IN THE COMPETITION APPEAL COURT OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 247/CAC/Jul23
In the matter between:
COCA COLA BEVERAGES SOUTH AFRICA
(PTY) LTD Applicant
and
THE COMPETITION COMMISSION OF SOUTH AFRICA First Respondent
ILLOVO SUGAR AFRICA (PTY) LTD Second Respondent
TONGAAT HULETT SUGAR
SOUTH AFRICA LIMITED Third Respondent
RCL FOODS LIMITED Fourth Respondent
SUGAR ASSOCIATION OF
SOUTH AFRICA Fifth Respondent
2
SOUTH AFRICAN CANE
GROWERS’ ASSOCIATION Sixth Respondent
SOUTH AFRICAN FARMERS
DEVELOPMENT ASSOCIATION Seventh Respondent
SOUTH AFRICAN SUGAR MILLERS
ASSOCIATION NPC Eighth Respondent
Coram: MANOIM JP, NUKU JA AND POYO DLWATI AJA
Heard: 26 August 2024
Delivered: 7 October 2024
Summary: Competition law – Tribunal’s re view jurisdiction – effect of Group Five
decision – application for transfer – whether this Court has the power to transfer a matter
from the Tribunal to itself – this Court not competent to grant such order – no statutory
authority to order such a transfer – Section 173 of the Constitution also cannot give the
court a transfer power – applicant’s review was brought in terms of section 27 of the
Competition Act, - such a review cannot be transformed into a legality or PAJA review by
transfer – transfer application refused.
ORDER
An application for transfer: from the Competition Tribunal:
1 The application is dismissed.
2 The applicant is liable for the costs of the opposing respondents on a party and party
basis, scale C, including the costs of two counsel, where so employed.
3
JUDGMENT
Manoim JP (Nuku JA and Poyo Dlwati AJA concurring)
Introduction
[1] The central issue in this case is whether this Court has the power to transfer a
matter that commenced before the Competition Tribunal ( the Tribunal) to itself. In this
decision I explain firstly why this problem has arisen and then consider whether this Court
has the competence to make a transfer order.
[2] The applicant in this matter is Coca Cola Beverages South Africa (Pty) Ltd
(CCBSA), the local bottler of well -known beverages. In the Tribunal matter CCBSA was
seeking to review a decision of the Competition Commission ( the Commission), the first
respondent in this matter, not to refer a complaint of excessive pricing that CCBSA had
brought to it against some of the respondents. The Commission does not oppose this
transfer application. However, some of the other respondents do.
[3] A key input into the manufacture of these beverages is sugar , which CCBSA
purchases from local milling companies, inter alia, the second respondent , Illovo Sugar
Africa (Pty) Ltd (Illovo), the third respondent, Tongaat Hulett Sugar South Africa Limited
(Tongaat), and the fourth respondent, RCL Foods Limited (RCL). These manufacturers
are members of the eighth respondent, the South African Sugar Millers Association NPC
(SASMA). For convenience, Illovo, Tongaat, RCL and SASMA are collectively referred to
as the miller respondents.
Background
[4] In 2018, CCBSA was faced with rising input costs for sugar. It states that at that
time the price of sugar had increased materially with the nominal price increasing by 40%
over the preceding four years. It decided to lodge a complaint with the Commission
4
alleging that the respondents were responsible for engaging in conduct resulting in
excessive prices for sugar. The respondents in the complaint were the three milling
companies (the second to fourth respondents) as well as associations representing cane
growers and developing farmers (sixth to eight respondents). In the complaint , CCBSA
alleged that the respondents had contravened section 8 (a) of the Competition Act 89 of
1998 (the Act). This section prohibits a dominant firm from charging an excessive pri ce
to the detriment of consumers. That provision has since been amended but that is not
presently relevant.
[5] The Commission is required to investigate any complaint made to it. During this
period there were various interactions between CCBSA and the Commission’s
investigation team. Eventually , on 2 9 July 2021 , the Commission wrote to CCBSA’s
attorneys to advise that it had decided not to refer the complaint. It gave two reasons for
doing so. First, it said that to bring a case under section 8(a) of the Act, it had to be shown
that the respondent is a dominant firm. The Commission stated that most of the
respondents were unlikely to be found to be dominant and hence to have market power.
