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[2012] ZACC 6
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Competition Commission of South Africa v Senwes Ltd (CCT 61/11) [2012] ZACC 6; 2012 (7) BCLR 667 (CC) (12 April 2012)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 61/11
[2012] ZACC 6
In the matter between:
COMPETITION COMMISSION
OF SOUTH AFRICA
….................................................................................
Applicant
and
SENWES LIMITED
…...............................................................................
Respondent
Heard on : 22 November 2011
Decided on : 12 April 2012
JUDGMENT
JAFTA J (Mogoeng CJ, Moseneke DCJ, Nkabinde J, Skweyiya J, Van der
Westhuizen J, Yacoob J and Zondo AJ concurring):
Introduction
This
case is about anti-competitive conduct proscribed by the Competition
Act (Act).
1
The Act prohibits practices
that may eliminate competition in any market within South Africa’s
economy.
2
It also forbids abuse of
dominance by business entities.
3
The Act, through the
enforcement of these prohibitions, encourages and promotes
competition in markets for the benefit of consumers
of goods and
services.
Under
the apartheid order, discriminatory laws were used to exclude the
black majority from participating in the economy of the
country. The
Preamble to the Act records that the people of South Africa
recognise, among other things, that discriminatory laws
of the past
imposed unjust restrictions on free and full participation in the
economy by all South Africans. It calls for the
opening up of the
economy to enable all South Africans to have access to the control
and ownership of the national economy. It
declares that a credible
competition law and effective structures to administer that law must
be established in order to create
an efficient functioning economy.
Statutory
framework
The
Act came into force on 1 September 1999. It was enacted to provide
for, among other matters, the establishment of the Competition

Commission (Commission) which is charged with the investigation of
restrictive practices, abuse of dominant position and the
evaluation
and approval of mergers. It also established a Competition Tribunal
(Tribunal) whose responsibility it is to adjudicate
these matters.
4
The Act is aimed at promoting
and maintaining competition.
5
Some of its objectives are
directed at addressing the inequalities and imbalances which were
created by the apartheid order.
The
Act seeks to promote a greater spread of business ownership so as to
increase access to it by historically disadvantaged people.
It sets
for itself the task of promoting employment so that the social and
economic welfare of South Africans may be improved.
It further seeks
to provide consumers with competitive prices for goods and services.
It prohibits trade practices which undermine
a competitive economy.
Chapter
Two defines prohibited practices and abuse of a dominant position.
The chapter is divided into three parts. Part A consists
of sections
4 and 5 which list horizontal and vertical practices prohibited
under the Act. Part B consists of sections 6 to 9
and focuses on the
abuse of a dominant position by a business entity. The net is cast
wide so as to prevent abuses by dominant
business entities. It
prohibits actions by dominant firms which cannot be justified on
account of technological, efficiency or
other pro-competitive
gains.
6
It also forbids price
discrimination by a dominant firm.
7
Part
C of Chapter Two is devoted to exemptions which may be granted by
the Commission on application by a business entity. The
Commission
may exempt the applicant from the provisions of the chapter.
The
next chapter which is important for present purposes is Chapter
Four. It deals with the establishment and powers of the Commission,

the Tribunal and the Competition Appeal Court. Part A establishes
the Commission as an independent body subject to the Constitution

and the law. It requires that the Commission be impartial and that
it performs its functions without fear, favour or prejudice.
8
The Commission consists of a
Commissioner and one or more Deputy Commissioners appointed by the
Minister of Trade and Industry
(Minister).
The
Commission’s powers and functions are listed in section 21 of
the Act. In relevant part section 21 reads:
“
(1)
The Competition Commission is responsible to –
implement measures to increase
market transparency;
implement measures to develop
public awareness of the provisions of this Act;
investigate and evaluate
alleged contravention of Chapter 2;
grant or refuse applications
for exemption in terms of Chapter 2;
authorise, with or without
conditions, prohibit or refer mergers of which it receives notice in
terms of Chapter 3;
negotiate and conclude consent
orders in terms of section 63;
refer matters to the
Competition Tribunal, and appear before the Tribunal, as required by
this Act;
negotiate agreements with any
regulatory authority to co-ordinate and harmonise the exercise of
jurisdiction over competition
matters within the relevant industry
or sector, and to ensure the consistent application of the
principles of this Act;
participate in the proceedings
of any regulatory authority;
advise, and receive advice
from, any regulatory authority;
over time, review legislation
and public regulations, and report to the Minister concerning any
provision that permits uncompetitive
behaviour; and
deal with any other matter
referred to it by the Tribunal.”
The
Commissioner appoints inspectors and other staff of the Commission.
9
Their terms and conditions are
determined by the Minister or the Commissioner as the case may be,
after consulting the Minister
of Finance.
10
Part
B establishes the Tribunal and confers on it jurisdiction that
covers the entire Republic.
11
The Tribunal consists of a
Chairperson and not fewer than three but not more than ten other
members appointed by the President.
12
The Chairperson manages the
caseload of the Tribunal and must assign each matter referred to it
to a panel of three members, one
of whom must have legal training
and experience.
13
A decision of a panel must
contain written reasons.
Nature
of the proceedings
This
case comes before us as an application for leave to appeal against
the judgment of the Supreme Court of Appeal, setting aside
the
ruling of the Tribunal in which it had found that Senwes Limited
(Senwes) had contravened section 8(c) of the Act by engaging
in what
the Tribunal labelled a “margin squeeze”. The case
concerns the nature and scope of the public power conferred
on the
Tribunal by the Act.
Before
the Supreme Court of Appeal, Senwes challenged the Tribunal’s
ruling on two alternative grounds. It contended that
the breach
which the Tribunal found it had committed did not form part of the
referral and consequently the Tribunal had no authority
to determine
it. Senwes argued, alternatively, that even if that complaint had
been entertained competently, the essential elements
of a margin
squeeze had not been established in evidence.
The
Supreme Court of Appeal held that the Tribunal had exceeded its
powers under the Act when it ruled that Senwes had contravened

