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[2011] ZACAC 8
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Competition Commission of South Africa v Yara South Africa (Pty) Ltd and Another (93/CAC/MAR10) [2011] ZACAC 8; [2012] 1 CPLR 1 (CAC) (11 November 2011)
IN THE COMPETITION
APPEAL COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE
NUMBER
:
93/CAC/MAR10
DATE
:
11
NOVEMBER 2011
In the matter between:
COMPETITION
COMMISSION OF SOUTH AFRICA
…............................
Appellant
and
YARA SOUTH AFRICA
(PTY) LTD
OMNIA
FERTILIZER LTD
…..........................................................
Respondents
J U D G M E N T
DAVIS,
JP
:
This court delivered a
judgment in this matter on 14 March 2011 which prompted an
application for leave to appeal by the appellant,
which was set down
for hearing on 5 December 2011. On 27 September 2011 the Registrar of
this Court was informed by way of a letter
from appellant's attorney
that the appellant had lodged an application for leave to appeal to
the Constitutional Court. The letter
then continued:
"Our client's
application to the Constitutional Court is premised on the basis
that should the Constitutional Court dismiss
its application, it
will proceed to have its application for leave to appeal heard
before the CAC."
As a result thereof,
appellant's attorney wrote further:
"Our client is of
the view that it is unlikely that the Constitutional Court will hand
down its judgment before 5 December
2011, the date on which our
application for leave to appeal at the CAC is set down... Our client
requests the CAC to postpone
the Commission's application for leave
to appeal to the SCA pending the finalisation of the Constitutional
Court's application."
Upon receipt, this
seemed to be a sensible approach, particularly in that the only
information available to this Court as to the
pending proceedings
before the Constitutional Court were contained in the letter to
which I have made reference. On 28 October
2011, however, the
respondent's attorney also wrote to the court. In this letter
respondent's attorney said:
"We wish to record
that to record that at no stage prior to the CAC issuing the
directive, was any correspondence received
by Norton Rose SA
relating to the request for postponement nor was any view on the
possible consequence of postponement solicited
from the other party
to these matters by the CAC registry."
The letter suggested
that as respondent had briefed both senior and junior counsel in the
matter, that they had commenced preparation
for the 5 December
hearing, there was prejudice in the form of wasted costs if the
appellant's application postponement was granted.
The letter then
contains a series of submissions with regard to why the approach
adopted by the appellant is legally unjustifiable
and that it would,
therefore, be premature to postpone the hearing of 5 December.
Mr
Farlam
,
who appeared on behalf of respondent in this morning's interlocutory
hearing, which was called as a result of these conflicting
letters
to which I have made reference, contended, along the lines of the
letter of respondent's attorney, that whatever the
appellant's
rights to appeal in this matter, there was a procedure to be
followed which, in terms of
section 63(2)
of the
Competition Act 89
of 1998
, required a party seeking leave from a judgment of the CAC
to approach the court before seeking leave to appeal to the
Constitutional
Court.
In
his view, the approach which the respondent had adopted to appeal to
the Constitutional Court,
inter
alia,
required
appellant to follow the provisions of
section 63(2).
Accordingly,
respondent wished to inform the Constitutional Court of the hearing
on 5 December and request that the Constitutional
Court refer the
matter to the Competition Appeal Court for the hearing which had
been set down. In other words, as I understand
the argument, the
Constitutional Court would be requested to refer the matter back to
this court for hearing on 5 December.
The problem in this case
has been caused by the plethora of fora which now may hear these
cases. When the
Competition Act was
drafted, the clear intention was
that there would be two specialist bodies, the Tribunal and this
court. This court would be
a court of final jurisdiction in matters
dealing with the Act, save in the case of questions of jurisdiction,
where an appeal
lay to the Supreme Court of Appeal and in respect of
any constitutional matter arising in terms of the Act, in which case
the
Constitutional Court was the court of final adjudication.
Unfortunately
the drafters of the Act did not take account of section 168(3) of
the Republic of South Africa Constitution Act,
108 of 1996, which
provided that the Supreme Court of Appeal was in effect the highest
court of appeal, save in constitutional
matters. Accordingly, in
American
Natural Soda Corporation v Competition Commission
2003
(5) SA 655
(SCA), the Supreme Court of Appeal, per a judgment of
Farlam
,
JA, held that the provisions which restricted an appeal to the
Supreme Court of Appeal to questions of jurisdiction was
unconstitutional.
