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[2016] ZAGPPHC 249
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Mondi Limited and Another v Competition Commission and Another (47050/13) [2016] ZAGPPHC 249; [2016] 2 CPLR 463 (GP) (20 April 2016)
I
N
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
20/4/2016
Case no. 47050/13
Reportable
Of interest to other
judges
Revised
IN THE MATTER BETWEEN:
MONDI
LIMITED
1
st
APPLICANT
HATHORN,
DAVID
2
nd
APPLICANT
and
THE
COMPETITION
COMMISSION
1
st
RESPONDENT
SAPPI
SOUTHERN
AFRICA
LIMITED
2
nd
RESPONDENT
JUDGMENT
LEGODI J;
HEARD ON:
1
8 March 2016
JUDGMENT HANDED DOWN
ON: 20 April 2016
[1] The judgment and
order which was handed down by this court on 12 November 2014 has
become the subject of an application for
leave to appeal by both the
Competition Commission (the Commission) and Mondi Limited (Mondi).
The order made by this court in
the interlocutory application was
crafted as follows:
"57.
1
The Commission (the first respondent) is hereby ordered to furnish
Mondi
(the
first applicant)
with
the Genesis Report insofar
as
it
has already been in the public
domain.
57.2 Mondi is entitled
access to the record and in particular to documents referred to in
what is titled 'Schedule of documents
in the Commission's record'
subject to the following qualifications:
57.
2.
1
to
all documents marked
"confidential",
except insofar
as a
claim
of confidentiality
on
such
documents
complies
with
paragraphs (a) and (b)
of section 44(1) of the Act, in which
event;
57.2.1.1 The
applicants shall request for disclosure of such
documents in terms of
section
45
of the
Act.
57.3 Insofar
as
the
documents
marked "restricted"
are
concerned,
the Commission
shall
allow
access
to
all
documents
belonging
to
or generated
by
Mondi
&
Sappi
except insofar
as
such
documents are not relevant to the initiation of
complaint
in
question. The other
access
relating
to
'restricted
documents', shall be limited
to the portions
only of each document
upon
which
reliance
was
placed
in
taking
the
decision
to
initiate
the
complaint,
unless
is
not possible
to
excise such portions from the
main
document; and
57.3.1 Such documents
will only be made available to the applicants' Attorneys; and
57.3.2 The applicants'
attorneys shall not disclose such documents to the Applicants or any
other party save for the applicants'
counsel.
57.4 The Commission is
hereby ordered to deliver the documents mentioned in paragraphs 57.1,
57.2 to 57.3.2 of this order within
seven days from the date of
handing down of this order.
57.5 The Commission is
ordered to pay the costs of this application including the costs of
two counsel".
[2] Having handed down
the judgment, the Commission approached the constitutional court for
leave to appeal against
"the
entire
order
and judgment
including the
order
of
costs"
granted by this court. On 2 February 2015 the constitutional
court dismissed the application on the ground that the appeal
"bears
no prospects
of success".
[3] The application for
leave to appeal directly to the constitutional court was premised on
several grounds. I do not find it necessary
to specifically refer to
those grounds. However, at the start of the hearing of this
application for leave to appeal, I enquired
from counsel on behalf of
the Commission the basis on which the Commission seeks to rehash the
application for leave to appeal
before this court after the
constitutional court had ordered that the appeal bears no prospects
of success. In particular , I inquired
whether the grounds of appeal
intended to be argued before this court are in anyway different to
the grounds of appeal upon which
the constitutional court was
approached. Furthermore, counsel for the Commission was asked whether
the orders appealed against
in the present application are the same
as those appealed against and sought to be considered by the
constitutional court. I may
mention that both parties indicated that
they are not persisting with an appeal against paragraph 57.1 of the
order, in my view,
correctly so, as no confidentiality can be claimed
on the genesis report which is in the public domain.
