell within the
Tribunal’s exclusive jurisdiction . It contended that the initiation and referral of a
complaint in terms of sections 49B and 50 of the Act were matters which undoubtedly
fell within the exclusive jurisdiction of the Commission, the Tribunal and the
Competition Appeal Court. These sections provide for the Commissioner to initiate a
complaint against an alleged prohibited practice 17 and, at any time after initiating a
complaint, for the Commission to refer the complaint to the Tribunal for adjudication.18
Group Five opposed the appeal, using the High Court ’s findings as the basis for its
opposition.
[13] The Supreme Court of Appeal reasoned that section 62(1) excludes matters
referred to in section 62(2)(a), which gives the Competition Appeal Court additional
jurisdiction, but that such additional jurisdiction is, in terms of section 62(3)(b), neither
exclusive nor final . Accordingly, the Supreme Court of Appeal reasoned that the
High Court’s jurisdiction is not ousted in matters falling under section 62(2)(a) and that
it shares concurrent jurisdiction in those matters with the Competition Appeal Court.
[14] The Supreme Court of Appeal held that section 62(2) (a) and 62(3)(b) provide
that, while the Competition Appeal Court has jurisdiction in respect of the matters listed
under section 62(2) (a), the jurisdiction of the High Court to hear those matters is not
17 Section 49B(1) of the Act provides: “The Commissioner may initiate a complaint against an alleged prohibited
practice”.
18 Section 50(1) of the Act provides: “At any time after initiating a complaint, the Competition Commiss ion may
refer the complaint to the Competition Tribunal”.
MLAMBO AJ
9
excluded, since in the ordinary course the High Court would have jurisdiction over
matters specified in section 62(2) (a), unless such jurisdiction was specifically and
expressly ousted in a “constitutionally compliant manner ”.19 However, the Supreme
Court of Appeal found that, while the Competition Appeal Court has jurisdiction over
the matters referred to in section 62(2), the same cannot be said of the Tribunal, for two
reasons. First, the provision expressly refers to the Competition Appeal Court as the
Court with specific additional jurisdiction and, second, unlike the High Court and the
Competition Appeal Court, which are designated as Courts with similar status to that of
the High Court,20 the Tribunal does not possess inherent powers to hear matters listed
in section 62(2)(a).
[15] The Supreme Court of Appeal went on to find that it is clear that the
Competition Appeal Court and the Tribunal had exclusive jurisdiction in relation to the
interpretation and application of matters in chapters 2, 3 and 5 of the Act . The Court
said these chapters of the Act all involve matters of a specialist nature requiring
“technical expertise” which “lie at the complex intersection between law and
economics” and, further, that the Act is very specific about assigning these functions to
the institutions best equipped to deal with them. 21 The Supreme Court of Appea l also
remarked that the competition authorities have exclusive jurisdiction in adjudicating on
the “matters dealing with the functions of the Commission, in terms of sections 21(1),
27(1) and 37 of the Act”.22 The Supreme Court of Appeal also pointed out that in terms
of the specific provisions of section 27(1)(c), the Tribunal “may hear appeals from, or
review any decision of, the Competition Commission that may in terms of this Act be
referred to it”.23
19 Supreme Court of Appeal judgment above n 3 at para 17.
20 Id.
21 Competition Commission of South Africa v Media 24 (Pty) Limited [2019] ZACC 26; 2019 (5) SA 598 (CC) ;
2019 (9) BCLR 1049 (CC) (Media 24) at para 136.
22 Supreme Court of Appeal judgment above n 3 at para 16.
23 Id
MLAMBO AJ
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[16] The Supreme Court of Appeal found that the issues raised by Group Five are not
within the exclusive jurisdiction of the Tribunal and the Competition Appeal Court
because they relate to the validity and lawfulness of the initiation and subsequent
referral of a complaint to the Tribunal which are questions of vires or legality and thus
are quintessentially issues within the jurisdiction of the Superior Courts.24 The Supreme
Court of Appeal further found that these are issues that fall within the purview of
section 62(2)(a), as found in Agri Wire.25 The Supreme Court of Appeal referred to
Agri Wire and its conclusions as authority regarding the ambit and inapplicability of the
section 27(1)(c) review ambit of the Tribunal.26
[17] The Supreme Court of Appeal held that the legality of a public body’s conduct
is a constitutional matter27 and, in terms of section 62(3)(b), the competition authorities
do not have exclusive jurisdiction over such matters. The Supreme Court of Appeal
concluded that the issues raised on review by Group Five were not of a specialist nature
which section 62(1) exclusively reserves for the Competition Appeal Court and
the Tribunal. Instead, they related to questions of legality concerning the validity and
lawfulness of the initiation and the referral of the Commission’s complaint. The
Supreme Court of Appeal thus rejected all of the Commission’s arguments.
[18] Finally, the Supreme Court of Appeal found that the High Court was correct in
its finding that the Commission’s challenge of jurisdiction had no merit. It dismissed
the appeal with costs.28
24 Supreme Court of Appeal judgment above n 3 at para 21. See generally section 1 of Superior Courts Act 10 of
2013 which defines “Superior Courts” as “the Constitutional Court, the Supreme Court of Appeal, the High Court
and any court of a status similar to the High Court”.
25 Agri Wire (Pty) Ltd v Commissioner, Competition Commission [2012] ZASCA 134; 2013 (5) SA 484 (SCA).
26 Supreme Court of Appeal judgment above n 3 at para 22.
27 Id at para 24.
28 Id at paras 27-8.
MLAMBO AJ
11
In this Court
Jurisdiction
[19] The Commission contends that the matter engages the constitutional jurisdiction
of this Court as it is about the jurisdiction of the competition authorities. It contends
that the matter requires this Court to interpret section 62 of the Act. It further contends
that this Court is requested to determine the jurisdiction of the Tribunal and
Competition Appeal Court insofar as it refers to the power of the High Court to review
the decisions and conduct of the Commission.
[20] Issues relating to t he conduct and powers of the Commission and Tribunal
concern the exercise of public power and are therefore constitutional issues. Clearly
the matter engages this Court’s constitutional jurisdiction. This Court has said as much
in Senwes,29 Yara30 and Pickfords.31 In addition, it is important, as a point of law and
as a matter of general public importance, for this Court to clarify the jurisdiction of the
competition authorities vis a vis the civil courts, specifically where the issues at stake
involve intertwined competition and constitutional law issues.
Leave to appeal
[21] Having found that the matter engages this Court’s jurisdiction, a further issue is
whether, in terms of section 167(3)(b) of the Constitution, it is in the interests of justice
to grant leave to appeal. Group Five’s review application in the High Court was based
on three issues . Those were the initiation and referral of a complaint by the
Commission, the granting of and withdrawal of immunity , and the alleged oppressive
prosecution initiated by the Commission against Group Five. The Commission squarely
submitted that these are all matters falling under chapters 2, 3 and 5 of the Act, in which
the Tribunal and Competition Appeal Court had exclusive jurisdiction. In the
29 Senwes Ltd v Competition Commission of South Africa [2012] ZACC 6; 2012 (7) BCLR 667 (CC).
30 Competition Commission v Yara South Africa (P ty) Limited [2012] ZACC 14; 2012 JDR 1118 (CC); (2012) 9
BCLR 923 (CC).
31 Competition Commission of South Africa v Pickfords Removals SA (Pty) Limited [2020] ZACC 14; 2021 (3)
SA 1 (CC); 2020 (10) BCLR 1204 (CC).
MLAMBO AJ
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Commission’s view, these are matters that concern the “interpretation and application”
of those chapters, which is within the exclusive jurisdiction of the competition
authorities. It argued that the fact that these issues were part of a High Court review
application brought in terms of PAJA and the principle of legality does not detract from
their true nature, being exclusively competition law matters in respect of which the
competition authorities had exclusive jurisdiction.
[22] This matter therefore raises issues of general public importance . It provides an
opportunity for this Court to have its say regarding the Supreme Court of Appeal ’s
finding that the review competence of the Tribunal is ousted in the issues involved in
this application.
[23] Additionally, it is important for this Court to clarify the jurisdictional boundaries
of the competition authorities, especially in relation to matters that are competition law
issues but related to constitutional issues. In this matter, the issues involve questions of
law and policy, related to whether the High Court has jurisdiction, to the exclusion of
the Tribunal, to hear an application to review powers exercised and decisions taken by
the Commission. The issue for this Court to determine, therefore, is to what extent the
High Court’s jurisdiction is ousted, if at all, in favour of the Tribunal, to review the
decisions of the Commission. This Court has yet to express an authoritative view on
this issue. Clearly, it is in the interests of justice to grant leave to appeal.
Issues
[24] The crisp issue is whether the High Court has jurisdiction to review a decision
taken by the Commission to initiate a complaint against Group Five. Put differently,
the issue is whether this is a matter in which the competition authorities have exclusive
jurisdiction, such that the High Court’s jurisdiction is ousted.
[25] The Commission argues that the High Court’s jurisdiction to hear the matter is
ousted by virtue of sections 27(1)(c) and/or section 62(1) of the Act. It further argues
that the Tribunal has exclusive jurisdiction over the issues arising out of Group Five’s
MLAMBO AJ
13
review application in terms of section 62(1)(a). The Commission further submits that
this interpretation is consistent with se ction 27(1)(c), which specifically provides for
the exclusive jurisdiction of the Tribunal to hear “appeals from, or review any decision
of” the Commission that “may in terms of the Act be referred to it”. The Commission
argues that this applies to matters relating to the interpretation and application of various
chapters of the Act, as these relate directly to the “interpretation and application” of
those chapters.
[26] Group Five accepts that the competition authorities have exclusive jurisdiction
in matters relating to the functioning of various chapters of the Act. However, it argues
that section 62(1) contains a carve out, which the Commission ignores , and which this
review falls into. In terms of this carve out, the competition authorities have e xclusive
jurisdiction to hear matters relating to the interpretation and application of various
chapters of the Act, “other than a question or matter referred to in subsection 2”, being:
first, questions about whether an action taken or proposed to be take n by the
Commission or the Tribunal is within their respective jurisdictions in terms of this Act;
second, constitutional matter s arising in terms of th e Act; and third, the question
whether the matter falls within the exclusive jurisdiction granted under section 62(1).
[27] Group Five submits that the issues at stake in this matter are those carved out of
the exclusive jurisdiction of the Tribunal in terms of section 62(2)(a). It submitted that
those issues relate to the legality of the initiation of the complaint against it which falls
to be determined under PAJA or the principle of legality. In its view, the Tribunal has
no competence under PAJA to determine such matters hence its resort to the High Court
whose jurisdiction is not ousted.
[28] The way I see things, a definitive view from this Court is required on the meaning
of section 62(1) as to the exclusive jurisdiction of the Tribunal and what is carved out
of that exclus ive jurisdiction by section 62(2). This Court has previously stated that,
MLAMBO AJ
14
where an objection to jurisdiction is taken at the outset, the pleadings, properly
interpreted, should determine the question of jurisdiction.32 In Gcaba, this Court said:
“In the event of the Court’s jurisdiction being challenged at the outset ( in limine), the
applicant’s pleadings are the determining factor. They contain the legal basis of the
claim under which the applicant has chosen to invoke the court’s competence. . . . If,
however, the pleadings, properly interpreted, establish that the applicant is asserting a
claim under the LRA, one that is to be determined exclusively by the Labour Court, the
High Court would lack jurisdiction.”33
[29] This approach was again endorsed in Baloyi34 where this Court engaged with the
claim as pleaded, and concluded that on the correct interpretation, it was a claim based
in public law and contract, rather than the Labour Relations Act.35
[30] An assessment of this Court’s jurisdiction must thus be based on an applicant’s
pleadings, and the key question will be to determine what claim the pleadings, properly
interpreted, reveal. Here then, the starting point is to consider what claims were asserted
by the applicant in its pleadings.
[31] In its rule 30 notice and founding affidavit in the High Court, the Commission
contended that the High Court did not have jurisdiction to adjudicate upon the matter
because Group Five’s claim related to the interpretation and application of chapter 2 of
the Act and, in terms of section 62(1)(a), the matter fell within the exclusive jurisdiction
of the Tribunal. It is therefore necessary to consider, in detail, Group Five’s review
application, and determine whether the claims it asserted, i.e., whether the issues it
32 Chirwa v Transnet Limited [2007] ZACC 23; 2008 (4) SA 367 (CC) ; 2008 (3) BCLR 251 (CC) at paras 155
and 169.
33 Gcaba v Minister for Safety and Security [2009] ZACC 26; 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) at
para 75.