Hence the Supreme Court of Appeal could hear any
appeal in respect of a dispute which emerged from the
Competition
Act.
This
correct
determination of the law notwithstanding resolutions of disputes in
terms of the Act are now in a more cumbersome position
than
otherwise would be the case. Competition disputes raises issues of
acute specialist complexity. They often represent the
interface
between law and economics and accordingly the legislature intended
that specialist courts would deal with these technical
questions.
There is indeed before Parliament an amendment to the Constitution
to alter the position so as to bring it back in
line with that which
was intended by the drafter of the
Competition Act. If
this is
approved, it would mean that the Act would establish the Competition
Appeal Court as the final court, save for questions
of jurisdiction
and constitutional disputes or any dispute if the Constitutional
Court becomes the apex court.
The
fact that this has not yet occurred has meant that, invariably,
given the resources available to parties in these cases, appeals
are
lodged from decisions of this court to the Supreme Court of Appeal.
Indeed in the present case a decision of the Supreme
Court of Appeal
in
Woodlands
Dairy (Pty) Ltd & Another v Competition Commission
loomed
large. Whatever the merits of the present position, the fact is that
both the role of specialist bodies and the expedition
of resolution
of disputes have been significantly diminished.
That
having been said, the Supreme Court of Appeal was careful to note
that it was the intention of Parliament that leave to appeal
should
be a requisite to an appeal from the Competition Appeal Court to the
Constitutional Court (at para 17 of
Ansac
,
supra).
That
has been the practice since that decision governed questions of
appeals to the SCA. It is for this reason that the appellant
lodged
an application for leave to appeal before this court which was to be
heard on 5 December 2011.
However, presumably as a
result of advice which was taken, the appellant has chosen to
proceed directly to the Constitutional
Court. It may be that this
procedure falls foul of
section 63(2)
of the
Competition Act. I
offer no view thereon. What is certain is that it creates the
difficulty that matters from this court may now well be appealed
to
either of two courts, depending on the particular advice given to
litigants. Forum shopping is not the best solution for a
coherent
jurisprudence, although I emphasise that this point is made in
general and not about the present dispute.
Be that as it may, an
application for leave to appeal is now before the Constitutional
Court. It is for the Constitutional Court
to pronounce as to whether
leave to appeal will be granted and as to whether there is merit in
the appeal. This court is now
faced with a significant difficulty.
Without the benefit of a decision from the Constitutional Court, for
example that the matter
must be heard by this court (presumably with
reasons having been given which would guide this court), this court
cannot hear
an application for leave to appeal. It short, it cannot
hear an application for leave to appeal in circumstances where the
highest
court in the land may well decide that there is merit in the
appeal and then determine the outcome.
This Court cannot be in
the position where it may accept that there are reasonably prospects
of success, or alternatively that
there is no prospect of success,
on the standard of special leave, and then be confronted with a
judgment from the Constitutional
Court which goes the other way. At
the very least, it would render this Court's decision nugatory.
That, in itself, illustrates
the problems to which I have made
reference earlier.
However,
Mr
Farlam
correctly
indicated that the matter is of concern to the respondents. They had
briefed counsel on the expectation that there would
be a hearing on
5 December. I am not able, of course, to comment on what submissions
would be made or how the dispute would alter
between that which may
be a constitutional matter, and that which may be 'a straight
competition matter', which may result in
different arguments put to
this court as opposed to that which might be raised before the
Constitutional Court. Mr
Farlam
indicated
that he wished to argue before the Constitutional Court that the
dispute should be referred to this court for a hearing
on
application for leave to appeal and that the procedures which had
been adopted following the ANSAC decision, should be followed.
Accordingly,
while the logistical difficulties of convening a court of judges who
reside in different high courts and in so uncertain
a position as
might confront this Court on 5 December 2011, seem to me to pose a
serious problem, this court places on record
that it is not going to
postpone the application for leave to appeal which was to be heard
on 5 December 2011
sine
die.
It
will postpone the matter to a date convenient to the parties, such
that if the Constitutional Court decides that the application
for
leave to appeal to the Supreme Court of Appeal should be heard by
this court, that hearing will take place expeditiously.
For avoidance of doubt,
that will mean that a hearing will be convened before the end of
2011 so as to provide the parties with
a judgment, after a hearing,
as to whether leave will or will not be granted. There is no order
as to costs in respect of this
morning's hearing.
DAVIS, JP