Competition Commission of South Africa v Telkom SA LTD and Others (623/2009) [2009] ZASCA 155; [2010] 2 All SA 433 (SCA) (27 November 2009)

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[2009] ZASCA 155
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Competition Commission of South Africa v Telkom SA LTD and Others (623/2009) [2009] ZASCA 155; [2010] 2 All SA 433 (SCA) (27 November 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case
No: 623/2008
THE COMPETITION COMMISSION OF
SOUTH AFRICA

Appellant
and
TELKOM SA LIMITED
First
Respondent
THE COMPETITION TRIBUNAL OF
SOUTH AFRICA
Second
Respondent
Neutral
citation:
Competition
Commission v Telkom
(623/2008)
[2009] ZASCA 155
(27 November 2009)
Coram:
Harms
DP, Brand, Malan JJA and Wallis AJA
Heard:
2
November 2009
Delivered:
27
November 2009
Summary:
Competition
Act 89 of 1998
–
s 3(1A)(a)
– concurrent jurisdiction –
telecommunications industry – review of complaint referral – bias
- non-compliance with
s 50(4)(a)
concerning extension of time for
complaint referral - memorandum of agreement between Commission and
ICASA –
s 82
Competition Act
>______________________________________________________________________
ORDER
On appeal from:
The
Pretoria High Court (RD Claassen J sitting as court of first
instance)
The following order is made;
(1) The appeal is upheld with costs
including the costs of two counsel;
(2) The cross-appeal is dismissed with
costs including the costs of two counsel;
(3) The order of the court a quo is
set aside and replaced with the following;
‘the application is dismissed with
costs including the costs of two counsel.’
JUDGMENT
MALAN JA (Harms DP, Brand JA and
Wallis AJA concurring):
[1] On 23 February 2009 the
Competition Commission referred a complaint against Telkom to the
Competition Tribunal. In the complaint
referral, consisting of a
notice of motion and founding affidavit, the Commission alleged that
Telkom contravened
ss 8
(a), (b), (c), (d)(i) and
9
of the
Competition Act 89 of 1998
. Telkom did not file an answering
affidavit but instead launched proceedings in the High Court to set
aside the Commission’s
decision to refer the complaint to the
Tribunal as well as the complaint referral itself. In addition, it
applied for an order
declaring that neither the Commission nor the
Tribunal had the power or competence to either refer the complaint to
the Tribunal
or to adjudicate the conduct complained of and grant a
consequent remedy.
[2] In May 2002, a complaint was
lodged with the Commission in terms of
s 49B(2)(b)
of the
Competition
Act by
the South African VANS Association (‘SAVA’), the Internet
Service Providers Association (‘ISPA’) and eighteen value-added

network service providers. In August 2002, Omnilink (Pty) Ltd and
Internet Solutions (Pty) Ltd lodged another complaint. The two

complaints, both directed against Telkom, were consolidated under
Competition Commission
Rule 17(2)
and the consolidated complaint
investigated in terms of
s 49B(3).
The investigating team submitted
its final report to the Commission on 3 October 2003, recommending
that the matter should be referred
to the Tribunal in terms of
s
50(2)(a).
On 11 February 2004, the Commission resolved to issue a
notice of referral in respect of both the SAVA and the Omnilink
complaints.
On 23 February the Commission referred a substantial
part of the consolidated complaint to the Tribunal in terms of
s
50(2)(a).
A notice was published in the
Government
Gazette
of 23 April 2004 in
terms of
s 51(3)
and (4) of the
Competition Act that
the complaint
referral was received on 27 February 2004.
[3] The court a quo found in favour of
Telkom and set aside the Commission’s decision. It did so on narrow
grounds holding that
the Commission evinced bias in coming to the
decision to refer the complaint and that the complaint referral was,
in any event,
made outside the time limits prescribed by
s 50
of the
Competition Act. RD
Claassen J also dealt with two issues that
were raised
in limine
.
First, he held that the decision of the Commission to refer the
complaint was not administrative action subject to review under
the
Promotion of Administrative Justice Act 3 of 2000
. Secondly, he
dismissed the contention that the issues raised by Telkom should
preferably or appropriately have been raised before
the Tribunal.
[4] This is an appeal with leave of
the court a quo against its setting aside the Commission’s decision
of 23 February 2004 and
complaint referral. In addition, Telkom was
given leave to cross-appeal against the failure, and hence refusal,
of the court a
quo to grant the declaratory relief sought
[5] Telkom was established in terms of
the Post Office Act 44 of 1958. Section 4 transferred to Telkom the
‘postal enterprise’
of the State. Telkom had ‘the exclusive
power to conduct the telecommunications service’.
1
Telkom was and is the holder of a licence to provide both public
switched telecommunication services (‘PSTS’)
2
and value-added network services (‘VANS’).
3
Telkom, through its business unit, Televans, provides a range of
these services and products that compete with the services offered
by
others, including members of SAVA and IPSA and other complainants.
These members and other complainants who lodged complaints
with the
Commission are all holders of VANS licences issued in terms of the
Telecommunications Act. They are referred to as the
‘licensees’.
Telkom was obliged under the provisions of the Telecommunications
Act, when requested, to lease to or make telecommunication
facilities
available to a person providing a telecommunication service, and had
to do so pursuant to an agreement entered into
between them, unless
the request was unreasonable.
4
In the event of a dispute as to the reasonableness of a request or
the inability or unwillingness of the parties to negotiate or
agree,
the regulating authority was entitled to resolve the dispute and
impose certain terms and conditions on the parties.
5
The regulating authority is ICASA, the Independent Communications
Authority of South Africa.
6
[6] The complaints relate to Telkom’s
alleged failure to provide telecommunication facilities to the
licensees. (a) The
first
complaint is that Telkom imposed standard contractual restrictions on
the licensees in respect of ‘backbone and access’ facilities.

Telkom prohibited them from providing private networks to their
customers; reselling spare capacity; from carrying voice on behalf
of
customers; utilizing its facilities for the conveyance of data
signals between different premises of any single customer; and
from
bypassing Telkom’s public switched telecommunications network by
receiving a data signal and allowing it to break out of
the
licensee’s network at a point other than the point of entry. This
conduct is alleged to have contravened
ss 8(b)
and (c) of the
Competition Act and
a declarator is sought to the effect that Telkom
committed a prohibited practice by requiring licensees not to compete
with Telkom
in breach of Telkom’s exclusive rights and by
withdrawing these facilities when it considers that a breach had been
committed.
(b) The
second
complaint is that Telkom
refused to lease access facilities to licensees as it had done until
September 1999 but instead required
customers of the licensees to do
so directly. The Commission seeks a declarator to the effect that
Telkom commited a prohibited
practice under
ss 8(b)
and or (c) and or
8
(d)(i) by refusing to lease the facilities to the licensees as
principals. (c) The
third
complaint is that Telkom engaged in excessive pricing or price
discrimination in contravention of
ss 8(a)
and (c) and
9
. The first
aspect of this complaint is that it is claimed that Telkom charged
customers of Telvans, its own value-added network
services provider,
lower prices than it charged licensees and their customers for
Diginet and DiginetPlus line rental services.
The second aspect is
the claim that Telkom charged its own customers about half the price
it charged private licensees and their
customers for value-added
services and other competing products. The Commission seeks a
declarator that Telkom committed a prohibited
practice in
contravention of
ss 8
(a) and (b) and
9
.
(d) The
fourth
complaint is that Telkom refused to peer, ie to pool, its
telecommunications facilities with AT&T and refused to provide
facilities
to SDN to enable them to peer with AT&T. The complaint
characterizes the refusal to peer as an exclusionary act in
contravention
of
s 8(c)
and the refusal to facilitate AT&T’s
peering with SDN as a refusal to provide access to an essential
facility in contravention
of
s 8(b).
[7] In the complaint referral the
Commission set out the allegations which it intended to establish
before the Tribunal. It referred
to the applicable markets and
Telkom’s dominance in them and to the alleged abuses of dominance
committed by it.
7
The functional market within which Telkom’s conduct had to be
assessed was the market for the provision of value-added network
and
competing services, a separate division of the telephony market.
These services could not be provided except pursuant to a
licence
under the then operative Telecommunications Act and now the
Electronic Communications Act. This market was described in
the
complaint as consisting of two segments, ie the upstream
telecommunications market for the supply of telecommunications
facilities
(described as ‘backbone and access facilities’) and
the downstream market for the supply of value-added network and other
services.
Telkom competed in this market through Televans. Both the
upstream and downstream markets were national and comprised the whole

