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[2003] ZACAC 10
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Competition Commission v Distillers Corporation (SA) Limited and Another (31/CAC/Sep03) [2003] ZACAC 10; [2004] 1 CPLR 14 (CAC) (11 December 2003)
IN
THE COMPETITION APPEAL COURT OF SOUTH AFRICA
CASE
NO: 31/CAC/Sep03
In the matter between:
THE COMPETITION
COMMISSION
Appellant
and
DISTILLERS
CORPORATION (SA) LIMITED
First
Respondent
STELLENBOSCH FARMERS WINERY
GROUP LIMITED
Second Respondent
JUDGMENT
Malan AJA:
[1] On 27 August 2003, the
Competition Commission (the “Commission”) delivered a
notice of appeal against certain parts
of two decisions of the
Competition Tribunal (the “Tribunal”), one dated 6
February 2003 and the other dated
30 July 2003, relating to the large merger between the first and
second respondents (the “merger”).
However, it appears
that it is the Tribunal’s “order” dated 18 June
2003 that is the relevant
“decision” for the purposes of ss 16 and 17(1) of the Act
which was published by the Tribunal
in the Government Gazette (GN
1844 of 2003) on 4 July 2003 pursuant to
its obligations in terms of s
16(4) of the Act.
*
[2] These proceedings concern two
objections by the respondents
in
limine
to the
Commission’s notice of appeal: first, that the Commission does
not enjoy
locus
standi
to appeal
against the Tribunal’s
decisions; and, secondly, that the
notice of appeal was filed out of time and the late filing thereof
cannot or should not be condoned.
[3]
The parties have agreed, and this Court has ordered, that the two
objections
in limine
be determined separately and prior to the merits of the Commission’s
appeal because either objection would, if
determined
in favour of the respondents, dispose of the appeal without an
adjudication being required of the merits thereof. The
respondents
will abandon the cross appeal in the event of a final finding
against
the Commission on one or both of the
in
limine
issues.
[4]
The question whether the Commission has
locus
standi
to appeal against a Tribunal merger decision has not previously been
considered. In
Mondi
Limited v Kohler Cores and Tubes
[1]
the
Commission
sought to
participate
in an appeal by parties to a large merger against a Tribunal
decision prohibiting such merger. The Commission’s contention
in those proceedings was that the
Commission
had
locus
standi
to
participate
in an appeal brought by merger parties against a Tribunal decision
prohibiting a merger. As appears from the judgment in that
matter,
the appellant merger
parties
objected to the application by the Commission to
participate
in the merger proceedings, contending that it had no
locus
standi
to do so. The Court did not find it necessary, in view of the
conclusion
it reached, to determine this question.
[2]
In
these proceedings (unlike in
Mondi
),
the merger in question was
approved
by
the Tribunal (albeit conditionally), and it is the Commission that
is
seeking
to appeal against the Tribunal’s decision. It follows that it
is insufficient for the Commission to establish a
right merely to
participate
in appeal proceedings. The question is whether the
Commission
has a
right
of appeal
against a Tribunal merger decision. In view of my conclusion on the
first issue it is not necessary to determine the question
whether
the notice of appeal was filed late
and
whether the late filing of the notice could or should be condoned.
Nor is it necessary to express any view on the glaring absence
of a
proper application for condonation.
[5]
Section 17(1) of the Competition Act (No. 89 of 1998) (the “Act”)
regulates who may appeal to this Court against
Tribunal merger
proceedings and it provides as follows:
a.
“
Within
20 business days after notice of a decision by the Competition
Tribunal in terms of section 16, an appeal from that decision
may be
made to the Competition Appeal Court, subject to its rules, by -
(1)
any party to the merger; or
(2) a person who, in terms
of section 13A(2), is required to be given notice of the merger,
provided the person had been a participant
in the proceedings of the
Competition Tribunal.”
