THE COMPETION APPEAL COURT OF SOUTH AFRICA
JUDGMENT
Reportable/Not reportable
Case no: 263-265/CAC/Nov24
In the review between:
GOOGLE IRELAND LIMITED Applicant
and
COMPETITION TRIBUNAL OF SOUTH AFRICA First Respondent
VILAKAZI, THANDO N O Second Respondent
WESSELS, ANDREAS N O Third Respondent
NCUKAITOBI, TEMBEKA N O Fourth Respondent
LOTTOLAND SOUTH AFRICA PROPRIETARY LIMTED Fifth Respondent
And in the appeals between:
GOOGLE IRELAND LIMITED First Appellant
GOOGLE SOUTH AFRICA (PTY) LTD Second Appellant
and
LOTTOLAND SOUTH AFRICA (PTY) LTD Respondent
Coram: Manoim JP, Nuku JA and Dippenaar AJA
Heard: 28 March 2025
Delivered: 5 May 2025
Summary: Competition law – Decision of the Competition Tribunal not signed by a
member of the panel who (a) was, in terms of section 31 (3) of the Competition Act, 89
2
of 1998, designated by the Chairperson of the Competition Tribunal to preside over the
panel’s proceedings and (b) was also appointed by the Chairperson of the Competition
Tribunal to ensure compliance with the provisions of section 31 (2) which requires that
at least one member of the panel is a person who has legal training and experience-
Court has jurisdiction to entertain review – decision not properly taken by the panel
and accordingly reviewed and set aside - review dispositive of the matter –
unnecessary to determine appeals on the merits.
ORDER
On appeal from: The Competition Tribunal:
1 The decision of the Tribunal of 12 November 2024 under case number IR191Mar23
is reviewed and set aside.
2 The fifth respondent in the review application is ordered to pay the applicant’s costs
on scale C which shall include the costs of two counsel, where employed.
JUDGMENT
Nuku JA (Manoim JP and Dippenaar AJA concurring)
Introduction
[1] Three matters serve before us. The first is the review application brought by
Google Ireland Limited (Google) to review and set aside a decision of the Competition
Tribunal (the Tribunal) dated 12 November 2024 ( the decision) in which Google and
Google South Africa (Pty) Ltd ( Google SA ) were directed to allow Lottoland South
Africa (Pty) Ltd (Lottoland) access to Google’s Ads Services platform in order to
advertise fixed- odds betting on the outcome of lotteries. The second matter is a
conditional appeal, also by Google, challenging the decision on its merits but only in
3
the event of an unsuccessful review. The third is also an appeal by Google SA also
challenging the decision on the merits.
[2] Google contends that the manner in which the decision was made was
irregular. This is because the decision had not been signed by one of the members of
the panel. That member was the only member who met the requirements of section
31(2)(a) of the Competition Act 89 of 1989 (Competition Act ). That section requires
that at least one member of the panel has legal training and experience. Only one
member of the panel met this requirement. But since that member had not signed the
decision, it meant that it was improperly issued and hence was of no force and effect
and must be set aside.
[3] The Competition Tribunal as well as the members of the panel that adjudicated
the application whose order is the subject of this review do not oppose the review ,
have filed no papers at all and did not participate in the proceedings.
[4] Lottoland, in opposing the review application, advances two grounds. The first is
that the failure by the third member of the panel to either concur or dissent does not
constitute an irregularity because the two members who signed the decision constitute
a majority of the members of the panel assigned to hear the matter and, in terms of
section 36(6) of the Competition Act , a decision of a majority of the members of a
panel in any matter is the decision of the Competition Tribunal.
[5] Lottoland’s second ground of opposition relates to the jurisdiction of this C ourt
to hear the review application. T he gist of this ground of opposition, which was raised
for the first time when Lottoland filed supplementary heads of argument , a day before
the hearing, is that Google’s attack on the decision means, in effect, that the decision
is not a decision of the Competition Tribunal . Moving on from that premise the
argument is that this Court only has the power to review decisions of the Competition
argument is that this Court only has the power to review decisions of the Competition
Tribunal and that absent a decision by the Competition Tribunal, this Court’s review
power is not engaged.
4
[6] Prior to the hearing of the matters, the members of the Court requested the
parties’ legal representatives to make submissions on the applicability of the general
principle that was stated in Schierhout v Union Government (Schierhout),1 Minister of
Health and Another v New Clicks South Africa (Pty) Ltd and Others (New Clicks),2 and
Judicial Service Commission and Another v Cape Bar Council and Another (JSC v
Cape Bar),3 which states that:
‘[W]henever a number of individuals were empowered by Statute to deal with any matter as one
body; the action taken would have to be the joint action of all of them … for otherwise they
would not be acting in accordance with the provisions of the Statute.’
[7] The Court is indebted to counsel for their submissions in this regard. It is
necessary to provide the factual background before considering the merits of Google’s
challenge.