of South Africa. Both Telkom and the licensees were licenced to
provide telecommunications services. The telecommunications
facilities
that the licensees require from Telkom were needed for the
purposes of supplying value-added network services to South African
consumers. Telkom’s dominance in the upstream market gave it market
power in the downstream market leading to its dominance there.
It was
alleged that Telkom, the sole supplier of backbone and access
facilities, could determine and influence their conduct by

threatening to withhold telecommunication facilities from licensees.
Televans was said to have occupied a strategic position in
this
respect.
[8] The broad basis of the review is
that the conduct of Telkom complained of was authorised by the
Telecommunications Act and by
Telkom’s public switched
telecommunications licence or by ICASA, and was not conduct, save as
authorised by the value-added network
service licences, upon which
the licensees could have embarked. The declarator prayed for in the
cross-appeal thus challenges the
jurisdiction of the Commission as
well as that of the Tribunal. In addition, in its supplementary
affidavit made pursuant to Rule
53(4) of the Uniform Rules, Telkom
added three further grounds of review: that the Commission’s
decision and subsequent referral
was affected by bias; that the
Commission in coming to its decision did not adhere to the terms of
the memorandum of agreement
concluded with ICASA; and that the
complaint referral was time barred in that it was not made within the
periods set out in
s 50(2)
of the
Competition Act.
>
Promotion of Administrative Justice
Act 3 of 2000
(PAJA)
[9] In concluding that the decision of
the Commission and the referral to the Tribunal did not constitute
administrative action
RD Claassen J relied on the decision of this
Court in
Simelane and Others
NNO v Seven-Eleven Corporation SA (Pty) Ltd and Another
.
8
He also held, with reference to Telkom’s reliance on
Grey’s
Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and
Others
,
9
and its conclusion that
under PAJA a decision constitutes administrative action only if it
has the capacity to affect legal rights,
that Telkom’s need to
defend itself before the Tribunal, whilst affecting Telkom, did not
affect any of its rights.
[10] Care must be taken here not to
conflate two different aspects of the definition of administrative
action in PAJA, namely the
requirement that the decision be one of an
administrative nature and the separate requirement that it must have
the capacity to
affect legal rights. I consider that Telkom has
failed to establish both requirements. As to the second of these
although the complaint
referral indeed affects Telkom in the sense
that it may be obliged to give evidence under oath, be subject to a
hearing before
the Tribunal,
10
and be required to submit its business affairs and documentation to
public scrutiny it cannot be said that its
rights
have been affected or that the action complained of had that
capacity.
[11] As to the requirement that the
decision be one of an administrative nature a consideration of the
functions of the Commission
shows they have remained essentially the
same since their discussion in
Simelane’s
case.
11
The Commission must exercise its functions in terms of the Act (s
19(1)(c)). The Commission is independent and subject only to
the
Constitution and the law (s 20(1)(a)). It must be impartial and
perform its functions without fear, favour and prejudice (s

20(1)(b)). Its functions include the investigation and evaluation of
alleged contraventions of Chapter 2 (s 21(1)(c)), the referral
of
complaints to the Tribunal and appearances before the Tribunal (s
21(1)(g) and 53(a)). It may appoint inspectors and assistants
(ss
24(1) and 49B(4)), and must investigate a complaint as quickly as
practicable upon initiating or receiving a complaint (s 49B(3)).

Powers of search and summons are conferred by ss 46 to 49A. At any
time after initiating a complaint the Commission may refer it
to the
Tribunal (s 50(1)). However, it must within one year after the
complaint (or an extended period (s 50(4)) was submitted
to it, refer
it to the Tribunal if it determines that a prohibited practice has
been established (s 50(1)(a)),
12
or issue a notice of non-referral (s 50(1)(b)). In the latter event,
the complainant may refer the complaint directly to the Tribunal
(s
51(1)). In my view the decision in
Simelane
that the ultimate decision
to refer a matter to the Tribunal and the referral itself are of an
investigative and not an administrative
nature remains a correct
reflection of the position under PAJA and the decision that PAJA does
not apply in this review is correct.
Legality
[12] The Commission’s decision may,
however, be set aside on the principle of legality even if it is not
reviewable under PAJA.
13
The principle of legality entails that no public power may be
exercised and no function performed beyond that conferred by law.
14
The decision of the Commission to refer the complaint to the Tribunal
is a matter that must be authorised by law. It is accordingly
to the
three additional grounds of review relied upon by Telkom that I now
turn.
Bias
[13] The court a quo set aside the
Commission’s decision and complaint referral on the basis of bias
holding that ‘bias’ falls
within the expression ‘ill-faith,
oppression, vexation or the like’ referred to in
Simelane
NO and Others v Seven-Eleven SA Corporation (Pty) Ltd and Another.
15
I am prepared to accept for the purposes of this judgment that ‘bias’
can be comprehended within this phrase. The court a quo
opined that
if the source of the Commission’s complaint referral was disclosed
and the source tainted, the source could have
been the object of a
perception of bias. In addition, counsel for Telkom relied on
s
20(1)(b)
of the
Competition Act, which
requires the Commission to be
impartial and ‘perform its functions without fear, favour, or
prejudice.’ The essence of Telkom’s
complaint is that the
Commission lacked technological expertise and relied heavily on the
Link Centre’s professed expertise.
The Link Centre was biased and
indeed caused the Commission to refer the complaint to the Tribunal.
Accordingly, so the argument
rather illogically went, Telkom has a
reasonable suspicion that the Commission was also biased. Reference
was made to the ‘indiscriminate
and virtually exclusive’ reliance
on the report of the Link Centre. The decision to refer the complaint
was therefore ‘arbitrary
and capricious’.
[14] The Commission’s senior
investigator requested ‘expert assistance’ in the investigation
of the complaints against Telkom
and the Link Centre was appointed on
14 February 2003 to assist. It was instructed to submit a draft
report on which the Commission
would comment before submission of its
final report. An agreement was concluded between four consultants at
the Link Centre and
the Commission. The Commission relied on the
report of the Link Centre when deciding to refer the complaint. In
fact, the Commission’s
investigative team made extensive use of the
report taking over some of its recommendations in so many words.
[15] Three principal grounds for the
alleged perception of bias are relied upon. First, the Link Centre
received funding from some
of the complainants in the SAVA complaint.
This is disposed of quite easily. The Link Centre is a research and
training body in
the field of information and communications
technology, policy, regulation and management. It is the only major
organization in
South Africa that focuses on these matters. It has
published internationally and presented papers at conferences. While
it is correct
that the some of the complainants funded the Centre,
the Link Centre also received funding from the government and from
Vodacom,
a company in which Telkom had a 50 percent shareholding. Its
largest funding during the time of the investigation was from
Vodacom.
Telkom was approached for funding as well but declined to
contribute. The donations from industry participants were less than a

fifth of local donor contributions and a fraction of the multimillion
Rand foreign donor contribution from the Canadian Independent