34 Baloyi v Public Protector [2020] ZACC 27; 2022 (3) SA 321 (CC); 2021 (2) BCLR 101 (CC) at paras 33-6 and
49-50.
35 66 of 1995.
MLAMBO AJ
15
required the High Court to determine, are issues contemplated in section 62(2)(a), or
are competition law specific, or involve both constitutional and competition law issues.
The meaning of section 62
[32] Before anal ysing the pleadings and determining the true nature of the issues
raised by the parties in the High Court, it is necessary to determine the true meaning of
section 62(1) of the Act, i.e., the power of the Tribunal to adjudicate matters relating to
the interpretation and application of the exclusive jurisdiction chapters contemplated in
the section. Section 27(1) is also an important provision which sets out, in general
terms, the functions of the Tribunal.36 I will consider the true ambit of section 27(1)(c),
in particular, which deals with the review powers of the Tribunal. It is useful to consider
these powers within the context of the Supreme Court of Appeal judgment, as that Court
considered these sections and pronounced its views regarding their ambit.
[33] The language of section 62 (1)(a) is clear. It pr ovides that the competition
authorities have exclusive jurisdiction in respect of the interpretation and application of
the exclusive jurisdiction chapters . Considered from the appellate nature and role of
the Tribunal over the Commission as well as that of the Competition Appeal Court over
the Tribunal, it is clear that the Tribunal’s jurisdiction revolves around considering the
conduct of the Commission in carrying out its functions and exercising its powers in
terms of the Act pursuant to its obligations under the exclusive jurisdiction chapters.
36 Section 27(1) of the Act provides:
“(1) The Competition Tribunal may—
(a) adjudicate on any conduct prohibited in terms of Chapter 2, to determine
whether prohibited conduct has occurred, and, if so, to impose any remedy
provided for in this Act;
(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.”
MLAMBO AJ
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[34] We know that , in this matter , the Commission initiated a complaint against
Group Five in terms of section 49B of the Act . The basis of the complaint is
Group Five’s alleged involvement in prohibited practices , which are dealt with in
section 4. The alleged conduct of Group Five was in contravention of the provisions
contained in chapters 2 and 5 , which fall under the exclusive oversight jurisdiction of
the Tribunal. Section 49B grants the Commission the power to initiate and refer
complaints against errant companies. Separately, Group Five alleges that
the Commission granted it leniency or immunity and then withdr ew it. In terms of
section 21(1)(c) and (d), the Commission “is responsible to . . . investigate and evaluate
alleged contraventions of chapter 2” and “grant or refuse applications for exemption in
terms of chapter 2”. Section 21(1)(gC) further provides that the Commission is
responsible to “grant or refuse applications for leniency in terms of section 49E”. Here
too, what the Commission does in terms of this section , falls under the exclusive
oversight jurisdiction of the Tribunal.
[35] The fact that the Commission performed these functions – initiating the
complaint and referring it for the attention of the Tribunal – is not controversial. It is
plain that, in initiating and referring the complaint, the Commission acted within extant
powers. It also requires no debate that the power to grant or refuse immunity is that of
the Commission. The exercise of these powers by the Commission falls squarely within
the exclusive jurisdiction chapters.
[36] Where the controversy arises is the manner in which the Commission performed
these functions. This is an issue of propriety, not vires. I accept that, because this matter
concerns the exercise of power by the Commission as a public body, this will ultimately
be a question of lawfulness. However, lawfulness is not to be conflated with ultra vires.
The question of ultra vires is a subsect of lawfulness – they are not synonymous. For
the Commission’s decision to be considered ultra vires, it must have acted in excess or
beyond the power conferred on it as a public body. The conduct of the Commission
here is in terms of powers assigned to it in the Act and therefore within its jurisdiction.
More on this later.
MLAMBO AJ
17
[37] The question whether the Commission exercised its powers properly concerns
the interpretation and applicati on of sections 21(1)(gC) and 49B . Th e power to
adjudicate the Commission’s exercise of these powers is assigned to the Tribunal. This
means that, in terms of section 62(1), the determination of the meaning of these sections
and their application is exclusively that of the Tribunal and the
Competition Appeal Court.
[38] The Tribunal was specifically assigned exclusive jurisdiction over the
Commission because it possesses technical expertise to oversee the Commission’s
exercise of its functions and powers. The Supreme Court of Appeal , referring to this
expertise, said:
“It is not difficult to discern why exclusive jurisdiction would be granted to the
[Competition Appeal Court] and the Tribunal in relation to interpretation and
application of matters in Chapters 2, 3 and 5. These are matters related to the
investigation, control and evaluation of alleged restrictive practices, the abuse of
dominant positions and mergers. They involve matters of a specialist nature, which
require technical expertise, and which lie at the complex intersection between law and
economics. The Act has been very careful in assigning these functions to the
institutions best equipped to deal with them.”37
[39] Review is the device through which the exercise of public power is scrutinised.
The assignment of the Tribunal’s review function , under section 27(1)(c), over the
Commission’s exercise of its powers and functions , cannot be downplayed and
restricted without clear provisions to that effect. That power was assigned in the Act
with the clear knowledge that the Commission’s conduct and decisions amounted to the
exercise of public power, which is a constitutional matter. However, and as the
Supreme Court of Appeal itself noted in Computicket, it is for this reason that the
37 Supreme Court of Appeal judgment above n 3 at para 18.
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concept of a “constitutional matter” in section 62(2)(b) of the Act must be given a
narrow meaning.38 That Court said:
“But I do not believe that the concept of a ‘constitutional matter’ can be afforded that
wide meaning in section 62(2)(b). I say that because in that wide sense, most, if not all
disputes can ultimately be traced back to the Constitution. It would for example, also
include a rather mundane application to compel further particulars. At the same time,
that would render the exclusive jurisdiction of the [Competition Appeal Court] in
certain matters – which is the main theme of section 62 – illusory (cf S v Boesak [2000]
ZACC 25; 2001 (1) SA 912 (CC) para 15). This means that ‘constitutional matters’ in
section 62(2)(b) must be afforded a narrower meaning.”39
I agree with this view.
[40] The meaning sought to be given to section 62(2)(b) by Group Five, which I will
discuss in more detail, cannot survive scrutiny as it would mean that almost all decisions
of the Commission are in the section 62(2) carve out and would be subject to the
additional jurisdiction of the Competition Appeal Court, as a court of first instance, and
by the High Court, a non-specialist court. This is an approach that would take the heart
out of the Tribunal’s adjudicative and review power s over the Commission and is one
that could nev er have been contemplated when sections 27(1)(c) and 62(1)(a) were
crafted.
[41] The view I take o n the ambit of the Tribunal’s exclusive oversight role over
the Commission, in terms of section 62(1), is that it is an expansive role that covers the
conduct of the Commission in carrying out its functions and powers arising from the Act
pursuant to its obligations under the exclusive jurisdiction chapters. We know, as I have
stated, that in terms of section 27, the Tribunal has adjudicative , appellate and review
jurisdiction over what the Commission does. Therefore, the oversight role of
the Tribunal over the Commission cannot be constrained, unless the context and the Act
38 Computicket (Pty) Ltd v Competition Commission [2014] ZASCA 185; [2015] 1 CPLR 15 (SCA) at para 15.
39 Id.
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justifies this. This is important as it buttresses the overarching purpose of the Act, which
is “[t]o provide for the establishment of a Competition Commission responsible for the
investigation, control and evaluation of restrictive practices, abuse of dominant
position, and mergers; and for the establishment of a Competition Tribunal responsible
to adjudicate such matters . . .”. (Emphasis added.)
[42] In interpreting section 62(1) , we have also, on several occasions , been told by
this Court that such interpretation should involve the statutory provision being properly
contextualised when meaning is ascribed to the words used therein. 40 While holding
that words in a statutory provision should generally be assigned their ordinary
grammatical meaning, this Court has consistently held that a contextual and purposive
approach must be applied to statutory interpretation.41
[43] This Court takes a comprehensive approach to contextualising legislative
provisions having regard to both the internal and external context of a legislative
provision when interpreting it.42 Regard to the internal context of a legislative provision
requires that it be interpreted in light of the text of the legislation as a whole. 43 In this
regard, in Goedegelegen, this Court said “[w]e must understand the provision within
the context of the grid, if any, of related provisions and of the statute as a whole
including its underlying values”. 44 A r egard to the external context of a particular
legislative provision when ascribing meaning to it includes a consideration of, amongst
40 Independent Institute of Education (Pty) Limited v Kwazulu -Natal Law Society and others [2019] ZACC 47;
2020 (2) SA 325 (CC); 2020 (4) BCLR 495 (CC) at para 41.
41 Road Traffic Management Corporation v Waymark (Pty) Limited [2019] ZACC 12; 2019 (5) SA 29 (CC); 2019
(6) BCLR 749 (CC) at para 29 citing Natal Joint Municipal Pension Fund v Endumeni Municipality [2012]
ZASCA 13; 2012 (4) SA 593 (SCA) at para 18. See also Cool Ideas 1186 CC v Hubbard [2014] ZACC 16; 2014
(4) SA 474 (CC); 2014 (8) BCLR 869 (CC) (Cool Ideas) at para 28.
42 Independent Institute of Education above n 40 at para 42.
43 Id citing Department of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd [2007] ZACC 12; 2007 (6) SA
199 (CC); 2007 (10) BCLR 1027 (CC) at para 53.
44 Goedgelegen id.
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others, the mischief which the legislation aims to address,45 and the social and historical
background of the legislation.46
[44] The interpretation of section 62 must therefore take account of t he context of
the Act, which I have sketched in the preceding paragraphs. This context is important
in considering whether the Supreme Court of Appeal and the High Court were correct
in their pronouncement of the scope of the competition authorities’ exclusive
jurisdiction in terms of section 62(1) and the Tribunal Rules. This will also inevitably
involve determining the true ambit of the carve out from the excl usive jurisdiction of
the competition authorities.
[45] Having regard to the Supreme Court of Appeal’s judgment, I agree with the
finding that section 62(2) and (3)(b) of the Act do not oust the High Court’s jurisdiction
in respect of a matter listed under section 62(2), since, in the ordinary course, the
High Court would have jurisdiction over those matters, unless such jurisdiction is
specifically and expressly ousted in a const itutionally compliant manner. 47 The
Supreme Court of Appeal found that the issues raised in Group Five’s review
application were concerned with the validity of the referral of t he complaint to the
Tribunal. It found that this was an issue covered in the carve out in section 62(2). The
Court said:
“A question whether the referral by the Commission is valid or unlawful, or whether
the Commission acted beyond the scope of the Act and accordingly ultra vires the
powers conferred on it, is a jurisdictional question which falls within the purview of
section 62(2)(a) as stated in Agri Wire.”48
[46] The difficulty I have with this conclusion is, as I have alluded to above, the
conflation of vires with lawfulness. Although issues of vires will always concern a
45 Id.
46 Id.
47 Supreme Court of Appeal judgment above n 3 at para 17.
48 Id at para 24.
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question of lawfulness, not all issues of lawfulness will concern a question of vires. The
finding of the Supreme Court of Appeal would be correct if the Commission acted
beyond the powers given to it as a public authority, which would be a question of vires,
i.e., doing something falling outside its jurisdiction.
[47] The Supreme Court of Appeal’s reasoning is merely based on the
characterisation of the issues by Group Five. This reasoning unfortunately ignores that
an interpretation of the Act is necessary to resolve the issues arising from the
Commission’s handling of the complaint in terms of sections 49B and 50. This
interpretive task is necessitated by the fact that those sect ions state what the
Commission’s role is in the circumstances. It necessitated that , after the inte rpretive
function had been carried out, the application of those sections to the facts would then
follow. It is only after these steps have been carried out that a view can be formed on
whether the Commission’s actions were within its competence in terms of the Act. The
Tribunal is the entity that has exclusive jurisdiction to carry out this adjudicative
function regarding the conduct of the Commission at issue in this matter. This view is
informed by the assignment of the powers of interpretation and ap plication of the
exclusive jurisdiction chapters to the Tribunal.
[48] The Supreme Court of Appeal’s finding was also in response to an argument by
the Commission that the issues raised in Group Five’s review application were
justiciable before the Tribunal in terms of section 27(1)(c). The Supreme Court of
Appeal’s reasoning relied on that Court’s decision in Agri Wire , which decided the
ambit of the review power of the Tribunal. In that case, Agri Wire, one of the parties
to an alleged cartel in the wire products industry, challenged a referral by the
Commission to the Tribunal . Agri Wire argued that the Corporate Leniency Policy,
which at that time permitted the Commission to grant immunity, was not sanctioned by
the Act. Agri Wire accordingly contende d that the evidence from one of the other
parties to the cartel had been unlawfully obtained, with the result that the referral to the
Tribunal was irregular and should be set aside.