Factual Background
[8] Google is a multinational technology company that provides a wide range of
internet-related services and products, including online advertising technologies,
search, cloud computing, software, and hardware. One of its product offerings known
as “Google Ads” allows advertisers to access tools to create advertisements ( ads), bid
to display ads and to track the performance of their ads . Through Google Ads , users,
including advertisers, can create online ads to reach relevant consumers when they
indicate interest in the products and services that Google Ads user offers.
1 Schierhout v Union Government 1919 AD 30 at 44.
2 Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others [2005] ZACC 14; 2006
(2) SA 311 (CC); 2006 (1) (BCLR) 1 (CC) paras 170 & 171.
3 Judicial Service Commission and Another v Cape Bar Council and Another [2012] ZASCA 115; 2013
(1) SA 170 (SCA); 2012 (11) BCLR 1239 (SCA) paras 28 & 29.
5
[9] Lottoland is a licenced bookmaker that offers fixed-odds bets on the outcome of
lotteries and sporting events through its website www.lottoland.co.za. Its operations
are geographically confined to South Africa.
[10] In March 2020, Lottoland was certified and allowed access to Google Ads so
that it could advertise its services. This, however, lasted for a period of about six
months because from September 2020, Google initiated steps to terminate Lottoland’s
access to Google Ads alleging that Lottoland had contravened Google’s internal
policies.
[11] An exchange of correspondence ensued between the parties and ultimately
Lottoland submitted a complaint to the Competition Commission on 2 December 2022
alleging that the conduct by Google constitutes conduct prohibited under section
8(1)(c) and 8(d)(ii) of the Competition Act.
[12] On 3 March 2023, Lottoland launched an application to the Tribunal in ter ms of
section 49C of the Competition Act , seeking interim relief that would restore its access
to Google Ads for a period of six months or until the finalisation of its complaint ,
whichever is earlier.
[13] In terms of section 31(1) of the Competition Act, the Chairperson of the Tribunal
(the Chairperson) must assign each matter to a panel composed of any three
members of the Tribunal. Acting in terms of this section, the Chairperson assigned the
hearing of the application to Adv Tembeka Ngcukaitobi SC (Mr Ngcukaitobi), Professor
Thando Vilakazi ( Prof Vilakazi) and Mr Andreas Wessels (Mr Wessels ). The
appointment of Mr Ngcukaitobi was in fulfilment of the requirements of subsection
31(2)(a) of the Competition Act , which requires the Chairperson, when assigning a
matter to a panel, to ensure that at least one member of the panel is a person who has
legal training and experience. Mr Ngcukaitobi was also designated, in terms of
subsection 31(2)(c) of the Competition Act, to preside over the panel’s proceedings. It
6
is common cause that t he other two members are economists and not members with
legal training and experience.
[14] The application was heard on 19 July 2023 by all three members of the panel,
as described above. After requesting and receiving further submissions, the decision,
which was only signed by Prof Vilakazi and Mr Wessels , was issued on 12 November
2024. In terms of the deci sion, Lottoland’s access to Google Ads was restored for a
period of six months or until the conclusion of a hearing of Lottoland’s complaint for as
long as Google allowed other users to advertise fixed- odds bets on the outcome of
lotteries on Google Ads and subject further to Lottoland’s compliance with the terms
and conditions imposed by Google.
[15] Noting that the decision was not signed by Mr Ngcukaitobi, on 13 November
2024, Google’s legal representatives addressed a letter to the Chairperson advising,
inter alia , that in issuing a decision that was not signed by a member of the panel
appointed in terms of section 31(2) (a) of the Competition Act, the Tribunal had acted
beyond the powers conferred on it by the Competition Act, and they requested her to
withdraw the decision. A copy of this letter was provided to Lottoland’s legal
representatives.
[16] On 18 November 2024 and in response to the letter from Google’s legal
representatives, Lottoland’s legal representatives addressed a letter to the
Chairperson. In this letter they contended that the decision had been properly issued
and:
‘15. The Reasons and the Order comply with section 31(4), which requires that a decision
must be “in writing and include reasons for that decision”.
16. The fact that the Reasons and Order are expressly indicated to be supported by two
members of the panel (Professor Vilakazi and Mr Wessels) also meant that,
irrespective of what the third member’s view s might be, the Reasons and Order are
that of the Tribunal. That is made clear by section 31(6) of the Act, which states that
7
“[a] decision of … a majority of the members of a panel in any other matter, is the
decision of the Tribunal”.
17. There was accordingly no difficulty in the Reasons and Order being handed down on
12 November 2024 without an indication of whether they reflected the unanimous view
of the panel, or merely a majority thereof.
18. Given the time that has passed since the hearing (almost exactly sixteen months ago) ,
the majority of the panel can also hardly be criticised for delivering the Reasons and
Order without waiting for an express endorsement or express dissent from the third
panel member. Whether or not the third panel member concurs with, or disagrees with,
the majority’s reasons and order, the fact remains that the majority ’s decision is that of
the Tribunal.