Development Research Centre. The second ground is that, the advisory
board of the Link Centre included various people who were
closely
involved with the complainants at the relevant time, in particular,
the co-president of SAVA and the co-president of ISPA.
Thirdly, the
authors of the Link Centre report made statements and pronouncements
that were highly critical of Telkom prior to
being employed to
prepare the report. These statements are to the effect that Telkom’s
profits were outrageous; that ICASA’s
decisions were regularly
overturned because of Telkom’s influence; and that Telkom by using
its monopoly power sought to retard
growth of the value-added network
and internet sectors and so interfered with the effectiveness of
South African business. For
example, Ms Gillwald, one of the authors
of the Report, stated that ‘a consequence of Telkom’s unchecked
dominance has also
had a chilling effect on the partially-liberalised
value-added services segment of the telecommunications market, which
includes
the internet service providers.’ None of the statements or
publications ascribed to the authors of the report was denied:
however,
all claims of bias were rejected, and Ms Gillwald deposed
that the views of the authors of the report were founded on research.
[16] On the assumption, as I have
remarked, that ‘bias’ can be comprehended within the phrase
‘ill-faith, oppression, vexation
or the like’, it seems to me
that reliance on it can neither be supported by the evidence nor
justified as a conclusion of law.
The very nature of the Commission’s
function in referring a complaint to the Tribunal presupposes its
taking a view of the matter.
It is entitled to consider partisan
material in arriving at its conclusion.
16
The Commission’s reliance on the Link Centre report and the
expressed views of its authors do not evidence bias or give rise
to a
reasonable apprehension of bias on the part of the Commission: no
reasonable person would reasonably conclude that the
Commission
by relying on the Link Centre report would be biased.
17
It is not a case of the Commission having had any ulterior motive.
18
The Commission stated that in addition to the Link Centre report it
conducted its own investigations and obtained legal advice
from
outside counsel, all of which were among the considerations relied
upon in coming to its decision to refer the complaint.
It did not
rubber stamp the report.
19
Nor is there any factual evidence that the Commission was
prejudiced. It was entitled to obtain outside assistance.
20
No illegality on the part of the Commission in referring the
complaint was shown.
Memorandum of Agreement
[17]
Section 3(1A)(b)
provides that
the manner in which the concurrent jurisdiction provided for in
s
3(1A)(a)
or other public regulation is exercised,
21
‘must be managed, to the extent possible’ in accordance any
agreement between the two regulatory bodies. In its supplementary

affidavit Telkom makes reference to the memorandum of agreement
concluded between the Commission and ICASA pursuant to
ss 3(1A)(b)
and
82
(1) and (2) of the
Competition Act and
published in the
Government Gazette
of 20 September 2002
22
with effect from 16 September 2002.
23
[18] The agreement records that it was
entered into to establish the manner in which the two regulatory
bodies would interact in
respect of the investigation, evaluation and
analysis of mergers and acquisitions and complaints involving
telecommunication and
broadcasting matters (clause 1.1). It was
entered into on the basis of mutual respect and in a spirit of
goodwill. Its conclusion,
however, does not affect the independence
of the two regulatory bodies (clause 1.2). The agreement deals with
mergers (clause
s 2)
, complaints (clause 3), the establishment of a
joint working committee (clause 4), the sharing of resources (clause
5), the exchange
of information (clause 6), confidentiality (clause
7) and contains some general provisions (clauses 8 to 13).
[19] The agreement provides that the
Commission would deal with complaints concerning restrictive
practices and the abuse of a dominant
position, and ICASA to deal
with contraventions of telecommunications and broadcasting licence
conditions and legislation (clauses
3.1 and 3.2). Provision was made
for the process to be followed in the case of complaints: those
relating to matters that fall
within the concurrent jurisdiction of
both regulators must be made available by the recipient regulator to
the other regulator
(clause 3.3.1). The complainant must be informed
that the complaint would be discussed jointly by both regulators
(clause 3.3.2).
The regulators are required to ‘consult with each
other and evaluate the complaint in order to establish how the matter
should
be managed in terms of this agreement’ (clause 3.3.3). The
recipient regulator must advise the complainant of the outcome of the

discussion between the two regulators (clause 3.3.4) and give him or
her further directions regarding the prosecution of the complaint

(clause 3.3.5). Provision is also made for the participation of the
other regulator in an advisory capacity in any process regarding
the
complaint (clause 3.3.6 and 7). Clause 3.4 states explicitly that
nothing in the procedures referred to shall ‘detract from
the
jurisdiction of the Commission or the Authority to receive and deal
with complaints in terms of their enabling statutes’
or ‘preclude
parties from lodging a complaint with both regulators’ (clauses
3.4.1 and 3.4.2). Clause 3.5 deals with matters
where there is no
concurrent jurisdiction.
24
[20] The case relied on in Telkom’s
supplementary affidavit was not that the Commission failed to adhere
to the terms of the agreement
but that ‘a proper application’ of
the agreement and the
Competition Act would
have required the
Commission to allow or request ICASA to take the lead during the
investigation of the complaints. Reference was
made in the
supplementary affidavit to the interaction between the Commission and
ICASA and Telkom’s contention that the conduct
forming the subject
matter of the referral related to Telkom’s licences and Telkom’s
powers in terms of the Telecommunications
Act. It was suggested that
ICASA was entrusted with the determination of these disputes because
of its specialized expertise in
the field of telecommunications,
expertise both the Commission and the Tribunal lack. It was submitted
that a mandatory and material
procedure or condition of the
Competition Act was
not complied with, which rendered the decision to
refer and the referral ultra vires, tainted by an error of law or
otherwise unconstitutional
or unlawful.
[21] In its replying affidavit the
case for Telkom underwent a metamorphosis. Telkom no longer only
contended that the Commission
should have allowed ICASA to have been
the lead regulating agency but that the alleged failure to comply
with clause 3.3.4 vitiated
the Commission’s decision and subsequent
complaint referral. Clauses 3.3.3 and 3.3.5, which require the
recipient regulator to
inform the complainant of the outcome and
consultations between the regulators and to give directions to it,
have also allegedly
been contravened. Clause 3.3.3 is said to impose
a ‘mandatory and material procedure or condition’ to be followed
and failure
to follow the procedure is a ground for setting aside the
decision as contemplated by
s 6(2)(b)
of PAJA. Introducing a new
cause of action in reply is not permissible.
25
The Commission had no opportunity to reply to these new averments. In
any event, I do not agree that clause 3.3.3 imposes a ‘mandatory

and material procedure or condition’ for the making of the
complaint referral nor that PAJA is applicable. The agreement does

not affect the independence of the parties to it (clause 1.2) and
clause 3.4 referred to above provides that nothing in the procedures

contemplated in clause 3.3 shall ‘detract from the jurisdiction of
the Commission … to receive and deal with complaints’
in terms of
its enabling statutes. It follows that alleged non-compliance with
clause 3.3.3 did not affect the power of the Commission
to deal with
the complaints, nor any rights of Telkom. The evidence, in any
event, shows co-operation and consultation between
the two
authorities and substantial compliance with the terms of the
agreement. Telkom has not shown any illegality in the Commission’s