In terms of s 16(2) the Tribunal may
consider the approval (with or without conditions) or prohibition of
a small or intermediate
merger by the Commission, or itself approve
(with or without conditions) or
prohibit a large merger referred to
it by the Commission. It is clear from the wording of s 17(1) that
only two categories of persons
are permitted in terms of the Act to
appeal against decisions by the
Tribunal in merger proceedings, and
that the Commission does not fall within either of these categories:
A “party to a merger”
is defined in s 1(1)(xviii) of the
Act as “an acquiring firm or a target firm”. An
“
acquiring firm” is in
turn defined as a firm that, as a result of the merger, would acquire
or establish control over the
business of another firm, or that has
control of such acquiring firm or is controlled by it
(s 1(1)(i)). Similarly, a “target
firm” is defined as a firm whose business would be controlled
by an acquiring firm
as a result of a merger, or whose business is
controlled by such target firm (s (1)(xxxiii)). It
follows that the Commission does not
enjoy a right to appeal against a Tribunal merger decision in terms
of s 17(1)(a).
As
regards s 17(1)(b), s 13A(2) provides that, in the case of an
intermediate or larger merger, the primary acquiring firm and primary
target firm must each provide a copy of the merger notification to:
“
(a)
any registered trade union that represents a substantial number of
its employees; or
(b) the employees
concerned or representatives of the employees concerned, if there are
no such registered trade unions.”
In
terms of s (1)(1)(xxvi) a “registered trade union” is
defined as “a trade union registered in terms of s 96
of the
Labour Relations Act, 1995 (Act No. 66 of 1995)”.
It
follows that the Commission does
not
enjoy a right to appeal against a merger decision of the Tribunal in
terms of s 17(1) of the Act. Having specifically stipulated
two
categories of persons as having this right, it is clear that the
Legislature
intended
such right of appeal to be limited to these two categories of
persons:
expressio
unius est exclusio alterius.
[3]
This
view is supported by the provisions of s 16(1). Where the Commission
itself
approves
(conditionally or unconditionally) or prohibits a small or
intermediate merger, the same parties as in s 17(1) may request
the
Tribunal to consider the matter. This tends to confirm the
proposition
that
the Legislature intended that only the named persons could attack
merger decisions. In the case of a small or intermediate
merger, the other provisions on which the Commission relies would not
be
available
as well. The Commission’s argument entails the anomaly that
whereas s 16(1) is exhaustive of the parties who may
attack merger
decisions in respect of small and intermediate mergers, s 17(1) –
which
limits the right of appeal to precisely the same parties –
would not be exhaustive in the case of large mergers.
Moreover,
whereas only the parties named in s 16(1) may require the
Commission’s
decision
on a small or intermediate merger to be considered by the Tribunal, a
range of further parties would, if the Commission’s
argument is
correct, become entitled to pursue a further appeal against
the
decision of the Tribunal on such a merger.
[6]
The Commission relies on s 61(1) which falls under Part E of the Act,
and is entitled “Appeals and Reviews to Competition
Appeal
Court”. It provides as follows:
“
a
person affected by a decision of the Competition Tribunal may appeal
against, or apply to the Competition Appeal Court to review,
that
decision in accordance with the Rules of the Competition Appeal Court
if, in terms of section 37, the Court has jurisdiction
to consider
that appeal or review that matter.”
Section
37 of the Act, entitled “Functions of Competition Appeal
Cour
t
”,
in turn provides as follows:
“
(1)
The Competition Appeal Court may—
(a)
review any decision of the Competition Tribunal; or
(b)
consider an appeal arising from the Competition Tribunal in respect
of—
(i)
any of its final decisions other than a consent order made in terms
of section 63; or
(ii)
any of its interim or interlocutory decisions that may, in terms of
this Act, be taken on appeal.
(2)
The Competition Appeal Court may give any judgment or make any order,
including an order to —
(a)
confirm, amend or set aside a decision or order of the Competition
Tribunal; or
(b)
remit a matter to the Competition Tribunal for a further hearing on
any appropriate terms.”