19. Google’s request that the Reasons and Order be withdrawn (para 8) is anyway
incompetent. The Tribunal , having delivered the Reasons and Order on 12 November
2024, is functus officio.’
[17] Google’s legal representatives responded to the letter from Lottoland’s legal
representatives reiterating their contention regarding the irregularity of the decision
and their stance that the Chairperson should act in terms of section 31(3) of the
Competition Act and withdraw the decision.
[18] On 21 November 2024, the Chairperson addressed a letter to both parties’ legal
representatives advising that:
‘It is the Tribunal’s view that the Reasons for Decision and Order dated 12 November 2024, in
respect of the above interim relief proceedings, which have been signed by Tribunal member
Professor Thando Vilakazi, with Mr Andreas Wessels concurring, have been properly issued.
…
All three members were present throughout the hearing. Furthermore, after the hearing the
three members deliberated on the matter and, based on the evidence presented at the
hearing, were of the view that the interim relief application should be granted. In practice, and
as usual, one member drafts the reasons and the others provide comment. The Reasons were
8
then drafted by Prof. Vilakazi and commented on by Mr Wessels. No comments were received
from Mr Ngcukaitobi.’
[19] Explaining why she could not resort to section 31(3) of the Competition Act , the
Chairperson of the Competition Tribunal stated that ‘ [f]or the sake of clarity , Mr
Ngcukaitobi did not withdraw, resign, or fall ill. Therefore section 31(3) does not apply.
On the contrary, the interim relief proceedings in the above matter were completed by
the duly assigned P anel, and a majority decision of the panel has been issued’. She
concluded her letter by adopting a stance like that of Lottoland’s legal representatives
with reference to section 31(4) and 31(6) of the Competition Act.
[20] The battlelines having been drawn, Google launched the present review
application together with a conditional appeal. Google SA, which had been joined as a
second respondent in the interim relief proceedings , also noted an appeal against the
decision. All three matters were heard at the same time on the basis that this Court is
required to first adjudicate the review and only adjudicate the appeals in the event of
an unsuccessful review . Before dealing with the merits of the review application it is
necessary to first deal with Lottoland ’s challenge to the jurisdiction of this C ourt to
entertain the review application.
Submissions on behalf of Lottoland
[21] The submissions made on behalf of Lottoland started off by sketching out how
Lottoland understood the basis of Google’s challenge. In this regard Lottoland stated
the following:
‘
Google contends that this court has jurisdiction to hear its review pursuant to section 37(1) (a)
of the Competition Act. T hat section provides that this Court may “ review any decision of the
Competition Tribunal ”. But the premise of Google’s review is exactly the opposite. Google’s
review is predicated on its argument that the impugned decision is not in fact a decision of the
Competition Tribunal because it does not carry the express endorsement of Mr Ngcukaitobi.
Google submits that the impugned decision is ultra vires the Tribunal’s powers – and
accordingly falls to be set aside under sections 6 (2) (a)(i), 6 (2)(b), 6 (2) (f)(i) and 6 (2)(i) of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA) – and consequently “ has no force
9
and effect”. Put simply, Google contends that the two members of the Competition Tribunal
hearing the matter (who are both economists) have handed down a decision which purports to
be a decision of the Competition Tribunal; but is not in fact such; and that they have
accordingly exceeded their lawful powers by delivering the impugned decision, which should
therefore be set aside for this reason.’
[22] It was submitted on behalf of Lottoland that on Google’s own version, the
jurisdictional fact necessary for this Court to exercise the review power conferred upon
it by section 37(1) (a) of the Competition Act is therefore not present. This Court can
review and potentially set aside decisions of the Competition Tribunal which are
vitiated by reviewable irregularities; but it has not been given the power to decide
whether a decision is in fact a ‘ decision of the Competition Tribunal ’, nor to declare
invalid a decision which in fact is not a ‘decision of the Competition Tribunal’.
[23] It was submitted further that the power to entertain such a challenge, and make
the kind of order that Google seeks, is reserved for the h igh court and that Google
could have sought a declarator in that court (as occurred in Premier Foods v Manoim
NO
4) as to the validity of the decision, coupled with a review (under Rule 53); but it
instead opted to pursue a review before this Court in circumstances where its single
ground of review is ultimately predicated on there being no “ decision” of the
Competition Tribunal , and thus no review jurisdiction of this Court under section
37(1)(a) of the Competition Act.
[24] Reference was made to cases dealing with ouster clauses which were said to
be analogous in this regard (albeit dealing with a converse situation). By way of an
example, this Court was referred to the decision of the A ppellate Division in Minister of
Law and Order v Hurley ,
5 where it was held that a provision which provided that a
Law and Order v Hurley ,
5 where it was held that a provision which provided that a
court had no jurisdiction to pronounce on any action taken in terms of a section of the
4 Premier Foods v Manoim NO [2015] ZASCA 159; 2016 (1) SA 445 (SCA); [2016] 1 All SA 40 (SCA).
5 Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A) ; [1986] 2 All SA 428
(A).