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[49] The Supreme Court of Appeal, in Agri Wire , first rejected a challenge to its
jurisdiction brought by the Commission, which contended that exclusive powers of
appeal and review are vested in the Tribunal. The Commission advanced this argument
on the basis of section 27(1)(c). The Commission contended that this section conferred
on the Tribunal a general power to review decisions of the Commission, but the
Supreme Court of Appeal disagreed, saying t hat section 27(1)(c) exists for very
specified decisions of the Commission, on the basis that, in the absence of the section,
those reviews would ordinarily go to the High Court.49
[50] Those decisions are in section 10(2), which deals with the granting of exemptions
by the Commission, section 13(5)(b), which deals with the approval or prohibition of
small mergers, section 14(1)(b) which deals with the approval or prohibition of
intermediate mergers, and section 15 , which deals with the revocation of merger
approvals.
[51] The Supreme Court of Appeal thus held that those are the only provisions that
provide for the Commission to take decisions and therefore these are the only provisions
falling within the review ambit of the Tribunal in terms of section 27(1)(c).
[52] The Supreme Court of Appeal further stated that the “it” in section 27(1)(c)
refers to the Commission , and not the Tribunal. The Supreme Court of Appeal said
that, because section 27(1)(c) is limited to the instances it had specified, this means that
the section cannot be extended to a “challenge to the validity of a referral, because that
is a question whether the referral is an ac tion within the jurisdiction of the
Commission”.50 Finally, the Supreme Court of Appeal held that whether an act by
the Commission is within the Tribunal’s jurisdiction is a matter that falls within
section 62(2)(a) of the Act. Therefore, it is not within the Tribunal’s exclusive
jurisdiction and falls under the carve out.
49 Agri Wire above n 25 at para 12.
50 Id at para 17.
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[53] I do not agree that section 27(1)(c) , properly interpreted, limit s the Tribunal’s
review powers to the four instances identified by the Supreme Court of Appeal in
Agri Wire. In that ma tter, the Supreme Court of Appeal based its conclusion on the
word “decision” in section 27(1)(c). The restriction of the review ambit of the Tribunal
over the Commission cannot be justified when one considers the Commission’s role,
functions and powers in fulfilling the objects of the Act. It ignores the overarching role
of the Commission in the context of its specially assigned functions and powers, which
are in turn subject to the oversight role of the Tribunal. Section 21, which deals with
the functions of the Commission, sets out a substantial number of functions. It is
inconceivable that the Commission would not take any decisions or action arising out
of any of those functions which could be challenged under the review jurisdiction of
the Tribunal.
[54] Plainly understood, “it” in section 27(1)(c) refers to the Tribunal . This simply
means that the Tribunal hears appeals (from the Commission) or reviews any decision
(of the Commission) that may, in terms of the Act, be referred to it (the Tribunal).
[55] If one also considers that the review power of the Tribunal was introduced some
time after the Act came into operation, one cannot but conclude that this review power
could never have been introduced to only deal with a very diminished area in the Act,
as found in Agri Wire . It is instructive that the review power of the Tribunal was
introduced in the same year as that of the Competition Appeal Court. The restriction of
the review power of the Tribunal to those specified by the Supreme Court of Appeal in
Agri Wire goes against the clear language of section 27(1)(c). In interpreting any
statute, the plain meaning of the words must be understood within “the triad of text,
context and purpose”.51 As mentioned earlier, the Court in Endumeni clarified that the
“inevitable point of departure” is always the language of the provision itself.52
51 Capitec Bank Holdings Ltd v Coral Lagoon Investments 194 (Pty) Ltd [2021] ZASCA 99; 2022 (1) SA 100
(SCA) at para 25.
52 Endumeni above n 41 at para 18.
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[56] Applying the principles of contextual statutory interpretation to section 27(1)(c),
we must understand the provision to mean what it says, i.e., that the Tribunal can review
any decision of the Commission referred to it. The Supreme Court of Appeal’s
judgment undermines the powers of the competition authorities and would encourage
forum shopping of the kind we see in this matter. It would also enable parties to frustrate
and delay the important work of the competition authorities, especially the Tribunal.
[57] Accepting that section 27(1)(c), properly interpreted, provides for the Tribunal
to review any decision of the Commission – this is also informed by the fact that the
Commission is perhaps the most important entity in the scheme of the Act. It is the
entity that carries out the bulk of the work of the Act and in this role deals with a lot
more than just the four instances specified by the Supreme C ourt of Appeal in
Agri Wire. This must lead to a consideration of rule 42 of the Tribunal Rules , which
provides for the initiation of any proceedings before the Tribunal not otherwise
provided for in the Rules. In terms of rule 42(3)(b), this specifically includes the appeal
or review of a decision taken by the Commission. Clearly, the rule is to be understood
as encompassing a wide ambit of likely issue s that can be raised by any party which
seeks the Tribunal to adjudicate on any matter.
[58] Section 27(1)(c) must be read together with section 21(1), as the latter sets out
the decisions that are within the Commission’s jurisdiction to make. In other words,
the ordinary meaning of section 27(1)(c) must be that the Tribunal can review any
decision made by the Commission within the exercise of its functions under
section 21(1). These include the Commission’s decision to initiate and refer a
complaint to the Tribunal, as well as a decision on whether to grant or refuse immunity.
In line with this Court’s approach to statutory interpretation, these provisions must then
be interpreted against the text of the Act as a whole, by understanding it within the grid
of related provisions in the Act. It is at this point that section 62(1) becomes relevant,
as it vests the Tribunal with exclusive jurisdiction in respect of the matters set out
therein. As discussed, these matters include adjudication on the interpretation and
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application of the exclusive jurisdiction chapters, as well as adjudication on the
functions of the Commission. The matters raised by Group Five, as I discuss below,
require adjudication by way of a review of the manner in which they have been
exercised. This adjudicatory exercise will require the interpretation and application of
the exclusive jurisdiction chapters, and thus fall squarely within the categories reserved
for the Tribunal under section 62(1).
[59] The Supreme Court of Appeal sought to distinguis h Telkom53 by saying that ,
there, the Court dealt with a scenario in which two different regulatory agencies had
concurrent jurisdiction, and not with the concurrent jurisdiction of the Tribunal and the
High Court. For all these reasons, the Supreme Court of Appeal held that the challenge
to the High Court’s jurisdiction was misconceived and should have been rejected by the
High Court.
[60] I am sensitive to the fact that section 62(1) shares the exclusive jurisdiction in
respect of the aforementioned matters between the Tribunal and the Competition Appeal
Court. However, sections 27 and 37 of the Act, read together, display a clear legislative
intent that reviews regarding matters under section 62(1) must be ventilated through the
legislatively designed hierarchy of the competition authorities. In other words, it is not
a matter of referring a review in relation to matters under section 62(1) to either the
Tribunal or the Competition Appeal Court. Instead, such reviews must first be referred
to the Tribunal a nd thereafter, if necessary, to the Competition Appeal Court. In this
regard, it must be noted that section 37, which sets out the functions of the Competition
Appeal Court, limits the Competition Appeal Court’s review power to decisions of the
Tribunal. It is not, in terms of this section, vested with a power of review in respect of
decisions of the Commission. However, section 27, as discussed, plainly sets out that
the Tribunal is vested with a power of review in respect of decisions made by the
Commission pursuant to its functions under the Act.
53 Competition Commission of South Africa v Telkom SA Ltd [2009] ZASCA 155; 2009 JDR 1265
(SCA).
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[61] The question becomes: which forum does a party turn to in matters that entail a
review in relation to the matters set out under section 62(1), if the Competition Appeal
Court has clearly been legislatively ousted from acting as an adjudicatory body of first
instance in this regard? Based on the ordinary meaning of the applicable legislative
provisions, considered holistically, it is clear that the legislative design envisions a
system whereby matters of the kind described, and which include Group Five’s claims,
must first be referred to the Tribunal to exercise its legislatively vested review powers.
If this were not so, section 62(1) would be rendered nugatory , as neither the Tribunal
nor the Competition Appeal Court would be able to exercise their exclusive jurisdiction
of review in relation to the matters set out in section 62(1).
[62] If the Act is interpreted to mean that the Tribunal does not have the exclusive
power of review in respect of the Commission’s exercise of its functions and powers
within the exclusive jurisdiction chapters, as an adjudicatory body of first instance, then
it would ultimately mean that such matters will never reach the Competition Appeal
Court. As these matters are clearly preclud ed from falling within the carve out under
section 62(2) of the Act , the High Court cannot have jurisdiction to entertain them.
Based on such interpretation, all cases that require a review in relation to matters set out
under section 62(1) would be left to float in a legal lacuna – remaining forever
unresolved. The narrow interpretation of the Tribunal’s review powers under
section 27(1)(c), as set out in Agri Wire , would accordingly render the legislatively
designed dispute resolution system under the auspices of the competition authorities
entirely unworkable. The facts in this application show that Agri Wire was wrongly
decided, insofar as the Supreme Court of Appeal set out a restrictive review ambit of
the Tribunal in terms of section 27(1)(c) and its overall interpretation of
section 27(1)(c).
[63] In line with this Court’s internal contextual approach to statutory interpretation,
these provisions, when read together , must be understood to mean that the power to
review the decisions made by the Commiss ion, within the jurisdiction of the functions
bestowed on it in terms of the Act, vests exclusively with the Tribunal.
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27
[64] By launching the review in the High Court, Group Five effectively bypassed
the Tribunal and disrupted the natural progression of adjudication that the Constitution
envisages through the enactment of the Act , which established the competition
authorities. In doing so , it also robbed the appellate court in the competition law
scheme, the Competition Appeal Court , from dealing with the complaint. If this is to
be allowed, it will erode the effectiveness of the competition authorities and will aid
parties involved in prohibited practices to avoid the scrutiny of the competition
authorities. This is inimical to the objectives of the Act.
[65] The external context of the abovementioned legislative provisions, particularly
section 21(1) of the Act, fortifies my view that the Legislature intended for the Tribunal
to have an expansive, as opposed to a restricted, scope of r eview over the decisions
made by the Commission within the jurisdiction of the functions vested with it under
the Act. In this regard, it is instructive that , in terms of the
Competition Amendment Act54 (Amendment Act), which was passed seven years after
the decision in Agri Wire, the Legislature saw it fit to amend section 21(1) of the Act
by adding section 21(1)(gC), and thereby expand ing the Commission’s functions to
include decisions on whether to grant or refuse immunity.
[66] The preamble to the Amendment Act describes its purpose as being, amongst
others, “to promote the administrative efficiency of the Competition Commission and
Competition Tribunal”. When this addition is considered against the backdrop of the
decision in Agri Wire , it is clear that th e legislative authorities recognised that the
omission of the Commission’s function to decide whether to grant or refuse immunity
resulted in administrative inefficiency for both the Commission and the Tribunal. At
the instance of the Commission, its abil ity to exercise its other functions in terms of
the Act was clearly hampered by the o mission. At the instance of the Tribunal, its
efficiency was hampered due to the knock-on effect that the omission had by limiting
54 18 of 2018.
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the scope of its powers of review in respect of the Commission ’s functions (as
evidenced in Agri Wire).
The nature of the issues in Group Five’s review application
[67] I now turn to consider the true nature of the issues raised in Group Five’s review
application before the High Court. Group Five framed its dispute as a review under the
rubric of PAJA, alternatively legality, con tending that the initiation of a complaint
against it, and all steps taken pursuant thereto by the Commission, were unlawful and
invalid. Group Five contends that these are fundamentally constitutional matters, which
fall squarely within section 62(2) of the Act.
[68] The Commission acknowledges that it is a public body exercising public power.
It further acknowledges that its decisions could “potentially implicate the constitutional
right to just administrative action” and in turn “any challenge to the validity of
the Commission’s actions would implicate the Commission’s jurisdiction to take such
action”. However, the Commission cautions courts not to “allow competition issues to
be dressed up as constitutional issues”. 55 It submits that the test should simply be
whether the dispute in substance flows from the Act or the Constitution. Where
resolution of the dispute involves the interpretation and application of the Act, it should
be resolved firstly by the Tribunal and thereafter, if necessary, by the
Competition Appeal Court. In relation to this matter, counsel for the Commission
contended during oral argument that, at its core, this claim is about the following:
a) The exercise by the Commission of a power under the Act to refer the
complaint and whether that power was properly exercised.
b) The granting and/or withdrawal of immunity by the Commission and
whether the Commission acted vexatiously in initiating and referring
the complaint to the Tribunal.