Section
61(1) provides a general right to a person “affected by”
a decision of the Tribunal to appeal to this Court
against such
Tribunal decision where it is a final decision (other than a consent
order); or
an
interim or interlocutory decision that may, in terms of the Act, be
taken on appeal; and/or to review any such Tribunal decision.
[7]
The Commission has argued that it is a person “affected by”
the Tribunal’s merger decision within the meaning
of s 61(1),
that this decision is a final decision within the meaning of s
37(1)(b)(i) and
accordingly
that the Commission enjoys a right to appeal in terms of these
sections. The Commission’s argument is that, because
the
Commission is given a wide range of functions under the Act, any
decision
of the Tribunal impacts on any of its various functions. For example,
it has been argued that the Commission is affected
by incorrect
market definitions or remedies that are applied too leniently.
The
decision of the Tribunal in this case, it is said, “impacts on
the competitive structure of various markets and therefore
impacts on
the functions” of the Commission.
It
is, to my mind, clear that the
Commission
is not a “person affected by” a Tribunal decision
approving a merger and that the Commission does not enjoy
a right of
appeal in respect of such decisions in terms of s 61(1). The
limitation
of
rights of appeal to persons “affected by” the decision in
question is contained in various other statutes, including
s 25 of
the Workmen’s Compensation Act (No. 30 of 1941),
[4]
s
8(1)(c) of the Road
Transportation
Act (No. 74 of 1977)
[5]
and
s 91(1) of the Compensation for Occupational Injuries and Diseases
Act (No. 130 of 1993).
[6]
Generally,
a limited interpretation is given to these words to
mean
a person “proximately” affected.
[7]
The
Commission is not “proximately affected” by a Tribunal
decision approving a merger. The Commission’s task
in merger
proceedings is to investigate and adjudicate upon small and
intermediate
mergers,
to advise the Tribunal on large mergers, and to participate in merger
hearings before the Tribunal. Once the Commission
has
discharged these duties, it is
functus
officio
.
[8]
Unlike
in complaint
proceedings,
the Commission is not a party to such proceedings in the ordinary
sense of the word. It is merely a participant
whose
participation ends with the Tribunal hearing. The Commission
has no
direct
or substantial interest in the decision reached by the Tribunal.
Moreover, the Tribunal is a body superior in status and
expertise to
the Commission under the Act, and it would subvert this regulatory
hierarchy
were the Commission permitted to appeal against decisions of the very
body that had considered the Commission’s
own adjudication of
small or intermediate mergers, or to which it had made
recommendations
in respect of large mergers. By contrast, the two categories of
persons expressly identified as having a right of
appeal against
Tribunal merger decisions, namely the merger parties
themselves
and trade unions and employees of the merger parties, are clearly
“proximately affected” by the decision
in question and
are accordingly persons “affected by” such decision for
the purposes
of
s 61(1) of the Act.
[8]
It follows and is apparent from the structure of the Act that s 61(1)
must be read subject to s 17(1). In fact, a consideration
of
the two sections illustrate the rule of statutory interpretation that
generalia
specialibus non derogant
which applies to both earlier and subsequent enactments
[9]
as
well as to specific and general provisions in the same
legislation.
[10]
In
the context of the Act, it is
clear
that ss 61(1) and 37 are general provisions governing the kind of
Tribunal decisions generally that may be appealed to, and
reviewed
by, the Competition Appeal Court, and also which categories of
person
may appeal and review such decisions. Section 17(1) is a
specific provision governing the categories of persons which
may
appeal Tribunal decisions specifically in terms of s 16 of the Act.
This is
also
evident from a comparison of s 37(2) and s 17(2) of the Act.
As set out above, the former provides that this Court
may give any
judgment or make any order, including an order to:
“
(a)
confirm, amend or set aside a decision or order of the Competition
Tribunal; or
(b)
remit a matter to the Competition Tribunal for a further hearing on
any appropriate terms.”