10
Internal Security Act 74 of 1982 did not apply where the action was in fact ultra vires
that section. In such cases, so the argument went, actions had to be intra vires in order
for the jurisdictional ouster to apply. In the present case, the decision of the Tribunal
members has to be intra vires in order for this Court to have jurisdiction to review their
decision. The logical consequence of Google’s argument that the Competition Tribunal
members’ decision was ultra vires (and more particularly contravened what was
required by section 31 of the Competition Act ) is that there is no ‘ decision’ that is
reviewable under section 37(1) (a); and that means that, on Google’s own case, this
Court’s review jurisdiction is not engaged, and its review must fail.
[25] Lottoland, however, emphasised that its submissions do not involve any
concession on its part that the decision was not in fact a valid decision of the Tribunal.
Reference was made to its main heads of argument, which indicate that its case is that
the decision was indeed valid, and intra vires the Competition Act , as there was
compliance with the requirements of section 31 of the Competition Act . It was
suggested that on Lottoland’s approach, Google’s review does not however get out of
the starting stalls, as it is based on incorrect legal conclusions . Because for Google’s
review to be sustained, the premise underlying it – namely, that Prof Vilakazi and Mr
Wessels were acting ultra vires when releasing the decision as a decision of the
Tribunal – has to be upheld. But in that case, there would not have been a ‘ decision of
the Competition Tribunal’ and so this Court could not review it.
Submissions on behalf of Google
[26] As with Lottoland, Google also comm enced by summarising what it considered
to be Lottoland’s objection to this Court’s jurisdiction to entertain the review and the
following is Google’s summary:
‘
Lottoland contends that this Court lacks jurisdiction to hear the review application. It states
that the review application is predicated on an argument that “the impugned decision is not in
fact a decision of the Competition Tribunal” as it did not carry Mr Ngcukaitobi’s express
endorsement and therefore there is no decision before this Court to review.’
11
[27] It was then submitted that Lottoland misinterprets Google’s argument and the
law because Google did not argue that the decision ‘ is not in fact a decision of the
Competition Tribunal’. Google explained that its argument is that the decision is ultra
vires the Competition Tribunal’s powers as it failed to comply with section 31 of the
Competition Act, more specifically with section 31(2) (a), which requires that at least
one member of the panel is a person who has legal training and experience when the
Tribunal adjudicates the matter.
[28] It was submitted that s ection 31(2) (a) of the Competition Act requires the
participation of all three members throughout the adjudication of the matter in terms of
section 27 of the Competition Act . In other words, a person with legal training and
experience must always be part of the panel that completes the proceedings in the
matter – and proceedings are completed when a decision with reasons is issued by
the panel in terms of section 52(4) of the Competition Act.
[29] Offering what it termed a ‘straightforward answer ’ to Lottoland’s jurisdictional
contention that there is ‘no decision’ that this Court can review in terms of section
37(1)(a) of the Competition Act, Google stated that there is a decision of the
Competition Tribunal issued in terms of section 52(4) of the Competition Act, but that
decision does not comply with section 31(2)(a) of the Competition Act. Accordingly, the
argument is that the decision is ultra vires the Competition Tribunal ’s powers and is
challenged under the Promotion Administrative Justice Act 3 of 2000 ( PAJA) and the
principle of legality and this Court enjoys jurisdiction to hear reviews brought either in
terms of PAJA or the principle of legality.
[30] It was submitted further that , contrary to what Lottoland alleges in its
submissions, the review application is not about ‘ deciding whether a decision is in fact
submissions, the review application is not about ‘ deciding whether a decision is in fact
a “decision of the Competition Tribunal” nor to declare invalid a decision which is not in
fact a “decision of the Competition Tribunal”’. It is to review and set aside the decision
issued by the Competition Tribunal on the grounds that it does not comply with the
requirements of section 31 read with section 27 of the Competition Act.
12
[31] Dealing with section 37(1) of the Competition Act, it was submitted that the text
of the provision is clear, and it confers jurisdiction on this Court ‘to review any decision
of the Competition Tribunal .’ A decision by the Competition Tribunal that is unlawful,
such as the impugned decision, it was submitted, is liable to be set aside in review
proceedings provided for under section 37(1)(a) of the Competition Act.
[32] It was submitted that Lottoland has incorrectly framed the premise of the review
application because w hat is being challenged is the irregular and unlawful decision
issued by the Tribunal, as the adjudicative body tasked with determination of the
interim relief application. It was further contended that Lottoland’s interpretation of the
law is untenable because challenging an administrative decision on the ground that it
is ultra vires does not mean that there is no ‘ decision’ that is reviewable under section
37(1)(a) of the Competition Act. To the contrary, what this means, as the Constitutional
Court confirmed in Competition Commission of South Africa v Group Five Construction
Ltd
(Group Five),
6 is that the decision is challenged for being unlawful and this Court has
jurisdiction to set it aside on review.