Secondly, it found that the economic indicators (gross profi t margins, mark -ups etc)
showed a ‘. . . distinct lack of supra -competitive profits which would be expected from
firms charging excessive prices’.
[6] Attached to the letter was a Notice of Non-referral. This Notice would have entitled
CCBSA to refer its complaint to the Tribunal directly. 1 But CCBSA chose not to go this
route. Instead, on 15 October 2021, it opted to review the Commission’s decision to non-
refer. At the Tribunal, CCBSA sought the following relief:
(a) To review and set aside the Commission’s decision not to refer the complaint;
(b) To remit the complaint back to the Commission for investigation;
(c) To order the Commission to conduct the investigation within 120 days of the order
‘and to take the necessary consequential steps’;
(d) To review the Commission’s decision to refuse access to its investigation record; and
1 Section 51 of the Competition Act 89 of 1998 (the Act).
5
(e) To direct the Commission to grant CCBSA access to the investigation record.
[7] CCBSA sets out several reasons for the review in the application to the Tribunal.
It is not necessary for the purposes of this decision to consider them; save to observe
they combine both procedural and substantive grounds. For instance, CCBSA accuses
the Commission, variously, of a predisposition in favour of the milling companies ; failing
to allow it to comment on the submissions made by the millers ; taking into account
irrelevant information; and failing to take into account relevant information, arb itrariness,
and making a decision that was unreasonable.
[8] In response to the application several of the respondents wrote to CCBSA’s
attorneys making the point that it was not competent for the Tribunal to entertain the
review. CCBSA disagreed and insisted that it wanted to persist with its review. At a case
management meeting , the Tribunal directed that the point in limine that it had no
jurisdiction should be argued first. The miller respondents then filed opposing affidavits
raising the jurisdiction issue as a point in limine.
[9] The Tribunal never got to hear the point in limine. What happened is that in October
2022, the Constitutional Court issued its judgment in a case called Competition
Commission of South Africa v Group Five Construction Limited (Group Five).2 Whilst not
directly concerned with the point of whether the Tribunal could hear a review of a
Commission decision to non-refer a complaint, the Court made a broader determination
of the Tribunal’s power to hear reviews.3 The Court held that:
‘The grounds upon which Group Five seeks to review the decision of the Commission relate to
the validity and lawfulness of the initiation and subsequent referral, of the complaint to the
Tribunal. These are questions of vires or legality, issues which typically fall within the ambit of the
2 Competition Commission of South Africa v Group Five Construction Limited [2022] ZASCA 36; 2023 (1)
BCLR 1 (CC); [2023] 1 CPLR 1 (CC).
The issue in that case was whether a review of a decision of the Commission not to grant leniency to an
alleged cartelist was a decision that was reviewable by the Tribunal or should have been instituted in the
High Court or the CAC.
6
jurisdiction of the superior courts. Thus, although they arise out of a complaint referred and
initiated under the Act, the issues on review are not pure competition law matters – that is, matters
that, according to the Act, fall within the exclusive competence of the Tribunal and the Competition
Appeal Court.’4
[10] The Court explained that:
‘Section 27(1)(c) recognises the power of the Tribunal to hear appeals and reviews in respect of
any decision of the Commission that may be referred to it in terms of the Act. Thus, the appeal
and review jurisdiction of the Tribunal is limited in terms of the powers conferred upon it in the
Act. Those powers are to “hear appeals from, or review any decision of, the Competition
Commission that may in terms of this Act be referred to it”.’5
[11] Having made clear what types of review the Tribunal could hear, the Court went
on to make it clear what types of review the Tribunal could not hear:
‘For all these reasons, the Tribunal does not have jurisdiction to adjudicate a PAJA or legality
review.’6
[12] The Constitutional Court however held that the Competition Appeal Court ( the
CAC) and an ordinary High Court would have jurisdiction to hear reviews of decisions of
the Commission. It held that:
‘Unlike the Tribunal, the Competition Appeal Court, which has “a status similar to that of the High
Court”, does have jurisdiction to hear PAJA and legality reviews in terms of two provisions of the
Act. First, the Competition Appeal Court is expressly empo wered to review any decision of the
Tribunal – this power is limited to decisions of the Tribunal and does not include decisions of the
Commission. Second, in addition to any other jurisdiction granted in the Act, it has jurisdiction
over constitutional m atters arising in terms of the Act. That includes the power to review the
exercise of the Commission’s public powers derived from the Act. And, as stated, in terms of
section 62(2)(a) of the Act, the Competition Appeal Court is also clothed with additional ,