decision to refer the complaint to the Tribunal.
Referral time-barred
[22]
Section 49B(2)(b)
of the
Competition Act allows
any person to submit a complaint concerning an
alleged prohibited practice to the Commission. The Commissioner must
in terms of
s 50(2)
within one year after submission of the complaint
either refer it to the Tribunal, if the Commission determines that a
prohibited
practice has been established, or issue a notice of
non-referral to the complainant.
Section 50(4)(a)
provides that in a
particular case the
‘Commission
and the complainant may agree to extend the period allowed in
subsection (2).’
If the
Commission has not referred the complaint to the Tribunal or issued a
notice of non-referral within the one year or extended
period ‘the
Commission must be regarded as having issued a notice of non-referral
on the expiry of the relevant period’
(s 50(5)).
[23]
A ‘complainant’ is ‘the person who has submitted a complaint in
terms of
section 49B(2)(b))’.
It was submitted on behalf of Telkom
that where multiple parties have lodged similar complaints, they all
have to be regarded as
‘complainants’ and the consent of all is
required for an extension in terms of
s 50(4)(a).
3>
26
I do not agree. The consequence of Telkom’s argument would be that
where one of several complainants fails to consent to an
extension or
is for some reason, such as its liquidation, unable to do so, the
whole of the referral would lapse. This cannot be
the position. Even
if only one of several complainants consented to an extension of the
period of time the complaint referred stands
supported by that
complainant. Each of the complainants is a ‘complainant’ who can
agree to an extension of time. To require
all to agree to the
extension of time would mean that the complaints of those who have
agreed would be regarded as being non-referred
(in terms of
s 50(5)).
It would be absurd to require them to refer and prosecute the
complaint themselves under
s 51(1).
The purpose of
s 50(4)
is to
protect the interests of complainants: they are entitled to extend
the period of time to ensure that it is the Commission
that makes the
referral and prosecutes the complaint before the Tribunal.
27
[24]
The
court a quo found that that the Commission did not obtain the consent
of all the complainants concerned. It observed that ‘[w]hen
the
so-called consent by the various people who have given such consent
is analysed, it is clear that they did not represent all
the
complainants, although they claimed to have.’ The uncontroverted
evidence on behalf of the Commission does not support this

conclusion.
28
Twenty one complainants filed complaints. The complaint referral was
made on 24 February 2004. The joint complaint of the first
twenty
complainants is referred to as the SAVA complaint. The twenty first
complainant, Omnilink, together with Internet Solutions
filed a
further complaint on 22 August 2002, the ‘Omnilink complaint’.
The Commission consolidated both the Omnilink and SAVA
complaints
since they involved similar issues.
[25] The
Omnilink complaint was extended to 31 October 2003 by Angus
MacRobert. Telkom objected to this extension on the basis that
it is
not clear which complainant he represented. However, the Commission
alleges that he acted on behalf of both Omnilink and
Internet
Solutions. When the consent is read with the covering letter of the
attorney it is clear that he signed on behalf of both
complainants.
He indeed signed the original complaint on behalf of both Omnilink
and Internet Solutions and there identified himself
as the managing
director of both complainants. On 29 October 2003 a further extension
was given by M Furman on behalf of both these
complainants to 29
February 2004. Telkom submitted that there was no satisfactory
evidence establishing that he acted on behalf
of both complainants.
However, this is the allegation made in the answering papers and it
is apparent from the consent itself.
The time period in respect of
both Omnilink and Internet Solutions provided for in
s 50
therefore
did not lapse.
[26] The
SAVA complaint was submitted on 8 May 2002. On 11 April 2003 the
Commission requested the complainants to extend the period.
On 14
April 2003 SAVA’s chairman, Mr Mike van den Bergh, funished a
consent signed by Mr EJ Thompson extending the investigation
to 30
October 2003. Van den Bergh’s letter to the Commission said that
he enclosed the ‘the signed agreement from SAVA’.
Thompson signed
‘on behalf of ISPA’. ISPA is one of the twenty complainants in
the SAVA complaint. Van den Bergh and Thompson
signed the original
referral on behalf of all complainants and there is nothing to
indicate that their authority to represent them
all had lapsed.
However, the Commission produced an affidavit from Thompson to the
effect that the extension ‘was intended to
cover SAVA and its
members who were also complainants, and not only ISPA.’ Thompson
was the joint chairman of ISPA at the time.
His authority to consent
on behalf of all the SAVA complainants is confirmed by Van den Bergh
the then chairman of the SAVA, one
of the complainants in the VANS
complaint. Another complainant was ISPA. Van den Bergh stated
specifically, and also Thompson,
that the latter consented on behalf
of ‘SAVA and its members who were also complainants’. The
Commission acknowledged receipt
the letter of 14 April 2003 by
writing to Van den Bergh. The attorneys for the complainants in the
SAVA complaint furnished a signed
extension agreement to the
Commission on behalf of their clients dated 23 October 2003 enclosing
an extension signed by Van den
Bergh on behalf of the complainants
extending the period to 29 February 2004. The
Competition Act does
not prescribe a specific format for the consent of a complainant. The
complaint was referred to the Tribunal on 24 February 2004
which is
within the extended period of time.
Concurrent Jurisdiction
[27] The
Competition Act ‘applies
to
all economic activity within, or having an effect within the Republic
…
29
These are, as was remarked, ‘words of great generality extending
the operation of the section to ‘the countless forms of activity

which people undertake in order to earn a living.’
30
Originally, the now repealed
s 3(1)(d)
excluded from the application
of the
Competition Act ‘acts
subject to or authorised by public
regulation’.
31
The effect of this provision was that certain anti-competitive acts
were immune from the
Competition Act despite
their anti-competitive
aspects not being regulated by the other regulatory authorities. The
repeal of
s 3(1)(d)
expanded the range of economic activities to
which the
Competition Act applies
. ICASA is a ‘regulatory
authority’ as defined. Following the repeal of
s 3(1)(d)
ICASA no
longer has exclusive jurisdiction in competition matters since the
Competition Act by
virtue of
s 3(1)
now applies to all economic
activity within or having an effect within South Africa, including
those that are authorised by or
subject to public regulation.
32
The legislature established the competition authorities as the
primary authority in competition matters and by introducing
s
3(1A)(a)
established that where another regulator has jurisdiction
over any area of matters covered by the
Competition Act their
jurisdiction would be concurrent with that of the competition
authorities.
33
The section provides as follows:
34
‘
(1A)  (a)  In
so far as this Act applies to an industry, or sector of an industry,
that is subject to the jurisdiction
of another regulatory authority,
which authority has jurisdiction in respect of conduct regulated in
terms of Chapter 2 or 3 of
this Act, this Act must be construed as
establishing concurrent jurisdiction in respect of that conduct.
(b)  The manner
in which the concurrent jurisdiction is exercised in terms of this
Act and any other public regulation,
must be managed, to the extent
possible, in accordance with any applicable agreement concluded in
terms of sections 21(1) (h)
and 82(1) and (2).’
[28] The term ‘jurisdiction’
35
in s 3(1A)(a) refers to the power or competence to hear and determine
matters concerning the conduct regulated in terms of Chapters
2 and 3
of the
Competition Act. Section
3(1A)(a) applies only where the other
regulatory authority has jurisdiction in respect of conduct regulated
in terms of Chapter
2 or 3 of the
Competition Act, ie
‘restrictive
practices’ (which include restrictive horizontal and vertical
practices, and abuses of dominance) and mergers.
The
Telecommunications Act which provided for ‘piecemeal competition
jurisdiction’,
36
did not in so many words regulate these matters but the conduct
regulated overlapped to some extent with the conduct referred to
in
Chapters 2 and 3 of the
Competition Act. In
respect of this conduct
ICASA enjoyed competition jurisdiction. Concurrent jurisdiction
exists only where the other regulatory
authority has the competence
to adjudicate the competition aspects of the conduct.
37
[29]
Section 3(1A)(a)
establishes
concurrent jurisdiction ‘in so far as’ the
Competition Act may
be
applicable to an industry, or sector of an industry, that is subject
to the jurisdiction of another regulatory authority, and
which
authority has jurisdiction in respect of the conduct regulated in
terms of Chapter 2 and 3 of the
Competition Act. It
is conceivable
that the jurisdiction of the competition authorities may by
legislation be excluded entirely from a particular industry.
The
operation of competition legislation may also be retained expressly
such as under ss 52 and 53 of the Telecommunications Act
which in a
limited sense provided for concurrent jurisdiction between the
competition and telecommunication authorities.
38
The
jurisdiction
of the competition authorities may also continue but subject to
certain reservations such as under s 67(9) of the Electronic