[33] To further elucidate the point i t was submitted that i n Group Five, the
Constitutional Court clarified that an ‘enquiry into the lawful exercise of power – a vires
enquiry – asks whether the action is lawful (intra vires) or unlawful ’.
7 Accordingly, it
was submitted, the question in these review proceedings is whether the impugned
decision is lawful or unlawful, or whether the Tribunal acted beyond the scope of the
Competition Act and accordingly ultra vires the powers conferred on it, in
circumstances where it did not comply with section 31(2)(a) of the Competition Act.
6 Competition Commission of South Africa v Group Five Construction Limited [2022] ZACC 36; 2023 (1)
BCLR 1 (CC).
7 Ibid para 109.
13
[34] Finally it was submitted that the Constitutional Court confirmed that this Court,
which has a status similar to that of the h igh court, has jurisdiction to hear PAJA and
legality reviews in terms of the two provisions of the Competition Act ,8 and one of
these provisions is section 37(1) (a), which expressly empowers this Court to review
any decision of the Competition Tribunal.
Does this Court have jurisdiction to entertain the review application?
[35] It is common cause that Google relies on the provisions of section 37(1) (a) of
the Competition Act in this application. Section 37(1) (a) of the Competition Act
provides that [t] he Competition Appeal Court may review any decision of the
Competition Tribunal’. The text of the provision confers unqualified jurisdiction to this
Court to review any decision of the Tribunal and it does not appear that Lottoland
takes issue with this.
[36] What Lottoland does, however, is create an artificial distinction between
decisions lawfully taken within the powers conferred by the enabling statute and those
that are ultra vires . Having made that artificial distinction, Lottoland goes further and
suggests that the review jurisdiction conferred by section 37(1) (a) of the Competition
Act is confined to only those decisions that the Competition Tribunal lawfully takes
within the powers conferred by the Competition Act and that it does not have
jurisdiction to review those decisions where the Competition Tribunal has not acted in
accordance with the provisions of the Competition Act.
[37] The distinction that Lottoland makes between intra vires and ultra vires
decisions of the Tribunal cannot be traced to any provision of the Competition Act and
Lottoland could not point to any. The Competition Act only refers to ‘decisions’, a term
that is not defined in the Competition Act.
8 Ibid para 132.
14
[38] I also have some difficulty in understanding the parallels that Lottoland seeks to
draw between a provision conferring jurisdiction (section 37(1)( a) of the Competition
Act) and a provision ousting jurisdiction of the court (Section 29(6) of the Internal
Security Act 72 of 1982) . It is not apparent to me how the interpretation of a statute
that delineates the ambit of excluding a court’s jurisdiction can be of assistance in
interpreting a statue conferring jurisdiction.
[39] Lottoland could not refer this Court to any authority for the proposition that this
Court’s jurisdiction to review the decisions of the Competition Tribunal is only limited to
circumstances where the Competition Tribunal has acted within its powers as
conferred by the Competition Act. To the contrary, and as pointed out on behalf of
Google, the Constitutional Court in Group Five confirmed that this Court, has
jurisdiction to hear PAJA and legality reviews in terms of the provisions of the
Competition Act.
[40] Indeed it would be quite remarkable for the lawmakers to deprive this Court ,
which was created as a speci alist court, of what I would consider to be an essential
power to supervise the functions of the Competition Tribunal under the Competition
Act. By way of an example, s ection 26(1) (d) of the Competition Act requires the
Tribunal to exercise its functions in accordance with this Act. On Lottoland’s logic , this
Court would not have jurisdiction to enquire whether the Competition Tribunal has
exercised its functions in accordance with the Competition Act where the Competition
Tribunal has exceeded the powers conferred by the Competition Act . The absurdity of
this shows that to uphold Lottoland’s argument would undermine the whole regime
created by the Competition Act as one would end up with a situation where there is no
clarity as to which Court, between the h igh court and this Court, enjoys review
clarity as to which Court, between the h igh court and this Court, enjoys review
jurisdiction in respect of the various functions of the Competition Tribunal. In my view,
there is no merit in Lottoland’s jurisdiction point and this should be the end of the
matter. But Lottoland has also disregarded Google’s pleaded case in advancing its
jurisdiction point, an aspect to which I turn next.
15
[41] The relief that Google seeks in the review application is framed in the following
terms:
‘That the decision of the first respondent ( the Tribunal) of 12 November 2024 under case
number IR191Mar23 (“Decision”), insofar as it is irregular and inconsistent with section 31 (3)
of the Competition Act, No. 89 of 1998 (“ Competition Act”), be reviewed and set aside in its
entirety.’