4 Fn 2 above para 139.
5 Ibid para 120.
6 Ibid para 132.
7
concurrent jurisdiction over the “the question whether an action taken or proposed to be taken by
the Competition Commission . . . is within [its] . . . jurisdiction . . . in terms of this Act”.’7
[13] In March 2023, CCBSA indicated that consequent upon the decision in Group Five
it would accept that the Tribunal did not have jurisdiction to hear the review. What CCBSA
proposed was that the respondents consent to the application being transferred to the
CAC to obviate the need for it to commence proceedings de novo. The miller respondents
again objected as they contended, inter alia, that there was no procedure for such a
transfer. CCBSA did not accept this criticism and on 4 July 2023 brought the present
application for a transfer to this Court. CCBSA seeks the following orders in the transfer
application:
(a) That the application originally launched in the Tribunal be transferred to the roll of this
Court for determination; and
(b) That the pleadings be permitted to stand as the pleadings in the matter subject to
CCBSA’s right to amend its case once the Commission’s record had been received.
[14] The Commission does not oppose the transfer application. Nor does the sixth
respondent, the South African Sugar Cane Growers Association, which filed a notice to
abide. The seventh respondent has not filed papers to oppose. This leaves the opposition
to the transfer coming from the miller respondents. Since the same legal team represents
both Illovo and SASMA, and advanced the same arguments for both, I will for
convenience just refer to them collectively as Illovo.
Legal issues not in dispute
[15] Several legal issues are not in dispute, so it is worth setting them out first. Neither
the Act or the Rules of the CAC or the Tribunal, prescribe a rule for transferring cases
from the Tribunal to the CAC. However, the CAC also does not have any rules regulating
reviews of the Commission. The current review procedure in the CAC’s rules is limited to
7 Fn 5 above.
8
reviews of Tribunal decisions.8 Nevertheless, in terms of the Act, the CAC is a Court as
contemplated in section 166(1)(e) of the Constitution.9 This gives it a status similar to that
of a High Court. The implication of having the status similar to that of a High Court, is that
it enjoys inherent jurisdiction in terms of section 173 of the Constitution. That section
states:
‘The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to
protect and regulate their own process, and to develop the common law, taking into account the
interests of justice.’
[16] CCBSA argues that section 173 of the Constitution gives the CAC the power to
transfer the matter from the Tribunal to itself in order to protect and regulate its own
process. The miller respondents argue that section 173 cannot be read to go that far.
CCBSA’s argument on the transfer power
[17] CCBSA’s argument is quite straightforward. It concedes that the Constitutional
Court’s decision in Group Five has finally closed the door on any uncertainty as to the
ambit of the Tribunal’s power to review decisions of the Commission. But it argues that
up until then, the position was far from clear. Litigants seeking a review were faced with
a legal conundrum. The Act conferred on the Tribunal and the CAC exclusive jurisdiction
over the core issues of competition law. This is in terms of section 62(1) of the Act, which
states that the Tribunal and CAC share exclusive jurisdiction over Chapters 2, 3 and 5 of
the Act. Chapters 2 and 3 deal respectively with the prohibited practices and mergers.
Put differently these are the issues that lie in the heartl and of what is specialised in
competition jurisprudence. Thus, the question of whether a dominant firm has charged an
excessive price falls under section 8(a), which is part of Chapter 2.