[4] The Commission
approached the constitutional court directly on two bases: First,
that the application raises constitutional
issues, more particularly:
(a)
The
ambit
of
the
high
court
and
the
tribunal
to
review
the
exercise
of
public power in terms
of
the
constitutional
principle
of
legality.
(b)
The jurisdiction
of
the
high court.
(c)
That
the
case
advanced
by
Mondi
and
upheld
by
the
high
court
was predicated
on
the principle
of
l
egality.
(d)
The
power
of the
commission
to
refuse
to
disclose
the
record
of
a
decision
to
initiate a complaint.
5. The second approach
directly to the constitutional court was stated as follows:
"69. This court
has explicitly recognised the important role played by the tribunal
in dealing with competition matters in
the public interest. The same
holds true for the commission. I submit, therefore, that the present
case also raises an arguable
point of law of general public
importance as envisaged 167 (3) (b) (ii) of the constitution" .
[6] For the reasons
mentioned in paragraph 4 and 5 above, I was prompted to ask counsel
to enumerate grounds of appeal which do
not fall under the categories
of "constitutional matters" and "arguable point of law
of general public importance
as envisaged in section 167 (3) (b) (ii)
of the Constitution", bearing in mind that reasonable prospects
of success must be
shown. I think, it would be fair to say that
counsel for the Commission was unable to do so. Because of the
importance of the issue,
I requested for written heads to be filed on
behalf of the Commission in addition to the oral submissions made.
This has now been
done. This court felt constrained to deal with
issues or grounds of appeal upon which the constitutional court had
already pronounced
itself and found that the appeal bears no prospect
of success.
[7] Counsel for the
Commission argued, as he also did in his written heads, that a
distinction must be drawn between the jurisdiction
of the supreme
court of appeal and that of the constitutional court in hearing the
appeals. In the written heads and in dealing
with "no
jurisdiction" possibility, the Commission stated:
"6. The
Constitutional Court derives its jurisdiction from section 167 (3)
(b) of the Constitution which provides:
(3) The Constitutional
Court-
(a)
...
(b) may decide-
(i)
constitutional
matters,
and
(ii)
any
other
matter
if
the
constitutional
court
grants
leave
to
appeal
on
the grounds
that
the
matter
raises
an
arguable
point
of
law
of
general
public
importance which
ought
to be
considered
by
the constitutional
court.
7.
By
contrast, the jurisdiction
of
the
SCA
is
different. Section 168(3)(a)
of
the
Constitution provides
that
the
SCA
may
decide
appeals
in
any matter
arising
from
the High
Court
of South Afric
a
"
.
[8] Perhaps it is
necessary to also refer to section 17 of
Superior Courts Act no 10 of
2013
and in particular the circumstances under which leave to appeal
may be granted:
"(1) Leave to appeal
may only be given where the judge or judges concerned are of the
opinion that-
(a) (i)
The
appeal would have reasonable prospects of success, or
(ii) There is some other
compelling reason why the appeal should be heard including
conflicting judgments on the matter under consideration,
(b) the decision sought
on appeal does not fall within the ambit of
section 16
(2) (a) and
(c) where the decision
sought to be appealed does not dispose of the issues in the case
between the parties"
[9] Subsection (2) inter
alia, provides:
"(a) Leave to appeal
may be granted by the judge or the judges against whose decision on
appeal is to be made, if not readily
available by any other judge or
judges of the same court or division.
(b)
If leave to appeal
in terms of
paragraph (a) is
refused, it
may be granted by the supreme court of appeal on application filed
with the registrar of that court within one month
after such refusal,
or such long period as
may
on
good cause be allowed , and the supreme court of appeal
may vary the order as to costs made by the judge or judges concerned
in refusing leave."
[10] It
is
clear
from
paragraph
(b)
quoted
above
that
the
supreme
court
of
appeal
would
also
be
constrained
to
hear
leave
to
appeal where
the
constitution
court refused
such
leave on
the ground that the
appeal "bears no prospects of success"
as
envisaged
in
subsection
(1)(a)
(i)
of
section
17
of
the
Superior
Courts
Act
quoted
above.