55 See also Fraser v ABSA Bank Limited [2006] ZACC 24, 2007 (3) SA 484 (CC), 2007 (3) BCLR 219 (CC) where
this Court held at para 40 that “an issue does not become a constitutional matter merely because an applicant calls
it one”.
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[69] These issues, the Commission submits, are all matters that fall under chapters 2,
3 and 5 of the Act, and in terms of sections 27(1)(c) and 62(1)(a), the Tribunal has
exclusive jurisdiction to deal with them.
[70] Having regard to the original formulation of the claims , as set out in
Group Five’s founding affidavit in the High Court, the first claim was that
the Commission “failed to properly initiate a lawful investigation , in terms of the
Competition Act ”.56 The second claim w as that the Commission’s decisions “were
taken in breach of the undertaking and the grant of immunity to Group Five”. Finally,
Group Five claimed that the referral “is in any event oppressive, vexatious and
motivated by bad faith” . In my assessment, the substantive basis for these claims,
viewed holistically, flows directly from the Act and the claims cannot be characterised
as purely constitutional claims. In what follows, I will deal with each claim in turn and,
thereafter, with the claim viewed holistically.
The flawed initiation claim
[71] Group Five contends that the complaint and subsequent investigation launched
was underpinned by a flawed initiation.57 This is based on Group Five’s assertion that
the Commission conducted a research project before initiating the complaint. It argues
that the Commission is not authorised to do this, as it amounts to an investigation,
which, according to Group Five, can only be done after an initiation. At its core, this is
an issue which requires the interpretation and application of the Act.
[72] The question is whether the Commission properly exercised its power s of
initiation and referral, in terms of the Act. This is not a question of vires, it is a question
of propriety. By definition, ultra vires means “beyond the power” – the phrase is used
56 Emphasis added.
57 The Supreme Court of Appeal, in Woodlands Dairy n 12 above held that preliminary investigations prior to the
initiation of a complaint render the complaint unlawful.
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30
to describe acts which “purport to be done in virtue of a certain authority, but which are
really in excess of such authority, or of acts which are otherwise unauthorised ”.58 In
its review in the High Court, Group Five was in effect asking the High Court to interpret
sections 49B and 21(1)(gC) of the Act. This the High Court cannot do, as the exclusive
jurisdiction to conduct this interpretation, in terms of section 62(1), vests in the Tribunal
and the Competition Appeal Court.
[73] It is not necessary to further belabour the point that the Act is clear on the powers
conferred on the Commission. In my view, the real issue here is not one of substance
but one of procedure. I say so for the following reasons.
[74] When the Commission referred the complaint to the Tribunal, the Commission
had initiated the complaint . Even assuming that the initiation was flawed (due to the
prior commissioning of a research project by the Commis sion, as alleged by
Group Five), the Commission was still exercising a power granted to it in terms of
the Act. The enquiry has to do with whether the commissioning of a research project,
before initiating the complaint , constituted an improper exercise of power by the
Commission, having regard to sections 49B and 50 of the Act. Here, it is important to
distinguish between an act which is beyond or in excess of the legal powers of a public
authority (which would properly be labelled as ultra vires), and the irregular or informal
exercise of power (which does not amount to an act ultra vires). This distinction was
drawn in RPM Bricks where the Supreme Court of Appeal held:
“It is important at the outset to distinguish between two separate, often interwoven, yet
distinctly different ‘categories’ of cases. The distinction ought to be clear enough
conceptually. And yet, as the present matter amply demonstrates, it is not always truly
discerned. I am referring to the distinction between an act beyond or in excess of the
58 Emphasis added. See Claassen RC Classen’s Dictionary of Legal Words and Phr ases (LexisNexis,
South Africa 2022) 25.
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31
legal powers of a public authority (the first category), on the one hand, and the irregular
or informal exercise of power granted (the second category), on the other.”59
[75] This distinction is also consistent with how this Court has interpreted ultra vires
as meaning “going beyond the powers conferred”. In Hugo, this Court stated that—
“[i]f the President acts in a manner inconsistent with the Constitution, e.g. without
reference to the Executive Deputy Presidents or in conflict with the obligation not to
discriminate unfairly, he/she both exceeds the relevant powers, bringing the ultra vires
doctrine into play , and also triggers the nullification provision of s ection 4(1)”.60
(Emphasis added.)
[76] Therefore, in instances where a claim concerns the irregular or informal exercise
of power granted, as it does here, the challenge is not a true ultra vires challenge. It is
a challenge about alleged improper conduct. In this case, it is also a challenge that can
be squarely determined within the parameters of the Act and, in particular, section 49B
of the Act. The flaw in Group Five’s argument is that it regards lawfulness and vires
as subsuming other forms of the exercise of the power. This cannot be correct as the
facts here show.
[77] The issue is the manner in which the Commission exercised its powers. It is not
a matter involving a determination of whether it is, in the first instance, within the
jurisdiction of the Commission to exercise the power to initiate and refer a complaint to
the Tribunal. The issue is whether the power has been properly exercised by complying
with the procedural requirements set out under the applicable exclusive jurisdiction
provisions. This does not relate to whether a public body has been vested with the
jurisdiction to exercise a power Both enquiries will ultimately result in a determination
of lawfulness . However, one depends on considerations of vires, whereas the other
depends on considerations of compliance with the procedural requirements set out under
59 City of Tshwane Metropolitan Municipality v RPM Bricks (Pty) Ltd [2007] ZASCA 28; 2008 (3) SA 1 (SCA)
at paras 11 and 13. See also d’Oliveira“Administrative Justice” in LAWSA 3 ed (2015) vol 2.
60 President of the Republic of South Africa v Hugo [1997] ZACC 4; 1997 (4) SA 1 (CC); 1997 6 BCLR 708 (CC)
at para 65.
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32
the applicable legislative instrument. In this instance, the relevant consideration would
be the timing of the alleged pre-initiation investigation.
[78] The carve out in section 62(2)(a) is limited to matters considering whether an
action taken by the Commission is within its jurisdiction and therefore is a question of
vires. This does not extend the High Court’s concurrent jurisdiction to matters of
lawfulness regarding questions of whether an action taken by the Commission
constitutes a proper exercise of power . The legislative framework under the Act has
reserved determinations of whether the Commission properly exercised its powers for
the competi tion authorities ’ determination under section 62(1)(a). This analysis
illustrates that the initiation and referral of the complaint by the Commission does not
involve asking whether what it did was within its jurisdiction. We know that what i t
did is within its jurisdiction.
The grant of an immunity claim
[79] Group Five’s second claim is that the Commission’s decision to seek penalties
against it in the referral proceedings flies in the face of the Commission’s earlier
decision to grant it immunity. Group Five contended in the High Court that th e
Commission’s decision to pursue penalties is reviewable under PAJA, alternatively the
doctrine of legality and the rule of law , on the basis that it is arbitrary and capricious,
irrational and/or unreasonable, and because the Commission was functus officio once it
had decided to grant it immunity.
[80] The power to grant immunity is found in section 21 of the Act, which deals with
the functions of the Commission. Section 21(1)(gC) provides that the Commission is
responsible to “grant or refuse applications for leniency in terms of section 49E”. The
first issue to be determined here is whether , in fact, immunity as prescribed in the Act,
was granted as alleged by Group Five. Only the Tribunal has the power to adjudicate
and determine that. The issue is therefore about an existing power , which arises
squarely under the Act, and whether that power was in fact properly exercised by the
Commission as alleged by Group Five. The issue cannot properly be characterised as a
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33
vires issue within the meaning of section 62(2)( a) as submitted by Group Five. It
involves the interpretation and application of chapter 5 of the Act and , in terms of
section 62(1)(a) of the Act, the Tribunal and Competition Appeal Court share exclusive
jurisdiction to determine it. The granting of immunity is a classical issue requiring the
technical expertise of the competition authorities, which the High Court lacks.
[81] It is also worth mentioning that Group Five’s claim in this regard alludes to an
argument that the Commission created a legitimate expectation on the part of
Group Five that it would be protected against prosecution and penalties. The
subsequent refusal of leniency and referral to the Tribunal , despite such expectation,
arguably constitutes an unfair and thus improper exercise of its powers.
[82] Section 62(1)(b) of the Act provides that the Tribunal and Competition Appeal
Court share exclusive jurisdiction in respect of, amongst others, the functi ons of the
Commission referred to in section 21(1) of the Act. The Act plainly vests the function
and concomitant power to grant or refuse leniency with the Commission in terms of
sections 21(gC) and 49E. Group Five’s claim, in this regard, requires a de termination
on the fairness of the manner in which the Commission exercised the function assigned
to it in terms of section 21(1)(gC). This leg of Group Five’s claim will further entail
adjudication on the Commission’s function of granting or refusing leniency as referred
to in section 21(1)(gC). Here again, the conduct of the Commission, in granting or
withdrawing immunity, does not involve the question of whether what it did is within
its jurisdiction. We know that it is.
The vexatious referral claim
[83] Group Five’s third claim is that its good faith engagement and cooperation with
the Commission in relation to collusion in the construction industry led it to believe that
it would be protected against prosecution and penalties. In this context, while
Group Five characterises the nature of this claim as an issue which arises under PAJA,
alternatively the doctrine of legality and the rule of law, the issue is in my view more
accurately characterised as one that flows directly from the Act. The power to pursue
MLAMBO AJ
34
a referral comes from section 50(1) and the power to pursue an administrative penalty
against a party comes from section 59. 61 This matter is therefore also a competition
matter concerning whether the Commission exercised its powers properly in referring
the complaint to the Tribunal. It involves the interpretation and application of chapter 5
and, in terms of section 62(1)(a), the Tribunal and the Competition Appeal Court share
exclusive jurisdiction to determine the claim.
[84] As with Group Five’s claim regarding the alleged grant and withdrawal of
immunity, this leg of Group Five’s claim implicates the Commission’s function of
referring a complaint to the Tribunal in terms of section 21(1)(g). It will accordingly
entail adjudication on the l egality of the exercise of this function by the Commission,
based on an interpretation and application of sections 50(1) and 59. In terms of
section 62(1)(b), the Tribunal and Competition Appeal Court share exclusive
jurisdiction to adjudicate on this function of the Commission.
Holistic assessment of Group Five’s claim
[85] I accept that Group Five’s review application, at first blush, may be viewed as
raising a constitutional matter. But as I have shown, this is not so. I am persuaded that
the issues raised in Group Five’s application, properly and holistically construed, are in
essence competition law issues that involve the interpretation and application of
chapters 2, 3 and 5. The exercise, by the Commission, of functions and powers in these
chapters is specifically subject to the review power of the Tribunal in terms of
section 27(1)(c). The issue is whether the Commission properly exercised those powers
61 Section 59 of the Act provides:
“(1) The Competition Tribunal may impose an administrative penalty only—
(a) for a prohibited practice in terms of section 4(1), 5(1) and (2), 8(1), 8(4), 9(1)
or 9(1A);
. . .
(2) When determining an appropriate penalty, the Competition Tribunal must consider the
following factors: . . .”
MLAMBO AJ
35
in terms of the Act. As the Supreme Court of Appeal said in Rustenburg Platinu m
Mines—
“[i]n a review, the question is not whether the decision is capable of being justified . . .
but whether the decision maker properly exercised the powers entrusted to him or her.
The focus is on the process, and on the way in which the decision maker came to the
challenged decision.”62
[86] In this context, and as explained in my analysis of the Supreme Court of Appeal
judgment above,63 it is inconceivable that the review power of the Tribunal over the
conduct and decisions of the Commission could be r estricted to only the four issues
mentioned in Agri Wire, with the consequence that the bulk of its conduct and decisions
would be subject to the scrutiny of the High Court, a non-specialist Court. No such
restriction is apparent in the Act, and as I show in the discussion of Agri Wire, the
approach taken there is not countenanced in the Act. It is an approach that seeks to
subjugate the competition authorities and stifle the proper consideration and handling
of competition law issues by the competition authorities.
[87] The Commission also made compelling policy-based arguments in their written
submissions about the design of the competition law framework and how it was
intended to create a specialised hierarchy for competition regulation and adjudication.