[18] Chapter 5 is less straightforward. It deals in several sections with investigative and
adjudicative procedures. Section 50 , which deals with the outcome of a complaint,
8 Rules 23 to 27 of the Competition Appeal Court Rules.
9 Section 36(1)(a) of Act.
9
including the provision on which the Commission relied in the present matter to non-refer
the complaint, forms part of Chapter 5. This all suggests that a review of a decision by
the Commission not to refer a complaint that concerns alleged excessive prici ng might
well, at least arguably, if reviewable, form part of the exclusive jurisdiction carve out in
section 62(1).
[19] However, section 62(2) partly takes back what section 62(1) has seemingly given.
It makes clear that questions over whether the Commission or Tribunal have jurisdiction
over certain actions is a power that the CAC has as an additional power to the one it has
in terms of exclusive jurisdiction. Put differently the power to decide on what power the
Commission has, is not one given to the Tribunal, but to the CAC.
[20] It is not difficult to imagine that the boundary lines of whether a legal question falls
within the exclusive jurisdiction box of issues or outside of it, will frequently be covered in
fog. This was, to put it at its most sympathetic, the problem facing CCBSA in 2021 when
it commenced its review before the Tribunal. Had it instituted the review directly in the
CAC or a High Court, the party it was seeking to review, the Commission, may well have
argued that it had chosen the wrong forum, and it should have brought the matter to the
Tribunal.
[21] As a litigant the Commission had historically defended these exclusivity powers as
it had done, albeit unsuccessfully, in Group Five. Prior to Group Five there were some
decisions by this Court, and the SCA, which suggested a wider remit of the review
jurisdiction of the Tribunal. Indeed, even in Group Five there was still a minority judgment
which favoured the Tribunal’s review jurisdiction.
[22] CCBSA reprises this history to explain that when it initiated its review in the
Tribunal, prior to the Group Five decision on the law as it was then, this seemed the
correct forum to choose. After all, CCBSA argued, the review required a consideration of
whether the Commission had applied the correct approach to determining an excessive
pricing case. This meant going into the jurisprudence of excessive pricing and economic
10
questions that go into the heartland of exclusivity of section 62(1). If it instead went to this
Court directly or a High Court, it could anticipate that the party being reviewed – the
Commission – would take the point that the case was in the wrong forum.
[23] I will assume, simply for the purpose of this decision, that until the Constitutional
Court handed down Group Five, CCBSA reasonably assumed that its case was brought
in the correct forum. But that is not the question I have to decide in this matter. The
question is whether this Court has the power to transfer the application before the
Tribunal.
[24] CCBSA originally invoked section 34 of the Constitution. That is that fairness
required it to have its case transferred since there had been a change in the legal
understanding from the time the case was instituted and prior to it being determined. This
argument was not pursued at the hearing. Correctly so since CCBSA still has a remedy –
to approach the CAC de novo. Thus, there is no infringement of its section 34 rights. This
case is not about denying it the right to bring a review rather about whether this Court has
the competence to make a transfer order.
[25] The main argument pursued by CCBSA relies on its interpretation of section 173
of the Constitution. The argument is that the CAC as a court with inherent powers can
determine its own procedures. Absent a rule for transferring matters from the Tribunal it
can use this power to rectify the lacuna. The argument is that given that the CAC in any
event has no procedures to hear reviews from the Commission (a power the
Constitutional Court says it has) it would have to use this inherent power to ‘protect and
regulate its own process’. It is thus a small leap on CCBSA’s logic to infer an added power
to transfer those review cases still moored in the Tribunal, pre -Group Five, to its own
jurisdiction.
[26] CCBSA argues that the objections of its opponents are purely technical and
advance form over substance. Moreover, it points out that recently this Court allowed a
transfer in the Sasol Gas Proprietary Limited v the Competition Commission and Others
11
(Sasol) matter.10 It is correct that this Court did so in Sasol. But it must be pointed out that
the Sasol transfer was not opposed. CCBSA may have hoped its opponents may have
been similarly co-operative but there is nothing in the history of their engagements that
suggested this would be the case. The miller respondents had from the earliest moment
in this litigation indicated that CCBSA was wrong to have proceeded before the Tribunal.
