Competition Commission of South Africa v Beefcor (Pty) Ltd and Another (177/CAC/Nov19) [2020] ZACAC 5; [2020] 2 CPLR 507 (CAC); [2021] HIPR 178 (CAC) (3 August 2020)

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Competition Commission of South Africa v Beefcor (Pty) Ltd and Another (177/CAC/Nov19) [2020] ZACAC 5; [2020] 2 CPLR 507 (CAC); [2021] HIPR 178 (CAC) (3 August 2020)

IN
THE COMPETITION APPEAL COURT OF SOUTH AFRICA
CAC
Case NO: 177/CAC/Nov19
In
the matter between:
COMPETITION
COMMISSION OF SOUTH
AFRICA
Appellant
and
BEEFCOR
(PTY)
LTD
First

Respondent
CAPE
FRUIT PROCESSORS (PTY)
LTD
Second

Respondent
Delivered electronically:
03 August 2020
ORDER
1.
The appeal is dismissed.
2.
The Commission is to pay the costs of the respondents including the
costs of two counsel where employed.
JUDGMENT
FISHER
AJA  ( ROGERS JA and MNGUNI JA concurring )
Introduction
[1]
This
appeal deals the with the effect of a withdrawal of a complaint
before the Competition Tribunal (‘the Tribunal’).
More
particularly, the question to be answered is whether withdrawal of
process in the context of the statutory scheme created
in terms of
the Competition Act
[1]
(‘the
Act’) serves to put an end to the proceedings on the basis that
the complaint cannot be reinstated.
Background
[2]
The complaint in question was initiated against
the respondents in terms of s 49B(1) of the Act. The respondents
were alleged
to have entered into a contract not to compete in the
market for the processing of wet peels and citrus pulp used in the
production
of livestock feed. It was contended that such conduct
amounted to a division of markets or an allocation of customers in
contravention
of s 4(1)(
b
)(ii)
of the Act. The respondents deny contravening the Act and they both
separately opposed the referral.
[3]
The case was set down to be heard by the Tribunal
for three days, commencing Monday 2 July 2018. The week before the
hearing, Mr
Mfundo Ngobese a Senior Investigator at the Commission,
communicated to the respondents’ respective attorneys a desire
to
engage in settlement negotiations. In response, both attorneys
stated that their clients were ready to proceed with the hearing
but
that they were not averse to discussing settlement on the morning
prior to the hearing commencing.
[4]
Mr Ngobese, on behalf of the Commission, then
announced that he would withdraw the referral in order to ‘allow
the settlement
negotiations a fair chance’. He stated that, in
his view, the negotiations were likely to be protracted and could not
be
completed prior to the hearing. This was followed up almost
immediately by the electronic filing of a notice of withdrawal in
accordance
with the prescribed form (CT8) duly signed by the
Commission’s Chief Legal Counsel. Mr Ngobese expressed the view
in correspondence
with the respondents’ attorneys that the
Commission was entitled to take the decision to withdraw the case on
the basis that
it could be reinstated at a later stage if settlement
negotiations did not bear fruit.  He explained that he had opted
for
withdrawal rather than postponement as he believed that this
would provide a better platform for the settlement negotiations.
[5]
The respondents’ attorneys immediately
recorded their objection to this approach and conveyed that, on their
understanding,
the matter could not be reinstated once withdrawn.
They said that their respective clients were ready to proceed with
the trial
on the Monday. The second respondent’s attorneys
stated that if the Commission wanted more time, it should apply for a
postponement
in terms of rule 50(2), not withdraw the proceedings.
They even invited Mr Ngobese to withdraw the CT8 notice so that the
hearing
could proceed. He refused this invitation and remained
adamant  that the Commission could reinstate a withdrawn
referral.
[6]
In view of the Commission’s stance, the
first respondent’s attorneys proposed to the Commission that
the Tribunal be
informed that the complaint had been withdrawn and
that the matter be postponed so that the first respondent could
pursue its reserved
right to seek a costs order. They notified the
Commission that they had excused their witnesses and ceased
preparation. The second
respondent’s attorneys wrote to the
Tribunal to say that their client was ready to proceed with the case
on the Monday. They
requested urgent clarity.
[7]
Faced with these circumstances, on Friday 29 June
2018 the Tribunal’s Head of Case Management (a) notified
the parties
that in view of the Commission’s notice of
withdrawal the matter had been removed from the roll; (b) noted that
the Commission
had not tendered costs and directed the parties’
attention to rule 50(3); and (c) stated that if the Commission
in future
wished to reinstate the matter, it should file an
application for reinstatement.
Procedural
history after the withdrawal
[8]
The contemplated settlement negotiations never
took place. Instead, some two months later, the Commission referred a
fresh complaint
to the Tribunal dealing with the same conduct
complained of in the withdrawn referral.
[9]
In
these new proceedings, the respondents raised the point that s 67(2)
of the Act, which provides that a complaint may not be referred
to
the Tribunal against a firm that has been a respondent in ‘completed’
proceedings in relation to the same conduct,
precluded the second
referral
[2]
. They argued that
proceedings became completed before the Tribunal when they were
withdrawn.
[10]
A month later, the Commission filed an application
for reinstatement of the original referral. The outcome of that
application is
the subject of this appeal. The respondents argued
that the bringing of the reinstatement application was merely another
way of
skinning the proverbial cat and that the same objection held
good – i.e. that the proceedings were hit by the provisions of