[42] Clearly what is sought to be set aside is the Tribunal’s decision and not its
purported decision as Lottoland suggests. Any suggestion by Google that there is no
decision is not borne out by the text of the relief sought by Google.
[43] The founding affidavit is also full of references to the ‘ decision of the
Competition Tribunal’ and not even once is it referred to as ‘ the purported decision’. A
few examples will suffice. The starting point is paragraph 1.2 of the founding affidavit ,
where the deponent states that:
‘I am authorised to depose to this affidavit on behalf of the applicant, in support of an
application to review the decision of the Competition Tribunal (Tribunal) of 12 November 2024
under case number IR191Mar23 in its entirety. A copy of the Tribunal’s decision is attached
hereto as Annexure “LN1” (“Decision”.)’
[44] Annexure “LN1” is indeed the decision that is sought to be reviewed in this
application and the deponent to the founding affidavit describes it as such and not as a
purported decision of the Competition Tribunal.
[45] There is also paragraph 5.6 of the founding affidavit, where it is stated that:
‘
This review focuses on the irregular, and consequently unlawful, absence from the rendering
of the Decision of the member of the panel in the Tribunal required in terms of section 31 (2)
(a). That provision requires that “ at least one member of the panel is a person who has legal
training and experience.” The Decision was rendered by the other two panel members, who do
not possess the legal training and experience. Accordingly, the Decision is irregular and should
be set aside for its non-compliance with the provisions of section 31 (2) (a), among other
reasons.’
16
[46] The above evidence clearly undermines Lottoland’s argument in that it makes it
clear that Google challenges the impugned decision based on Mr Ngcukaitobi’s
absence from the rendering of the impugned decision. Again, there can be no
suggestion that these allegations are capable of being read in the manner suggested
by Lottoland, namely that Google’s ground of review is that there is no decision that
was taken by either the panel so appointed or the Competition Tribunal. The spotlight
in the review is rather on the alleged irregularity and unlawfulness that was occasioned
by Mr Ngcukaitobi’s absence from the rendering of the decision.
[47] The last example is to be found in paragraph 6.5 of the founding affidavit where
it is stated that:
‘
On its face, the Decision does not comply with the requirements of section 31 read with
section 27 of the Competition Act. The Tribunal has not made a lawful decision and as a result
it should be set aside in its entirety.’
[48] All of the above evidence points to the fact that Lottoland’s objection to this
Court’s jurisdiction is devoid of any factual foundation and that should really be the end
of the matter. In the end, I am of the view Lottoland’s objection to this Court’s
jurisdiction is unsustainable on both the law and the facts. Next, I consider the merits
of the review application.
The merits of the review application
[49] The review application concerns a narrow point, and it is whether the decision is
vitiated by Mr Ngcukaitobi’s failure to sign it. It is common cause that the matter was
properly assigned, in terms of section 31(1) of the Competition Act to a panel of three
members and in compliance with the provisions of section 31(2) (b) of the Competition
Act, which requires that at least one member of the panel to be a person who has legal
training and experience.
17
[50] It is further common cause that the hearing of the application proceeded before
a properly constituted panel. Also common cause, is the fact that Mr Ngcukaitobi,
being the member who was appointed to ensure compliance with the provisions of
section 31(2) (b) did not sign the decision sought to be reviewed and neither did he
render a separate decision.
[51] Google’s approach in bringing the review application was that that Mr
Ngcukaitobi’s failure to participate in the proceedings until finalised is fatal if one has
regard to the mandatory requirements relating to the inclusion of a person with legal
training and experience when assigning a matter to the panel. In this regard, Google
referred to the provisions of section 31(2) (b) read with 31(3) of the Competition Act.
The point here was that section 31(3) requires the Chairperson to terminate the
proceedings of a panel in the event of the inability by a panel member with legal
training and experience to complete the proceedings.
[52] Lottoland characterises Mr Ngcukaitobi’s failure to render a decision as being
‘exceedingly passive’ and contends that it does not matter because the decision of the
two other members constitutes a decision of the majority , which in terms of section
36(6) is the decision of the Tribunal.
[53] The parties’ approach to the application, however, did not grapple with the
primary enquiry – namely – whether the two members of the panel who signed the
decision acted in accordance with the provisions of the Competition Act , when they
signed the decision without it being signed by Mr Ngcukaitobi.
[54] It was submitted on behalf of Google that the cases that the Court had referred
the parties to support’s Google’s case, that the two members of the panel who signed
the decision did not act in accordance with the provisions of the Competition Act when
they rendered a decision without Mr Ngcukaitobi. This is because section 31 identifies
they rendered a decision without Mr Ngcukaitobi. This is because section 31 identifies
a number of individuals who are empowered in terms of the Act to decide a matter
referred to the Competition Tribunal for adjudication and it is the Competition Tribunal
18
that makes decisions as one composite body made up of three members . As the three
members of the panel did not act in that joint manner they have not acted in
accordance with the provisions of the statute, to use the language of Innes CJ in
Schierhout.