CCBSA also argues that transfers from one court to another are not unusual as I discuss
later.
The respondent’s arguments against transfer
[27] The miller respondents have advanced several arguments as to why transfer is not
competent. They are aligned on some issues whilst some raised additional arguments.
All three legal teams were aligned on the following points:
(a) Section 173 has historically been given a narrow interpretation – there is no instance
where a court assumed the powers being contended for by CCBSA. Moreover, it was
argued that a court cannot transfer a case to itself.
(b) The review before the Tribunal is a nullity. It is therefore incapable of being transferred.
(c) The review before the Tribunal was neither a PAJA review nor a legality review. It was
premised on being a statutory review in terms of section 27(1)(c) of the Competition Act.
It is not permissible to transfer an application premised on a different legal basis.
(d) The transfer is being sought to avoid its being brought unduly late.
[28] Illovo also argued that as an additional ground, the relief should not be granted
because of CCBSA’s ‘… lack of candour regarding the true reason for the transfer
application’. I understand this to be a criticism of the fact that CCBSA had failed or been
reluctant to explain why it had taken them so long to decide on the transfer application
(this was signalled in correspondence four months after Group Five had been handed
10 Sasol Gas Proprietary Limited v the Competition Commission of South Africa and Others Case No
212/CAC/Apr23 (5 March 2024).
12
down) and then having stated in correspondence that it would bring such an application,
why it had still taken another four months to bring it.
[29] RCL argued that the entire basis for the review was incompetent as one could not
review a decision of the Commission not to refer a complaint. Rather the correct remedy
was for CCBSA as the complainant, to bring the referral itself in terms of section 51(1) of
the Act.11
Analysis
[30] The starting point in considering whether this Court has the power to transfer a
case from the Tribunal to itself, is the Act and its rules. There is agreement between all
the parties that no such power exists, in either the statute or its rules, because t his
situation was never contemplated. CCBSA argues that the notion of transferring cases
from one court, which does not have jurisdiction to one that does, is not unknown to our
legal system.
[31] It is correct that cases do get transferred from one court to another. But those
transfers are carried out in terms of a specific statutory authorisation. Thus section 27(1)
of the Superior Courts Act 10 of 2013 provides that:
‘(1) If any proceedings have been instituted in a Division or at a seat of a Division, and it appears
to the court that such proceedings –
(a) should have been instituted in another Division or at another seat of that Division; or
(b) would be more conveniently or more appropriately heard or determined –
(i) at another seat of that Division; or
(ii) by another Division,
that court may, upon application by any party thereto and after hearing all other parties thereto,
order such proceedings to be removed to that other Division or seat, as the case may be.’
11 Section 51(1) of the Act entitles a complainant in a non-referral case to refer a case itself to the Tribunal.
13
[32] Section 27(1)’s predecessor was the Interim Rationalisation of Jurisdiction of High
Courts Act 41 of 2001 . In Road Accident Fund v Rampukar (Rampukar), the SCA
explained that the purpose of the statute was to give the transferring court:
‘. . . the limited jurisdiction – which otherwise it would not have had – to transfer the matter to the
“right” court, ie the court with proper jurisdiction to determine the dispute. . ..’ 12
[33] Rampukar’s essential finding – that it is the statute that gives a court the jurisdiction
it otherwise would not have – has been followed in later cases.13 But even in cases where
the statutory jurisdiction has been given, the courts have been reluctant to interpret it to
widen its remit. Thus, in Oosthuizen v Road Accident Fund the issue was whether the
statutory remit to transfer cases from a Magistrates Court to the High Court at the instance
of the defendant, can be interpreted to allow a plaintiff the right to transfer a case where
the claim now exceeded the lower court’s jurisdiction.14 The SCA held it could not:
‘The appellant’s access to court was not impeded by some lacuna in the law. His attorneys chose
the wrong forum and persisted therein when it was clear on the available evidence that a change
of forum was imperative.