section 8(c) by engaging in a margin squeeze, and thus consideration
of the alternative contention was unnecessary. It proceeded
to
determine whether, in the present circumstances, the Tribunal had
the power to adjudicate the margin squeeze complaint. In
doing so,
the Court adopted a two-stage approach. First, it considered whether
the complaint, referred to the Tribunal by the
Commission, covered
the margin squeeze complaint. It concluded that the margin squeeze
complaint did not form part of the referral.
Second, the Court
considered whether the Tribunal was empowered to decide a complaint
which did not form part of the referral.
The
Supreme Court of Appeal found that the “referral. . .
constitutes the boundaries beyond which the Tribunal may not
legitimately travel.”
14
The Court reasoned that
permitting the Tribunal to determine complaints not covered by a
referral would violate the principle
of legality. As a foundation
for this finding the Supreme Court of Appeal relied on
Netstar
(Pty) Ltd v Competition Commission
,
15
a judgment of the Competition
Appeal Court. In that case it was said:
“
[I]t
is necessary once again to emphasise that the tribunal is not at
large to decide whether conduct is anti-competitive, and then
to
formulate reasons for that finding. It is . . . bound to apply the
Act and engage with the issues as they arise, from a proper

construction of the Act’s provisions. It does so in the light
of a specific complaint that has been referred to it for
determination,
and its only function is to determine whether, in the
light of the Act’s provisions and the evidence placed before
it, or
obtained by it pursuant to the exercise of its inquisitorial
powers, that complaint is made out.”
16
The
Court also relied on section 52(1) of the Act.
17
This section obliges the
Tribunal to conduct a hearing into every matter referred to it in
terms of the Act. It makes it plain
that every hearing will be
subject to the requirements of the Tribunal’s rules.
Leave to appeal
As
stated earlier, the Commission seeks leave to appeal against the
judgment of the Supreme Court of Appeal. There can be no doubt
that
this matter raises a constitutional issue. As is apparent from the
above, the Supreme Court of Appeal’s order is based
on the
finding that the Tribunal, in adjudicating the margin squeeze abuse,
had exceeded its statutory powers and thereby violated
the principle
of legality which forms part of the rule of law.
The
question whether the Tribunal had exceeded its statutory power in
entertaining the margin squeeze abuse concerns one of the
most
important principles in the control of public power in our
constitutional order, the principle of legality.
18
It
is by now axiomatic that leave may be granted if a matter raises a
constitutional issue and it is also in the interests of
justice that
it be granted. A number of considerations show that it is in the
interests of justice to do so here. First, the
issue raised is of
considerable public importance. The Tribunal was established to
exercise powers in the interest of the general
public by creating
and maintaining “markets in which consumers have access to,
and can freely select, the quality and variety
of goods and services
they desire”.
19
Second,
as one of the structures established to administer the Act, the
Tribunal plays a vital role in creating an open economic
environment
in which all South Africans can have equal opportunities to
participate in the national economy. The elimination
of prohibited
practices and abuse of a dominant position fall within the
jurisdiction of the Tribunal. A correct interpretation
of its powers
is essential to its effectiveness in the fight against these
practices.
Third,
prospects of success are fairly good. The interpretation given to
the Tribunal’s empowering provisions by the Supreme
Court of
Appeal may seriously undermine the objectives for which the Act was
passed. These provisions are vital to the enforcement
of the Act. I
am satisfied that leave to appeal must be granted.
Issues
The
Commission challenges the finding by the Supreme Court of Appeal
that the referral did not cover the complaint relating to
the
contravention of section 8(c), which the Tribunal found Senwes had
committed. The Commission contends that that complaint
formed part
of the referral submitted to the Tribunal. If, however, this Court
finds that the referral did not include the relevant
complaint, the
Commission argues that, properly construed, the provisions of the
Act empower the Tribunal to decide a complaint
that did not form
part of the referral but was added later. The proper interpretation
of the relevant provisions of the Act lies
at the heart of these
issues.
Interpretation of the relevant provisions
Under
the Act complaints of anti-competitive behaviour are investigated by
the Commissioner before they are referred to the Tribunal.
20
This is the position
irrespective of whether the complaint was initiated by the
Commission or was submitted to it by a third party.
21
If the investigation reveals
that no prohibited practice or abuse has occurred the Commission may
not refer the complaint to the
Tribunal. It may issue a notice of
non-referral if the complaint was submitted to it by a third party,
in which case the complainant
may refer the complaint to the
Tribunal.
22
Once
a complaint has been referred, the Tribunal is obliged to conduct a
hearing into the matter. It is the mere referral of a
complaint that
triggers the exercise of the Tribunal’s adjudicative powers.
The object of the hearing is to determine whether
a prohibited
practice has indeed occurred. If a prohibited practice is
established, then the Tribunal may impose a remedy it
deems
appropriate, choosing from a number of remedies listed in the Act.
23
The
functions of the Tribunal are set out in section 27, which also
confers on it the power to adjudicate complaints and determine