s 67(2).
[11]
The Commission argued that proceedings could only
be regarded as ‘completed’ for the purposes of s 67(2) if
there had
been a determination by the Tribunal
.
It persisted with the argument that it had the
power and prerogative to withdraw and reinstate a referral as it saw
fit, subject
only to the obligation not to abuse such power.
[12]
The
Tribunal upheld the Commission’s premise that
proceedings could only be
regarded as completed if they were
res
judicata
before
the Tribunal.
[3]
This
notwithstanding, the Tribunal dismissed the application. It held
that, although it was possible for a referral that had been
withdrawn
to be reinstated, the Commission had failed to show the requisite
changed circumstances to succeed in such an application.
It proposed
that this requirement of changed circumstances might be met by new
evidence coming to light or the case being reassessed
by Commission
and its investigators. In the event, it held that the Commission had
not given an adequate explanation as to its
entitlement to reinstate
the case and the application was thus dismissed
.
The
appeal
[13]
The Commission appeals against the dismissal of
the application to reinstate the referral and, as part of the appeal,
persists in
its interpretation of s 67(2).
[14]
Central to the inquiry, is the meaning of the word
‘completed’ in s 67(2). Put differently, should
proceedings be regarded
as completed for the purpose of the statutory
scheme under the Act (‘the scheme’) when the Commission
has chosen to
withdraw the complaint?
[15]
The word ‘completed’ in  s 67(2) is open to two
possible interpretations: either the withdrawal of a complaint

completes the case and thus a new complaint on the same cause is
precluded; or the withdrawal alone is not enough and the case
can
only be rendered complete on the Tribunal making a determination of
the complaint. On the latter interpretation, the Commission
is
allowed to re-refer or reinstate a fresh complaint on the same cause
to the Tribunal.
[16]
The determination of this issue disposes of the appeal.
[17]
In
Sappi,
this Court identified the mischief to be addressed
by s 67(2) as double jeopardy. An analogy was thus drawn between the
scheme
and the criminal procedure. The court held as follows:
‘
The Legislature
enacted the relevant provisions to avoid a firm being “tried”
twice for the same or substantially the
same conduct. Put
differently, the aim of the Legislature in introducing s 67(2) was to
avoid “double jeopardy”.
[4]
[18]
The Commission contends that  the protections against double
jeopardy in s 67(2) do not extend to the withdrawal of
proceedings. From a practical perspective it argues that it should be
entitled to withdraw a referral at any time during the proceedings

before the Tribunal if it sees fit  and in so doing not lose the
right to bring proceedings again on the same cause.
[19]
The underlying purpose of
the rule, which is deeply entrenched in the Anglo-American system of
jurisprudence and thus in our own,
[5]
is to limit the abuse of
State power.  It is useful briefly to trace important aspects of
the rule’s development in Anglo-American
constitutional
jurisprudence in order to understand its breadth and application in
the rule of law.
The
historical development of the rule against double jeopardy
[20]
In his
Commentaries
, which greatly influenced the
constitutional foundations of the principle, Blackstone recorded:
‘…
the plea
of autrefois acquit, or a former acquittal, is grounded on this
universal maxim of the common law of England, that no man
is to be
brought into jeopardy of his life more than once for the same
offence’
[6]
[21]
In the same vein, in a
defining case in relation to the constitutional values underlying the
protection against double jeopardy,
the US Supreme Court in
Green
v US
[7]
famously said the following
:
‘
The State with all
its resources and power should not be allowed to make repeated
attempts to convict an individual for an alleged
offense, thereby
subjecting him to embarrassment, expense and ordeal and compelling
him to live in a continuing state of
anxiety and insecurity, as well
as enhancing the possibility that even though innocent he may be
found guilty.
[8]
[22]
Green
has had important
implications for a question which is often framed, within the vast
body of jurisprudence which covers this topic:When
can jeopardy be
said to ‘attach’ ?
[9]
It is generally accepted that, in a constitutional democracy,
it is at this point that an accused should be afforded the