[11] To expand more on
the issue, the decision to refuse leave to appeal in the present
matter was taken by eleven judges of the
Constitutional Court and of
importance stated:
''The constitutional
court has considered this application for leave to appeal. It has
concluded that the application should be
dismissed as it bears no
prospects of success.
Order:
The application is
dismissed with costs".
[12] I think it will be
fair to conclude that the Constitutional Court did not just simply
dismissed the application, but it also
gave the reasons for the
dismissal stated "as it bears no prospects of success". I
deal later hereunder in some detail
for coming to this conclusion.
[13] Counsel for the
Commission in his written heads sought to explain the order of the
constitutional court as follows:
"4.4.The issue,
for present purposes is whether this order precludes leave to appeal
being granted to the SCA. We submit that
it does not. We submit that
they may well be a variety of reasons why the Constitutional Court
dismissed the application for leave
to appeal. These are:
4.4. 1. First, that
the Constitutional Court does not have jurisdiction to hear the
appeal.
4.4.2.
Second,
that
the
Constitutional
Court
did
not
consider
that
a
direct
appeal
wa
s
justified.
4.4.3
Third, that the Constitutional
Court dismissed
the application
on merits.
5.
It
is
only
in
circumstances that
it
can
be
concluded with
confidence that
the Constitutional
Court
dismissed
the
application on
its
merits,
that
the
High
Court would
be
bound
by
such
a
finding. For the
reasons that
follow however, it
is
submitted
that
it
is
not
possible
to
reach
the
conclusion
that
the
application
was
dismissed on its merits"
[14] In my view, once one
cannot conclude "with confidence" and "is not possible
to reach the conclusion that the
application was dismissed on its
merits", that should be sufficient to disqualify this court to
hear the application. In any
event, the Commission, if it really
wanted not to second-guess the order of the Constitutional Court, it
had the opportunity to
approach the Constitutional Court for if a
court is approached within a reasonable time, it would have the power
to correct, alter
or supplement its own judgment or order in
accessory or consequential matters, for example, costs or interest on
the judgment debt,
which inadvertently the court may have omitted to
grant. The second is that a court may clarify its judgment or order
if on proper
interpretation, the meaning thereof remains obscure,
ambiguous or otherwise uncertain. (See Sias Moise v Transitional
Local Council
of Greater Germiston Case ZACC 54/00) at paragraph 4.
[15] It is also worth
referring to the case of Molaudzi v S
[2014] ZACC 15
, 2014 (7) BCLR
(CC) (Molaudzi, first Judgment) at paragraph 2 in which the
Constitutional Court in dismissing an application for
leave to appeal
expressed itself as follows:
"The
applicant now seeks leave to this Court
essentially on the basis that he was wrongly convicted.
The application cannot succeed.
It is based on an attack on the
factual findings made in the trial court.
That
does
not raise
a
proper
constitutional issue for this court to entertain. In addition, there
are no reasonable
prospects
of
success.
The full
court
considered
the
arguments
on
appeal
and
properly
rejected
them.
The
application
for
leave to appeal must thus be dismissed".
[16] I understood the
Commission's contention to be that on probability, the constitutional
court dismissed the application for
leave to appeal in the present
case on the basis that the appeal did not raise constitutional
matter
and that therefore it did not have the jurisdiction to entertain
the application for leave to appeal. The other contention as
understood
it, was that the grounds for direct access were not
established.
[17] Starting with the
latter, the Commission referred this court to the case of Mazibuko v
Sisulu
2013 (6) SA 249
(CC) wherein it was held:
"[19] The
application for leave to appeal directly to this court means that we
have not had the benefit of the issues being
considered by
a
full Court or the supreme court of appeal.
This
court,
on
a
multi-staged
litigation
process,
and
that especially,
where
the issues
are
of great
complicity
and
importance,
the
more compelling the need becomes
for
this court to be assisted by the views of other
courts".