If section 62(2) is construed to encompass reviews like the one in question, I am
persuaded that this would undermine the intention of the Legislature to create a
specialist competition review regime with technically competent authorities to ensure
that the Act is efficiently and appropriately managed and applied.
62 Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA [2006] ZASCA 175; 2007 (1) SA 576 (SCA);
at para 31.
63 Id at para 53.
MLAMBO AJ
36
[88] There is merit in the view expressed in TWK64 that the source of the competition
authorities’ review powers is in sections 27(1)(c) and 37(1)(c), and not in section 62(2)
such that “the attempt to locate the source of all review of the Commission’s actions
within section 62(2) of the Act requires a strained interpretation of this provision”. 65 I
agree with the expression of the correct legal position stated there that sections 27(1)(c)
and 37(1)(c), both introduced by way of amendment in 2000, were specifically intended
to confer powers of review on both the Tribunal and the Competition Appeal Court
where none existed before.
[89] The assignment of exclusive review powers to the Competition Appe al Court
over the Tribunal in section 37(1) is the clearest indication that the competition
authorities have exclusive jurisdiction over the matters in the relevant chapters . This
Court said in Sidumo66 that “ [n]othing in section 33 of the Constitution pre cludes
specialised legislative regulation of administrative action.” There, the Court was
referring to the labour law arena and by parity of reasoning, that comment finds equal
application in the competition law arena as we find in sections 27(1)(c) and 37(1)(c) of
the Act.
[90] In Yara, a majority of this Court held that an issue concerning the power of
the Tribunal to grant or refuse an amendment in regard to complaints referred to it is a
constitutional issue.67 The first concurring judgment held that the matter concerned the
public power of the Commission and the Tribunal (a constitutional issue), and not the
substance of their expert decisions in promoting competition.68 The second concurring
judgment held that the constitutional issue relati ng to the public power of the
64 TWK Agriculture Limited v Competition Commission [2007] JOL 20764 (CAC).
65 Id at para 23.
66 Sidumo v Rustenburg Platinum Mines Ltd [2007] ZACC 22; 2008 (2) SA 24 (CC) ; 2008 (2) BCLR 158 (CC)
at para 91.
67 Yara above n 30 at para 34.
68 Id at para 72.
MLAMBO AJ
37
Commission is inextricably bound to a court’s view on the extent to which there should
be deference to the determination of economic issues by the Tribunal.69
[91] In this matter, the constitutional issue relating to the public powers of
competition authorities is not easily separated from the complex competition and
economic issues at play and as I suggest , should be determined by the competition
authorities. As Fron eman J noted in Yara, underlying any legal determination of the
powers of the Commission and the Tribunal is some understanding of the role
economics should play in the process. 70 As I see it, this position is consistent with the
overall design of section 62 of the Act. Section 62(2) provides a process for parties to
institute proceedings with the Competition Appeal Court as a specialist body regarding,
inter alia, the question whether an action taken by the Commission or Tribunal is within
their jurisdiction as well as any constitutional matter arising in terms of the Act . This
cannot be understood to cover issues which are eminently competition law orientated ,
as in this case, and which are justiciable in terms of the regulatory framework of the Act.
Further, and in terms of section 62(4), parties still have the Constitutional Court at their
disposal should they disagree with the decision of the Competition Appeal Court.
[92] Related to this, in Gcaba this Court emphasised that where the Legislature has
created a specialist body or system, it is preferable to use that system. It held that—
“once a set of carefully -crafted rules and structures has been created for the effective
and speedy resolution of disputes and protection of rights in a particular area of law, it
is preferable to use that particular system.”71
[93] The Supreme Court of Appeal expressed the same view in Telkom where it held
that “[w]here structures have been designed for the effective and speedy resolution of
69 Id at para 80.
70 Id at para 81.
71 Gcaba above n 33 at para 56.
MLAMBO AJ
38
particular disputes it is preferable to use that system”.72 Bearing in mind that one of the
purposes of the Act is to ensure an expeditious resolution of disputes, various courts
have now expressed the view that “interlocutory applications, brought on what in the
colloquial term is now called the ‘Stalingrad’ approach to jurisprudence, subverts this
object of the Act”. 73 This view was endorsed by this Court in Standard Bank, which
held that a “legion of cases is not adjudicated on the merits due to these prolonged
procedural challenges”.74
[94] Consistent with this, the ability of the competition authorities should be
approached with due deference to their expertise. As Davis J noted in TWK:
“In addition, consideration would have to be given to the particular expertise of the
Commission in competition matters of this nature. It is here that the principle of
deference to the expertise of the Tribunal or the Commission would apply.”75
[95] Over and above the importan ce of showing deference to the expertise of the
competition authorities, there is one final reason why this matter should in the first
instance be heard by the Tribunal: it is because, in terms of the principle of subsidiarity,
where legislation has been enacted to give effect to a right, a litigant should first rely on
that legislation enacted to give effect to the constitutional right before directly invoking
the constitutional right.76 Therefore, it was appropriate in the circumstances to rely on
the processes and institutions provided in the Act, rather than PAJA and the principl e
of legality in the High Court, which does not have the expertise to resolve competition
law issues.
72 Telkom above n 53 at para 36.
73 Senwes Ltd v Competition Commission of South Africa [2010] ZAWCHC 61; [2010] JOL 25499 (WCC) at 6.
74 Competition Commission of South Africa v Standard Bank of South Africa Limited [2020] ZACC 2; 2020 JDR
0685 (CC); 2020 (4) BCLR 429 (CC) (Standard Bank) at para 129.
75 TWK above n 64 at para 32.
76 My Vote Counts NPC v Speaker of the National Assembly [2015] ZACC 31; 2016 (1) SA 132 (CC); (2015) (12)
BCLR 1407.
MLAMBO AJ
39
Conclusion
[96] Group Five based its review application on PAJA and the principle of legality.
The labelling of the review as a PAJA or legality review was Group Five’s choice. This
is a choice that takes advantage of the legislative arrangement of the Act,
section 62(2)(a) to be precise. It is the carve out in that section that allows the
High Court entry into the competition law arena to resolve a non-competition law issue.
As has been shown, the issues raised by Group Five are mired in competition law and
require the attention of the competition authorities in the interpretation and application
of the Act. These are issues that fall outside the section 62(2) carve out.
[97] Group Five says that the Tribunal is not mentioned in PAJA, meaning it has no
competence to deal with the mischief it seeks to be reviewed and set aside. But is the
issue at stake not a competition law matter? It clearly is – it is underpinned by a
complaint regarding Group Five’s involvement in prohibited practices , and concerns
whether subsequent conduct of the Commission – in its initiation and referral of the
complaint – was proper.
[98] The underlying premise of the Supreme Court of Appeal’s reasoning regarding
the ambit of section 62(1)(a) and section 62(2)(a) was in my view incorrect . This
approach also misses the correct context of the adjudicat ive and review powers of the
Tribunal.
[99] Group Five’s review simply took the appearance of a PAJA and legality review
because Group Five gave it that look. Is this not a classic case of emphasi sing form
over substance? Such labelling has the unfortunate consequence of side -lining the
competition authorities from considering the complaint. Does this accord with the
scheme and objective of the Act? I think not. I would understand any justification and
entitlement on Group Five’s part to seek refuge in PAJA and legality if there was truly
no review competence in the Tribunal. However, it is clear that in terms of
sections 27(1)(c) and 62(1) of the Act, the Tribunal is fully clothed with jurisdiction. Is
such review power incapable to enable the Tribunal to consider and deal with the issues
MLAMBO AJ / MAJIEDT J
40
Group Five has raised against the complaint referred to the Tribunal? It is eminently
capable. Allowing companies implicated in complaints of complicity in prohibited
practices to avoid answering to their conduct thro ugh a constitutionally ordained
specialist legislative regime is inimical to the objectives of the Act.
[100] Accordingly, and for the reasons above, my view is that , in the present matter,
the review clearly relates to the interpretation and application of chapters 2 and 5 and
does not fall within the carve out mentioned in section 62(2). Therefore, in terms of
section 62(1), it is a matter over which the Tribunal and the Competition Appeal Court
share exclusive jurisdiction.
[101] This must lead to the conclusion that the High Court and Supreme Court of
Appeal erred in dismissing the Commission’s jurisdictional challenge of the High Court
and their orders must be set aside. The consequence of this conclusion is that the
Tribunal should continue adjudicating the complaint referred to it by the Commission.
Had I commanded the majority, I would have granted leave to appeal and upheld the
appeal.
MAJIEDT J (Kollapen J, Madlanga J, Mathopo J, Mhlantla J, Theron J, Tshiqi J and
Unterhalter AJ concurring):
Introduction
[102] I have had the pleasure of reading the judgment of my Brother Mlambo AJ. I
agree with his conclusions that this matter engages this Court’s jurisdiction for the
reasons eruditely and persuasively outlined by h im, and that it is in the interests of
justice that leave to appeal be granted. In respect of jurisdiction, I would merely add
this Court’s judgment in Media 2477 to the case law relied upon by Mlambo AJ . Over
77 Media 24 above n 21 at para 35.
MAJIEDT J
41
and above the cogent reasons advanced by my Brother as to why it is in the interests of
justice for this Court to hear this matter, I briefly add the following.
[103] Group Five contends that the legal question before us is one which has already
been considered by this Court in decisions which reject the idea that the Tribunal has
exclusive jurisdiction over this type of review application. For that submission ,
Group Five relies on Mondi78 and Agri Wire.79 That contention is fallacious. The type
of conduct of the Commission said to be reviewable and liable to be set aside is different
from that in both Mondi and Agri Wire. The issues in Mondi primarily concerned the
disclosure of certain information and the applicability of rule 53 of the Uniform Rules
of Court to those proceedings. 80 They are far remove d from the issues in the instant
matter. The fact that this Court in Mondi dismissed an application for leave to appeal
directly to it is not, as Group Five appears to suggest, dispositive of the public interest,
prospects of success and interests of just ice considerations which form part of the
enquiry into leave to appeal. That is so, not only because Mondi is distinguishable, but
also due to the subsequent amendment to the Act81 and the case law which has followed
Mondi.82
[104] In Agri Wire, the question was whether the High Court has jurisdiction to decide
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.83 For reasons relating to the type of conduct complained of and the content of
the referral, the Supreme Court of Appeal held that the jurisdiction of the High Court is
not ousted.84 As I will show later, Agri Wire does find application in this case, but not
78 Competition Commission v Mondi Limited, Hathorn and Sappi Southern Africa Limited CCT 213/2014.
79 Agri Wire above n 25.
80 See Mondi above n 78 at para 11. See also See Mondi Limited v Competition Commission [2014] ZAGPPHC
910 at para 11.
81 The Amendment Act introduced sections 21(1)(gC) and 49E into the Act.
82 Standard Bank above n 74.
83 Agri Wire above n 25 at para 11.
84 Id at paras 12–20.
MAJIEDT J
42
on this particular point. Thus, both Mondi and Agri Wire do not have the effect that the
High Court has jurisdiction to adjudicate review applications relating to the decisions
of the Commission generally, as each case is to be decided on its own merits.
[105] In respect of the merits, I part ways with my Brother. In my view, the grounds
upon which Group Five seeks to review the decision of the Commission plainly relate
to the validity and lawfulness of the initiation and subse quent referral to the Tribunal.
In short , as ampli fied below, these are questions of vires or legality, issues which
quintessentially fall within the ambit of the jurisdiction of the superior courts. I disagree
that these are matters that fall within the exclusive jurisdiction of the Tribunal.
[106] I gratefu lly adopt my Brother’s comprehensive exposition of the factual
backdrop, litigation history and the relevant legislative provisions. Where necessary, I
expand or repeat some of them for context or emphasis. It is important to remind
ourselves of the cent ral question in this case : whether the High Court is clothed with
jurisdiction to decide the review that Group Five has brought under PAJA, alternatively
under the doctrine of legality . The decisions sought to be reviewed are these: the
initiation of a complaint against Group Five by the Commission in which Group Five
sought declaratory relief, and the referral of the complaint by the Commission to
the Tribunal. In essence, Group Five’s review is a challenge to the jurisdiction of
the Commission to act in the manner that it did and , accordingly, the jurisdiction of
the Tribunal to adjudicate the complaint referral. As stated, these are matters
concerning powers and legality that usually fall within the jurisdiction of superior
courts.