Communications Act which provides that ‘[s]ubject to the provisions
of this Act, the
Competition Act applies
to competition matters in
the electronic industry.’ It was submitted on behalf of Telkom,
with reference to this section, that
the Commission and the Tribunal
lacked the power or competence to refer the complaint to the tribunal
and to adjudicate on it.
The Electronic Communications Act came into
operation on 19 July 2006, long after the complaint referral was
made. There is no
suggestion that it applies retrospectively and,
consequently, cannot affect the validity of the Commission’s
decision and the
complaint referral. Nor can it affect the competence
of the Tribunal to adjudicate the matter. The Tribunal’s
jurisdiction to
adjudicate the complaint referral derives from the
law as it stood at the time the complaint referral was made, 23
February 2004,
and continues to exist to the end of the proceedings.
[30] Section 3(1A)(a) potentially
establishes concurrent jurisdiction between the competition
authorities and ICASA for conduct
regulated in terms of Chapters 2
and 3 of the
Competition Act. Chapter
2 deals with prohibited
practices. Restrictive horizontal practices and restrictive vertical
practices are prohibited in terms
of
ss 4
and
5
.
Sections 6
,
7
,
8
and
9
concern the abuse of a dominant position. Chapter 3 is concerned
with merger control. The conduct of Telkom complained of concerns

alleged contraventions of
ss 8
and
9
. In its complaint referral the
Commission alleges contraventions of
ss 8(a)
, (b), (c), (d)(i) and
9
of the
Competition Act. The
prohibitions in
ss 8
and
9
depend on
showing that the firm concerned is ‘dominant’.
39
Section 8(a)
and (b) describe
per
se
abuses.
40
An ‘exclusionary act’ is defined as ‘an act that impedes or
prevents a firm entering into, or expanding, within a market’.
Section 8(a)
prohibits the charging of an excessive price by a
dominant firm.
41
Section 8(b)
condemns the refusal by a dominant firm to give a
competitor access to an essential facility
42
when it is economically feasible to do so.
43
Subsections (c) and (d) require that both the elements of the
exclusionary act and its alleged anti-competitive effect be proved
in
order to undertake the balancing required by the pro-competitive
defence that is permitted in respect of these exclusionary
acts.
44
Subsection (c) prohibits a dominant firm from engaging in an
exclusionary act, other than those listed in paragraph (d), when the

anti-competitive effects outweigh its pro-competitive gains.
Subsection (d)(i) specifically prohibits as an abuse of dominance

conduct by which a dominant firm requires or induces a supplier or
customer not to deal with a competitor unless the dominant firm
can
show pro-competitive gains outweighing anti-competitive effects.
Section 9
requires the Commission to prove the existence of price
discrimination by the dominant firm and that the discrimination is
likely
to have the effect of substantially preventing or lessening
competition in a market.
45
The price discrimination must relate to a sale, in equivalent
transactions, of goods or services of like grade and quality to
different purchasers, and that the discrimination involves
discriminating between those purchasers in terms of the aspects
listed
in
s 9(1)(c).
[31] The primary object of the
Telecommunications Act was to provide for the regulation and control
of telecommunication matters
in the public interest. Its objects
included ensuring the development of a competitive and effective
telecommunications manufacturing
and supply sector as well as fair
competition within the telecommunications industry.
46
ICASA is the regulating authority.
47
In so far as the conduct regulated under Chapter 2 of the
Competition
Act is
concerned it had some jurisdiction but it was limited. The
remedies to regulate anti-competitive conduct were equally limited.
The
Competition Act also
contains more comprehensive criminal
sanctions.
48
Section 36(1)(d) of the Telecommunications Act, for example,
provided:
‘
Where it appears to
the Authority that Telkom, in the provision of its telecommunication
services, is taking or proposing to take
any step which confers or
may confer on it an undue advantage over any person who may in future
be granted a licence in competition
with Telkom, the Authority may
direct Telkom to cease or refrain from taking such step, as the case
may be.’
Conduct of the kind regulated by s
36(1)(d) invariably involved conduct falling within the ambit of
Chapter 2, for example, the
abuse of dominance. ICASA was also given
powers to regulate the terms of telecommunications supply contracts
in relation to the
interconnection of services,
49
and the leasing or making available of telecommunication services.
50
Similar issues could arise under s 43 which obliged the holder of a
public switched telecommunication service licence to interconnect
its
systems to that of a provider of telecommunications services pursuant
to an agreement to be concluded between them. ICASA was
empowered to
resolve disputes between the parties and to determine the
reasonableness of a request for interconnection as well
as a dispute
as to the terms and conditions of an agreement providing for the
interconnection of systems. It could impose the
terms and conditions
on the agreement (s 43(4)). ICASA had similar powers where Telkom was
requested to lease or make available
telecommunications services to a
telecommunications service provider (s 44(2) and (6)). Moreover, s
53(1) of the Telecommunications
Act dealt expressly with
‘uncompetitive actions’:
‘
If it appears to the
Authority that the holder of a telecommunication licence is taking or
intends taking any action which has or
is likely to have the effect
of giving an undue preference to or causing undue discrimination
against any person or category of
persons, the Authority may, after
giving the licensee concerned an opportunity to be heard, direct the
licensee by written notice
to cease or refrain from taking such
action, as the case may be.’
The conduct regulated by this section
would also involve conduct falling within Chapter 2 of the
Competition Act, the
applicability of which to the conduct in
question was specifically retained.
51
Section 53
applied to a very narrow ambit, viz conduct
‘
which has or is likely
to have the effect of giving an undue preference to or causing undue
discrimination against any person or
category of persons’.
However, It is apparent that the same
conduct that could, for example, constitute a contravention of s 9 of
the Competitions Act
could also fall within the ambit of s 53.
[32] Section 100 of the
Telecommunications Act gave ICASA powers to investigate and
adjudicate alleged contraventions of the Act,
licences, any agreement
for the provision of telecommunications facilities or directions
given in terms of ss 36(1), 53 or 98;
or a failure by a
telecommunications service provider to provide those services to a
customer of an end-user. ICASA had the power
to direct the licensee
to desist, to pay a fine, to take remedial action or, in the case of
repeated failures or contraventions,
to revoke the licence (s
100(3)).
Jurisdiction
[33] Telkom contends that the subject
matter of the complaint referral falls within the exclusive
jurisdiction of ICASA and beyond
that of the competition authorities.
This submission relates to both the appeal and the cross-appeal. Its
contention is that the
conduct in question was authorised by the
Telecommunications Act and its licence and that, consequently, the
legislature could
not have intended the competition authorities to
have the power or competence to adjudicate on conduct that is
authorised by the
Telecommunications Act, by the regulations made
under it or by Telkom’s licence or that might have been authorised
by ICASA under
its empowering provisions.
[34] In response
52
to the
first
complaint concerning Telkom’s imposition of contractual
restrictions in the provision of
backbone
and access facilities, Telkom relies on the terms of its licence
authorizing its conduct. For example, by virtue of its
licence Telkom
was entitled to bind a licensee contractually not to obtain a
telecommunications facility from a person other than
Telkom; not to
resell capacity on any telecommunications facility; and not to convey
voice telephony as part of any value–added
network service.
53
In addition, Telkom invokes several provisions of the
Telecommunications Act that authorised it to act in the manner of
which
the Commission complains.
54
Telkom’s answer to the
second
complaint justifying its refusal to lease access facilities to
licensees directly as it had done until September 1999 is that it
did
so because the provision of telecommunication facilities directly to
licensees would facilitate the illegal operation of a
private
network. Its conduct was otherwise justified in terms of the
provisions of its licence.
55
In response to the
third
complaint that it engaged in price discrimination and or excessive
pricing in contravention of
ss 8(a)
and (c) and
9
of the
Competition
Act, Telkom
contends that the rates and tariffs that form the subject
matter of the complaint were regulated by ICASA. Section 45 of the
Telecommunications
Act dealt with the fees and charges that may be
levied by a licensee. Clause 7.1 of the Telkom’s licence requires
Telkom to file
with ICASA the rates and terms for those services that
it wished to provide pursuant to its public switched
telecommunications
service licence. These rates were subject to
control in terms of paragraph 7 of the licence and the
Telecommunications Act, and
formed part of a basket that was approved
by ICASA. Telkom’s answer to the
fourth
complaint that it refused
to peer is that peering is a matter that falls solely within the
technical competence of ICASA and a matter
that was provided for in
its licence. Peering, in addition, is a discretionary matter.
[35] It was contended on behalf of
Telkom that conduct authorised under specific legislation will
ordinarily not be conduct to which
a general enactment applies: what
Parliament regulates specifically it does not undo by general
enactment:
generalia
specialibus non derogant
.
56
The implication of exclusivity contended for will be refuted where
it is clear that the intention is that the later general enactment

