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[2013] ZACAC 2
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Competition Commission of South Africa v Computicket (Pty) Ltd (118/CAC/APR12) [2013] ZACAC 2; [2013] 2 CPLR 383 (CAC) (20 September 2013)
IN
THE COMPETITION APPEAL COURT
OF
SOUTH AFRICA
CASE
NUMBER:
118/CAC/APR12
DATE:
20 SEPTEMBER 2013
In
the matter between:
COMPETITION
COMMISSION OF SOUTH AFRICA
..........................................................
Applicant
And
COMPUTICKET
(PTY) LIMITED
.......................................................................................
Respondent
JUDGMENT
DAVIS.
JP
:
Between
2008 and 2009 five complaints were submitted to the Commission (the
applicant in this set of proceedings to whom I shall
continue to
refer as “the Commission”) relating to exclusivity
clauses contained in contracts entered into by the
respondent
(“Computicket”) with inventory providers throughout
South Africa.
The
Commission investigated the complaints and, pursuant to its
investigation, filed a complaint referral against Computicket
with
the Competition Tribunal (“the Tribunal”) in terms of
Section 50 (2) of the Competition Act 89 of 1998 (“the
Act”).
Computicket then launched an application to dismiss the referral
(referred to as a dismissal application) and this
was followed by an
application to compel discovery of the Commission’s internal
documents relating to its decision to refer
the complaints.
The
discovery application was clearly interlocutory in that Computicket
had sought to compel production of the documents that
served before
the Commission at the time that it determined to refer the complaint
against Computicket to the Tribunal. In the
discovery application
Computicket sought all materials, including the reports and the
recommendations to the Competition Commissioner
and or the executive
committee of the Commission, upon which the decision to refer the
complaints of the alleged abuse of dominance
against the applicant
was taken and any further documentation relating to the decision
itself.
After
the application was refused by the Tribunal the matter came before
this Court on appeal. On the 29
th
of October 2012 this Court upheld the appeal and granted an order in
the following terms:
(b)
The respondent [The Commission] is directed to discover the reports
and recommendations which were placed before the Commissioner
and or
the executive committee of the Competition Commission when the
decision was taken to refer the complaints of alleged dominance
against the appellant to the Competition Tribunal save however the
respondent is not obliged to produce the contents of such
reports
and recommendations in the Court in accordance with Rule 14 of the
Rules of the Commission except to the extent and in
the respects set
out in paragraph (c).
(c)
The respondent is directed to discover and produce for inspection
all of the evidence which was placed before the Commissioner
and/or
the Executive Committee of the Competition Commission when the
decision was taken to refer the complaints of alleged dominance
against the appellant to the Competition Tribunal including the
evidence upon which the reports and recommendations referred
to in
paragraph (b) were based.)
It
is against this decision that the Commission now seeks leave to
appeal to the Supreme Court of Appeal, alternatively to the
Constitutional Court against the judgment and thus the order of this
Court in terms of Section 62 (4) together with Section 62
(2) and
Section 63 (2) of the Act. The application has been opposed by
Computicket before I deal with the merits I should record
that the
Court condoned the Commission’s late filing for leave to
appeal.
Briefly,
having launched what is referred to as the dismissal application,
being a review, the Commission discovered a battery
of documents in
the course of the proceedings before the Tribunal. The respondent
then sought specification, meaning the specific
record of decision
upon which the referral was based. It is this set of documentation
and hence the specification which is resisted
by the Commission.
Mr
Marcus, who appeared together with Mr Wilson and Ms Goodman and Mr
Ngcongo on behalf of the Commission, argued that this Court
had
erred by taking a view that an application for review by a party
such as Computicket triggered the right to have access to
documentation such as the record of decision without in the first
place insisting that Computicket make out a
prima
facie
case that the Commission’s
referral decision was unlawful.
In
other words, Mr Marcus’ key submission was, to the effect,
that, if a party such as Computicket, seeks production of
documents,
as they did in this case, in order to assist it in a review
application, it must show some form of exceptional circumstances
which would justify bringing the review and hence being entitled to
any documentation. To put it in the manner expressed by Mr
Marcus,
there were two components to this submission. In the first place,
Computicket would have to show a
prima
facie
case which would justify the
bringing of a review application and secondly, even if it was able
to so show, it would have to
prove exceptional circumstances to
justify, why in a case such as this, the review should be brought
and the application for
further documentation should be justified.
In
this connection, Mr Marcus relied heavily on the authority of the
decision of the Supreme Court of Appeal in
Simelane
and
others
NNO v Seven Eleven Corporation
2003
(3) SA 64
(SCA) in particular at paragraph 17 where Schutz, JA said:
“
I
cannot do better than refer to what was said in the
Norvatis
case.
For the reasons there stated it is clear that in a case such as the
one we are concerned with the function of a commission
is
investigative and not subject to review, save in cases of ill faith,
oppression, vexation or the like”.
In
other words, Mr Marcus sought to argue that there is no automatic
right to review a decision of the Commission to refer a matter
to
the Tribunal. The Commission’s function is investigative and
ultimately it is for the Tribunal to make the necessary
determination, pursuant to the referral of a complaint.