Merits
Pleadings
[107] I start with the pleadings. It is important to have a proper understanding of
Group Five’s challenge on the pleadings. It raised three broad grounds of review. First,
it contended that the initiation of the referral complaint was unlawful. Plainly, this is a
MAJIEDT J
43
challenge to the Commission’s jurisdiction, on the basis that the Commission’s conduct
was ultra vires its powers and offended against the principle of legality. Second,
Group Five averred that it was unlawful for the Commission to bring a complain t
referral in terms of which it sought an administrative penalty against it after it had been
granted immu nity. Third, Group Five contended that the referral was vexatious,
oppressive and taken in bad faith.
[108] According to Group Five, both the complaint and the referral were liable to be
set aside in terms of PAJA or, alternatively, under the doctrine of legality, because it
concerned the unlawful conduct of the Commission in referring the complaint to
the Tribunal in the first place. That review challen ge must be distinguished from the
merits of the allegations raised in the complaint referral against Group Five. The merits
of the matter must be heard by the competition authorities – namely the Tribunal and
the Competition Appeal Court – in the event th at the review challenge were to fail.
Group Five concedes this.
Jurisdiction of the High Court
[109] The statement in the first judgment that “lawfulness is not to be conflated with
ultra vires . . . [t]he question of ultra vires is a subset of lawfulness – they are not
synonymous”,85 requires some qualification. An enquiry into the lawful exercise of
power – a vires enquiry – asks whether the action is lawful ( intra vires) or unlawful.
The distinction, also vigorously advanced by the Commission during oral argument, has
no merit in the context of the issue before us. Where a power in an Act exists but is
exercised improperly or unlawfully or is exceeded, this is an ultra vires challenge.86
85 First judgment at [36].
86 In Hugo above n 60 fn 82, Kriegler J stated:
“If the President acts in a manner inconsistent with the Constitution, eg without reference to the
Executive Deputy Presidents or in conflict with the obligation not to discriminate unfairly,
he/she both exceeds the relevant powers, bringing the ultra vires doctrine into play, and also
triggers the nullification provision of section 4(1).”
In Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council [1998] ZACC 17;
1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC) at para 54, this Cou rt held that “where a local government
acts ultra vires its empowering statute it acts unconstitutionally”. Ultra vires in that narrower sense is a species
MAJIEDT J
44
This understanding of ultra vires was accepted by the Supreme Court of Appeal in its
judgment. The Supreme Court of Appeal held that:
“[The] question whether the referral by the Commission is valid or unlawful, or
whether the Commission acted beyond the scope of the Act and accordingly ultra vires
the powers conferred on it, is a jurisdictional question which falls within the purview
of section 62(2)(a) as stated in Agri Wire.”87
[110] It is important to recognise that the term ultra vires has been historically used in
two senses, one broad and one narrow. In the latter, ultra vires is a subset of lawfulness
and, in the broad sense, the term is synonymous with lawfulness. 88 In the present
instance, the term ultra vires is used in the broader sense.
[111] In administrative law, legality challenges to a decision may take different forms.
Thus, there may be (a) a challenge that the decision falls outside the powers of the
administrator and (b) a challenge where the administrator acts within its power but in
doing so has acted irrationally, unreasonably or unfairly. They are different challenges
as to legality. The question before us is w hether the statutory language of
of illegality . In Pharmaceutical Manufacturers Association of S outh Africa; In re: Ex parte applic ation of
President of the R epublic of South Africa [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC)
at para 50, this Court held that “[w]hat would have been ultra vires under the common law by reason of a
functionary exceeding a statutory power is invalid under the Constitution according to the doctrine of legality” .
87 Supreme Court of Appeal judgment above n 3 at para 24.
88 Klaaren and Penfold “Just Administrative Actio n” in Woolman et al (eds) Constitutional Law of South Africa
2 ed, Original Service (2013) at 63–76:
“Both components of the right to lawful administrative action overlap with the principle of
legality in relation to administrative action. As noted above, this principle has been described
as ensuring that the executive ‘may exercise no power and perform no function beyond that
conferred upon them by law’ . The right to lawful administrative action therefore
constitutionalises the fundamental rule of admini strative law that a decision -maker must act
within his or her powers and must not act ultra vires. It is clear that this right requires that an
administrator must act in terms of, and in accordance with, the terms of an empowering statute
or other law. This right therefore prohibits a decision -maker acting beyond the terms of the
relevant empowering legislation and thus outlaws action which is ultra vires in the narrow
sense. We believe, however, that the right to lawful administrative action goes furth er and
applies to acts that are ultra vires in a broader sense of that term. As Lawrence Baxter and other
writers have pointed out, the traditional grounds of common-law judicial review are founded on
this broad ultra vires principle. Where a decision -maker acts, for example, for an ulterior
purpose, in bad faith, takes into account irrelevant considerations or fails to take into account
relevant considerations, or makes an error of law, he or she acts beyond his or her powers. ”
(Emphasis added.)
MAJIEDT J
45
section 62(2)(a) of the Act, particularly the phrase “ within their respective
jurisdictions”, warrants a narrow or broad interpretation . That is a separate question .
On a narrow interpretation one would say that jurisdiction goes to the strict question of
whether the Commission or the Tribunal have acted within their power. A wider
interpretation would entail simply saying that an unlawful action by the Commission or
the Tribunal is one outside their jurisdiction . My approach is the latter. But even on
the narrower construction, the question of lawful administrative action would fall under
“any constitutional matter” in section 62(2)(b).
[112] In its founding affidavit in this Court, the Commission straddles two chairs. On
the one hand, it says that, on the merits, the question whether the Commission has acted
within its powers or exceeded them, does not raise a constitutional issue. Elsewhere in
that same affidavit, however, the Commission contends, in respect of this Court’s
jurisdiction to entertain this matter, that the matter “is plainly within the jurisdiction of
this Court [and that] it is s quarely a constitutional matter”. 89 These are irreconcilable
positions to adopt.
[113] The central question is whether, since initiation and referral are decisions of
the Commission, a review would lie to the Tribunal and thereafter to the Competition
Appeal Court, as the Commission contends or whether, as contended by Group Five, it
may challenge the Commission’s decisions by approaching the High Court. This
jurisdictional question is to be answered , in the first place , by an interpretation of the
relevant provisions of the Act. Some of these provisions were before the Supreme Court
of Appeal in Agri Wire, followed by that Court in this matter. The key legislative
provision is section 62 of the Act. What bears consideration is : to what extent does
section 62 oust the High Court’s jurisdiction , in favour of the Tribunal , to review
decisions of the Commission. The appropriate approach , as I see it, is that
the Commission’s decisions may be reviewed by the High Court in terms of PAJA or
89 Id at para 17.
MAJIEDT J
46
the principle of legality, unless the Act expressly , or by necessary implication , ousts
both these two pathways to review or the High Court’s jurisdiction to hear the review.
[114] The Commission seems to me to start the enquiry into the ouster of jurisdiction
envisaged in section 62 from the wrong premise. It asks to what extent the Tribunal’s
exclusive jurisdiction is ousted. The correct question to ask is : to what extent is the
High Court’s original jurisdiction ousted by giving the Tribunal and the Competition
Appeal Court exclusive jurisdiction? That question must be answered with regard to
the provisions of PAJA. This is because, as will be explicated more fully later, the
High Court has jurisdiction over all reviews arising from the Commission’s exercise of
its powers and, in particular, reviews brought in terms of PAJA, save for the limited
extent that section 62(1) grants the Tribunal and the Competition Appeal Court
exclusive jurisdiction.
[115] A useful place to start this discussion on jurisdiction is the constituti onal
provisions that establish the courts’ judicial authority as outlined in Chapter 8.
Section 166(c) of the Constitution establishes the High Court. 90 Section 169 sets out
the powers of the High Court. 91 Section 169 is couched in wide terms – it affords
original jurisdiction to the High Court to resolve any dispute that is capable of being
90 Section 166 reads:
“The courts are—
. . .
(c) the High Court of South Africa and any high court of appeal that may be established
by an Act of Parliament to hear appeals from any court of a status similar to the High
Court of South Africa.”
91 Section169 reads:
“(1) The High Court of South Africa may decide—
(a) any constitutional matter except a matter that—
(i) the Constitutional Court has agreed to hear directly in terms of
section 167(6)(a); or
(ii) is assigned by an Act of Parliament to another court of a status
similar to the High Court of South Africa; and
(b) any other matter not assigned to another court by an Act of Parliament.”
MAJIEDT J
47
resolved by resort to law, unless that jurisdiction has been assigned to another court. It
is well-established that ouster of the High Court’s jurisdiction must be in unambiguous
terms and there is a strong presumption against it. 92 Ouster must be either expressly
excluded or must appear by necessary implication from the statute’s provisions, and
then only to the limited extent of that necessary implication. That is a high threshold
for ouster. 93 In Metcash, in deciding whether section 36(1) and subsections (2)(a)
and (5) of section 40 of the Value-Added Tax Act 89 of 1991 ousted the jurisdiction of
the High Court, this Court stated:
“[T]here is nothing in section 36 to suggest that the inherent jurisdiction of a
High Court to grant appropriate other or ancillary relief is excluded. The section does
not say so expressly nor is such an ouster necessarily implicit in its terms, whil e it is
trite that there is a strong presumption against such an implication .”94 (Emphasis
added.)
[116] Section 62 of the Act is at the heart of the issues in this case. The interplay
between sections 62(1) and (2) is crucial in the determination of this matt er. The
jurisdiction of the Competition Appeal Court, that is neither exclusive nor final ,
includes jurisdiction over the matters set out in section 62(2)(a). Those concern whether
actions of the Commission and Tribunal are ultra vires. It is true that to decide what is
outside the scope of a power, the scope of the power must first be determined, and that
determination is not entirely separate from some of the interpretational issues that arise
under section 62(1). But this does not me an that questions that arise under
section 62(2)(a) are the same as those under section 62(1).
[117] The approach to statutory interpretation is well-established:
92 Metcash Trading Ltd v Commissioner, South African Revenue Service [2000] ZACC 21; 2001 (1) SA 1109
(CC); 2001 (1) BCLR 1 (CC) (Metcash) at para 43; Standard Bank of South Africa Ltd v Mpongo [2021] ZASCA
92; 2021 (6) SA 403 (SCA) (Mpongo) at paras 68–70.
93 Metcash id at para 43.
94 Id at para 43. See further, Makhanya v University of Zululand [2009] ZASCA 69 ; 2010 (1) SA 62 (SCA)
at para 24; Mpongo above n 92 at paras 68–70.
MAJIEDT J
48
“A fundamental tenet of statutory interpretation is that the words in a statute must be
given their ordinary grammatical meaning, unless to do so would result in an absurdity.
There are three important interrelated riders to this general principle, namely:
(a) that statutory provisions should always be interpreted purposively;
(b) the relevant statutory provision must be properly contextualised; and
(c) all statutes must be construed consistently with the Constitution, that is, where
reasonably possible, legislative provisions ought to be interpreted to preserve
their constitutional validity. This proviso to the general principle is closely
related to the purposive approach referred to in (a).”95
[118] Properly considered in its context and purpose, the meaning of the Act’s
unequivocal wording is plain , matters that fall within section 62(1) fall within the
exclusive competence of the Tribunal and the Competition Appeal Court. But matters
that fall within the scope of section 62(2) fall within the jurisdiction of the Competition
Appeal Court and not the Tribuna l. Additionally, the jurisdiction of the Competition
Appeal Court in respect of matters that fall within section 62(2), is neither final nor
exclusive – that much is clear from section 62(3)(b). Section 62(1) simply means that
where the Tribunal or the Competition Appeal Court has appellate juri sdiction it is
exclusive, albeit not final in the case of the Tribunal. This recognises that an appeal
from a decision of the Commission lies exclusively to the Tribunal and , in turn, an
appeal from a decision of the Tribunal lies exclusively to the Competition Appeal Court.
Thus understood, the Tribunal and the Competition Appeal Court do not share
jurisdiction in a literal sense, and they enjoy appellate jurisdiction depending on the
decision made and the right of appeal (or review, limited in nature in sofar as
the Tribunal is concerned). This does not afford plenary review jurisdiction to
the Tribunal – that must be sought elsewhere in the Act.
[119] Section 62(1)(b) of the Act makes reference to section 27(1) of the Act:
“(1) The Competition Tribunal and Competition Appeal Court share exclusive
jurisdiction in respect of the following matters:
95 Cool Ideas above n 41 at para 28.
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. . .
(b) the functions referred to in sections 21(1), 27(1) and 37, other than a
question or matter referred to in subsection (2).” (Emphasis added.)