should regulate the subject matter. Where this is the position the
later enactment necessarily supersedes the earlier specific

legislation to the extent that they may differ. Both the repeal of
s 3(1)(d) and the introduction of s 3(1A)(a) brought about
a
complete change from the earlier position. They are general
provisions intended to regulate the subject matter comprehensively

and intended to establish the general jurisdiction of the competition
authorities in all competition matters. The
Competition Act applies
to all economic activity within or having an effect within South
Africa. It provides for wide powers and general remedies more

effective than the limited ones given by the Telecommunications Act.
There is no room for the implication of exclusive jurisdiction
vested
in ICASA contended for. The authorising legislative and other
provisions Telkom relied upon did not oust the jurisdiction
of the
Commission and the Tribunal but could well give rise to defences to
the complaints referred. The competition authorities
not only have
the required jurisdiction but are also the appropriate authorities to
deal with the complaint referred.
Appropriate Forum
[36] The court a quo dismissed the
contention advanced on behalf of the Commission that the Tribunal was
the appropriate or preferred
forum to hear the matter by observing
that since the case had been fully argued there was no point in
referring it to the Tribunal.
This contention was not an objection to
the jurisdiction of the court but rather a submission that, given the
nature of the alleged
contraventions, it would have been preferable
that the Tribunal hear the matter. As will be shown, Parliament has
conferred the
competence to investigate, evaluate, refer and
adjudicate complaints concerning infringements of Chapter 2 on a
series of specialist
bodies. The
Competition Act creates
a hierarchy
of institutions to apply and enforce its provisions: the Commission,
the Tribunal and the Competition Appeal Court.
57
The Commission’s functions include the investigation of mergers and
the investigation and referral of complaints of prohibited
practices
to the Tribunal. The Tribunal is the adjudicative body of first
instance. It is a specialist administrative tribunal
adjudicating
referrals from the Commission and by private individuals. It also has
the power hear appeals from certain decisions
of the Commission and
to review them. The Competition Appeal Court is a specialist court
hearing appeals from and reviews of decisions
of the Tribunal. Where
specialist structures have been designed for the effective and
speedy resolution of particular disputes
it is preferable to use that
system.
58
[37] Determining whether a matter
involves a contravention of Chapter 2 may be complex and technical.
The Tribunal should not be
lightly deprived of the authority to
decide whether the complaints referred to involve such
contraventions.
59
It was submitted on behalf of the Commission that it would have been
appropriate, perhaps preferable, for Telkom to have raised
the
objection to the Tribunal’s jurisdiction at the commencement of the
proceedings. Exercising its specialist authority under
the Act, the
Tribunal would have been able to determine whether the matters fell
within its authority, ie whether they involved
contraventions of
Chapter 2.
[38] The Competition Tribunal is a
specialist administrative tribunal created by s 26(1). Its
functions must be exercised in
accordance with the Act.
60
It must adjudicate on any matter referred to it under the Act, and
each matter will be referred to a panel of three. Members need
not be
lawyers: they may have qualifications and experience in economics,
law, commerce, industry or public affairs.
61
However, the chairperson must, when assigning a matter to the
Tribunal, ensure that at least one member of the panel is a person

who has legal training and experience. The Chairperson designates one
of the three members of a panel to preside over each proceeding.
62
The Tribunal does not function as an ordinary court does.
63
Competition proceedings involve the public interest, and under the
Act, the Tribunal has an active role to play in protecting that

interest.
64
The Tribunal may conduct its proceedings in an inquisitorial manner,
65
calling its own witnesses, accepting evidence not normally admissible
in a court, allowing a broad range of participants, and adjusting
its
procedures as it sees fit.
66
It is a tribunal of record (s 26(1)(c)). Its functions include the
power to adjudicate any conduct prohibited in terms of Chapter
2, to
determine whether prohibited conduct has occurred, and, if so, to
impose any remedy provided for by the Act (s 27(1)(a)).
67
It must conduct its hearings in public and in accordance with the
principles of natural justice.
68
Legal representation is permitted (s 53). Powers are given to it to
summon and interrogate and to order the production of books,

documents or items required for the hearing (ss 54(c) and 56). After
the conclusion of a hearing it must make an order permitted
by the
Act and must issue reasons for the order (s 52(4). It may also
‘
(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.’
It follows that the Tribunal may hear
appeals from, or review, decisions of the Commission referred to it.
It may thus adjudicate
on the matter under consideration.
69
A direction may also be given in terms of Rule 21(2) that a point of
law be heard by the Tribunal separately and prior to further

proceedings. It would have been the preferred forum to adjudicate the
matter. For these reasons as well the court a quo should
in the
exercise of its discretion,
70
have declined to review and set aside the decision of the Commission
and the complaint referral.
[39] My colleague Van Heerden JA was
present during the hearing of the appeal but has, by reason of
subsequent indisposition, been
incapable of being a party to the
final decision. The judgment of the remaining members of the court
consequently becomes the judgment
of the court (see s 12(3) of the
Supreme Court Act 59 of 1959).
[40] The following order is made:
(1) The appeal is upheld with costs
including the costs of two counsel;
(2) The cross-appeal is dismissed with
costs including the costs of two counsel;
(3) The order of the court a quo is
set aside and replaced with the following;
‘the application is dismissed with
costs including the costs of two counsel.’
Malan JA
Judge of Appeal
Counsel for Appellant: MSM Brassey
SC
NH
Maenetje
Instructed
by: Edward Nathan Sonnenberg Inc Johannesburg
Matsepes
Bloemfontein
Counsel
for Respondent: DN Unterhalter SC
A Cockrell
Instructed
by: Mothle Jooma Sabdia Inc Pretoria
Symington
& De Kok Bloemfontein
1
Section 4(1)(a) of the Post Office Act 44 of 1958. See also s 78(1).
The Post Office Act was repealed by
s 106
of the
Telecommunications
Act 103 of 1996
.
2
Sections 32A(1)
and
36
(1) of the
Telecommunications Act repealed
by
s 97 of the Electronic Communications Act All existing licences
remain in force until converted in terms of the Electronic