constitutional protections which inhere in the rule against double
jeopardy.
[23]
In
Crist
v Bretz
,
[10]
another
jurisprudential  landmark  in the development of the
constitutional prescripts of the rule which
came some twenty years
after
Green,
US Supreme Court
explained that the reason for holding that jeopardy attaches when the
jury is impanelled and sworn, is that the
accused ‘[has a]
valued right to have his trial completed by a particular
tribunal’.
[11]
The court
emphasised that the right of the accused to have his trial completed
by the first tribunal he encounters is foundational
to the rule.
[24]
In our law  it is
specifically enacted that to allow the State to bring another
prosecution on the same charge after
an accused has pleaded would be
unconstitutional.
[12]
[25]
The enquiry in this case is whether the same constitutional
protections are deserved in relation to the procedures under the
scheme
which are
sui generis
in nature.
[26]
It is widely accepted
that certain processes under the scheme resemble criminal procedures.
In
Competition
Commission v Pioneer Foods (Pty) Ltd
[13]
this Court aptly
expressed the position as follows:
‘
However,
it does not seem to us that it is correct to treat proceedings
arising from a complaint being referred to the Tribunal
by the
Commission as standing on the same footing as a conventional civil
suit. First the proceedings are directed at adjudicating
on conduct
that is prohibited by the Act, in other words, on conduct that the
legislature has seen fit to outlaw in the public
interest.
Second
the Commission is representing the public interest and acts as
‘claimant cum prosecutor’
.
The
public interest is that interest that all South Africans have in open
and unfettered competition in our economy.
The
Commission is assigned to this task because of the difficulties
facing ordinary citizens in pursuing anti-competitive conduct
through
normal court channels.
Third
the determination by the Tribunal results, at least when an
administrative penalty is imposed, in an order that resembles
a fine
imposed in criminal proceedings.
As
we have previously observed the proceedings before the Tribunal are a
hybrid between criminal and civil proceedings.’
[14]
(Emphasis added)
[27]
With this in mind, I turn to a comparative examination of the process
of withdrawal in criminal procedure and under the scheme,
with a view
to understanding whether similar constitutional protections which are
accorded to an accused as part of the right to
a fair trial were
intended by the Legislature to apply to the withdrawal  under
the scheme as part of the right to fair administrative
process.
Withdrawal
of proceedings and double jeopardy
[28]
Section 49B of the Act
provides for the initiation of a complaint by the
Commission and the submission of a
complaint by any person.
The Commission may, at any time ‘after initiating a complaint’,
refer it to the Tribunal.
[15]
In
terms of the form prescribed (Form CC 1) a concise statement of the
conduct as well as the dates on which the conduct occurred
are
required. A complaint is therefore defined by the facts relied
upon.
[16]
This
has similarities to the drawing of a charge against an accused
person.
[29]
Upon initiating or
receiving a complaint, the Commissioner must direct an inspector to
investigate the complaint as quickly as practicable.
If the
investigation reveals that no prohibited practice or abuse has
occurred, the Commission may not refer the complaint to the
Tribunal.
It may then issue a notice of non-referral if the complaint was
submitted to it by a third party, in which case the third
party may
refer the complaint to the Tribunal.
[17]
This notice of
non-referral has similarities to the
nolle
prosequi
which
may be issued in a criminal proceedings so as to allow for private
prosecution.
[30]
The  investigation
process under the Commission is unilateral. It  requires neither
the Tribunal’s involvement nor
any judicial oversight. In
Loungefoam
[18]
the
Commission’s powers of investigation were aptly described as
‘inextricably linked to the Act’s referral system
in
respect of complaints of anti-competitive conduct’
[19]
and the court explicitly
compared an investigation by the Commission to a criminal
investigation.
[20]
Part B of
the Act provides the Commission with a number of powers that are
couched in the language of criminal procedure. In fact,
the wording
of s 47(2) of the Act is almost identical to the wording of s 22(
b
)
of the Criminal Procedure Act (CPA). Accordingly, it is clear that
the Commission’s investigative powers, especially the
power to
enter and search premises without a warrant, bear a strong
resemblance to criminal procedures. No formalities are required
for
an initiation of the charge, save for a decision by the Commissioner
to cause the commencement of an investigation into the
alleged
prohibited practice.
[21]
The Commission may add
other firms or parties along the way in light the wide casting
of
s 49B(1)
[22]
and
the informality of the procedure
[23]
.
In
Woodlands
Dairy
[24]
the Supreme Court of
Appeal considered the possibility of the Commission, during the
course of its investigations, obtaining information
about other firms
or parties engaged in the alleged prohibited practice or about other
transgressions. The Court held that in such
circumstances the
Commission ‘is fully entitled to use the information so
obtained for amending the complaint or the initiation
of another
complaint and fuller investigation.’
[25]
[31]
As I have said, this Court in
Sappi
interpreted the purpose of
the double jeopardy protection with reference to the potential for
abuse of power within the broader
process to which a respondent is
made subject under the scheme. In finding that  the bringing of
a fresh complaint after a
withdrawal of a defective referral was not
competent the Court described the purpose of the protection thus:
‘
Initiating a
“fresh” complaint (which in its own letter dated 8 August
2002 it concedes is the same complaint) amounts
to harassment and
vexatious investigation, which is no doubt prejudicial to the
applicant subjected, as it would be, to multiple
investigations on
the same issue. This, in my view, cannot be what the Legislature
intended. It would, in any event, not be consonant
with the spirit of
the Constitution’
[26]
[32]
The referral of the
complaint to the Tribunal triggers the exercise of the Tribunal’s
adjudicative powers. The rules allow
the Commission to engage the
jurisdiction of the Tribunal by referral of the complaint and  to
disengage such referral from
such jurisdiction by means of
withdrawal.
[27]
This is the Commissions
prerogative and is a power which is analogous to the powers of the
Director of Public Prosecutions (“DPP”)
which may under s
6 of the CPA withdraw a criminal matter.
[28]
[33]
Central to the enquiry as to the meaning of s 67(2) is whether the
consequences of a withdrawal under s 67(2) should, on the basis
of
the respondents’ right to fair administrative process, be
commensurate with the operation of withdrawal in the criminal
sphere.
[34]
In terms of the CPA, the consequences of the withdrawal differ
depending on the stage reached in the proceedings. Section 6 allows