[120] Section 27(1)(c) recognises the power of the Tribunal to hear appeals and
reviews in respect of any decision of the Commission that may be referred to it in terms
of the Act. Thus, the appeal and review jurisdiction of the Tribunal is limited in terms
of the powers conferred upon it in the Act. Those powers are to “hear appeals from, or
review any decision of, the Competition Commission that may in terms of this Act be
referred to it”.96
[121] An important consideration is section 169 of the Constitution read w ith
sections 62(2) and (3) of the Act. Section 169(1)(a)(ii) makes plain that the High Court
does not have jurisdiction over constitutional matters that fall within the statutorily
assigned purview of specialised forums with similar status. It is well-established that
review applications, whether brought under PAJA or the principle of legality, are
constitutional matters.97 Taking section 169(2)(a)(ii) into account, it would appear that
review applications that are within the realm of competition law fall within the
jurisdictional bounds of specialised competition fora with High Court status. In the
present instance, this is the Competition Appeal Court. However, this is not always the
case.
[122] The word “assign” in section 169(1)(a)(ii) could be construe d as referring to
exclusivity. Thus, by necessary implication, if a constitutional matter has not been
placed in the exclusive domain of a specialised forum, being the Competition Appeal
96 Section 27(1) of the Act.
97 Harrielall v University of KwaZulu -Natal [2017] ZACC 38; 2018 (1) BCLR 12 (CC) at paras 17–8; Justice
Alliance of South Africa v Minister for Safety and Security [2013] ZACC 12; 2013 (7) BCLR 785 (CC) at para 10;
Trustees of the Simcha Trust v Da Cruz; City of Cape Town v Da Cruz [2019] ZACC 8; 2019 (3) SA 78 (CC) ;
2019 (5) BCLR 648 (CC) at para 19; Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd [2019]
ZACC 15; 2019 (4) SA 331 (CC); 2019 (6) BCLR 661 (CC) at paras 35–6; Law Society of South Africa v President
of the Republic of South Africa [2018] ZACC 51; 2019 ( 3) SA 30 (CC) ; 2019 (3) BCLR 329 (CC) ; State
Information Technology Agency SOC L td v Gijima Holdings (Pty) L td [2017] ZACC 40; 2018 (2) SA 23 (CC) ;
2018 (2) BCLR 240 (CC).
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Court, the High Court’s jurisdiction is not ousted. That is where section 62(2) and (3)
feature. Section 62(2)(a) provides that the Competition Appeal Court has jurisdiction
over “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”, whereas section 62(3)(b) qualifies that this jurisdiction “is neither exclusive
nor final”. Those sections cannot, in my view, mean anything other than that a litigant
seeking to bring a review application in comp etition law can do so in either the
Competition Appeal Court or the High Court. No assignment of exclusive or final
jurisdiction to the Competition Appeal Court can conceivably be read into these plain
and unambiguous words contained in section 62(3)(b).
[123] It is plain that close regard to the structure of section 62 of the Act is required ,
including the interaction between section 62(1) and (2). Section 62(1) delineates the
scope of matters that fall within the exclusive jurisdiction of the competition authorities.
I have pointed out the limitation of its scope. Section 62 contains a carve-out of certain
matters from the competition authorities’ exclusive jurisdiction. The section
specifically and expressly does not extend the exclusive jurisdiction to “ a question or
matter referred to in subsection (2)”. It states that the exclusive jurisdiction is conferred
“other than”98 in respect of a question or matter referred to in subsection (2). That
aspect of non-exclusivity is made repeatedly in section 62(1)(a)(i), section 62(1)(b) and
in section 62(3)(b). If jurisdiction is not exclusive over matters falling under
section 62(2), some other court , forum or entity must have concurrent jurisdiction.
Considering section 169 of the Constitution , that can only be the High Court. It bears
emphasis that the words in section 62(1)(a)(i), “other than—(i) a question or matter
referred to in subsection (2)”99 cannot be ignored, particularly where they appear
repeatedly in the section. And yet, that is precisely what the Commission seeks to do
in its interpretation of the section. That is also the fatal shortcoming in the first
judgment.
98 Emphasis added.
99 Emphasis added.
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[124] The question before us is whether the Commission or Tribunal acted outside of
their powers, that is a review over which there is concurrent jurisdiction enjoyed by
the Competition Appeal Court and the High Court . It may be that to determine such a
question, some common ground is covered, but that does not change the jurisdictional
dividing line. Thus, the ambit of the powers conferred in Chapter 5 of the Act may well
be something that bears consideration by the Tribunal in order to assess whether it does
have the requisite jurisdiction in respect of a matter referred to it. Where it does so,
however, the view that it takes is not exclusive. Its conclusion is still subject to review
by either the Competition Appeal Court or the High Court.
[125] The dividing line between s ection 62(1) and (2) is to permit the Tribunal and
the Competition Appeal Court to carry out their functions with exclusive competence
to do so. But where the issue raised is not decided simply by the exercise of
acknowledged power by the Commission or Tribunal , and their special expertise, but
rather whether either body has such power at all, then the Competition Appeal Court’s
jurisdiction is neither exclusive nor final. Furthermore, the Competition Appeal Court’s
non-exclusive jurisdiction may extend beyond a strict ultra vires challenge. This
legislative design is sensible because it is a court that must enjoy supervisory
jurisdiction over whether the Tribunal has acted within its powers. The Tribunal cannot
itself decide that matter. In its wisdom, Parliament decided that questions of that kind
may be decided by the Competition Appeal Court and/or the High Court. The Tribunal
cannot be characterised as a court , because its actions are subject to review. The
specialist nature of the Tribunal and the Competition Appeal Court is important for the
purposes of substantive analysis and decision making, but that is not engaged in the
same way when the question is one of the lawful exercise of power. That is true
generally in reviews concerning ultra vires issues. For example, superior courts, like
the High Court, the Supreme Court of Appeal and this Court do not require special
expertise to decide questions of vires in diverse fields like telecommunications,
information technology and fishing, to mention a few.
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[126] Even if, as the f irst judgment points out, 100 the concept of a “constitutional
matter” in section 62(2)(b) of the Act is to be afforded a narrow meaning as the Supreme
Court of Appeal held in Computicket,101 the position remains unchanged. Review
applications in terms of PAJA can be entertained by the High Court as it retains its
review powers by virtue of its constitutional status and powers. Those same review
powers are enjoyed by the Competition Appeal Court by virtue of section 62(2) of the
Act, and confirmed by PAJA, as a court of similar status to that of the High Court. The
same is not true for the Tribunal.
[127] That brings me to a further flaw in the interpretation of section 62 by the first
judgment, namely its failure to recognise that section 62(2)(a) to (c) expressly confers
jurisdiction over the questions and matters referred to in that subsection on the
Competition Appeal Court and not on the Tribunal. Nowhere in the Act is there any
conferral on the Tribunal of jurisdiction to deal with any of the matters in section 62(2),
and deliberately so. The Commission’s contentions to that effect are misconceived.
And I respectfully disagree with the first judgment’s reasoning and conclusion on this
score. It is trite that the Tribunal, created in terms of section 26 of the Act, can exercise
no powers other than those contained within the four corners of the Act.
[128] This trite proposition is borne out by the decision of the Competition Appeal
Court in Johnnic.102 The case concerned a PAJA review application of
the Commission’s decision to reject the divestiture proposal of merger parties
(Johnnic Holdings Investment Limited and Mercanto Investments (Proprietary)
Limited) in a large merger. That merger was approved by the Commission subject to a
divestiture condition and, whe n the parties were unable to fulfil that condition, they
submitted a divestiture proposal to the Commission for approval. The primary grounds
100 First judgment at [39].
101 Computicket above n 38 at para 15.
102 Johnnic Holdings Limited v Competition Tribunal In re: Mercanto (Pty) Ltd v Johnnic Holdings Ltd [2008]
ZACAC 2.
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of the review challenge were that the Commission’s decision was contrary to legality,
rationality and was procedurally unfair.
[129] The Competition Appeal Court recognised that both it and the High Court were
clothed with the requisite jurisdiction to hear review applications in terms of PAJA:
“Section 6 of PAJA provides that an aggrieved party ‘may institute proceedings in a
court or a tribunal for the judicial review of an administrative action ’. The words
‘court’ and ‘tribunal’ are both defined in PAJA. Neither definition includes the
Competition Tribunal. The definition of ‘court’ includes ‘a High Court or another court
of similar status’. As stated hereinbefore, this Court is of similar status as a High Court.
It therefore follows that this Court, and not the Tribunal, is cloaked with the requisite
jurisdiction.”103 (Emphasis added.)
[130] In Johnnic, the Competition Appeal Court explicated upon and distinguished its
earlier decision in TWK.104 It pointed out that TWK concerned an application for review
of the Commission’s decision relating to merger proceedings – “a purely competition
issue”105 – whereas in Johnnic, the application for review was based on constitutional
grounds, and accordingly, the Tribunal did not have jurisdiction to hear such an
application for review. 106 In any event, in Agri Wire, the Supreme Court of Appeal
pointed out the fallacy of the reasoning i n TWK.107 The Commission’s reliance on
Johnnic and TWK for its contention that the Tribunal has jurisdiction to review
103 Id at para 37.2.
104 TWK above n 64. The Competition Appeal Court cited Hoexter Administrative Law in South Africa (Juta &
Co, Cape Town 2007) at 114 in this regard.
105 Emphasis added.
106 Johnnic above n 102 at para 35.2.
107 Agri Wire above n 25 at para 15, wherein it was held that—
“the approach of the High Court, that it is permissible to look to the rules in order to ascertain
the scope of section 27(1)(c), is not correct. Whilst, for definition purposes, ‘the Act’ is defined
as including the rules made under the Act, that cannot me an that the Tribunal can, by
promulgating rules, confer a jurisdiction on itself that is not to be found in the Act itself. . . .
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.”
MAJIEDT J
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decisions of the Commission under PAJA or the principle of legality does not bear
scrutiny. And the first judgment’s implicit approval of TWK that “sections 27(1)(c) and
37(1)(c), both introduced by way of amendment in 2000, were specifically intended to
confer powers of review on both the Tribunal and the Competition Appeal Court where
none existed before”,108 is with respect also misconceived.
[131] A final nail in the coffin, in respect of the argument that the Tribunal has powers
to review the lawful exercise of power , is the definitions of “tribunal” and “court” in
PAJA. Section 6(1) of PAJA limits a party’s rights to “institute proceedings in a court
or a tribunal for the judicial review of an administrative action”. Section 1 of PAJA,
defines “tribunal” as “any independent and impartial tribunal established by national
legislation for the purpose of judicially reviewing an administrative action in terms of
[PAJA]”. This definition plainly excludes a statutory body like the Tribunal. Section 1
of PAJA then defines “court” as follows:
“‘court’ means—
(a) the Constituti onal Court acting in terms of section 167(6)(a) of
the Constitution; or
(b) (i) a High Court or another court of similar status; or
(ii) a Magistrate’s Court for any district or for any regional division
established by the Minister for the purposes of adju dicating civil
disputes in terms of section 2 of the Magistrates’ Courts Act
No. 32 of 1944, either generally or in respect of a specified class of
administrative actions, designated b y the Minister by notice in
the Gazette and presided over by a magistrate, an additional magistrate
or a magistrate of a regional division established for the purposes of
adjudicating civil disputes, as the case may be, designated in terms of
section 9A, within whose area of jurisdiction the administrative action
occurred or t he administrator has his or her or its principal place of
administration or the party whose rights have been affected is
domiciled or ordinarily resident or the adverse effect of the
administrative action was, is or will be experienced.”
108 First judgment at [88] (emphasis added).
MAJIEDT J
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[132] For all these rea sons, the Tribunal does not have jurisdiction to adjudicate a
PAJA or legality review. Unlike the Tribunal, the Competition Appeal Court , which
has “a status similar to that of the High Court”, 109 does have jurisdiction to hear PAJA
and legality reviews in terms of two provisions of the Act. First, the Competition
Appeal Court is expressly empowered to review any decision of the Tribunal 110 – this
power is limited to decisions of the Tribunal and does not include decisions of
the Commission. Second, in addition to any other jurisdiction granted in the Act, it has
jurisdiction over constitutional matters arising in terms of the Act.111 That includes the
power to review the exercise of the Commission’s public powers derived from the Act.
And, as stated, in terms of section 62(2)(a) of the Act, the Competition Appeal Court is
also clothed with additional, concurrent jurisdiction over the “the question whether an
action taken or proposed to be taken by the Competition Commission . . . is within [its]
. . . jurisdiction . . . in terms of this Act”.
