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[2013] ZACAC 1
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Competition Commission v Pioneer Hi-bred International Inc and Others (113/CAC/Nov11) [2013] ZACAC 1; [2013] 2 CPLR 389 (CAC) (12 April 2013)
113/CAC/Nov11
JUDGMENT
1
IN THE COMPETITION APPEAL COURT OF SOUTH AFRICA
CASE NUMBER
: 113/CAC/Nov11
DATE
: 12 APRIL 2013
In the matter between:
THE COMPETITION COMMISSION
..................................................................
Applicant
and
PIONEER HI-BRED INTERNATIONAL INC
............................................
1
st
Respondent
PANNAR SEED (PTY) LIMITED
.............................................................
2
nd
Respondent
AFRICAN CENTRE FOR BIOSAFETY
...................................................
3
rd
Respondent
J U D G M E N T
(Application for Leave to Appeal)
DAVIS, JP
:
This is an application for leave to appeal to the Constitutional
Court against a costs order made by this court in his judgment
of 28
May 2012. The merits of this case have effectively been disposed of
and the only issue which remains for determination, is
whether the
costs order, which was made by this court, should be subject to
appeal to the Constitutional Court.
For the sake of clarity, two questions now arise: (1) whether this
Court has the power to grant a costs order in circumstances
where the
applicant, in merger proceedings, recommends a particular course of
action which is overturned or confirmed by the Tribunal
and is then
made subject to an appeal to this Court. In such a case, the question
arises as to whether this Court, assuming it
overturns the
determination of the Tribunal, is empowered to grant an adverse order
against the applicant for costs incurred before
the Tribunal; (2)
whether this Court is empowered to grant a costs order adverse to the
applicant in the appeal proceedings itself.
Regarding the first question, this is an issue that should be
determined by the Constitutional Court. There is uncertainty insofar
as this question is concerned. Whether this court is empowered, to
make a costs order in circumstances where the applicant vigorously
opposes an appeal which has been brought by merging parties, may
prove a more problematic question. I may find it difficult to
accept
that this Court does not have a discretion to grant a costs order
insofar as appeal proceedings are concerned.
Mr
Wilson
, who appeared on behalf of the applicant
characterises the role of the applicant in merger cases, as an
amicus
. I have significant doubt as to whether this
description is correct. Granted merger proceedings should take the
form of an inquiry.
This Court’s guidance to the Tribunal
notwithstanding, the procedure before the Tribunal has developed in a
similar fashion
to that of a trial. Take this case. In effect a ‘full
blown’ trial took place. The applicant then vigorously opposed
the appeal, fought tooth and nail to ensure that the merger should be
prevented. It then sought leave to the Supreme Court of Appeal
on the
merits of the matter. Manifestly, it did not comport itself as an
amicus
. It acted as the opposing party. For these reasons, I
find it difficult to conclude, that this Court may never have the
discretion
to conclude that costs follow the result of the appeal.
I mention these considerations, because of the Constitutional Court’s
request that the views of this Court be canvassed prior
to it making
a determination as to whether the Constitutional Court is prepared to
accept an appeal. However, given that this court
is of a mind to
grant leave to appeal regarding its power to grant costs in the
Tribunal proceedings, it would be sensible and
practical to permit
the entire issue; that is both the costs order at the Tribunal
proceedings and at the appellate proceedings,
to be canvassed fully
by the Constitutional Court.
For these reasons, therefore, the following order is made:
The applicant is granted leave to appeal to the Constitutional
Court, subject to the rules of that Court against the costs order
of
this Court in its judgment, under case number 113/CAC/Nov11, dated 28
May 2012. The costs of this application shall be costs
in the appeal.
I agree:
______________
MAILULA, AJA
I agree:
______________
SWAIN, AJA
It is so ordered:
______________
DAVIS, JP
/bw /...