[55] A further point made by Google regarding Lottoland’s reliance on section 31(6)
of the Competition Act was that JSC v Cape Bar is also relevant if the Court considers
paragraph 34 as well . There the SCA dismissed precisely the deadlock breaking
argument that Lottoland raises here about section 31(6) of the Competition Act.
[56] Reference was also made to p ara 35 of JSC v Cape Bar where reference is
made to careful design of the body . An analogy was drawn with this matter that the
Competition Act has carefully designed a panel that includes a person with legal
training and experience and if the view of the person with legal training and experience
is not reflected in the decision by the body, then it is a decision that has not validly
been taken, because the panel is not properly constituted.
[57] In sum, the submission on behalf of Google w as that where the Competition Act
empowers three members of a panel to deal with a matter , it requires them to act
jointly and their failure to do so means that they have not acted in accordance with the
Competition Act.
[58] Counsel for Lottoland acknowledged the general principle that requires
members of a body to act jointly but argued that this is not an immutable principle. He
submitted that JSC v Cape Bar was decided correctly but is distinguishable on the
facts to the present matter in that the President of the SCA , in JSC v Cape Bar, was
just not at the meeting whilst what we have here is Mr Ngcukaitobi , who was never not
there, but was just not doing anything. He further submitted that it is debatable whether
there are some similarities between section 178(6) of the Constitution and s ection
31(6) of the Competition Act.
19
[59] In dealing with New Clicks and Schierhout, Lottoland’s counsel pointed to the
fact that in both cases it was found, after having had regard to the statutory provisions
in question, that the members of the bodies concerned did not have to act jointly . The
implication thereof for this matter was that the argument reverted to section 31(6) of
the Competition Act that the two-member decision, as a decision of the majority , is the
decision of the Competition Tribunal.
[60] It is perhaps convenient to start with Lottoland’s point about section 31(6) of the
Competition Act. As correctly pointed out on behalf of Google, this provision is
concerned only with a deadlock breaking mechanism of an otherwise properly
constituted three-member panel and nothing more. That this must be so is made clear
by the provisions of section 31(3) of the Competition Act dealing with the inability of a
member of a panel to conclude the proceedings. In this regard, the Chairperson can
either terminate the proceedings where the member unable to conclude the
proceedings is the one with legal training and experience, or direct that the matter
proceeds before the remaining two members subject to the requirements of section
31(2)(a) of the Competition Act. It is thus clear that t he interpretation of section 31(6)
advanced by Lottoland would render the provisions of section 31(3) nugatory.
[61] The application that Lottoland had brought before the Tribunal was assigned to
a panel of three members. That panel, on the available evidence, acted jointly up to a
point when it deliberated on the outcome of the application. When the reasons for the
decision were circulated, it is common cause that no comments were received from Mr
Ngcukaitobi and there is no explanation for his failure to do so.
[62] Can it be said then that Mr Ngcukaitobi participated in the proceedings until they
were finalised? Google answers this question in the negative ; suggesting that the
were finalised? Google answers this question in the negative ; suggesting that the
proceedings are only finalised on publication of written reasons for the order in terms
of section 52(4) of the Competition Act.
20
[63] Lottoland answers the question differently , submitting that it does not matter if
Mr Ngcukaitobi did not participate in the proceedings until they were finalised. This is
because he did not withdraw, resign, become ill or die. Instead, he simply did not
comment on the draft reasons when they were forwarded to him and that does not
mean that the other two cannot arrive at a decision. This is because there is nothing in
the Competition Act that says that you should need a consent or a dissent o r that the
other member has to express his or her views.
[64] Lottoland’s argument is thus that s ection 31 does not say that the majority
cannot go ahead and that a decision of the majority of the Tribunal is then not a
decision of the Tribunal. Section 31 does not say all members must decide and it does
not say that there has to be a concurrence or a dissent.
[65] Accepting Lottoland’s last proposition would be to jettison the age old
established principle discussed above that requires members of statutory bodies to act
jointly unless the statute provides otherwise.
[66] The answer to the above question is clear . Mr Ngcukaitobi did not participate in
the proceedings until their conclusion and as a result of his failure , the panel was
unable to act jointly in discharging its functions. There is no explanation for his failure
and the provisions of the Competition Act make no provision for the remaining
members of the panel to proceed in the absence of one of the panel members.
[67] The two members of the panel that rendered the decision did not do so in
accordance with the provisions of the Competition Act and as such the decision falls to
be reviewed and set aside.
Remittal or substitution
[68] The Competition Act confers the power to consider applications in terms of
section 49C of the Competition Act on the Tribunal. That the Tribunal has not done that
21
which it was supposed to do means that, absent exceptional circumstances, it should
be afforded the opportunity to right its wrongs.
[69] It was, however, submitted on behalf of Google that this Court should not remit
the matter back to the Tribunal but should determine the application. Reference in this
regard was made to section 37(2) of the Competition Act , which empowers this Court
to 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’.