[133] Next, I consider the decisions of the Supreme Court of Appeal in Agri Wire and
in this matter. Agri Wire bears relevance to the issues in the instant matter . Agri Wire
concerned whether the Corporate Leniency Policy (CLP) is lawful; and whether the Act
permits the Commission to refer a complaint to the Tribunal in respect of cartel
behaviour without seeking relief against all members of the cartel. It also concerned a
comparable issue, the lawfulness of the Commission’s initiation of a complaint. In my
view, this is a constitutional matter. This, as in Agri Wire, is an issue that falls within
section 62(2)(a), and, in terms of section 62(3)(b), the competition authorities do not
have exclusive jurisdiction over it.
[134] In that matter, the Commission and Consolidated Wire Industries (Pty) Ltd, the
third respondent and a “whistle-blower” that was granted immunity in terms of the CLP,
both challenged the jurisdiction of the High Court. The Commi ssion relied on
109 Section 36(1)(a) of the Act.
110 Section 37(1)(a) of the Act.
111 Section 62(2)(b) of the Act.
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section 62 of the Act to argue that appellate and review jurisdiction vests exclusively in
the Tribunal. The Supreme Court of Appeal enumerated the decisions of
the Commission that may give rise to a review by the Tribunal: section 10(2), under
which the Commission grants exemptions; section 13(5)(b), the approval or prohibition
of small mergers; section 14(1)(b), the approval or prohibition of intermediate mergers;
and section 15, the revocation of merger approval. The list is limited under the Act and
does not include the question as to whether the Commission has acted within its powers
to initiate or refer a complaint. The Supreme Court of Appeal made short shrift of
the Commission’s reliance on section 62:
“While there would be no dif ficulty in recognising an exclusive jurisdiction vested in
the Tribunal and the Competition Appeal Court if section 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 section 62(2)(a) of the Act and is therefore not within the exclusive jurisdiction
conferred by section 62(1)(b) of the Act.”112 (Emphasis added.)
[135] The Commission argued in Agri Wire, as it does in this matter, that the Tribunal
had exclusive jurisdiction based on section 62(1)(a), which states that “the Competition
Tribunal and the Competition Appeal Court share exclusive jurisdiction in respect of
the . . . interpretation and application of Chapters 2, 3 and 5”. The Supreme Court of
Appeal pointed out that 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.113
Naturally, as the complaint deals with Chapter 4, and not “Chapters 2, 3 and 5”, it does
not fall within section 62(1)(a) and no exclusive jurisdiction therefore exists.
112 Agri Wire above n 25 at para 17.
113 Id at para 18.
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[136] Regarding the Commission’s argument in this matter that the High Court should
defer to the Tribunal and allow the challenge to be dealt with by that body, the Supreme
Court of Appeal declared that “our courts are not entitled to decline to hear cases
properly brought before them in the exercise of their jurisdiction”. For these reasons,
the Supreme Court of Appeal held that “the challenge to the High Court’s jurisdiction
was misconceived and should have been rejected”. 114 Next for consideration is the
Supreme Court of Appeal’s unanimous judgment in this case.
[137] The Supreme Court of Appeal invoked this Court’s judgment in Baloyi115 in
fortification of its conclusions that—
“the issues raised on review by Group Five are not of a specialist nature which s 62(1)
exclusively reserves for the Competition Appeal Court and the Tribunal. They do not
pertain to the interpretation of issues in Chapters 2, 3 and 5 of the Act which are pending
before the Tribunal. Instead, they relate to questions of legality concerning the validity
and lawfulness of the initiation and the referral of the complaint. . . . In the
circumstances, the High Court was correct in its finding that the challenge of
jurisdiction had no merit.”116
[138] The Supreme Court of Appeal drew parallels between the labour law and
competition law frameworks, noting that in both respects, although specialised courts
and forums have been established in terms of the respective legislation , that does not
automatically oust the jurisdiction of the High Court. 117 Its reasoning in this regard
cannot be faulted. In drawing these parallels, the Supreme Court of Appeal pointed out
that, similar to the Labour Court and Labour Appeal Court, the Tribunal and the
Competition Appeal Court are designed to adjudicate on matters concerning
competition law and the interpretation and application of the Act. The Supreme Court
of Appeal explained that in certain circumstances, the Tribunal and the Competition
114 Id at para 20.
115 Baloyi above n 34 at para 30.
116 Supreme Court of Appeal judgment above n 3 at para 27.
117 Id at paras 19-20.
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Appeal Court would be vested with exclusive jurisdiction, as set out in section 62(1),
because matters that fall within Chapters 2, 3 and 5 of the Act (where the Tribunal and
the Competition Appeal Court enjoy exclusive jurisdiction) are purely competition law
related matters that require the expertise of special tribunals. The Court, however, noted
that this is not one of those matters.
[139] The grounds upon which Group Five seeks to review the decision of the
Commission relate to the validity and lawfulness of the initiation and subsequent
referral, of the complaint to the Tribunal. These are questions of vires or legality, issues
which typically fall within the ambit of the jurisdiction of the superior courts. Thus,
although they arise out of a complaint referred and initiated under the Act, the issues on
review are not pure competition law matters – that is, matters that, according to the Act,
fall within the exclusive competence of the Tribunal and the Competition Appeal Court.
[140] The judgment of the Supreme Court of Appeal is unassailable. It correctly drew
parallels between the labour law and competition law frameworks. It noted that in both
frameworks, although specialised courts and forums have been established in terms of
the respective legislation, that does not automatically oust the jurisdiction of the
High Court.
[141] Before us, the Commission also relies on section 27(1)(c).118 The first judgment
appears to be attracted by that argument. But section 27(1)(c) does not confer a power
on the Tribunal to review decisions of the Commission in terms of PAJA or the legality
principle. Section 27 generally sets out the functions of the Tribunal. Section 27(1)(c)
must be viewed in this context. It does not expressly confer a right nor a remedy on a
litigant. That must clearly be found elsewhere in the Act, hence the deliberate use of
118 Section 27 reads:
“(1) The Competition Tribunal may—
. . .
(c) hear appeals from, or review any decision of, the Competition Commission
that may, in terms of this Act, be referred to it.”
MAJIEDT J
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the words “may, in terms of this Act, be referred to it”. Notably, the section refers to
“appeal”, as well as “review”. The Commission does not contend, nor could it, that
section 27(1)(c) confers a general appeal power on the Tribunal to hear appeals against
any decision of the Co mmission. Thus, we must have regard to other provisions of
the Act to determine the circumstances in which a decision of the Commission may be
referred to the Tribunal for reconsideration, either by way of an appeal or a review. The
answer plainly does not lie within the provisions of section 27(1)(c).
[142] The Act delineates instances of appeal and review that lie to the Tribunal. These
are:
(a) Appeals—
(i) section 10(8): exemptions granted by the Commission;119
(ii) section 43B(3A)(d): a determination by the Commission of the
confidentiality of information received relating to a market inquiry
conducted by it;120
(iii) sections 43F(1), (2) and (6): appeals against decisions of the
Commission made under that Chapter of the Act;121 and
119 Section 10(8) states that:
“The firm concerned, or any other person with a substantial financial interest affected by a
decision of the Competition Commission in terms of subsection (2), (4A) or (5), may appeal
that decision to the Competition Tribunal, in the prescribed manner.”
120 Section 43B provides that:
“(3A) For purposes of this Chapter—
. . .
(d) any person aggrieved by the determination of the Competition Commission
in terms of this subsection may within 15 business days of the determination,
appeal against the determination to the Competition Tribunal.”
121 Section 43F provides that:
“(1) The Minister, or any person referred to in section 43G(1) who is materially and
adversely affected by the determination of the Competition Commission in terms of
section 43D, may, within the pres cribed period, appeal against that determination to
the Competition Tribunal in accordance with the Rules of the Competition Tribunal.
(2) In determining an appeal in terms of subsection (1), the Competition Tribunal may —
(a) confirm the determination of the Competition Commission;
(b) amend or set aside the determination, in whole or in part; or
MAJIEDT J
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(iv) section 58(1)(a): orders made by the Tribunal.122
(b) Reviews— section 44(5) and (6): the Commission’s determination of
confidential information submitted to it.123
[143] The Supreme Court of Appeal was correct in Agri Wire in respect of the effect
of that section:
“Its language refer s 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 ection 10(2), under which the Commission grants exemptions;
section 13(5)(b) dealing with the approval or prohibition of small mergers;
(c) make any determination or order that is appropriate in the circumstances.
. . .
(6) Any person referred to in subsection (1) who is aggrieved by a determination or order
of the Competition Tribunal in terms of subsection (2) may appeal against that
determination or order to the Competition Appeal Court.”
122 Section 58(1)(a):
“(1) In addition to its other powers in terms of this Act, the Competition Tr ibunal may—
(a) make an appropriate order in relation to a prohibited practice or an appeal
referred to in section 43F, including—
(i) interdicting any prohibited practice;
(ii) ordering a party to supply or distribute goods or services to another
party on terms reasonably required to end a prohibited practice;
(iii) imposing an administrative penalty, in terms of section 59, with or
without the addition of any other order in terms of this section;
(iv) ordering divestiture, subject to section 60;
(v) declaring conduct of a firm to be a prohibited practice in terms of
this Act, for purposes of section 65;
(vi) declaring the whole or any part of an agreement to be void;
(vii) ordering access to an essential facility on terms reasonably
required.”
123 Section 44 provides that:
“. . .
(5) A person contemplated in subsection (1) who is aggrieved by the determination of the
Competition Commission in terms of subsection (3) may, within the prescribed period
of the Commission’s decision, refer the decision to the Competition Tribunal.
(6) The Competition Tribunal may confirm or substitute the Competition Commission’s
determination or substitute it with another appropriate ruling.”
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61
section 14(1)(b) dealing with the approval or prohibition of intermediate mergers; and
section 15 dealing with the revocation of merger approval. In the absence of a provision
such as s ection 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 depar ts 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.”124
[144] It bears emphasis that section 27(1)(c) contemplates a limited review that does
not oust the ordinary review remedies under PAJA and the principle of legality. Nor is
there any other provision in the Act which ousts remedies available under PAJA or the
principle of legality. High Courts have inherent jurisdiction, and the Tribunal does
not – it is a creature of statute, limited in the exercise of its powers to those afforded to
it within the four corners of the Act. Absent a ny express powers in the Act to do so,
the Tribunal has no authority in law to review the lawful exercise of public power.
[145] The first judgement holds that section 27(1)(c) does not limit the Tribunal’s
review powers to the four instances identified by the Supreme Court of Appeal
in Agri Wire,125 but rather—
“[p]lainly understood, ‘it’ in section 27(1)(c) refers to the Tribunal. This simply means
that the Tribunal hears appeals (from the Commission) or reviews any decision (of the
Commission) that may, in terms of the Act, be referred to it (the Tribunal).”126
For the reasons above, I must respectfully disagree with the first judgement.
Section 27(1)(c) plainly does so limit the Tribunal’s review powers.
124 Agri Wire above n 25 at para 13.
125 First judgment at [53].
126 First judgment at [54].
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[146] The interpretation by the Supreme Court of Appeal in Agri Wire is logical and
sensible; moreover, it was correctly reaffirmed by the Supreme Court of Appeal in the
present matter.
Conclusion
[147] In conclusion, the central issues here are not competition law issues, but legality
or vires issues. They fall squarely within the carve out in section 62(2)(a) – a question
whether actions are ultra vires the Commission. In this determination one must have
regard to the provisions of the Act, but that does not change the nature of the review,
which remains one of vires. And once the issue is one of vires, this is a matter over
which the Competition Appeal Court has concurrent jurisdiction with the High Court,
to the exclusion of the Tribunal.
[148] For these reasons, leave must be granted and the a ppeal ought to be dismissed.
Usually, costs are not awarded against the Commission and there is no reason to depart
from this principle in this case.127
[149] The following order is made:
1. Leave to appeal is granted.
2. The appeal is dismissed.
127 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 24:
“[W]hen the Commission is litigating in the course of fulfilling its statutory duties, it is
undesirable for it to be inhibited in the bona fide fulfilment of its mandate by the th reat of an
adverse costs award. This flows from the need to encourage organs of state to make and to
stand by honest and reasonable decisions, made in the public interest, without the threat of undue
financial prejudice if the decision is challenged successfully.”
For the Applicant:
For the Respondent:
T Ngcukaitobi SC, K Maputla and
I Kentridge instructed by Cheadle
Thompson and Haysom Incorporated
R Bhana SC, A Gotz SC and C Avidon
instructed by Allen and Overy