[18] Then the Commission
in seeking to support the statement above, stated in its written
heads as follows:
"13 As indicated
above, this is precisely of one of the grounds of opposition raised
by Mondi. It is quite clear that the present
matter does indeed raise
issues of great complicity. It follows, therefore, that the
Constitutional Court may well have dismissed
the application for
leave to appeal, because of the bypassing of the SCA."
[19] I must say, I know
of some cases were the Constitutional Court refused to deal with
direct applications for leave to appeal
in situations where the
issues are of great complicity and importance. The matter of Mark
Shuttleworth v Reserve Bank is one of
those matters. In the Mark
Shuttleworth's case, he was represented by the same counsel, Mr
Gilbert Marcus, who is the counsel in
the present case. Mr
Shuttleworth directly approached the Constitutional Court for leave
to appeal against the order and judgment
of this court. The
Constitutional Court declined to hear the application for leave to
appeal and referred it back to this court
to hear the applications
for leave to appeal lodged by both Mark Shuttleworth and the Reserve
Bank.
[20] The point I am
driving at is this: In all probabilities, if the constitutional court
felt that the case raised complex and
important issues for which it
needed the views of the SCA and or the views of the full court of
this division, it would not have
dismissed the application on the
ground that the appeal "bears no prospects of
success."
Instead, it would have refused to hear the leave to appeal and
would have referred it back to this court to hear the application
for
leave to appeal as per the notice of conditional application for
leave to appeal filed with the registrar of this court on
21 November
2014.
[21] Furthermore, if the
constitutional court dismissed the leave to appeal on a "no
jurisdiction" possibility as suggested
by counsel on behalf of
the Commission, the order of the Constitutional Court would have been
framed clearly to convey that message.
Put simply, the constitutional
court would unlikely have pronounced or expressed itself that the
appeal "bears no prospects
of success" in one sentence
without motivation, if its order was indeed based on the fact that it
has no jurisdiction and
or that direct access was not justified. I am
therefore not satisfied that this court is competent to hear the
Commission's leave
to appeal. On this point alone, its attempt to
revert its application for leave to appeal in this court, must fail.
[22] This is really the
end of the case for the Commission. However, in the event I was to be
wrong, I have decided to deal with
the merits of the appeal. I now
turn to the stage when the Commission directly applied to the
Constitutional Court for leave to
appeal. In the founding affidavit
deposed to on 2 December 2014 by the Commissioner Thembi Nkosi
Bonagele in that application,
it was stated:
"[18]
The
Commission
respectfully
submits
that,
in
the
circumstances
a
direct appeal
to
the
court
is
appropriate
particularly
since
it
concerns
the
respective power of the tribunal and CAC
on the one hand and the High Court on the other
in
addition,
because
the
SCA
has
already
determined some
of
these
issues adversely to the Commission in
Computicket matter no useful purpose
would
be served in requiring this matter to
go
to the SCA first. Out
of
caution, the commission
has
conditionally
applied
the
High
Court
for
leave
to appeal
to
the SCA, should this
application be
refused".
[23] Computicket judgment
was attached to the application for leave to appeal in the
constitutional court and the statement above
was preceded by another
statement critical of the SCA's decision in the aforesaid Computicket
matter cited neutrally as, The Competition
Commission v Computicket
(853/13)
[2014] ZA SCA 185
(26 November 2014) handed down few days
after the main judgment in the present case was handed down (12
November 2014). The critical
statement is coached as follows:
"14 This
cumulative effect
of
Computicket
and the
judgment of the High Court in the present case is as follows:
14.1.
Every time the commission initiates
a
complaint in order to conduct an
investigation,
the
respondent firm
may
review
the
initiation
and
gain
access to the record.
14.2.
It is free to pursue
its review
in
either
the High
Court or the
Tribunal
14.3.
If
the
Firm
chooses
to
prosecute
its
review to
prosecute its
review
in
the High
Court
the appellate jurisdiction lies
with
the SCA.