the prosecution to withdraw a criminal charge at any time up to the
stage of plea with no consequence to the charge.  Once
the
accused has pleaded, however, the jurisdictional landscape changes –
if the case is then withdrawn the accused is entitled
to an
acquittal
. This entitlement arises because the
accused has been subjected to the jeopardy of the process and is thus
entitled to finality.
The court has no discretion and the
acquittal is a formality. The point reached in the trial at the stage
of withdrawal is irrelevant.
[35]
A fundamental purpose of the protection is to
preclude a prosecutor who is dissatisfied with the way in which a
process is unfolding
before a particular tribunal from jettisoning
the process in favour of a fresh start before a different tribunal or
from buying
itself more time. Obviously, the procedural power to
withdraw a case and start over would be a considerable advantage in
litigation.
An accused would be considerably disadvantaged by such a
facility.  Information generated at the trial could reveal
strategy
and evidence to the general disadvantage of the case of an
accused. The ability to start afresh would also have the potential to

prolong the threat to a respondent. The expense and continued loss of
reputation which could arise from a second process are also
important
factors. Furthermore, whereas the accused person could only get more
time by persuading the trial court to give him or
her a postponement,
the prosecution could – as an alternative to persuading the
court that it was entitled to a postponement
– follow the
simple expedient of withdrawing the proceedings and starting afresh.
There is no doubt that these considerations
are fundamental to the
right to a fair trial.
[36]
As the early
constitutional treatment of the rule in Anglo-American jurisprudence
shows, a material consideration is the point at
which the
adjudicating tribunal acquires jurisdiction. It is at this stage that
subjection to the process becomes most acute. In
a criminal case,
this point is reached at the stage of plea. From this point the
process is inexorable. If the accused refuses
to plead, the court is
obliged to enter a plea of not guilty which has the same effect as if
it had been pleaded.
[29]
Once
this stage is reached, the accused is entitled to the finality of a
verdict purely because he has been in jeopardy.
[30]
[37]
Under the scheme, the
jurisdiction of the Tribunal is acquired on referral of the complaint
by the Commission. That is effectively
the point at which the
respondent is called upon to plead to the case. If the respondent
makes no response to the initiating document
within the prescribed
period (of 20 days) the initiating party becomes entitled, on notice,
to make application for an order from
the Tribunal as sought in the
initiating documents (ie the complaint referral). The Tribunal may
then make an appropriate order
after it has heard any required
evidence concerning the motion.
[31]
Importantly, the referral process, like the criminal procedure,
operates with automaticity once jurisdiction is acquired. If a

respondent makes no submission to the jurisdiction of the Tribunal in
that he does not respond to an initiating document,
the
filing of documents becomes completed (subject to condonation) at the
time that the period for filing an answer to the referral

expires.
[32]
[38]
Tribunal
rule 50(1) allows the initiating party unilaterally to withdraw a
case which is before the Tribunal. Form CT8 to the Tribunal
rules is
the instrument by means of which the withdrawal is effected. It
provides for the withdrawal of the ‘initiating document’,