. . .
A high court may not use its inherent jurisdiction to create a right. The appellant’s reliance on the
expression “ubi jus ibi remedium” is misplaced. The appellant had a right to institute action in the
appropriate forum to the full extent of his claim. Prescription has extinguished part of his claim.
For that consequence his attorneys are to blame. As pointed out above, he has a remedy in that
regard.’15
[34] Thus far, the discussion has been about how courts have approached the issue of
transfer where a statutory remit is in existence. I now turn to CCBSA’s argument that even
12 Road Accident Fund v Rampukar [2007] ZASCA 148; 2008 (2) SA 534 (SCA) para 10.
13 See for instance Ngqula v South African Airways (Pty) Ltd 2013 (1) SA 155 (SCA) and Kamupungu v
Road Accident Fund 2023 (4) SA 627 (ECM).
14 Oosthuizen v Road Accident Fund [2011] ZASCA 118; 2011 (6) SA 31 (SCA); [2011] 4 All SA 71 (SCA).
15 Ibid para 25 & 26.
14
absent an express statutory remit , where there is a lacuna one can still rely on section
173 of the Constitution.
[35] This provision too has been given a narrow interpretation. Moseneke DCJ held in
South African Broadcasting Corp oration Ltd v National Director of Public Prosecutions
and Others:
‘In my view it must be added that the power conferred on the High Courts, Supreme Court of
Appeal and this Court in s 173 is not an unbounded additional instrument to limit or deny vested
or entrenched rights. The power in s ection 173 vests in the judiciary the authority to uphold, to
protect and to fulfil the judicial function of administering justice in a regular, orderly and effective
manner. Said otherwise, it is the authority to prevent any possible abuse of process and to allow
a court to act effectively within its jurisdiction. However, the inherent power to regulate and control
process and to preserve what is in the interests of justice does not translate into judicial authority
to impinge on a right that has otherwise vested or has been conferred by the Constitution.’16
[36] In Cape Town City v South African National Roads Authority and Others, the SCA
explained:
‘Even were it open to the high court to invoke s 173, that section does not empower a court to
create a procedural rule in the absence of a lacuna. And it has not been suggested that the
existing law is insufficient.’17
[37] In short, there is no case authority to support a wide interpretation of section 173
that would permit a court, absent a statutory power to do so, to transfer a case from one
court to another, let alone a court to transfer to itself a case from an administrative tribunal
found not to have jurisdiction.
16 South African Broadcasting Corporation Ltd v National Director of Public Prosecutions and Others 2007
(1) SA 523 (CC); 2007 (2) BCLR 167 (CC) para 90.
17 Cape Town City v South African National Roads Authority and Others [2015] ZASCA 58; 2015 (3) SA
386 (SCA); [2015] 2 All SA 517 (SCA) para 30.
15
[38] The court does not need to invent a transfer power to assist CCBSA. Its application
was brought before the wrong forum. All the parties are agreed that it is competent for it
to approach this Court directly with its review. But it does mean that it has to start de novo.
There is thus no lacuna here that needs to be rectified.