whether any of the provisions of Chapter Two have been contravened.
It will be recalled that section 8(c) whose contravention
is at
issue here, forms part of this Chapter. Section 27 provides:
“
(1)
The Competition Tribunal may—
adjudicate on any conduct
prohibited in terms of Chapter 2, to determine whether
prohibited conduct has occurred, and
if so, to impose any remedy
provided for in this Act;
adjudicate on any other
matter that may, in terms of this Act, be considered by it, and
make any order provided for in
this Act;
hear appeals from, or
review any decision of, the Competition Commission that may, in
terms of this Act, be referred to
it; and
make any ruling or order
necessary or incidental to the performance of its functions in
terms of this Act.”
A
plain reading of section 27 reveals that the Tribunal is empowered
to “adjudicate in relation to any conduct prohibited
in terms
of Chapter 2” and “determine whether prohibited conduct
has occurred”. Apart from deciding reviews
and appeals against
decisions of the Commission, the Tribunal is also authorised to
“adjudicate on any other matter that
may, in terms of this
Act, be considered by it”. Thus, the section sets out matters
that fall within the competence of
the Tribunal.
Section
8(c) is also relevant to the determination of the issues. It
provides:
“
It is
prohibited for a dominant firm to—
. . .
(c) engage in an exclusionary
act, other than an act listed in paragraph (d), if the
anti-competitive effect of that act outweighs
its technological,
efficiency or other pro-competitive gain”.
Plainly
the section requires the presence of three conditions in order to
establish that an abuse of dominance has occurred. First,
the act in
which the dominant firm was engaged must be an “exclusionary
act” as defined in the empowering legislation.
In terms of the
legislation the words “exclusionary act” mean “an
act that impedes or prevents a firm from
entering into, or expanding
within, a market”.
24
Second,
the act in which the dominant firm was engaged must fall outside the
scope of section 8(d). Third, the anti-competitive
effect of that
act must outweigh its technological, efficiency or other
pro-competitive gain.
If
a complaint pertaining to a contravention of section 8(c) is
properly referred to the Tribunal and the evidence led at the

hearing establishes all three elements, the Tribunal must find that
a firm against whom the complaint was brought has violated
this
section. The Tribunal need not put any label on the contravention.
What is required of it is to determine whether an abuse
of dominance
has occurred. If it has, it may impose an appropriate remedy.
Background
to referral
Trading
in grain takes place in a supply chain involving different role
players. It commences with farmers who produce grain and
sell it to
traders. The traders resell it to millers and bakers (processors) as
and when the latter require to be supplied with
grain. From this
processors produce consumable goods sold to retailers who supply the
public.
Storage,
as the Supreme Court of Appeal observed, plays a critical role in
the physical grain trade, as processors do not use
the whole supply
of grain during the four-month harvest season, usually between May
and August. Grain not used during that period
needs to be stored so
that processors can be supplied continuously throughout the year.
Storage facilities are important for
two reasons. They are needed
for storing the grain and the fees charged for storage are built
into the price at which grain is
traded.
Storage
is predominantly provided by silo owners like Senwes, which is
almost a hundred years old. Due to historical reasons Senwes
has a
market share of over 80% in the area where it operates. Before
deregulation of agriculture markets, Senwes and other cooperatives

enjoyed the monopoly of being sole agents of the marketing boards in
areas where they carried on business.
25
Their role was to collect grain
from farmers and store it until they received instructions from the
marketing boards to deliver
the grain to processors. The boards had
the exclusive rights to buy and sell grain at prices fixed by them.
26
Senwes
and other agents obtained loans to build silos in which grain was
stored. When the markets were deregulated and the various
boards
were disbanded,
27
Senwes retained ownership of
the silos. It was converted into a company and formed a unit through
which it traded in grain. The
ownership of silos gave Senwes an
advantage to dominate the grain storage market. When other traders
entered the market they
were discouraged from building their own
silos by the prohibitively high costs. Consequently they had to
depend on storage provided
by owners of existing silos.
Before
2003 Senwes charged all its customers the same fee for storage,
regardless of whether they were traders or farmers. During
the first
100 days of storage all customers paid the same daily fee. After 100
days a capped tariff applied to all until the
next harvest season.
In 2003 Senwes withdrew the capped tariff that applied to traders
but continued to offer it to farmers.
This new arrangement was
called the “differential tariff” because it
differentiated between traders and farmers.
The
differential tariff adversely affected the business operations of
rival traders. Specifically, rival traders were unable to
compete
with prices Senwes offered to farmers for their grain because the
traders had to factor in the high storage costs charged
by Senwes.
Meanwhile it turned out that Senwes did not charge its trading arm
storage fees.
The
referral
The
question whether the complaint that was found to have been
established by the Tribunal adequately canvassed that which was

referred to it must be determined with reference to the terms of the
referral. The complaints which were eventually referred
to the
Tribunal for adjudication were based on complaints submitted to the
Commission by CTH Trading (Pty) Ltd (CTH). This company,
which is a
rival trader of Senwes, asserted that Senwes had abused its dominant
position in the storage market in contravention
of sections 8 and 9
of the Act. On 20 December 2006 the Commission referred some of the
complaints to the Tribunal.
For
present purposes we are not concerned with the complaints that were
not established at the hearing before the Tribunal. Our
focus should
be directed at the complaint relating to the contravention of
section 8(c) only. In this regard the referral stated:
“
Senwes’
practice of charging differential tariff fees for storage, is
exclusionary and has an anti-competitive effect, as
it impedes or
prevents CTH and other grain traders who compete with Senwes from
expanding within the downstream market for grain
trading and is thus
in contravention of section 8(c) of the Act.
The anti-competitive effect of
the differential storage fees charged by Senwes outweighs any
technological efficiency or other pro-competitive
gain that it might
have.”
Plainly
this complaint tracks the language of the section while setting out
the essential elements of the contravention. It points
out that it
was the differential fees charged by Senwes that constituted an
exclusionary act which impeded CTH and other traders
from expanding.
The complaint concludes by stating that the anti-competitive effect
of the differential storage fees outweighs
technological, efficiency
or other pro-competitive gain.
It
was this same complaint which the Tribunal found to have been
established in evidence. As it appears below, the error made
by the
Tribunal was to call it a margin squeeze. In my respectful view, the
Supreme Court of Appeal erred when it held that the
Tribunal
considered a complaint which was not covered by the referral.
The hearing
The
Tribunal was called upon to adjudicate this complaint and determine
whether prohibited conduct had occurred. A straightforward
process
was, however, complicated by what turned out to be a red herring.
Before the hearing at the Tribunal, Senwes and the
Commission
exchanged witness statements. Among those furnished by the
Commission, was a statement by an economist, Dr Nicola
Theron. The
Commission had sought her expert advice on whether, on the basis of
the factual statements made available to her,
Senwes had contravened
the Act. In the opinion statement that she prepared, in addition to
the abuses mentioned in the referral,
Dr Theron stated that Senwes
had also committed a margin squeeze. This was the first time that a
reference was made to margin
squeeze.
In
its response Senwes raised an objection to evidence dealing with a
margin squeeze complaint on the ground that it was irrelevant

because Senwes was not facing this complaint. Before the hearing
started, Senwes prepared a schedule of objections which was
served
on the Commission and was submitted to the Tribunal.
At
the commencement of the hearing, counsel made it clear that Senwes
persisted in its objection to evidence relating to the margin

squeeze. But the Tribunal did not rule on the objection. The hearing
proceeded and both parties led evidence. Apart from the
expert
evidence of Dr Theron, the Commission led evidence of various
witnesses on the differential fee charged to traders for
storage and
its effect on their businesses. Of importance is the evidence of Dr
Herbert Keyser, a director of Brisen Commodities
(Pty) Ltd (Brisen).
He testified that although his firm could compete with Senwes during
the first 100 days of storage, the removal
of the capped tariff and
the charges it had to pay after that period rendered further
competition with the trading arm of Senwes
impossible. He said the
differential tariff charge impeded Brisen and other traders from
expanding their businesses.
The
Tribunal was satisfied that an exclusionary act as defined in the
Act had been established. It proceeded to consider the evidence
led
on the anti-competitive effect of that act. Following its analysis
of the evidence, the Tribunal concluded that the anti-competitive

effect of the differential tariff outweighed its technological,
efficiency or other pro-competitive gain. The Tribunal then held

that Senwes had contravened section 8(c) by engaging in margin
squeeze conduct.
The
finding that Senwes had contravened section 8(c) is supported by the
evidence on record and therefore was properly made. What
gave rise
to controversy was the label attached to it by the Tribunal. In this
regard the Tribunal erred because the complaint
submitted to it did
not refer to margin squeeze nor does the section on which it was
based use the label.
But
the Tribunal’s error did not detract from the fact that
conduct amounting to a contravention of section 8(c) had been

established. That contravention fell squarely within the
Commission’s referral. It follows that the Supreme Court of

Appeal erred when it held that the referral did not cover the
complaint in respect of which Senwes was found to have contravened

the section.
Proceeding
from the premise that the Tribunal is a creature of a statute with
no inherent powers, the Supreme Court Appeal held
that “its
hearings are subject to the overriding limitation that the hearing
must be confined to matters set out in the
referral”.
28
On this approach the Court
concluded that the referral constitutes the boundaries beyond which
the Tribunal may not legitimately
travel. The Court held further
that evidence which the Tribunal is entitled to admit in terms of
section 55
29
is limited to evidence relevant
to matters set out in the referral.
30
For
these findings, as mentioned earlier, the Supreme Court of Appeal
relied on the provisions of section 52.
31
What emerges from the reading
of section 52 is the fact that the Tribunal does not itself initiate
a hearing. The Act gives this
power to the Commission and in
appropriate cases the complainant. This accords with the devolution
of power, carefully crafted,
between the three organs charged with
the responsibility to enforce the Act. In terms of that devolution,
the power to investigate
complaints and initiate hearings vests in
the Commission. A hearing is initiated by means of a referral.
32
The
fact that section 52(1) expressly states that the Tribunal must
conduct a hearing into every matter referred to it does not

necessarily mean that the Tribunal has no power to entertain a
matter not included in the referral. This section does not define

the powers of the Tribunal. Instead it deals with the procedure to
be followed when conducting a hearing. The section is located
in
Chapter Five which is concerned with the investigation and
adjudication procedures. In essence section 52(1) obliges the
Tribunal to conduct a hearing whenever a complaint is referred to
it. It is clear from the reading of the section as a whole that
the
Tribunal cannot initiate a hearing. But this does not mean that it
cannot determine a complaint brought to its attention
during the
course of deciding a referral.
While
it is true that the Tribunal can exercise only those powers given to
it by the Act, the flaw in the approach adopted by
the Supreme Court
of Appeal, in my respectful view, lies in the fact that it conflates
matters of jurisdiction and procedure.
As mentioned above, the
Tribunal’s jurisdiction to adjudicate contraventions of
section 8 of the Act is beyond question.
Accordingly,
the construction given to section 52(1) by the Supreme Court of
Appeal is at odds with the scheme of the Act, including
the
structure of section 52, when read in its entirety. This section
gives the Tribunal freedom to adopt any form it considers
proper for
a particular hearing, which may be formal or informal. Most
importantly, it also authorises the Tribunal to adopt
an
inquisitorial approach to a hearing. Confining a hearing to matters
raised in a referral would undermine an inquisitorial
enquiry.
Failure
to rule on objections
There
is, however, one further matter that must be mentioned. Senwes
objected to the leading of evidence on margin squeeze. The
Tribunal
was obliged to give a ruling on this objection but it failed to do
so. Just as in the case of any request made to the
Tribunal, a party
that raises an objection at a hearing before the Tribunal is
entitled to a ruling. However, the Tribunal’s
failure did not,
in my view, render the proceedings against Senwes unfair. This is so
because Senwes was aware that one of the
complaints laid against it
was that it contravened the provisions of section 8(c). Before the
hearing commenced, Senwes received
notice of evidence that was going
to be led in support of this and the other complaints. When this
evidence was led at the hearing,
Senwes was represented by
experienced senior counsel. Therefore it had ample opportunity to
refute the allegations against it.
In
these circumstances there can be no complaint of procedural
unfairness in respect of matters which were set out in the referral.

Senwes was afforded adequate opportunity to deal with those matters
and raise whatever defence it desired to advance. Its failure
to
ward off the charge of contravening section 8(c) cannot be
attributed to the Tribunal’s omission. It follows that the

appeal must succeed.
A
suggestion is made in the judgment of Froneman J that the referral
is capable of two reasonable interpretations, the one preferred
here
and the construction assigned to the referral by the Supreme Court
of Appeal. Flowing from this it is held that Senwes will
be
prejudiced by the disposal of the matter by this Court on the basis
of the interpretation it prefers. Therefore, the matter
must be
remitted to the Tribunal for a re-hearing.
I
disagree. The Supreme Court of Appeal did not approach the matter on
the footing that the referral is capable of two reasonable

interpretations. Nor has Senwes argued this in any of the forums
before which the matter served. The only objection raised by
Senwes
from the outset was that a margin squeeze complaint was not covered
by the referral and therefore evidence supporting
it was irrelevant
and should not be led at the hearing before the Tribunal. In the
Competition Appeal Court, the Supreme Court
of Appeal and in this
Court, Senwes added the contention that, if it is found that margin
squeeze was part of the referral, then
the evidence led did not
prove it. The Supreme Court of Appeal did not determine this issue
because it held that the referral
did not cover a margin squeeze
complaint.
I
also do not hold that a margin squeeze complaint formed part of the
referral. Instead I hold that the referral covered a contravention

of section 8(c) of the Act, a fact that was never disputed by Senwes
nor could it reasonably dispute it. There can be no prejudice
to
Senwes flowing from this finding. It received the referral which
contained the complaint that it contravened section 8(c)
in advance
and before the hearing at the Tribunal. That same complaint formed
part of the issues to be determined by the Tribunal.
In addition,
Senwes received statements of witnesses who were going to testify in
support of that complaint. All of this happened
before the hearing
at the Tribunal. At the hearing Senwes was given an opportunity to
refute the complaint. Therefore, a remittal
is not warranted, in my
view, because there is no prejudice or unfairness to Senwes.
Of
course, as mentioned above, it was necessary for the Tribunal to
rule on Senwes’ objections. But the failure to do so
does not,
in my view, give rise to prejudice, whether potential or actual. On
the interpretation I prefer, margin squeeze does
not come into the
equation.
Costs
This
case raises a constitutional issue of importance, namely the
content and scope of powers vested in the Tribunal which plays
a
vital role in the enforcement of the Act. It constitutes litigation
to which the general rule, that the unsuccessful litigant
against
the state ought not to be ordered to pay costs, applies.
33
The Commission is an organ of
state. Therefore, each party must pay its own costs.
Order
The
following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order issued by the
Supreme Court of Appeal is set aside.
4. The ruling of the Tribunal
is amended by deleting the reference to margin squeeze.
5. There is no order as to
costs.
FRONEMAN J (Cameron J concurring):
I
have had the benefit of reading the judgment of Jafta J (main
judgment). Although I agree that leave should be granted and
that
the appeal should succeed, we differ on the remedy that should
follow. In my view the matter should be referred back to
the
Competition Tribunal (Tribunal) to make a proper ruling on the
ambit of the referral in order for the hearing to proceed
on the
basis of that ruling.
The
Competition Appeal Court, the Supreme Court of Appeal and the main
judgment all came to opposing conclusions regarding the
proper
ambit of the referral in terms of which the Tribunal conducted the
hearing. The conclusion has in each case been used
to determine the
outcome of the appeal without further ado, namely to affirm or
reverse the Tribunal’s finding. I would
respectfully suggest
that in doing so a crucial aspect of the function of the Tribunal
when conducting a hearing into a matter
referred to it in terms of
the Competition Act
34
(Act), has been overlooked. A
proper appreciation of the Tribunal’s function is necessary
to determine not only the ambit
of a referral, but also the
procedure that should be followed when a dispute arises about the
ambit of a referral.
Perhaps the point
is illustrated most starkly by how the Supreme Court of Appeal
dealt with an argument that the Commission
advanced before it. This
was that because Senwes had failed to seek a ruling from the
Tribunal on the proper ambit of the referral,
it was precluded from
raising that question on appeal. The Supreme Court of Appeal
rejected this argument. It said that both
Senwes and the Commission
took a gamble in their approach: Senwes, in that it might be wrong
in its interpretation of the referral,
and the Commission, by
refusing to seek a formal amendment of the referral.
35
It held that Senwes could
pursue the point on appeal, and ruled in its favour. But surely a
gamble by the parties cannot determine
the Tribunal’s
functional obligations in conducting a hearing in terms of the Act?
The
Tribunal has an obligation to determine the proper ambit of the
referral in accordance with the provisions of the Act. It
also has
an obligation to ensure that its determination of that issue is
made in a manner and at a time that is fair to the
parties involved
in the proceedings. The content of both these obligations depends
on the proper interpretation and application
of the Act. It is the
determination of these obligations that establishes the contours of
the legality of the Tribunal’s
conduct during a hearing. And
those are the constitutional issues that need to be decided –
not whether a gamble by either
party paid off.
Interpretation of the
referral
The
Supreme Court of Appeal determined the ambit of the referral with
reference to whether a “complaint of margin squeeze”

formed part of it.
36
It did so by using the terms
“charge” and “conviction”:
37
“
In
formulating my reasons . . . I refer, for the sake of brevity, to
the conduct complained of in the referral as ‘the charge’

and to the conduct which the Tribunal found to be objectionable as
‘the conviction’ . . . . To have founded a complaint
of
margin squeeze the Commission would have had to refer to the
discrimination as between [Senwes], qua trader, and other traders,

in the downstream market, caused by its participation and dominance
in the upstream market. That, as I see it, is the essential

difference between the conviction and the charge.”
Having
determined the terms of the referral, the Supreme Court of Appeal
then went on to deal with an argument that the Tribunal
was
entitled to go beyond the terms of the referral because of its
procedural powers under the Act, which differ from those
of a court
in adversarial proceedings:
“
While
all this may be true, the starting point of an enquiry into the
scope of the Tribunal’s authority, is that we are
dealing with
a creature of the Act. It has no inherent powers. In accordance with
the constitutional principle of legality, it
has to act within the
powers conferred upon it by the Act. In terms of section 52(1), the
Tribunal must conduct a hearing, subject
to its rules, into any
matter referred to it. The reverse side of this must be that the
Tribunal has no power to enquire into
and to decide any matter not
referred to it . . . .
Thus understood, all the
provisions of the Act and the rules pertaining to the Tribunal’s
conduct of its hearings are subject
to the overriding limitation
that the hearing must be confined to matters set out in the
referral.”
38
(Footnote omitted.)
In my respectful
view the Supreme Court of Appeal erred in its approach to
determining the ambit of the referral, by failing
to have regard to
the relevant provisions of the Act. The Act does not use the
language of “charge” and “conviction”
at
all. Even if they were used merely for the sake of brevity, the
metaphor or analogy that they carry is inapposite to the
Tribunal’s
powers in conducting a hearing. They are suggestive of an approach
that the Tribunal’s powers to determine
the terms of a
referral must be narrow and restricted. The provisions of the Act
do not justify that kind of restrictive approach.
39
Section
27(1)(a) of the Act provides that the Tribunal may—
“
adjudicate
on any conduct prohibited in terms of Chapter 2, to determine
whether prohibited conduct has occurred, and, if so,
to impose any
remedy provided for in this Act.”
Section
52 provides in relevant part:
“
(1)
The Competition Tribunal must conduct a hearing, subject to its
rules, into every matter referred to it in terms of this Act.
(2) . . . the Competition
Tribunal—
(a) must conduct its hearings
in public, as expeditiously as possible, and in accordance with the
principles of natural justice;
and
(b) may conduct its hearings
informally or in an inquisitorial manner.”
Section
55 reads:
“
(1)
Subject to the Competition Tribunal’s rules of procedure, the
Tribunal member presiding at a hearing may determine any
matter of
procedure for that hearing, with due regard to the circumstances of
the case, and the requirements of section 52(2).
(2) The Tribunal may condone
any technical irregularities arising in any of its proceedings.
(3) The Tribunal may—
(a) accept as evidence any
relevant oral testimony, document or other thing, whether or not—
(i) it is given or proven under
oath or affirmation; or
(ii) would be admissible in
court; but
(b) refuse to accept any oral
testimony, document or other thing that is unduly repetitious.”
These
provisions indicate that there is indeed a material and significant
difference between the Tribunal and civil courts.
One of the
functions of the Tribunal is to adjudicate on any conduct
prohibited under Chapter 2 of the Act. In order to do
so, the
provisions for hearings referred to the Tribunal place an emphasis
on speed, informality and a non-technical approach
to its task.
There is no indication in the Act that the interpretation and
determination of the ambit of a referral should
be narrowly or
restrictively interpreted. Excessive formality would not be in
keeping with the purpose of the Act.
40
The
Supreme Court of Appeal interpreted the referral thus:
41
“
The
differential tariff referred to in the charge focussed on a
comparison between traders and farmers. The margin squeeze which

formed the basis of the conviction, on the other hand, focussed on a
discrimination by Senwes, as storage provider, against other
traders
in favour of its own trading arm. To have founded a complaint of
margin squeeze the Commission would have had to refer
to the
discrimination as between it, qua trader, and other traders in the
downstream market, caused by its participation and
dominance in the
upstream market. That, as I see it, is the essential difference
between the conviction and the charge.”
After
quoting the referral’s reference to section 8(c) of the Act,
the main judgment in this Court comes to a different
conclusion. It
finds without more that the referral covered the conduct found to
violate the statute
:
42
“
Plainly
this complaint tracks the language of the section while setting out
the essential elements of the contravention. It points
out that it
was the differential fees charged by Senwes that constituted an
exclusionary act which impeded CTH and other traders
from expanding.
The complaint concludes by stating that the anti-competitive effect
of the differential storage fees outweighs
technological, efficiency
or other pro-competitive gain.
It was this same complaint
which the Tribunal found to have been established in evidence. As it
appears below, the error made
by the Tribunal was to call it a
margin squeeze. In my respectful view, the Supreme Court of Appeal
erred when it held that the
Tribunal considered a complaint which
was not covered by the referral.”
The
crux of the difference between the two interpretations of the
referral is that the Supreme Court of Appeal read it as referring

only to discrimination between producers and traders while the main
judgment reads it more broadly.
It
seems to me that on either interpretation there would have been
potential prejudice to the parties. The interpretation in
the main
judgment would have required Senwes to address whether its conduct
was preventing traders from competing with it.
43
On the Supreme Court of
Appeal’s interpretation, the Commission would have had to
consider whether it should apply for
an amendment to make it clear
that the section 8(c) alternative in the referral embraced the
effect of Senwes’ conduct
on traders competing with Senwes,
qua trader, downstream, as the Tribunal and CAC found.
The
Supreme Court of Appeal’s restricted approach to the
interpretation of the referral also excluded the possibility
that
the ambit of the referral could be extended through the witness
statements that the Commission had filed in support of
the
referral. Those statements plainly included reference to the
downstream effects on traders competing with Senwes (the “margin

squeeze” case).
44
For
the reasons set out earlier,
45
I do not think that a
restricted approach of this kind is warranted. For the purposes of
this judgment one does not need to
go beyond a finding that the
interpretation of the referral preferred in the main judgment is a
reasonable one. It is therefore
clear from the contrary judicial
findings that precede this Court’s judgment that the referral
was open to more than
one reasonable interpretation. The witness
statements clarified the ambiguity of two contrasting reasonable
approaches. It
was, at the very least, possible that the Tribunal
could have ruled that the content of the witness statements was
reasonably
connected to the conduct complained of in the referral.
The
potential prejudice to Senwes at this stage of the proceedings no
longer related to the Commission’s procedural powers
in
investigating the initial complaint against it, as was the case in
Woodlands
.
46
The investigation for the
purposes of referring the complaint has been completed. The focus
now was the fairness of the hearing
itself.
47
A ruling on the proper ambit
of the referral would have had to take into account its impact on
whether Senwes would have been
unduly prejudiced in the
presentation of its case at the hearing, but that is not what
happened.
The
duty to make a ruling
That
the ambit of the referral was disputed before the hearing had
started is clear. Senwes sought, unsuccessfully, to dispose
of it
by way of an exception. After receiving the Commission’s
witness statements, it compiled a schedule of objections
which it
handed up to the Tribunal at the commencement of the hearing. Then
followed a game of brinkmanship by Senwes. During
the course of the
hearing it made and repeated its objections to certain evidence,
without ever asking formally for a ruling
and, inconsistently,
challenged the evidence by way of cross-examination, interspersed
with promises that it would call contradictory
evidence. A finding
on the ambit of the referral was made only after evidence had been
presented and final argument heard,
when the Tribunal delivered its
judgment.
Even
in ordinary civil courts the emphasis and trend is towards a
court-driven case management so as to ensure that time and

resources are not wasted and that only the real issues between
litigants are adjudicated. In the case of hearings in terms
of the
Act, the Tribunal is in an even stronger position than ordinary
civil courts in this regard. It may cut to the heart
of the matter
before it with expedition, informality and Tribunal-led
intervention.
48
Whatever the seniority of
counsel involved, there is no justification for the Tribunal to
allow a hearing to start and continue
without clearly defining the
issues that need to be adjudicated. If the ambit of the issues is
disputed by the parties, as
it was in this case, the Tribunal has a
duty, firmly rooted in the provisions of the Act, to determine the
dispute. Ideally
these kinds of disputes should be resolved in
pre-hearing conferences,
49
but if they are not, and if
objections are raised at the hearing, then the Tribunal must make a
ruling on them. Not to do so
increases the potential that affected
parties will complain that they have been prejudiced, as is
illustrated by this case.
Accordingly,
I am of the view that the Tribunal should have made a ruling on the
ambit of the referral, either at the start
of the hearing, or at
least as soon as it had become obvious during the proceedings that
the dispute about the ambit of the
referral was not about to go
away. The failure to do so was a misdirection and resulted in a
failure of justice.
For
these reasons, I would refer the matter back to the Tribunal to
make a ruling on the ambit of the referral. That will enable
both
parties, if so advised and able, to lead any further evidence
needed in the light of the Tribunal’s ruling.
For
the Applicant: Advocate W Trengove SC and Advocate G Marcus,
Advocate AR Bhana SC, Advocate T Dalrymple and Advocate I Goodman