and an option is given for the complete or partial withdrawal of the
initiating document, in which latter event, the part withdrawn
is
required to be specifically identified.  A withdrawal may be
effected at any time before the Tribunal has determined the
matter.
Thereafter, parties may not, by agreement, seek to vary the terms of
an order of the Tribunal.
[33]
This
is obviously because of the public implications of such an order.
[39]
The procedure under the scheme differs from the
criminal procedure in that it does not provide for a formal
‘acquittal’.
Thus, a respondent against whom a case is
withdrawn does not have the express right on withdrawal to demand a
dismissal of the
claim. The question is whether this difference
suggests that the Legislature did not intend that a respondent be
allowed the same
protection on withdrawal.
Discussion
[40]
As
Endumeni
[34]
emphasised,
statutory interpretation should be purposive and contextual. The aim
is to identify the mischief that the statute seeks
to address.
[35]
Section
39(2) of the Constitution requires of courts that they promote the
spirit, purport and objects of the Bill of Rights in
the interpretive
process.  If a provision is open to multiple plausible
interpretations, then the one that best conforms with
the
Constitution should be preferred
[36]
[41]
In
Wary
Holdings
[37]
,
the Constitutional Court said the following regarding competing
interpretations of a statute:
‘
This
Court has not yet been called upon to deal with the situation where
two conflicting interpretations of a statutory provision
could both
be said to promote the spirit, purport and objects of the Bill of
Rights and the decision to be made is whether the
one interpretation
is to be preferred above the other. It seems to me that it cannot be
gainsaid that this Court is required to
adopt the interpretation
which
better
promotes
the spirit, purport and objects of the Bill of Rights. That would,
after all, be a more effective ‘[interpretation]
through the
prism of the Bill of Rights’.
[42]
The
Commission is the only organ of State empowered to investigate and
police restrictive practices and abuse of market dominance
in the
South African economy. That it requires extensive powers to
enable it to carry out its function is undeniable. It is
a venerable
public institution which has played and continues to play an
essential role in securing the protection and promoting
the welfare
of the economy and the economic rights of citizens. The importance of
its role is brought into sharp focus in times,
such as the present,
when the economy is reeling from the effects of corruption, poor
leadership and the general havoc which the
Covid 19 pandemic has
brought to the world.
[43]
In the
recent case of
Pickford’s,
the
Constitutional
Court
was called upon to determine  whether
s
67(1)
[38]
of
the
Act
constituted
a  procedural time-bar which allowed for condonation in terms
of
s 58(1)(
c
)(ii)
or an absolute
substantive time-bar. In weighing the interests of finality against
the public’s interest in the Commission’s
ability to
police and restrain trade practices which undermine a competitive
economy, the Court struck the balance in favour of
the public
interest. It found that a substantive time bar against the
Commission would not be in the interests of justice
in that much of
the conduct prohibited under the Act was clandestine and thus the
Commission was called upon to conduct investigations
under
circumstances where it would be penalised for the surreptitious
nature of the practices and the companies essentially rewarded
for
such conduct.
[44]
In the wake of
Pickford’s
, the Commission applied for
and was granted leave to file supplementary heads of argument. It
argues that a similar weighing up
process to that adopted in
Pickford’s
must be undertaken in relation to s 67(2) and
that,
in the
balancing of rights as part of the process of determining which of
the two interpretations better promotes the spirit, purport
and
objects of the Bill of Rights, the important public purpose of
Commission must be held as  paramount.
[45]
This argument fails to take account of two considerations. First, the
ability  of the Commission to prosecute effectively
is not
materially affected by it not having the right to withdraw and
reinstate the same case. Second the constitutional rights
implicated
in the rule against double jeopardy are of such a fundamental nature
that to make inroads into them would not be lightly
resorted to by a
court.
[46]
As to the first consideration, the powers of the  Commission in
relation to the investigation and prosecution of complaints
are wide
enough to meet the Act’s purpose. The Commission’s
argument that there would be a failure of justice if a
respondent
were allowed to escape accountability on what appears to be a
technicality, loses sight of the fact that, in the proper
course, the
Commission as a specialist administrative body is called upon to
apply its  expertise in considering the merits
of the case in
relation to whether withdrawal would be  a proper course. These
powers and functions are analogous to those
of the DPP to institute
and withdraw proceedings as it sees fit. The Commission, like the DPP
is required to evaluate the evidence
gleaned from the investigative
process and take a decision as to whether there should be a referral
of the complaint to the Tribunal.
[47]
The
Constitution requires that the powers of referral and withdrawal be
exercised rationally.
[39]
Thus, if the statutory
scheme operates as it is meant to, there is little, if any, scope for
injustice in the form of a guilty respondent
not being brought to
book. A decision to withdraw will be taken after careful analysis by
the Commission of the evidence and the
weighing up of the prospects
of success on the complaint; if the matter is persisted with, there
will be a determination on the
merits of that complaint by the
Tribunal. In either event, the purpose of the scheme is met.
[48]
The Commission’s
ability to amend its referral is relatively extensive. The procedure
under the scheme allows for postponement
for further investigation
and the adding of respondents as the case develops. This flexibility
serves the function and purpose
of the Commission and allows it to
build its case organically should this be necessary. The inquiry
contemplated by the Tribunal
as to whether there is new evidence or a
re-evaluation of the case such as would allow for a change in the
case can and should
take place in the context of an application to
amend.
[40]
The
principles pertaining to amendment take account of prejudice whilst
still allowing substantial latitude for
development of the
prosecution. It is fitting that, at this stage of the process, the
Tribunal being now seized with the case should
have some oversight in
relation to the development of the prosecution.
[49]
As to the second consideration
,
on  the Commission’s
interpretation, the scope for the abuse of power is manifest. Such an
interpretation allows the
Commission unilaterally to ‘postpone’
cases which it has referred to the Tribunal at a time of its choosing
and for
a period of its choosing, irrespective of the prejudice which
may be occasioned to the respondent. The Commission argues, however