[39] Although that alone would end the matter , there is still a further problem. The
review brought before the Tribunal was a statutory review. Hoexter and Penfold have
indicated that statutes can offer grounds of review distinct from PAJA and a legality
review. In a passage cited with approval by the Constitutional Court in another
competition matter involving CCBSA, the authors explain:
‘The legislature may and often does confer on the courts a statutory power of review. This is
“special” because it differs from “ordinary” judicial review in the administrative law sense. The
adjective also helps to distinguish other statutory reviews from PAJA review, which is of course
statutory too. Statutory review is often a wider power than ordinary review, and thus more akin to
an appeal, but it may well be narrower, with the court being confined to particular grounds of
review or particular remedies. While in Johannesburg Consolidated Investment Co Innes CJ
spoke of the statutory review power as being ‘far wider’ than the first two ki nds of review
mentioned by him, it is clear that the precise extent of the power always depends on the particular
statutory provision concerned.’18
[40] CCBSA understood this when it brought the review stating expressly that it was
not bringing a PAJA review. Its difficulty was that past cases had made it clear that the
Tribunal does not enjoy PAJA jurisdiction. To navigate this thicket CCBSA had to explain
that this was not a PAJA review. This much was stated in its founding affidavit before the
Tribunal. When challenged by the miller respondents in correspondence it repeated this
position. Its clearest exposition came in the founding affidavit before the Tribunal, where
it stated it relied on section 27(1)(c), which is ‘a statutory review power, being one of the
pathways to administrative review that operates to the exclusion of default review under
18 Hoexter and Penfold Administrative Law in South Africa 3 ed (Juta & Co Ltd, Cape Town 2021) at 143- 4,
154-6. Referred to in Coca-Cola Beverages Africa (Pty) Ltd v Competition Commission and Another [2024]
ZACC 3; 2024 (6) BCLR 771 (CC); 2024 (4) SA 391 (CC) para 51.
16
the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) and also where the
offending conduct does not qualify as administrative action ’. In the founding affidavit in
the transfer application this is confirmed once again when it stated it had:
‘…launched the Review Application before the Tribunal in terms of section 27(1)(c) of the
Competition Act’.
[41] The review that will come before the CAC cannot be a statutory review in terms of
section 27(1)(c) of the Act. That type of review is only competent to be brought before the
Tribunal as a tribunal of first instance. CCBSA now says the review as transferred must
be regarded as a legality review. It was also argued that the distinction was technical as
the review grounds although not based on PAJA were ‘infused’ by grounds that are co -
extensive with those in PAJA. But a transfer , even if it was permissible , cannot change
the species of review. If it was a statutory review when it was instituted, it cannot be
transformed by some act of transfer to a review premised on a different legal standard.
An application for review is not a legal chameleon that can change its colours depending
on which forum it is in. This is more than just a technicality. CCBSA in its Notice of Motion
seeks a direction that its pleadings before the Tribunal ‘. . . stand as the pleadings for the
purposes of this Court, in the manner they would have had the matter proceeded in the
Tribunal. . . ’. But given that those pleadings were premised on a statutory review, that
direction would only serve to further complicate the matter. The respondents are entitled
to know the legal basis of the application that has been brought so they can respond.
They need to know what their rights are both procedurally and substantively.
[42] Thus, on both grounds I find that it is not competent to grant the relief sought. It is
not appropriate for me to pronounce at this stage on some of the other objections raised,
which I referred to earlier. These relate to opposition to the review rather than the limited
issue we must decide which is whether we have the jurisdiction to order a transfer. Having
decided we cannot, that ends the issues we must presently consider.
17
Costs
[43] Counsel for CCBSA argued that even it was not successful, costs should be left to
costs in the review application once it is brought. I do not think this would be fair to the
respondents who opposed. They had signalled from the beginning that they consider ed
the review had been brought in the wrong forum and had then advised that a transfer
application was not competent. CCBSA thus had ample opportunity to consider its options
and having chosen to press on it must face the consequences of an adverse costs order.
Having said that, I also do not agree that this case merits a punitive costs order as sought
by Illovo.
Order
[44] As a result:
1 The application is dismissed.
2 The applicant is liable for the costs of the opposing respondents on a party and
party basis, scale C, including the costs of two counsel , where so employed.
____ ______
N M Manoim
Judge President
Competition Appeal Court of South Africa
I agree _______ _
Nuku JA
I agree _______
Poyo DlwatiAJA
p.p
p.p
18
APPEARANCES
Counsel for Applicant: M J Engelbrecht SC
Instructed by: Bowman Gilfillan Inc
Counsel for Second and Eight Respondent: K Hofmeyr SC and M Mbikiwe
Instructed by: Herbert Smith Freehills South Africa LLP
Counsel for Third Respondent: M Norton SC and N Nyathi
Instructed by: Shepstone & Wylie Attorneys
Counsel for Fourth Respondent: J Wilson SC and I Cloete
Instructed by: Nortons Inc