Section
17(2), on the other hand, provides that, in the specific context of
Tribunal merger decisions in terms of s 16, this Court
may only:
“
(a) set aside the decision of
the Competition Tribunal;
(b)
amend the decision by ordering or
removing restrictions, or by including or deleting conditions; or
(c)
confirm the decision.”
The
reason for this differentiation is not far to seek: merger
proceedings are by their very nature matters that should be disposed
of expeditiously.
[11]
This
Court is required in terms of s 17(3) to approve
the
merger (with or without conditions) or to prohibit it. This Court is
not given the power to remit the matter to the Tribunal.
While s
37(2) confers general powers on this Court when hearing appeals or
reviews
of Tribunal decisions. Sections 17(2) and (3) are specific
provisions governing the powers of this Court in appeals
against
Tribunal merger decisions specifically. Moreover, it is clear
that the
general
words in ss 61(1) and 37 are “capable of reasonable and
sensible application without extending them to subjects specially
dealt with”
[12]
by
s 17 (ie Tribunal merger decisions). The provisions of
ss
61(1) and 37 are, for instance, applicable to all types of Tribunal
decisions which (unlike merger decisions) do not have their
own
specific appellate regime within the Act. Tribunal decisions in
complaint
proceedings
under Parts A and B of Chapter 2, and Tribunal decisions in exemption
proceedings under Part C thereof would be governed
by these general
provisions. There is no “internal“ statutory
regime
equivalent to s 17 for appeals against these kinds of decisions, and
accordingly they would be subject to the general appellate
provisions
of ss 61(1) and 37. This case calls for the application of
the
maxim
generalia
specialibus non derogant
,
with the result that ss 61(1) and 37 should not be read as altering
or derogating from the provisions of s 17 in respect of appeals
against Tribunal merger
decisions.
It follows that the categories of persons which may appeal against
Tribunal merger decisions are those limited
categories specifically
set out in s 17(1) and not the class of “
affected
”
persons
referred
to in s 61(1).
It
follows that this Court’s powers in respect of Tribunal merger
decisions are those specific powers set out in ss 17(2)
and (3) and
not the general appellate powers referred to in s 37(2). The powers
set
out
in ss 17(2) and (3) may be exercised by this Court only when a matter
has come before the Court
pursuant to s
17(1)
.
When
the relevant provisions of the Act are construed in the manner
discussed
above
they are not inconsistent. Nor can it be said that they lead to an
inequitous result.
[8]
The Commission has argued that its exclusion from appeal proceedings
could lead to results that “can be more detrimental
to
consumers, customers or suppliers of one of the merged entities, than
to
the
merging parties themselves”. It has been submitted that
that it is clearly “extraordinary and iniquitous to
provide
some participants with a right of appeal where other participants [ie
the Commission]
are
left with a review option only”. Section 53(1)(c) determines
who may participate in merger proceedings: (i) any
party to the
merger; (ii) the Competition Commission; (iii) any person who
was
entitled
to receive a notice in terms of s 13A(2) and who indicated to the
Commission an intention to participate, in the prescribed
form;
(iv) the Minister [of Trade and Industry], if the Minister has
indicated
an intention to participate; and (v) any other person whom the
Competition Tribunal recognised as a participant. Not all
these
participants may appeal against a decision of the Tribunal.
Those
who
may are specifically referred to in s 17(1) namely those in
subparagraphs (i) and (iii). The intention of the legislature
could not have been expressed more clearly and the omission of the
other
participants
is clearly indicative of the Legislature’s intention.
[13]
The
Commission is created by statute (s 19(1)) and “must exercise
its functions in accordance with this Act” (s 19(1)(c)).
The
Commission
has no purpose, powers or functions beyond those granted by the Act.
It derives its powers, obligations and jurisdiction
from the
statute.
[14]
The
functions of the Commission are set out in
s
21(1). The only function that is vested in the Commission in
respect of merger regulation is to “authorise, with or
without
conditions, prohibit or affirm mergers of which it receives notice in
terms of
Chapter
3” (s 21(1)(e)). In addition, in terms of s
21(2)(c), the Commission may “perform any other function
assigned to it in terms of this or any other Act”. In this
regard, certain powers and functions
in
respect of merger regulation are conferred on the Commission by
Chapter 3 of the Act. As regards
small
mergers
,
the Commission may require the merger parties to notify it of the
merger if, in its
opinion,
the merger may substantially prevent or lessen competition, or cannot
be justified on public interest grounds (s 13(3)).
After the
merger parties have fulfilled all their notification requirements,
the
Commission
must, after considering the merger in terms of s 12A, either approve
the merger (with or without conditions) or prohibit
it (s 13(5)(b)).
As regards
intermediate
mergers
,
the merger parties
are
required to notify the Commission thereof (s 13A(1)), and the
Commission, after having considered the merger in terms of s 12A,
must either approve the merger (with or without conditions) or
prohibit
it (s 14(1)). As regards
large
mergers
,
the merger parties are also required to notify the Commission thereof
(s 13A(1)). After receiving notice of a large merger,
the
Commission must refer such
notice
to the Tribunal and to the Minister of Trade and Industry.
After the merger parties have fulfilled their notification
requirements, the Commission must forward to the Tribunal and
Minister a written
recommendation,
with reasons, whether or not implementation of the merger should be
approved (with or without conditions) or prohibited
(s 14A(1)). The
Commission enjoys power to investigate any
merger
and to require any merger party to provide additional information in
respect of the merger (s 13B).
Any
decisions taken by the Commission in respect of small or intermediate
mergers are subject to the consideration of the Tribunal:
If
the Commission approves a
small or
intermediate merger
subject
to
conditions, or prohibits it, any party to the merger may request the
Tribunal to consider the conditions or prohibition order
(s
16(1)(a)). But where the Commission approves an
intermediate
merger
,
or
approves such merger subject to conditions, a person who, in terms of
s 13A(2), is required to be given notice of the merger
may request
the Tribunal to consider the approval or conditional approval,
provided
that the person had been a participant in the proceedings of the
Commission (s 16(1)(b)). As regards
large
mergers
, the Tribunal is required, upon
receiving a referral of such merger and
recommendation
from the Commission, to consider the merger in terms of s 12A and
such recommendation, and either to approve the
merger (with or
without conditions) or prohibit it (s 16(2)).Within
this
framework, the Commission is granted a right in terms of s 53(1)(c)
of the Act to participate in merger hearings before the
Tribunal.
The Commission also has the power to revoke its own decision to
approve
or conditionally approve a small or intermediate merger in certain
circumstances (s 15(1)) and, in the case of large mergers,
may apply
for the Tribunal to revoke its own decision to approve or
conditionally
approve a merger (s 16(3)).
It
follows that the Act provides a comprehensive framework for the
regulation of merger control. In respect of all mergers,
the
Commission has an investigative
function.
In addition, however, the Commission effectively acts as an
adjudicative body in respect of small and intermediate
mergers whose
decisions can be reconsidered by the Tribunal. Moreover, in
respect
of large merger proceedings, the Commission acts as an advisory body
to the Tribunal. In this respect, the Commission’s
role
in merger control is quite different from its role in respect of
prohibited
practices and complaints in respect of them. In the latter, the
Commission has no adjudicative or advisory role;
rather, it
investigates complaints initiated by, or referred to it (s 49B) and,
if it
determines
that a prohibited practice has been established, must refer the
complaint to the Tribunal for hearing (s 50(2)).
In the event
that the Commission does refer a complaint to the Tribunal, then it
effectively
prosecutes the complaint against the respondent before the Tribunal.
The Commission is thus a “party”
to, and more
specifically the applicant in, complaint proceedings before the
Tribunal
when
it has referred the complaint in question to the Tribunal.
However, it is merely a “participant” in merger
proceedings before the Tribunal where the only “parties”
are the merger parties themselves.
Its
“interest” in the two forms of proceedings is therefore
different and it has no further function to fulfil in merger
proceedings once it has investigated and adjudicated or advised upon
the merger in
question,
and participated in the merger hearing. The Commission then
becomes
functus officio
.
[9]
The Commission has argued that it is necessary for it to have a right
of appeal in order to protect the interests of consumers
and other
participants in the markets affected by the merger (see par 5.1 of
its
heads of argument). This submission, it has correctly been
shown by Mr Rogers who appeared with Mr Wilson on behalf of
the
Respondents, fails to take into account that the Tribunal is a
superior
body
to the Commission in the regulatory hierarchy provided by the Act,
and which is better qualified than the Commission in the
field of
merger regulation.
[15]
In
the circumstances, there is nothing
extraordinary
or iniquitous in the Commission not having a right to appeal against
Tribunal merger decisions. In fact, the
absence of any
provision in the Act allowing such an appeal is consistent with the
functions
and powers of the Commission and its particular role in merger
proceedings.
[10]
The Commission has also contended that its interpretation of the Act
is consistent with the Constitution of the Republic of
South Africa
(Act 106 of 1998) whereas that of the respondents is not (par
7
of its heads of argument ). The Commission has contended that
an interpretation of the Act that limits the right of appeal
in
merger proceedings to those categories of persons listed in s 17(1)
is
inconsistent
with the right to equality in s 9(1); the right to administrative
action that is procedurally fair in s 33(1);
and the right to a
fair public hearing of a legal dispute in s 34. These
contentions were not
pressed
in argument and perhaps rightly so for it is clear that the
differentiation between the appeal rights of the Commission
and those
of the categories of persons listed in s 17(1) does bear a “rational
connection
to a legitimate government purpose”
.
The
differentiation does not amount to “discrimination”, let
alone “unfair discrimination”, as set out in
Harksen
v Lane NO
.
[16]
As
regards the right to
procedural
unfairness, the Commission has failed to define what “administrative
action” (as defined in s 1(i) of the
Promotion of
Administrative Fairness Act 3 of 2000) is at issue or in what is
procedurally
unfair.
The Tribunal’s decision on a large merger does not affect the
“rights” (or “legitimate expectations”)
of
the Commission. As regards the right to a “fair”
public hearing under s 34 of the Constitution,
the
Commission’s argument (at par 7.6) is that “a hearing
cannot be regarded as fair if the parties referred to in s
17(1)(a)
and (b) are given a right of appeal against the finding in such
hearing whereas the
other
persons affected by the result is [sic] not granted such right of
appeal”. This argument does not relate to the
fairness of
the hearing itself and does not involve s 34 of the Constitution.
None
of the Commission’s |Constitutional contentions have any
merit. In terms of s 8(4) of the Constitution
a juristic person
such as the Commission is entitled to the rights in the Bill of
Rights “to the
extent
required by the nature of the rights and the nature of that juristic
person”. The Commission is a statutory
body
established for specific purposes and with limited functions and
powers. In the nature
of
things, such a body will have rights and powers which are more
restricted than other persons. The Commission’s reliance
on the
Constitution is an attempt to acquire powers and functions which the
Legislature
did not to confer on the Commission.
[11]
The Commission has argued that, if s 61(1) does not afford it any
right to appeal against Tribunal merger decisions, the result
would
be that the Minister would not have a right of appeal in
circumstances
where the merger parties themselves and their trade unions and
employees do have such right (par 6 of the heads of
argument).
Section 18(1) provides that the Minister “[I]n order to make
representations
on any public interest ground referred to in Section 121A(3)”
may participate as a party in any intermediate
or large merger
proceedings before the Commission, the Tribunal and this
Court.
The Commission has argued that, if the interpretation of the
Respondents are correct that only the parties referred
to in s 17(1)
have a right of appeal, the Minister’s rights of appeal would
be
limited
to that of a respondent only. The Commission thus calls for a
construction that would allow the Minster to appeal any decision
of
the Tribunal in cases falling within s 12A(3) to avoid any disparity
between
the Minister’s rights and those of trade unions and parties to
the merger and avoid any subordination of the public
interest issues
referred to in s 12A(3) to the competition criteria set out in s
12A(2).
This argument is difficult to follow. Had the Legislature intended
the Minister to have a right to appeal against Tribunal
merger
decisions, it would have been simple to provide for it in s 17(1).
Both
the Minister and the Commission are specifically excluded even
though they are listed within the categories of persons entitled
to
participate in merger hearings before the Tribunal in terms of s 53(1
(c).
Nor would the public interest issues referred to in s 12A(3) be
subordinated to the competition considerations of s 12A(2)
because
the Minister enjoys an express right in terms of s 18(1) of the Act
to
participate as a party in any large merger proceedings before the
Commission, the Tribunal and this Court in order to make
representations on any public interest ground referred to in s 12A(3)
albeit
that
the Minister may not launch appeal proceedings like any of the
categories of persons listed in s 17(1). This is due the latter’s
direct and immediate interest in the Tribunal’s decision and
not any
subordination
of public interest factors to competition considerations.
[12]
I would therefore uphold the first point
in
limine
and dismiss the appeal.
Malan
AJA
I
agree and it is so ordered.
Davis
JP
i.
I agree.
Jali
JA
*
I am indebted to counsel (Mr Rogers SC and Mr
Wilson) for the Respondents for their very useful heads of argument.
[1]
Case No. 20/CAC/Jun02 dated 14 February 2003
1
[2]
Davis JP remarked as follows:
“[T]here is some merit in the argument of appellants and it is
preferable if the Legislature
were to examine the Act with a view to
considering the desirability of the primary investigating agency,
the Commission, having
a right to appear in proceedings of this
nature.”
[3]
Cf
Strauss v Strauss
1973 (3) SA 788
(A) at 791H-792A;
Cargo
Africa CC v Gilbeys Distillers and Vintners
1996 (2) SA 324
(C) at 329HI; Steyn
Die
Uitleg van Wette
5ed at 50-1.
[4]
See eg
Fred Saber
(Pty) Limited v Franks
1949 (1) SA 388
(A) at 395ff;
Trawler and Line
Fishermen
’
s Union v Workmen
’
s
Compensation Commission
1953 (4) SA 65
(C) at 67ff;
Ex parte Workmen
’
s
Compensation Commissioner: In re Plotkin v Accident Fund
1970 (2) SA 418
(T) at 420ff;
Workmen
’
s
Compensation Commissioner v Crawford and Another
1987
(1) SA 296
(A) at 305DH.
[5]
eg
Chairman,
National Transport Commission and Others v LC de Lange Transport
(Pty) Limited
1983 (4) SA 678
(E) at
685ff, 688G.
[6]
eg
Venter v
Compensation Commissioner
2001 (4) SA
753
(T) at 755E and the authorities cited in the previous notes.
[7]
In
Workmen’s
Compensation Commissioner v Crawford supra
at
305G the Appellate Division held that the phrase “any person
affected by a decision” should be given “a limited
interpretation”. In support of this view, the Court
quoted De Villiers CJ in
Sibisi v
Trustees Under Natal Act No. 9,
1910
1913 AD 77
at 81, where he said that “… the expression
‘affected’ does not mean remotely, but proximately
affected.”
In
Trawler and Line
Fishermen’s Union
supra
the appellant was held not to be the
person affected by the decision of the respondent because its
interest was merely “a
general one” arising from the
deceased’s membership of its union (at 68FG).
[8]
cf
Jordaan v
Oosthuizen
1969 SA 606
(O) at
610BC.