14.4.
if
it
prosecutes
in
the
tribunal
,
the
appellate jurisdiction
is
reserved
for
the
CAC and this Court.
14.5.
The firm can repeat
the entire process
by reviewing
the referral
decision".
[24] One must bear in
mind that the decision and the order of this court in the main
judgment, is not about the review proceedings,
but rather about the
interlocutory application for the disclosure of the record upon which
the decision to initiate a complaint
which is the subject of the
review, is based.
[25] It is however
interesting to see how the Commission wants to have it both. Its
statement quoted in the preceding paragraphs
22 and 23 of this
judgment is clear. Firstly, it concedes that the SCA has already
adversely ruled against it on some similar issues
it has raised in
the application for leave to appeal to both the Constitutional Court
and to this Court. Secondly, its criticism
of the SCA as quoted in
paragraph 23 above, suggests a ruling against it was on a wide range
of issues similar to those in the
present application. That being so,
it must be accepted that, there would be no reasonable prospects of
success on appeal to the
SCA.
[26] The Commission seems
to deliberately ignore the essence of the order and decision of this
Court in the main judgment. It was
made clear that no final
determination is made regarding the initiation of the complaint and
Mandi's desire to have the decision
in initiating the complaint
reviewed and set aside. This court had to deal with the initiation of
complaint because the Commission
wanted to use that as the basis for
refusing to make a disclosure of the record of the decision in terms
of
Rule 53.
This aspects has been dealt with in the main judgment
supported, in my view, by the SCA in the prior judgments; and the
most recent
one being the Computicket matter referred to earlier in
this judgment. There is just no merit to the appeal by the
Commission.
[27] I
now turn to deal with prospects of success
concerning Mandi's application. Counsel for Mondi
strongly argued against qualifications set out in
paragraphs 57.2.1 and 57.2.1.1 of the order. I
was made to understand that the qualifications
had posed a prolonged problem as the Commission refuses to furnish
documents referred
to in
the
"Schedule of documents in
the
Commission's record."
[27] I cannot make it
clearer than what is stated in paragraph 46 of the main judgment.
Anything short of what is stated therein,
should entitle Mondi to the
documents. I therefore do not think that that there are reasonable
prospects of success on appeal.
The context to the qualifications
should also be seen in the light of the statement, "In their
submissions these informants
identified the information as
confidential in terms of
section 44
(1) of the
Competition Act 89 of
1998
", recorded in paragraph 16 of the Commission's answering
affidavit and quoted in paragraph 44 of the main judgment,
unsubstantiated
as the averments might have been.
[28] Mondi is at liberty
to enforce the order should it feel that the Commission refuses to
provide the documents not covered by
the qualifications in paragraphs
57.2.1 and 57.2.1.1 of the order read in the context of paragraph 46
of the main judgment. I am
also not satisfied that there is any merit
to the grounds of appeal regarding the restricted documents.
[29] Consequently both
applications for leave to appeal are hereby dismissed and each party
to pay its own costs.
_________________________
M F LEGODI
JUDGE OF THE HIGH COURT
For the 1
st
&
2
nd
Applicants:
Adv
D
Unterhalter SC
Adv
S
Bundler
Instructed
by:
NORTONS
I
NC
C/O ADAMS & ADAMS
Lynwood
Bridge
Office
Park
4
Daventry
Road,
Lynwood
Manor
PRETORIA,
REF: REN/aj/LT1337
TEL: 012 432
6000
For the 1
st
Respondent: Adv
G Marcus
SC
Adv
C
Steinberg
Instructed
by:
THE
COMPETITION
COMMISSION
Block
C
Mulayo
Building
DTI
Building,
77
Meintjies
Street
PRETORIA
REF: H Maringa
For the 2nd Respondent:
No appearance
Instructed
by: BOWMAN
GILFILLAN
C/O MACROBERT
I
NC.
MacRobert
Building
Justice
Mahomed
&
Jan
Shoba
Strt
BROOKLYN, PRETORIA
REF: L GANI TEL: