1
COMPETITION TRIBUNAL OF SOUTH AFRICA
Case No: CO166Jan222/OTH103Sep22
In the matter between:
Deputy Chairperson of the National
Executive Forum, an informal body
representing the current employees
of South African Breweries (Pty) Ltd
and Beneficiaries of the SAB Zenzele
Employee Share Trust
First Applicant/
First Intervening Party
Phillip Mabunda Second Applicant/
Second Intervening Party
and
Coca-Cola Beverages South Africa
(Pty) Ltd
First Respondent
The South African Breweries (Pty)
Ltd
Second Respondent
Chairperson and Trustees of the
SAB Zenzele Employee Share Trust
Third Respondent
The Competition Commission
Fifth Respondent
Panel : M Mazwai (Presiding Member)
: AW Wessels (Tribunal Member)
: L Mncube (Tribunal Member)
Heard on : 19 April 2023
Order Issued on : 26 June 2023
ORDER AND REASONS FOR DECISION
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Introduction
[1] The application before me is for my recusal from the panel in a matter presently
pending in the Competition Tribunal (“Tribunal”) (under case number
CO166Jan22 and Competition Commission case number LMD141221).
[2] The pending matter is an application to make a Settlement Agreement between
the Competition Commission (“Commission"), South African Breweries (Pty)
Ltd (“SAB”), and the Chairperson and Trustees of the SAB Zenzele Employee
Share Trust, an order of the Tribunal. For the sake of convenience, I shall refer
to the pending matter as “the Main Application”.
[3] This recusal application is brought by The Deputy Chairperson of the National
Executive Forum, an informal body representing the current employees of SAB
and Beneficiaries of the SAB Zenzele Employee Share Trust (the first
applicant), and Phillip Mabunda (the second applicant), a beneficiary of the SAB
Zenzele Employee Share Trust. Mr Mabunda is also the Deputy Chairperson
of the National Executive Forum (the first applicant) and a full-time union shop
steward. The first and second applicants are collectively referred to below as
the “applicants”.
[4] The applicants allege that I will not be objective and impartial in considering the
Main Application because I was part of a panel that heard and adjudicated on
an urgent interim relief application on 20 March 2020, which was brought by
Coca-Cola Beverages South Africa (Pty) Ltd (“CCBSA”) against Anheuser-
Busch InBev SA/NV (“AB InBev"), SAB, the Chairperson of the SAB Zenzele
Employee Trust Allocation Committee ("Chairperson of the Allocation
Committee”) and the Commission.1
1 Case number URG154Mar20.
3
[5] CCBSA is opposing the application on the basis that no case has been made
out for a recusal.2
[6] Having heard the recusal application, I have decided not to recuse myself.
[7] These are the reasons for my decision.
Background
[8] On 27 September 2017, the Tribunal conditionally approved the acquisition of
control over Coca-Cola Beverages Africa (Pty) Ltd (“CCBA”) and its
subsidiaries by The Coca-Cola Company (“TCCC”) (the “TCCC/CCBA
merger”). In terms of the merger, TCCC acquired SABMiller’s shareholding in
CCBA. 3
[9] At the time of the merger, CCBA was part of the SABMiller Group (“SABMiller”)
and the employees of CCBA were beneficiaries of the SAB Zenzele Employee
Trust, a broad-based black economic empowerment employee benefit program
that had been established by SABMiller in 2010 (the “Zenzele Scheme”).
[10] The interim relief application was brought by CCBSA on behalf of its employees
who were beneficiaries to the Zenzele Scheme. These employees were
transferred to TCCC as a result of the TCCC/CCBA merger but their
participation in the Zenzele Scheme was preserved by a condition to the merger
(“Former SABMiller Employees”).
[11] The interim relief application was triggered by a decision of the Chairperson of
the Allocation Committee to allocate additional (top-up) benefits to the
beneficiaries of the Zenzele Scheme, to the exclusion of the Former SABMiller
Employees who were transferred to TCCC.4
2 The Commission and SAB indicated that they would abide by the Tribunal’s decision.
3 Case Number: LM021Apr17.
4 Coca-Cola Beverages South Africa (Pty) Ltd and Anhauser Inbev SA/INV and 3 others, CT case number
URG164Mar20, at paras 6 and 7.
4
[12] CCBSA sought to, inter alia, interdict and restrain SAB and the Chairperson of
the Allocation Committee from disbursing benefits to beneficiaries of the
Zenzele Scheme, pending the outcome of the Commission’s investigation into
whether the decision to disburse benefits to the exclusion of the Former
SABMiller Employees constituted a breach of the condition under which the
TCCC/CCBA merger was approved, namely that “Former SABMiller employees
shall not lose any benefits of the Zenzele Scheme by virtue of the Proposed
Transaction. In respect of participants that do not yet have fully vested rights,
the same vesting profile will apply as if CCBA was still part of the SABMiller
group.”5
[13] The Tribunal panel that heard the interim relief application comprised three
members, namely myself and my colleagues, Ms Yasmin Carrim (who was the
presiding member) and Ms Andiswa Ndoni. The Tribunal panel found inter alia
that CCBSA had established a prima facie right that the condition imposed an
obligation to secure the future rights of former SABMiller employees.6
[14] Further, the Tribunal held that there would be very little, if any prejudice to other
beneficiaries of the Zenzele Scheme if the distribution of the funds was kept in
abeyance pending the outcome of the Commission’s investigation. The
Tribunal granted CCBSA’s application for urgent interim relief on 31 March
2021.
[15] On 14 January 2022, following an investigation into the alleged breach of the
merger condition, the Commission concluded the Settlement Agreement which
is the subject of the Main Application in respect of which my recusal is sought.
[16] Subsequent to the filing of the Main Application in the Tribunal, on 9 February
2022, the applicants lodged an intervention application seeking to oppose
confirmation of the the Settlement Agreement on the basis that CCBSA
alternatively, its employees, have no right to claim the top-up benefits which
5 Ibid, at para 13.
6 Ibid, at para 25.
5
were allocated in October 2019.7 Notably, the applicants were not parties to,
nor had they made any submissions in, the interim relief proceedings.
[17] Neither CCBSA nor SAB opposed the intervention application and in an order
dated 30 March 2022, the Tribunal’s panel which comprised of Mr Andreas
Wessels (as the presiding member), Prof. Liberty Mncube and Mr Enver
Daniels, granted the applicants the right to participate in the Main Application
as intervenors.
[18] The hearing of the Main Application commenced on 12 August 2022 before the
Tribunal panel with submissions from the parties in response to the Tribunal
panel’s questions on whether the correct provision, namely section 49D of the
Competition Act, 89 of 1998 (“the Act”) was used in bringing the Main
Application. The panel comprised of myself and my collegues, Mr Wessels (as
presiding member) and Prof. Mncube.
[19] Following submissions by the parties on the relevant provision of the Act, the
presiding member indicated that the Tribunal would not be able to complete the
hearing on the merits on that day and that the hearing would have to be
postponed to a date to be agreed.
[20] It was then that the applicants’ legal representative submitted that his clients
had just drawn his attention to a matter that he wished to raise with the Tribunal.
It was then, for the first time, alleged that the applicants were of the view that I
ought to recuse myself from the hearing of the Main Application because I had
sat on the panel that heard the interim relief application.
[21] The application for my recusal was subsequently lodged on 1 September 2022.
The applicants allege that I will not be objective and impartial in considering the
Main Application because I sat as a Tribunal panel member and allegedly
“already formulated a view on the matter during the urgent interim [relief]
7 Case Number: CO166Jan22/INT183Feb22.
6
proceedings”8 that the Former SABMiller Employees had a prima facie right to
the top-up allocation. It was also alleged that I concurred with the ruling of the
panel as penned by Ms Yasmin Carrim.
[22] On this basis, the applicants alleged that they have a reasonable apprehension
that I will not be objective and impartial in looking at the questions to be decided
by the Tribunal in the Main Application.
Legal Framework
[23] In terms of section 34 of the Constitution of the Republic of South Africa, 1996
(“the Constitution”):
“Everyone has the right to have any dispute that can be resolved by
application of law decided in a fair public hearing before a court or where
appropriate, another independent and impartial tribunal or forum.”
[24] The Tribunal was established in terms of section 26 of the the Act. In terms of
section 26(4) of the Act, the Tribunal is an an independent body subject only to
the Constitution and law; and must be impartial and perform its functions
without fear, favour or prejudice.
[25] In terms of section 26(2) of the Act, the Chairperson and members of the
Tribunal are appointed, on a full or part-time basis, by the President, on
recommendation of the Minister of Trade, Industry and Competition. Further,
the Minister may after consultation with the Chairperson appoint members on
an acting part-time basis.
[26] In terms of section 31 of the Act, the Chairperson is responsible for allocating
panels to each matter referred to the Tribunal and must ensure that each panel
consists of three members, and at least one member must have legal training
8 FA, p14, para 25.
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and experience. Further, a panel cannot consist of more than one acting
member.
Challenge to the recusal application being heard by a full panel
[27] At the hearing on 19 April 2023, before hearing the merits of the application,
the applicants raised a preliminary issue pertaining to the constitution of the
panel. It was submitted that I alone must decide on the application and it would
be irregular for the other members (Mr Wessels and Prof. Mncube) to decide
on the application for recusal, as they had no say on the question of whether or
not I should recuse myself.9
[28] Notably, the applicants raised this issue for the first time at the hearing on 19
April 2023, whereas they were notified on 13 March 2023, that a full panel,
constituting myself, Mr Wessels and Prof. Mncube, would hear the application.
There was no explanation given for why this issue was not raised prior to the
hearing.
[29] The applicants’ counsel relied on the provisions of section 27(1)(b) of the Act
which states that the Tribunal may adjudicate on any other matter that may in
terms of the Act be considered by it, and may make any order provided for in
the Act; and on section 27(1)(d) which states that the Tribunal may make any
ruling or order necessary or incidental to the performance of its functions in
terms of the Act; and further on section 31(5) which states that the Chairperson
of the Tribunal, or another member assigned by the Chairperson, sitting alone,
may make an order of an interlocutory nature that, in the opinion of the
Chairperson does not warrant being heard by a panel comprised of three
members.
[30] In response, counsel for CCBSA submitted that section 31(5) is discretionary
and does not impose an obligation on the Chairperson to have a single member
hear particular types of matters. It was pointed out that the applicants’ counsel
9 Transcript, p4, lines 4 to 19.
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had not pointed to any precedent or case law that suggests that it would be
improper or irregular for three members to sit on the recusal application.10
[31] Whilst I have the discretion to determine whether it is appropriate for an
interlocutory matter to be heard by a single member under section 31(5) of the
Act, the section is not appropriate in this case as the order in the recusal
application would be final in effect. If an order has a “final effect, then it is not
an interlocutory order and could not be made by a single member.”11 I therefore
determined that the panel of three members must decide this application.
[32] Moreover, the Tribunal’s proceedings are sui generis in nature and the Tribunal
is duty bound to have regard to decisions of the Constitutional Court and High
Courts when determining matters before it. There is case precedent which I
refer to below, which supports that recusal applications against an individual
judge or judges may be heard by the full bench.
[33] In the SARFU13 case, the Constitutional Court recorded that:
“Counsel were in agreement that the whole Court should participate in
the hearing and that the Judges should consider the application
individually and collectively. This is how the matter was dealt with and in
the result the Judges whose recusal was sought, and the remainder who
were asked to look to their conscience, considered their own positions
individually, and also considered the application as a whole, collectively,
and concluded unanimously that none should be recused.” 14
[34] The Constitutional Court in SARFU also stated:
10 Transcript, p8, lines 2 to 13.
11 Goodyear South Africa (Pty) Ltd v Competition Commission and Others (198/CAC/Jan22) [2022] ZACAC 7;
[2022] 2 CPLR 24 (CAC) (19 July 2022), at para 41.
13 President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 9; 1999 (4) SA
147 (CC) (“SARFU”).
14 SARFU, at para 34.
9
“[30] ….it was the duty of this Court to give collective consideration to
the question whether the Judges concerned should recuse themselves.
[31] Judges have jurisdiction to determine applications for their own
recusal. If a Judge of first instance refuses an application for recusal and
the decision is wrong, it can be corrected on appeal. But no provision
exists in any law for an appeal against a decision of this Court…. this
Court clearly has a duty to act constitutionally. If one or more of its
members is disqualified from sitting in a particular case, this Court is
under a duty to say so, and to take such steps as may be necessary to
ensure that the disqualified member does not participate in the
adjudication of the case.”15
[35] In Ex Parte Goosen and others ,16 an application was made for the recusal of
one of the three members of the bench. The full bench considered the
application and dismissed it. Similarly, in Ntuli v S, the recusal application was
heard by the full bench.17
[36] It is clear from the above, that there is nothing precluding Mr Wessels and Prof.
Mncube from hearing the recusal application.
[37] In the circumstances, an ex-tempore order dismissing the preliminary issue was
handed down and the panel as currently constituted continued to hear the
recusal application. Mr Wessels and Prof. Mncube have applied their minds
individually to the recusal application.
[38] Having dealt with the premilinary issue of the composition of the panel, I shall
now set out my reasons for dismissing the recusal application.
15 SARFU, at paras 30 and 31.
16 Ex parte Goosen and others (Legal Practice Council and others as amici curiae) (Recusal Judgment) [2019] 3
All SA 161 (GJ).
17Ntuli and another v S [2018] 1 All SA 780 (GJ).
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Reasons for dismissing the recusal application
[39] The test for recusal was formulated by the Constitutional Court in SARFU18 as
follows:
“… the correct approach to this application for the recusal of members
of this Court is objective and the onus of establishing it rests upon the
applicant. The question is whether a reasonable, objective and informed
person would on the correct facts reasonably apprehend that the Judge
has not or will not bring an impartial mind to bear on the adjudication of
the case, that is a mind open to persuasion by the evidence and the
submissions of counsel. The reasonableness of the apprehension must
be assessed in the light of the oath of office taken by the Judges to
administer justice without fear or favour; and their ability to carry out that
oath by reason of their training and experience. It must be assumed that
they can disabuse their minds of any irrelevant personal beliefs or
predispositions. They must take into account the fact that they have a
duty to sit in any case in which they are not obliged to recuse themselves.
At the same time, it must never be forgotten that an impartial Judge is a
fundamental prerequisite for a fair trial and a judicial officer should not
hesitate to recuse herself or himself if there are reasonable grounds on
the part of a litigant for apprehending that the judicial officer, for whatever
reasons, was not or will not be impartial.” [own emphasis]
[40] The test for recusal was also subsequently confirmed by the Constitutional
Court in Bernert,19 as being whether there is a reasonable apprehension of bias,
in the mind of a reasonable litigant in possession of all the relevant facts, that
a judicial officer might not bring an impartial and unprejudiced mind to bear on
the resolution of the dispute before the court. The test contains a two-fold
objective element: firstly, the person considering the alleged bias must be
18 Ibid, at para 48.
18 Ibid, at para 48.
19Bernert v Absa Bank Ltd (CCT 37/10) [2010] ZACC 28; Bernert v ABSA Bank Ltd 2011 (4) BCLR 329 (CC); 2011
(3) SA 92 (CC) (9 December 2010) (“Bernet”) at para 29.
11
reasonable; secondly, the apprehension of bias itself must also be reasonable
in the circumstances of the case.20
[41] It is presumed that judges (in this case Tribunal panel members including
myself) will carry out their oath of office of being impartial when adjudicating
disputes. The Constitutional Court accepted that “the presumption can be
displaced with ‘cogent evidence’ that demonstrates that something the judge
has done gives rise to a reasonable apprehension of bias”.21 Further, “judges
are assumed to be [people] of conscience and intellectual discipline, capable
of judging a particular controversy on the basis of its own circumstances.”22
[42] The applicants have an onus to rebut the presumption that I will be impartial
when adjudicating the Main Application. They have failed to discharge this
onus. The applicants have not alleged any association by myself with any of
the parties in the Main Application, nor that I have an interest in the outcome of
the case. They have not produced any evidence to suggest that I have a closed
mind to the in the Main proceedings. Having concurred in the order and reasons
of the interim relief order does not on its own suggest that I shall not approach
the present matter with an open mind. The applicants have not presented any
evidence that something I have done, outside the interim relief proceedings,
would give rise to a reasonable apprehension of bias.
[43] In this regard, I note that a judicial officer is obligated to adjudicate a case and
not to accede too readily to suggestions of an appearance of bias.23 This would
apply equally to Tribunal panel members. Further, evidence of a reasonable
apprehension of bias must be convincing and not mere speculation. The
Constitutional Court in SACCAWU held that:
“mere apprehensiveness on the part of a litigant that a judge will be
biased - even a strongly and honestly felt anxiety is not enough. The
20 SARFU, at para 45 with reference to R. v. S. (R.D.) (1997) 118 CCC (3d) 353.
20 SARFU, at para 45 with reference to R. v. S. (R.D.) (1997) 118 CCC (3d) 353.
21 SARFU, at para 40 with reference to R. v. S. (R.D.) (1997) 118 CCC (3d) 353.
22 SARFU, at para 40 with reference to L'Heureux-Dube and McLachlin JJ in R. v. S.
23 SARFU, supra, para 46.
12
court must carefully scrutinise the apprehension to determine whether it
is to be regarded as reasonable. In adjudging this, the court
superimposes a normative assessment on the litigant’s anxieties. It
attributes to the litigant’s apprehension a legal value, and thereby
decides whether it is such that is should be countenanced in law.” 24
[44] The SACCAWU matter dealt with an application for recusal of two of the three
judges, namely Conradie JA and Nicholson JA, hearing the matter on appeal
in the Labour Appeal Court (“LAC”), referred to as the Nkatu appeal. The
application for recusal was brought on the grounds that the applicants
(dismissed employees) had a reasonable apprehension that the judges would
be biased. This was because they had previously confirmed the dismissal of
employees in another appeal, in the LAC, referred to as the Nomoyi appeal. It
was contended that key issues and a number of witnesses in both appeals were
identical and that the LAC’s adverse findings on the issues and witnesses in
Nomoyi gave rise to a reasonable apprehension of bias.
[45] It was further contended that having regard to the factual findings in Nomoyi the
judges would “find it very difficult to abandon the mental picture they formed.”25
The Constitutional Court in SACCAWU considered the fact that in refusing the
application for recusal in the LAC, Nicholson J recorded that apart from the
LAC’s findings in Nomoyi, no other ground for recusal was advanced.26
Further, Nicholson JA concluded that the two appeals concerned a different
sets of events.27
[46] In this recusal application, where no other grounds for recusal have been
advanced, I considered whether the key issues that I have to consider in
confirming the settlement agreement are the same as those that I considered
in the interim relief application. They are not the same.
24 South African Commercial Catering & Allied Workers Union v Irvin & Johnson Limited Seafoods [2000] ZACC
10; 2000 (3) SA 705 (CC) (“SACCAWU”), para 17.
25 SACCAWU, para 20.
26 SACCAWU, para 21.
27 SACCAWU, para 21.
13
[47] A prima facie right is not conclusive evidence of a right. It merely points to
evidence sufficient to grant interim relief pending the outcome of the
Commission’s investigation.
[48] The issue decided by the panel in the interim relief application was whether the
distribution of funds should be held in abeyance because the former employees
may have (prima facie) a right to be included as beneficiaries. This is
significantly different from the application to confirm the settlement agreement,
in which the panel will have to consider whether the settlement agreement
remedies the breach of merger conditions which the Commission found after
its investigation.
[49] The Constitutional Court also confirmed that the appropriate test to determining
whether there is a reasonable apprehension of bias based on an allegation that
the central issues in a case had already been determined by the judges whose
recusal was sought, is:
“…if a judge sits to hear a case at first instance after he has, in a previous
case, expressed clear views either about a question of fact which
constitutes a live and significant issue in the subsequent case or about
the credit of a witness whose evidence is of significance on such a
question of fact.” ”28 [own emphasis]
[50] The apprehension of bias must “relate directly to the issue at hand in such a
manner that it could prevent the decision-maker from reaching a fair
decision……”29
[51] I have not expressed any views regarding the settlement agreement to date. I
also note that the applicants did not participate in the interim relief application.