Communications Act (s 92(1)). ‘PSTS’ is described in
ss 36A(1)
and
36B
of the
Telecommunications Act.
3
Section
40(1)(a) of the
Telecommunications Act. ‘VANS
’ is
defined in
s 1.
4
Section 44(2)
of the
Telecommunications Act and
further
s 44(3)
incorporating
s 43(1)(b)(i)
and (ii), (b) and (d). On Telkom’s
obligation to provide interconnection services see
s 43.
5
">
5
Section 44(3)
read with
s 43(1)(bb)(i)
and (ii), (c) and (d) and
also
s 43
of the
Telecommunications Act.
6
ICASA
was established in July 2000 (s 67 of the Independent
Communications Authority Act 13 of 2000).
7
See para 30 below.
8
2003 (3) SA 64
(SCA).
9
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA) para 23.
10
See
ss 49A
,
54
and
56
of the
Competition Act.
11
Simelane
and Others NNO v Seven-Eleven Corporation (Pty) Ltd and
Another
2003 (3) SA 64
(SCA) para 12.
12
In
Simelane and Others NNO v Seven-Eleven Corporation (Pty) Ltd
and Another
2003 (3) SA 64
(SCA) para 16 this court approved of
the following interpretation of the words ‘determines that a
prohibited practice has been
established’ in
Novartis SA (Pty)
Ltd and Others v Competition Commission and Others
(CT
22/CR/B/Jun 01, 2.7.2001) para 61: ‘On the basis of its
investigation the commission determines whether or not a prohibited

practice has occurred. If the commission determines that a
prohibited practice has occurred it cannot impose a fine or any

other remedy, it must refer the complaint to the tribunal. Referring
a complaint to the tribunal is not determinative of the complaint.

All it means is that the respondent will have to face a hearing
before the tribunal where it will be given an opportunity to
respond
to the allegations that it has engaged in a prohibited practice.’
13
Eskom Holdings Ltd and Another v New Reclamation Group (Pty) Ltd
2009 (4) SA 628
(SCA) para 9;
Minister of Health and Another NO v
New Clicks South Africa (Pty) Ltd and Others (Treatment Action
Campaign and Another as Amici
Curiae)
2006 (2) SA 311
(CC) para
97;
Fedsure Life Assurance Ltd and Others v Greater Johannesburg
Transitional Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) paras 56-9;
President of the Republic of South Africa and
Others v South African Rugby Football Union and Others
2000 (1)
SA 1
(CC) para 148.
14
Masetlha v President of the Republic of South Africa and Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC) para 80.
15
2003 (3) SA 64
(SCA).
16
Simelane
NO and Others v Seven-Eleven SA Corporation (Pty) Ltd and Another
2003 (3) SA 64
(SCA) paras 33 and 34. See
Chairman,
Board on Tariffs and Trade and Others v Brenco Inc and Others
2001
(4) SA 511
(SCA) para 65 and JR de Ville
Judicial
Review of Administrative Action in South Africa Revised First
Edition
(2005) 270-1 n 462.
17
See
S v Harksen; Harksen v President of the Republic of South
Africa and Others; Harksen v Wagner NO and Another
2000 (1) SA
1185
(C) para 71 and
Sager v Smith
2001 (3) SA 1004
(SCA);
[2001] 3 All SA 401
(A) where it was said (para 17): ‘The test to
be applied is an objective one, requiring not only that the person
apprehending
the bias must be a reasonable person but also that the
complaint must be reasonable … This two-fold feature of the
required
objective standard has been described … as the double
requirement of reasonableness. In
SACCAWU
[
South African
Commercial Catering and Allied Workers Union and others v Irvin &
Johnson Ltd (Seafoods Division Fish Processing)
[2000] ZACC 10
;
2000 (3) SA 705
(CC)] … at paragraphs [11] to [17]] it was said that the double
reasonableness requirement highlights the fact that mere

apprehension on the part of a litigant that a Judge will be biased –
even a strongly and honestly felt anxiety – is not enough.’
18
National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA
277
(SCA) para 38.
19
See
Minister of Environmental Affairs and Tourism and Another v
Scenematic Fourteen (Pty) Ltd
[2005] ZASCA 11
;
2005 (6) SA 182
(SCA);
[2005] 2
All SA 239
(SCA) para 20.
20
Section 25(a).
21
">
21
See para 27 ff below.
22
GN 1747 of 2002 (
GG
23857 of 20 September 2002).
23
Section 21(1)(h)
requires the Commission to ‘negotiate agreements
with any regulatory authority to co-ordinate and harmonise the
exercise of
jurisdiction over competition matters within the
relevant industry or sector, and to ensure the consistent
application of the
principles of this Act …’ Section 82 concerns
the Commission’s relationship with other regulatory agencies:
‘(1) A
regulatory authority which, in terms of any public
regulation, has jurisdiction in respect of conduct regulated in
terms of Chapter
2 or 3 within a particular sector - (a) must
negotiate agreements with the Competition Commission, as anticipated
in section
21 (1) (h); and (b) in respect of a particular
matter within its jurisdiction, may exercise its jurisdiction by way
of such an agreement. (2) Subsection (1) (a) and (b),
read with the changes required by the context, applies to the

Competition Commission. (3) In addition to the matters
contemplated in section 21 (1) (h), an agreement in terms

of subsection (1) must - (a) identify and establish procedures for
the management of areas of concurrent jurisdiction; (b) promote

co-operation between the regulatory authority and the Competition
Commission; (c) provide for the exchange of information and
the
protection of confidential information; and (d) be published in the
Gazette.’
24
See the discussion by Wellington Ngwepe ‘Serving Two Masters:
Concurrent Jurisdiction between the Competition Commission and
the
Independent Communications Authority of South Africa’
(2003) 120
SALJ
243
249 ff.
25
Director of Hospital Services v Mistry
1979 (1) SA 626
(A)
635H – 636B.
26
See ss 1 and 6 of the Interpretation Act 33 of 1957.
27
Omnia Fertilizer Ltd v Competition Commission and Others; Sasol
Chemical Industries Ltd v Competition Commission and Others
[2006] 1 CPLR 27
(CAC) para 11.
28
See the approach in
Eskom
v Soweto City Council
1992
(2) SA 703
(W)
706 C–F.
29
Section 3(1).
30
Standard Bank Investment Corporation Ltd v Competition Commission
and Others; Liberty life Association of Africa Ltd v Competition