[9]
R v Gwantshu
1931
EDL 29
at 31:
“
Where general words
in a later Act are capable of reasonable and sensible application
without extending them to subjects specially
dealt with by earlier
legislation, that earlier and special legislation is not to be held
indirectly repealed, altered or derogated
from merely by force of
such general words, without any indication of a particular intention
to do so.'
[10]
cf
Akani Garden
Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd
2001 (4) SA 501
(SCA) at 510BE;
Sappi
Fine Papers (Pty) Ltd v ICI Canada Inc (formerly CIL Inc)
[1992] ZASCA 58
;
1992 (3) SA 306
(A) at 328B-F;
S v De
Sa
1982 (3) SA 941
(A) at 956C-F;
United African Motor and Allied
Workers’ Union v Fodens (SA) (Pty) Ltd
1987 (3) SA 269
(T) at 273DE;
Kommissaris
van Binnelandse Inkomste v Van der Walt
1986
(4) SA 303
(T) at 310I;
Norman & Co
(Pty) Ltd v Hansella Construction Co (Pty) Ltd
1968
(1) SA 503
(T) at 504AD.
[11]
Intermediate and large mergers may not be
implemented until they have been finally approved (s 13A(3)) and
small mergers may not
be further implemented once they have been
required to be notified to the Commission (s 13(4)). In terms of s
16(2) the Tribunal
is required to issue its decision on a merger
“
within the prescribed time
”
.
In terms of Rule 35(1) the Tribunal must schedule its first hearing
or conference within ten business days of the referral,
and in terms
of rule 35(4) its decision on the merger must be issued within ten
business days after the end of the hearing.
In keeping with
the legislature
’
s policy of
expeditious decision-making in merger cases, the Act reflects an
intention on the part of the Legislature to minimize
uncertainty and
delay arising from the merger regulation process by limiting the
persons who may appeal against Tribunal merger
decisions to a
limited number of designated categories which are the most directly
affected by the merger approval process, namely,
the merger parties
themselves, and their trade unions and employees. For the same
reason, s 17(2) does not include the
general appellate powers vested
in this Court in terms of s 37(2), such as remitting a matter to the
Tribunal for further hearing
(s 37(2)(b)), which may delay the
merger regulation process.
[12]
R v Gwantshu
1931
EDL 29
at 31.
[13]
cf
Trawler and Line
Fishermen
’
s Union v Workmen
’
s
Compensation Commission
1953 (4) SA 65
(C) 68GH. Section 13A(3) of the Act provides that the parties to an
intermediate or large merger may not implement it until it
has been
approved, with or without conditions, by the Commission in terms of
s 14(1)(b), the Tribunal in terms of s 16(2) or
this Court in terms
of s 17. This subs lends some support for the contention that
s 17 exclusively regulates the right
of appeal in merger
proceedings.
[14]
Simelane and Others NNO v Seven-Eleven
Corporation SA (Pty) Ltd and Another
2003
(3) SA 64
(SCA) at 71I-72E;
Venter v
Compensation Commissioner
2001 (4) SA
753
(T) 757CF referred to in
Old Mutual
Properties (Pty) Limited and Another v The Competition Tribunal and
Others
(21/CAC/Jul02) par 7.
[15]
The Tribunal, unlike the Commission, is a
Tribunal of record (s 26(1)(c)
Simelane
and Others NNO v Seven-Eleven Corporation SA (Pty) Ltd and Another
supra
at 72FG), whose functions
include the consideration of adjudications made by the Commission in
respect of small and intermediate
mergers (s 16(1)) and of the
recommendations made by the Commission in large merger proceedings
(s16(2)). The Tribunal
represents a broad cross-section of the
population of South Africa (s 28(1)(a)), comprises persons with
legal training and experience
(s 28(1)(b)) and its members have
“
suitable qualifications and
experience in economics, law, commerce, industry or public affairs
”
(s 28(2)(b)).
[16]
[1997] ZACC 12
;
1998 (1) SA 300
(CC) par 51-54 at 323C-325D.