I have not heard their submissions in opposition to the settlement agreement in
28 SACCAWU, para 33.
29 SARFU, supra, at para 43, citing Commonwealth of Pennsylvania and Raymond Williams et al v
Local Union 542, International Union of Operating Engineers, et al 388 F.
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the Main Application. The applicants’ submissions therefore constitute a live
issue which I have not previously considered.
[52] There is nothing in the Tribunal’s Reasons or in the submissions of the
applicants related to the interim relief application to create an inference that I
will be biased towards the applicants when considering the Main Application.
[53] In the Main Application, the panel must consider whether or not the settlement
agreement must be made an order of the Tribunal. The standard established in
the CAC’s decision in Netcare Hospital, is whether the agreement is rational,
meets the objectives of the Competition Act or whether it is so shockingly
inappropriate that, if confirmed, it would bring the competition authorities into
disrepute.30
[54] As the High Court held in Group Five Construction (Pty) Limited and others v
Member of the Executive Council for Public Transport Roads And Works
Gauteng and Others: 31
“It has never been our law that a judge who has presided in one matter
cannot preside in another matter involving some or all of the same parties
or that a judge who has adjudicated on one dispute cannot adjudicate on
a similar dispute. As was said in Phillips v Hanau and Hoffa 1871
Supreme Court of the Cape of Good Hope “This is a new action, and if
judges are not to try an action because in a previous action, where the
same facts have come before them they have expressed a particular
opinion, there will be an end of many actions altogether. There would
have to be something beyond the ordinary for a recusal by a judge who
is cognizant of her duty to sit in a case.”32
30 Netcare Hospital Group (Proprietary) Limited and Another v Manoim NO and Others (CAC 75/CAC/Apr08)
[2008] ZACAC 1 (27 October 2008), at par 29.
31 Group Five Construction (Pty) Limited and others v Member of the Executive Council for Public Transport
Roads And Works Gauteng and Others (2009/31971) [2015] ZAGPJHC 55; [2015] 2 All SA 716 (GJ); 2015 (5)
SA 26 (GJ) (13 February 2015).
32 Paras 16 and 17.
15
[55] Further, the High Court in Ndlovu v Minister of Home Affairs33 held that “[i]t is
one thing to say that a judge has strong views opposing a particular form of
legal practice. It is an entirely different matter to extrapolate from those views
to a reasonable belief that if confronted with a case where that form of practice
emerges the judge would disregard existing authority and make a finding on the
issue in question adverse to the particular litigant.”34
[56] The applicants have failed to satisfy the two-pronged reasonableness test and
have not provided any convincing or cogent evidence that the circumstances of
the Main Application are such that I will not be able to disabuse my mind from
the interim relief proceedings and consider the evidence advanced by the
applicants in support of their case.
[57] Accordingly, I find that a reasonable, objective and informed person, in
possession of the above relevant facts, would not, having regard to the
presumption of impartiality, reasonably apprehend that I might not bring an
impartial mind to bear on the adjudication of the Main Application.
[58] In light of the above, I grant an Order as below.
33 Ndlovu v Minister of Home Affairs and Another (16425/09) [2010] ZAKZDHC 79, 2011 (2) SA 621 (KZD) (21
December 2010).
34 Para 38.
16
ORDER
___________________________________________________________________
1. The recusal application is dismissed.
2. Each party is to bear its own costs.
26 June 2023
Ms Mondo Mazwai Date
Having individually considered the application and the Reasons above, we concur that the
application for recusal must be dismissed.
__________________ _______________________
Mr Andreas Wessels Professor Liberty Mncube
Tribunal Case Managers:
Matshidiso Tseki and Sinethemba Mbeki
For the Applicants: Adv M Skhosana
instructed by M Raselo Inc
For the First Respondent: Adv M Engelbrecht SC
instructed by Cliffe Dekker Hofmeyr
Signed by:Liberty Mncube
Signed at:2023-06-26 21:51:07 +02:00
Reason:Witnessing Liberty Mncube