Commission and Others
[2000] ZASCA 20
;
2000 (2) SA 797
(SCA) para 9. On the
meaning of ‘effect’ see
American Natural Soda Ash Corporation
and Another v Competition Commission and Others
2005 (6) SA 158
(SCA) paras 224 - 29. The two exceptions in s 3(1)(a) and (b) are
not relevant for the purposes of this appeal.
31
Section 3(1)(d). ‘Public regulation’ means ‘any national,
provincial or local government legislation or subordinate
legislation,
or any license, tariff, directive or similar
authorisation issued by a regulatory authority or pursuant to any
statutory authority’
(s 1(1)).
32
See also the discussion in paras 33-5 below.
33
Philip Sutherland and Katherine Kemp
Competition Law in South
Africa
loose leaf ed October 2008 para 4.8 at 4-44 to 4-49.
34
Its insertion by s 2(b) of Act 39 of 2000 is the legislative
response to the decision in
Standard
Bank Investment Corporation Ltd v Competition Commission and Others;
Liberty Life Association of Africa Ltd v Competition
Commission and
Others
[2000] ZASCA 20
;
2000
(2) SA 797
(SCA). See Wellington Ngwepe ‘Serving Two Masters:
Concurrent Jurisdiction between the Competition Commission and the
Independent
Communications Authority of South Africa’
(2003) 120
SALJ
242
;
Sutherland and Kemp para 4.8 at 4-44 ff for the history of the
section and cf Richard Whish
Competition
Law
(2009) 6ed 435 ff for a discussion of similar issues in the UK.
35
Sir William Wade
Administrative Law
(2004) 9ed by Sir William
Wade and Christopher Forsyth remarked at 251: ‘In this area
“jurisdiction” is a hard-worked word.
Commonly it is used in its
broadest sense, meaning simply ‘power’. In some contexts it will
bear the narrower sense of ‘power
to decide’ or ‘power to
determine’, but there will be no technical difference. In fact,
except in the special case of error
on the face of the record, the
principle here at work is basically that of ultra vires, which is
synonymous with “outside jurisdiction”
or “in excess of
power”.’ In
Graaff-Reinet Municipality v Van Ryneveld’s
Pass Irrigation Board
1950 (2) SA 420
(A) at 424 defines
‘jurisdiction’ as the ‘power or competence of a Court to hear
and determine an issue between parties’.
See
Ewing McDonald &
Co Ltd v M & M Products Co
1991 (1) SA 252 (A) 256 G.
36
See Ngwepe 247 and paras 31-2 below.
37
Sutherland and Kemp 4-46 and cf
Standard Bank Investment
Corporation Ltd v Competition Commission and Others; Liberty Life
Association of Africa Ltd v Competition
Commission and Others
[2000] ZASCA 20
;
2000
(2) SA 797
(SCA) para 9.
38
Section 52(3). The Maintenance and Promotion of Competition Act 96
of 1979 was repealed by the Competition Act but, in terms
of 83(1)
and Schedule 3 paragraph 4(a), any reference in any other statute to
the Maintenance and Promotion of Competition Act,
1979 must be
regarded as a reference to the Competition Act. See also s 12(1) of
the Interpretation Act 33 of 1957.
39
See s 7 as well as s 1 for the definition of ‘market power’.
40
See Sutherland and Kemp paras 7.4 ff at 7-8 ff but see para 7.10.1
at 7-40(7) ff.
41
See
Mittal Steel South Africa Ltd; MacSteel International BV;
MacSteel Holdings (Pty) Ltd v Harmony Gold Mining Company Ltd;
Durban
Roodepoort Deep Ltd
29/05/2009 (70/CAC/Apr07).
42
Section 1 defines an ‘essential facility’ as ‘an
infrastructure or resource that cannot reasonably be duplicated, and
without access to which competitors cannot reasonably provide goods
or services to their customers.’
43
Sutherland and Kemp para 7.10 at 7-40(7) ff.
44
Sutherland and Kemp para 7.11 at 7-45 ff.
45
On this requirement see
Sasol Oil (Pty) Ltd v Nationwide Poles CC
[2006] 1 CPLR 37
(CAC) at 51.
46
Section 2.
47
Section 3 of the Independent Communications Authority Act 13 of
2000.
48
Compare ss 100 to 102
Telecommunications Act with
Chapter 7 of the
Competition Act.
49
Section 43(3) and (4)
Telecommunications Act.
50
Section 44(6)
Telecommunications Act.
51
See
above n 44.
52
See para 6 above.
53
Para 2.5 (a) – (c). See also para 13.4.3 (a) and (c).
54
See
s 44(2)
and further eg
ss 41(2)(a)
,
2>
41(2)(a),
and s
41(7).
55
See para 2.2 of its licence and
s 36B(1)(c)(iii).
56
">
56
New Modderfontein Gold Mining Co v Transvaal Provincial
Administration
1919 AD 397
401;
R v Gwantshu
1931 EDL 29
31;
Sasol Synthetic Fuels (Pty) Ltd and Others v Lambert and
Others
2002 (2) SA 21
(SCA) para 17 and
Gentiruco AG v
Firestone SA (Pty) Ltd
1972 (1) SA 589 (A) 603 B-E.
57
See
Seagram Africa (Pty) Ltd v Stellenbosch Farmers’ Winery
Group Ltd and Others
2001 (2) SA 1129
(C) 1141 ff;
Sutherland
and Kemp Chapter 11.
58
Cf the remarks of Van der Westhuizen J in
Gcaba v Minister for
Safety and Security and Others CCT 64/08
[2009] ZACC 26
(7 October
2009)
para 56
59
Cf the remarks on the Competition Appeal Court referring a matter
back to the Tribunal in
Mittal Steel South Africa Ltd; MacSteel
International BV; MacSteel Holdings (Pty) Ltd v Harmony Gold Mining
Company Ltd; Durban
Roodepoort Deep Ltd
29/05/2009
(70/CAC/Apr07) para 75;
Anglo South Africa Capital (Pty) Ltd v
Industrial Development Corporation of South Africa Ltd (Intervening)
24/CAC/Oct02 5-6 and see
Erf 167 Orchards CC v The Greater
Johannesburg Metropolitan Council
1999(1) SA 104 (SCA) paras 21
and 22.
60
Sections 26(1)(d)
;
27
.
61
">
61
Section 28(2)(b).
62
Section 31.
63
">
63
Cf
American Natural Soda Ash Corporation v Botswana Ash (Pty) Ltd
[2001-2] CPLR 430 (CT) 442.
64
See
ss 54
-
5
.
65
">
65
Section 52(2)(b).
66
">
66
Sutherland and Kemp 11-24, para 11.4.6.1.
67
The remedies are referred to in inter alia
ss 59
,
60
and
61
.
68
Section 52(2).
69
">
69
Section 62 of the Competition Act provides for the Tribunal and the
Competition Appeal Court to share exclusive jurisdiction
in respect
of the interpretation and application of Chapters 2, 3 and 5 as well
as the functions referred to in ss 21(1), 27(1)
and 37. In addition
to its appeal jurisdiction, jurisdiction concerning ‘the question
whether an action taken or proposed by
the Competition Commission or
the Competition Tribunal is within their respective jurisdictions in
terms of this Act’ (see
s 62(2)(a) is vested in the Competition
Appeal Court (s 62(2)(a)). The jurisdiction of the Competition
Appeal Court in this respect
is original and as a court of first
instance (
Sappi Fine Paper (Pty) Ltd v Competition Commission of
South Africa and Another
[2003] 2 CPLR 272
(CAC); (23/CAC/Sep02)
para 4). The jurisdiction of the Competition Appeal Court is not
final in this respect (s 62(3)(b)) and
an appeal lies to the Supreme
Court of Appeal or the Constitutional Court (s 62(4)).
70
Oudekraal Estates (Pty) Ltd v City of Cape Town and Others
[2004]
3 All SA 1
;
2004 (6) SA 222
(SCA) para 36.