Notwithstanding the restrictive nature of the
dictum
in
Simelane
,
it would have been surprising in the extreme for the Supreme Court
of Appeal to have concluded that there was no right to review
any
decision of the Commissioner. I say this in the light of the
fundamental principle of legality enshrined in section 1, section
7
and section 34 of the Republic of South Africa Constitution Act 108
of 1996.
It
is clear that a public body such as the Commission is subject to
this principle of legality and its decisions therefore can
be
reviewed, albeit in the set of limited circumstances as foreshadowed
in the
dictum
of Schutz, JA to which I have already made reference. But does this
then mean that a Court in the position of this Court would
have to
make a
prima facie
determination
of the merits of the review to determine whether there was
sufficient legal weight in this application to review
to sustain the
further request for documentation such as the record of decision?
In
my view, the principle of legality which underpins a right to
review, albeit a narrow one, must mean that a party that seeks
to
review a decision of the Commission is entitled to documentation
which illustrates the basis upon which the very decision
was taken.
This approach would obviate, as is made abundantly clear from the
reasons set out comprehensively in the principle
judgment, why the
approach of this Court was to determine whether, if there is a right
to review, albeit qualified, there is
a concomitant right to
documentation, whether in the form of discovery or, in this case, in
the form of a specific compliance
with an order to produce the
record of decision.
Mr
Marcus correctly cautioned this Court that this was not a matter for
re-argument of the case but merely a determination as
to whether
another Court might reasonably come to a decision different to this
Court. But the question does arise as to what
the implications of a
different decision would be? It may mean either that there would
have to be two forms of hearing with regard
to review, firstly, a
prima facie
determination
in order to decide whether documentation should be produced and then
a further hearing begun in the Tribunal, to
determine the review
application leaving aside the implications of the first judgment of
the Court.
Secondly,
it could surely never be the case, given our constitutional state
and the right of access to courts enshrined in Section
34, that a
review, albeit limited, could not be brought. If a review can be
brought, then Mr Gauntlett who appeared together
with Ms Engelbrecht
on behalf of the respondent, was correct to submit that principles
of discovery and access to documentation
sufficient to ensure the
vindication of such a right should be produced. To the extent that
Mr Marcus sought to caution this
Court that some drastic new
principle had now been developed which would burden a body such as
the Commission to produce all
forms of documentation on the basis of
a frivolous review, recall that in this case discovery has already
been made. What is
required is the specification of the documents
relied upon when the decision was made; a procedure of increasing
importance,
in any event, to other parties in many competition
disputes so that a party may understand the economic basis of a
referral under
the Act.
In
this case, documentation had already been available to the
respondent. All that was required was a specification as to what
documents formed part of the record of decision which triggered the
referral. This is hardly a radical request which will hold
major
administrative implications for the Commission in cases going
forward.
In
my view, there is no prospect that another court would come to a
decision different to this Court, namely that once it was
accepted
that there is a right to review, as the Commission was constraint to
accept, in terms of our law, a party seeking to
review such a
decision is not entitled to the essential documents upon which the
initial decision was predicated. Nothing in
the
Simelane
case indicates that this proposition of law was changed and it would
be highly surprising if it was.
It
is important to emphasise that there are some foundational
principles of the Constitution. They include transparency, integrity
and accountability. The Commission, as a public body, is susceptible
in its work to all three of those foundational principles
and, if it
is, once it is subject to review there are consequences which
follow. These consequences have eloquently been set
out in the
judgment of my brother Swain in the principle judgment.
It
is unnecessary for me, in the light of the conclusion to which I
have come, to consider the further argument about the appropriate
court to which an appeal should be heard. There is one aspect about
this which does necessitate a comment. This application for
leave to
appeal takes place subsequent to the introduction of the 17
th
Constitutional Amendment to the Constitution. In terms of this
amendment the position as set out in Section 62 of the Act has
now
been restored to what it was prior to the decision in
American
Natural Soda Corporation
v
Competition Commission
2005 (6) SA
158
(SCA).
Thus,
in cases such as the present, the jurisdiction of this Court is
final, save for the ultimate jurisdiction of the Constitutional
Court and appeals, in terms of Section 62 (2) in which the Supreme
Court of Appeal or the Constitutional Court can determine
questions
whether an action taken or proposed to be taken by the Commission or
the Tribunal’s falls within their respective
jurisdictions in
terms of the Act, a constitutional matter arising in terms of this
Act, or a question whether a matter falls
within the exclusive
jurisdiction granted under subsection 1 of Section 62.
In
essence this means that, outside of these three specific categories,
this Court has exclusive jurisdiction. Mr Marcus submitted
that the
Commission was bringing this application for leave to appeal in
terms of the dispute being classified as a constitutional
matter.
Further, he contended, that the Constitutional Court would prefer to
have the view of the Supreme Court of Appeal thereon
although, if it
is a purely constitutional matter, I have doubt about the source of
this submission. Suffice it to say, there
is no necessity to make a
determination thereon, save that other than the specific categories,
an application for leave to appeal
on a purely constitutional matter
should only be granted by the Constitutional Court.
IN
THE RESULT I WOULD DISMISS THE APPLICATION FOR
LEAVE
TO APPEAL WITH COSTS INCLUDING THE COSTS
OF
TWO COUNSEL
.
I
agree.
DAVIS,
JP
DAMBUZA
JA and SWAIN AJA agreed