that, on its interpretation of s 67(2), a respondent would not be
without a remedy in that the courts could be approached for relief

under the doctrine of abuse of power. It seems to me that this would
be of little comfort to a respondent who contends that he
is being
subjected to harassment and abuse by repeated prosecutions. After
all, were it accepted that the Commission is allowed
the facility of
withdrawal with impunity, a respondent would be hard pressed to
prevent its use by the Commission. To my mind,
the broad nature of
the powers which the Commission already has militates against the
construction contended for by it. Such powers
have now also been
considerably extended by  the decision in
Pickford’s
.
[50]
The concept of seeking a postponement from an
adjudicative body is well known. If one of the parties, in complaint
proceedings before
the Tribunal, requires further time, it can apply
to the Tribunal for an extension of time or, in the case of
proceeding set down
for a specified date, a postponement.
Applications for postponements are common in the Tribunal’s
proceedings. Familiar considerations
apply. If the Commission for any
reason considers that it should not be required to proceed with a
case on a specified date, it
is right and proper that it should
satisfy the Tribunal that there is a case for postponement. A
respondent in the proceedings
is similarly placed. If the
postponement is justified, it will be granted; if it is not
justified, it will be refused, and this
is as it should be, because
the Tribunal is entitled to regulate its own processes. It is not
only unnecessary, but amounts to
irrational differentiation, that one
party (a powerful State organ) should have the unilateral alternative
of a withdrawal and
reinstatement while the other party (a private
entity) does not.
[51]
From a general perspective, it is telling that the Commission is
silent as why it should be afforded this procedural power. On
the
face of it such a power appears disproportionate, superfluous and
unconstitutional. The double jeopardy protection in s 67(2)
would be
of limited value to a respondent if it allowed for repeated
harassment in the context of all that the process entails.
[52]
A further consideration militating against the
Commission’s interpretation is that the notion of ‘reinstating’

a withdrawn complaint referral finds no mention in the Act or the
Tribunal’s rules. The Tribunal did not explain the source
of
its power to reinstate withdrawn proceedings. One would have expected
such a procedure to have been expressly regulated if it
was
envisaged.
[53]
To my mind,  s 67(2)
must be interpreted broadly and as a constitutional
protection which is analogous to
that created under s
106(4) of the CPA.
[41]
The
word ‘completed’ in its ordinary and natural meaning can
be applied to proceedings which have come to an end in
one way or
another – whether following a trial on the merits, a consent
order or an abandonment of the proceedings by way
of withdrawal.
Further
aspects to consider
[54]
Two further important anomalies which would arise if the procedure
were to operate as contended for by the Commission and Tribunal
bear
mention. They  too relate to unfairness and lack of finality.
[55]
As noted above, the unfairness of allowing one party simply to stop
the proceedings with impunity and thereby circumvent the balancing
of
rights which inheres in the postponement process is not taken account
of in the Tribunal’s judgment. In this case the
Commission
opted for the withdrawal procedure on the basis that it preferred not
to apply for postponement. The existence of such
an option would not
constitute fair process.
[56]
Furthermore,
the Commission’s interpretation of s 67(2) would lead to
difficulty in determining when the cut-off date is reached in
relation
to the time bar laid down in s 67(1). In light of  the
decision in
Pickford’s,
this may not be of substantive
weight, but it is still important for the purposes of applying the
law as to a procedural time bar
and specifically, the question of
condonation.
Conclusion
[57]
In summary, jeopardy attaches at the time the Tribunal acquires
jurisdiction which is the time of the delivery (service and filing)

of the initiating documents (the complaint referral). Withdrawal of
these documents as provided for in CT8 must be construed to
have the
effect that the proceedings are brought to an end, ie
‘completed’ as contemplated in s 67(2), and thus
cannot
be reinstated or referred again to the Tribunal. In essence, on
withdrawal, the respondent should be allowed the certainty
of knowing
that the Commission regards the case as completed.
[58]
The interpretation of s 67(2) cannot be affected by the
particular facts of this case. I merely observe that the problem for

the Commission in this case is not a problem created by the
interpretation I regard as correct. It is a problem created by the

fact that the Commission stubbornly persisted in standing by its
withdrawal of the proceedings despite the fact that neither of
the
respondents was willing to have the case postponed and despite the
fact that at least one of the respondents invited the Commission
to
retract its withdrawal. Had the Commission done so, it could either
have proceeded with the case on the Monday or, if it could
justify
same, applied for a postponement. The meaning of the section should
not be twisted in order to extricate the Commission
from the hole
which it dug for itself. If the scheme is properly followed, there
are in truth not two competing constitutional
considerations. The
Commission has only need in this case to invoke the importance of its
public functions because it seemingly
took a wrong view of the
legislative scheme.
[59]
If the Commission misapprehended the meaning of s 67(2), its
remedy, as in the case of most aberrations in administrative
process,
may be self-review in relation to the Commission’s decision to
withdraw. I express no view as to whether self-review
in the present
case would have any prospects of success.
[60]
I thus uphold the Tribunal’s order, but for different reasons.
C
osts
[61]
The first respondent sought punitive costs on the basis of an
argument that the decision to withdraw was made in bad faith and in
a
bid to avoid having to deal with a postponement for which it
apparently had no grounds. The  second respondent pressed only

for costs on the same scale as those awarded the first respondent. I
cannot find on the correspondence between the parties that
there was
such bad faith. The correspondence points to error rather than guile.
In the circumstances I am not disposed to grant
costs on a punitive
scale. Where two counsel were employed in this matter I see no reason
to deny the costs of both counsel.
Order
[62]
I thus order as follows:
1.
The appeal is dismissed;
2.
The Commission is to pay the costs of the respondents including the
costs of    two counsel where employed.
______________________
FISHER AJ
Acting
Judge of appeal
Concurring:
___________________
ROGERS JA
Judge of  appeal
_____________________
MNGUNI
JA
Judge of appeal
Appearances
For
the appellant

: Adv V S Notshe SC.
Instructed
by

: The Competition Commission of South Africa.
For
the  first respondent
: Adv G
Marriott.
Instructed
by

: Manley Manley Inc.
For
the second respondent
: Adv M Le Roux.
Instructed
by

: Werksmans Attorneys.
Hearing
date:
29 May 2020
Supplementary
heads delivered:
10 July and 15 July 2020
Delivered:
03 August 2020
[1]
Act 89 of 1998.
[2]
Section  67(2) reads as follows:
‘
A complaint may
not be referred to the Competition Tribunal against any firm that
has been a respondent in completed proceedings
before the Tribunal
under the same or another section of this Act relating substantially
to the same conduct.’
[3]
Tribunal
decision para 67.
[4]
Sappi
n 5
at paragraph [41].
[5]
These special pleas of former jeopardy were first brought to the
former colonies from the English law. The pleas were only later

accorded their Roman and Roman Dutch incarnations in our courts. See
R v
Manasewitz
1933 AD 165
where the
court explained the basis and ambit of the pleas in terms of Roman
and Roman Dutch principles, namely the doctrine
of res judicata but
affirmed that the basic principles were the same.
[6]
Blackstone's Commentaries 335.
[7]
Green v
United States
[1957] USSC 146
;
355
US 184
(1957)
[8]
Ibid. at  pp185-198
[9]
In this case Mr Green was indicted and tried in a federal court for
first degree murder. The judge instructed the jury that it
could
find him guilty of
either
first degree murder or second degree murder
.
The jury found him guilty of second degree murder and its verdict
was silent on the charge of first degree murder. The trial
judge
accepted the verdict, entered judgment, dismissed the jury and
sentenced Mr Green to imprisonment. On appeal, his conviction
was
reversed and the case was remanded for a new trial. Mr Green was
tried again for first degree murder under the original indictment,

convicted of first degree murder and sentenced to death
notwithstanding his plea of former jeopardy. On appeal the Supreme