[70] We were referred to a decision of this Court in Glaxo Welcome (Pty) Ltd and
Others v Terblanche N O and Others (Glaxo Welcome),
9 where it was stated that:
‘An analysis of the reported cases illustrates that the reviewing court will itself correct the
decision of the tribunal or functionary and substitute its own decision where the result is a
foregone conclusion …; where further delay may cause undue prejudice …; where the tribunal
or functionary has exhibited bias or incompetence which would render it unfair to re-expose a
party to the same jurisdiction …; where the court finds itself to be in as good a position as the
tribunal or functionary. Here the Courts will, despite the fact that they are usurping the
functions of another, nonetheless act if fairness so dictates ….’
[71] It was submitted that there has been a considerable delay in the filing of the
interim relief application by Lottoland, a delay of approximately 29 months since the
restriction of Lottoland’s access to Google Ads, and a further delay of approximately 16
months after date of the hearing. It was further submitted that this Court is well -placed
to determine the merits of the interim relief application because of the appeals that are
simultaneously serving before this Court with the review application. Lottoland did not
simultaneously serving before this Court with the review application. Lottoland did not
particularly address the question of remittal or substitution.
[72] The outcome in respect of the application for the interim relief is by no means a
foregone conclusion and counsel for Google did not suggest so. The emphasis from
9 Glaxo Welcome (Pty) Ltd and Others v Terblanche N O and Others [2001-2002] CPLR 48 (CAC).
22
what I gathered from the argument was on the delay by Lottoland in bringing the
application, the delay by the Tribunal in rendering a decision, as well as the fact that
this Court is well- placed to determine the application because the papers are before
us.
[73] I accept that there has been a delay both in the bringing of the application by
Lottoland as well as the delay by the Tribunal to render a decision. What Google has
not addressed, however, is the prejudice that would be caused by a further delay if the
matter is remitted. In my view, it does not suffice to merely point out the past delay
without placing before the court the facts tending to show undue prejudice that would
be caused by a further delay. This leaves the only other consideration – this Court
being well-placed to determine the application, an aspect I turn to next.
[74] The difficulty with granting a substitution order goes back to the architecture of
the Competition Act. The Tribunal includes members with expertise in economics and
law. It is the Tribunal of first instance and the decisions it makes are a product of a mix
of that expertise. In as much as this Court has the benefit of all the papers, it does not
have the benefit of expertise in economics. That, in my view, renders it undesirable for
this Court to consider the application for an interim relief as a forum of first instance.
[75] There may well be cases where the diverse views of the members of the
Tribunal have been expressed from which this Court would derive some benefit , in
which cases it would be well-placed to determine that matter, but in my view, this is not
one of those cases.
[76] I am mindful of the fact that the interim interdict has endured for a period close
to its six months ’ duration, but I am not persuaded that that should justify the
substitution order. Neither party argued for a remittal. Such a remedy would be wholly
impractical given the brief period left in which the order will still be in effect. Nor is it
impractical given the brief period left in which the order will still be in effect. Nor is it
clear that a panel to hear the matter could even be constituted to hear it in this period
let alone make a decision. Remittal would simply create more problems for all involved.
23
The outcome in the review application renders it unnecessary for this Court to consider
the appeals. Finally, I turn to the issue of costs.
Costs
[77] Both counsel agreed that, if successful, costs should be awarded on scale C
and should include costs of two counsel, where employed.
[78] Lottoland’s counsel further submitted that Lottoland should not be mulcted with
costs if the review application succeeds. This was because, so it was argued,
Lottoland would be the big losers in the sense that the review has been occasioned by
an irregularity that was committed by the Tribunal.
[79] The response on behalf of Google was that Lottoland chose to oppose the
review when it had a choice to abide this Court’s decision. I t was further argued that
Lottoland moreover went further to challenge the jurisdiction of this Court to entertain
the review.
[80] I am of the view that the costs should follow the result because, even though the
review was occasioned by the conduct of the Competition Tribunal, Google made it
clear in its notice of motion that it would only seek costs against those of the
respondents who opposed the review application. Having been forewarned, Lottoland
elected to take the risk and now that the risk has eventuated, Lottoland cannot be
heard to complain.
Order
[81] In the result the following order is made:
1 The decision of the Tribunal of 12 November 2024 under case number
IR191Mar23 is reviewed and set aside;
2 The fifth respondent in the review application is ordered to pay the applicant’s
costs on scale C, which shall include the costs of two counsel, where employed.
24
________________________
L G Nuku
Judge of Appeal
Competition Appeal Court of South Africa
Appearances
For the applicant/appellants: M M Le Roux SC and N Sakata
Instructed by: Baker McKenzie Inc, Sandton
For the fifth respondent: P Farlam SC and L Kelly
Instructed by: D ingley Marshall Lewin Inc, Cape Town