Court set aside the conviction on the basis that Mr Green has indeed
been formally in jeopardy.
[10]
437 US 28
(1978).
[11]
Ibid. at 36
[12]
Section 35(3)(
m
)
decrees that
:
‘
Every accused
person has a right to a fair trial, which includes the right ­
not
to be tried for an offence in respect of an act or omission for
which that person has previously been either acquitted or

convicted’.
[13]
[2010] ZACAC 2.
[14]
Ibid. at para 11. See also
Woodlands
Dairy (Pty) Ltd & another v Competition Commission
2010 (6) SA 108
(SCA)
para 10.
[15]
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.
(2) Within one year
after a complaint was submitted to it, the Commissioner must—
(
a
) subject to
subs (3), refer the complaint to the Competition Tribunal, if it
determines that a prohibited practice has been established;
or
(
b
) in any other
case, issue a notice of non-referral to the complainant in the
prescribed form.’
[16]
See:
Novartis
SA (Pty) Ltd v New United Pharmaceutical Distributors (Pty) Ltd
(1)
(2001-2002)
CPLR
74
(CAC).
[17]
Section 51(1) provides:
‘
If the
Competition Commission issues a notice of non-referral in response
to a complaint, the complainant may refer the complaint
directly to
the Competition Tribunal, subject to its rules of procedure.’
[18]
[2011] ZACAC 4
(6 May 2011).
[19]
Ibid.
para 46.
[20]
Ibid.
para 44 and 45.
[21]
Competition
Commission v Yara
SA
(Pty) Ltd
[2013]
ZASCA 107
;
2013
(6) SA 404
(SCA)
at para 21.
[22]
Section 49B reads as follows:
(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 s, the Commissioner must
direct an inspector to investigate the
complaint as quickly as
practicable.
(4) At any time during
an investigation, the Commissioner may designate one or more persons
to assist the inspector.
[23]
See
Power
Construction (West Cape) (Pty) Ltd v Competition Commission of South
Africa
[2017]
ZACAC 6.
[24]
Woodlands
Dairy (Pty) Ltd & another v Competition Commission
2010
(6) SA 108 (SCA).
[25]
Ibid. at para 36;
Loungefoam
)
n 18 at para 53.
[26]
Sappi
at para 54.
[27]
See Tribunal Rule 50(1)  n 7
.
[28]
Section 6 of the CPA reads as follows in relevant part:
‘
An
attorney-general [now the DPP] or any person conducting a
prosecution at the instance of the State or any body or person

conducting a prosecution under s 8, may-
(
a
) before an
accused pleads to a charge, withdraw that charge, in which event the
accused shall not be entitled to a verdict of
acquittal in respect
of that charge;
(
b
) at any time
after an accused has pleaded, but before conviction, stop the
prosecution in respect of that charge, in which event
the court
trying the accused shall acquit the accused in respect of that
charge. ..’
[29]
Section 109 of the CPA reads as follows:
‘
Where an accused
in criminal proceedings refuses to plead to any charge, the court
shall record a plea of not guilty on behalf
of the accused and a
plea so recorded shall have the same effect as if it had been
actually pleaded.’
[30]
Section
106(4)
of the CPA reads as follows:
‘
An accused who
pleads to a charge, other than a plea that the court has no
jurisdiction to try the offence, or an accused on behalf
of whom a
plea of not guilty is entered by the court, shall, save as is
otherwise expressly provided by this Act or any other
law, be
entitled to demand that he be acquitted or be convicted.’
[31]
Tribunal rule 53 (2)  reads as follows:
‘
On
an application in terms of sub-rule (1), the Tribunal may make an
appropriate order –
after
it has heard any required evidence concerning the motion; and
if it is satisfied that
the initiating document was adequately served.
[32]
Tribunal rule 19 which has the heading ‘Completion of
Complaint File’ reads as follows:
‘
Subject
to any order made in terms of Rule 18 or Rule 22, the filing of
documents is complete when a Complaint Referral or Answer
has not
been responded to within the time allowed.’
And
Tribunal rule 53(1) reads as follows
‘
If a person
served with an initiating document has not filed a response within
the prescribed period, the initiating party may
apply in accordance
with Part 4 – Division E to have the order sought issued
against that person by the Tribunal.’
[33]
Competition
Commission v Pioneer Foods (Pty) Ltd
(91/CAC/Feb10)
[2010] ZACAC 2
(15 October 2010) at para [10].
[34]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593 (SCA).
[35]
Ibid. at para 21.
[36]
Investigating
Directorate Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd
[2000]
ZACC 12
;
2001
(1) SA 545
(CC);
2000
(10) BCLR 1079
(CC)
;
National
Coalition for Gay and Lesbian Equality v Minister of Home
Affairs
2010
(6) SA 108 (SCA).
[37]
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd
[2008]
ZACC 12
[2008] ZACC 12
; ;
2009
(1) SA 337
(CC).
[38]
Section 67(1) reads as follows:
‘
A
complaint in respect of a
prohibited
practice
that
ceased more than three years before the complaint was initiated may
not be referred to the Competition Tribunal.’
[39]
See
Affordable
Medicines Trust v Minister of Health
[2005]
ZACC 3
;
Fedsure
Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council
[1998]
ZACC 17
.
[40]
See
Sappi
n 5 at para 54.
[41]
See
n 30.