instructed by the the State Attorney.
For
Respondent: `Advocate MSM Brassey SC and Advocate MJ Engelbrecht
instructed by DLA Cliffe Dekker Hofmeyr Inc.
1
Act
89 of 1998.
2
Sections
4 and 5 prohibit certain listed practices.
3
Sections
8 and 9 forbid certain listed acts by dominant firms.
4
See
the Long Title of the Act.
5
Section
2 provides:
“
The purpose of this Act is to
promote and maintain competition in the Republic in order—
to promote the efficiency, adaptability and
development of the economy;
to provide consumers with competitive prices and
product choices;
to promote employment and advance the social and
economic welfare of South Africans;
to expand opportunities for South African
participation in world markets and recognise the role of foreign
competition in the
Republic;
to ensure that small and medium-sized enterprises have
an equitable opportunity to participate in the economy; and
to promote a greater spread of ownership, in particular
to increase the ownership stakes of historically disadvantaged
persons.”
6
Section
8 provides:
“
It is prohibited for a
dominant firm to—
charge an excessive price to the detriment of
consumers;
refuse to give a competitor access to an essential
facility when it is economically feasible to do so;
engage in an exclusionary act, other than an act
listed in paragraph (d), if the anti-competitive effect of that act
outweighs
its technological, efficiency or other pro-competitive
gain; or
engage in any of the following exclusionary acts,
unless the firm concerned can show technological, efficiency or
other pro-competitive
gains which outweigh the anti-competitive
effect of its act:
requiring or inducing a supplier or customer to not
deal with a competitor;
refusing to supply scarce goods to a competitor when
supplying those goods is economically feasible;
selling goods or services on condition that the buyer
purchases separate goods or services unrelated to the object of a
contract,
or forcing a buyer to accept a condition unrelated to the
object of a contract;
selling goods or services below their marginal or
average variable cost; or
buying-up a scarce supply of intermediate goods or
resources required by a competitor.”
7
Section
9(1) provides:
“
An action by a dominant firm,
as the seller of goods or services, is prohibited price
discrimination, if—
it is likely to have the effect of substantially
preventing or lessening competition;
it relates to the sale, in equivalent transactions, of
goods or services of like grade and quality to different
purchasers;
and
it involves discriminating between those purchasers in
terms of—
the price charged for the goods or services;
any discount, allowance, rebate or credit given or
allowed in relation to the supply of goods or services;
the provision of services in respect of the goods or
services; or
payment
for services provided in respect of the goods or services.”
payment for services provided in respect of the goods
or services.”
8
Section
20(1) provides:
“
The Competition Commission—
is independent and subject only to the Constitution
and the law; and
must be impartial and must perform its functions
without fear, favour, or prejudice.”
9
Section
24 provides:
“
(1) The Commissioner may
appoint any person in the service of the Competition Commission, or
any other suitable person, as an
inspector.
(2) The Minister may, in consultation with the Minister
of Finance, determine the remuneration paid to a person who is
appointed
in terms of subsection (1), but who is not in the
full-time service of the Competition Commission.
(3) An inspector must be provided with a certificate of
appointment signed by the Commissioner stating that the person has
been
appointed as an inspector in terms of this Act.
(4) When an inspector performs any function in terms of
this Act, the inspector must—
(a) be in possession of a certificate of appointment
issued to that inspector in terms of subsection (3); and
(b) show that certificate to any person who—
(i) is affected by the exercise of the functions of the
inspector; and
(ii) requests to see the certificate.”
10
Section
25 provides:
“
(1) The Commissioner may—
appoint staff, or contract with other persons, to
assist the Competition Commission in carrying out its functions;
and
in consultation with the Minister and Minister of
Finance, determine the remuneration, allowances, benefits, and other
terms and
conditions of appointment of each member of the staff.”
11
The
powers of the Tribunal are provided for in section 27, which is set
out in [24] below.
12
Section
26 provides:
“
(1) There is hereby
established a body to be known as the Competition Tribunal, which—
has jurisdiction throughout the Republic;
is a juristic person;
is a Tribunal of record; and
must exercise its functions in accordance with this
Act.
(2) The Competition Tribunal consists of a Chairperson
and not less than three, but not more than ten, other women or men
appointed
by the President, on a full or part-time basis, on the
recommendation of the Minister, from among persons nominated by the
Minister
either on the Minister’s initiative or in response to
a public call for nominations.
(3) The President must—
(a) appoint the Chairperson and other members of the
Competition Tribunal on the date that this Act comes into operation;
and
(b) appoint a person to fill any vacancy on the
Tribunal.
(4) Section 20, read with the changes required by the
context, applies to the Competition Tribunal.”
13
Section
31, in relevant part, provides:
“
(1) The Chairperson is
responsible to manage the caseload of the Competition Tribunal, and
must assign each matter referred to
the Tribunal to a panel composed
of any three members of the Tribunal.
(2) When assigning a matter in terms of subsection (1),
the Chairperson must—
(a) ensure that at least one member of the panel is a
person who has legal training and experience; and
(b) designate a member of the panel to preside over the
panel’s proceedings.
(3) If, because of withdrawal from a hearing in terms
of section 32, resignation, illness or death, a member of the panel
is unable
to complete the proceedings in a matter assigned to that
panel, the Chairperson must—
(a) direct that the hearing of that matter proceed
before any remaining member of the panel subject to the requirements
of subsection
(2)(a); or
(b) terminate the proceedings before that panel and
constitute another panel, which may include any member of the
original panel,
and direct that panel to conduct a new hearing.
(4) The decision of a panel on a matter referred to it
must be in writing and include reasons for that decision.”
14
Senwes
Ltd v Competition Commission
[2011] 1 CPLR 1
(SCA) at para 52
(
Senwes
).
15
2011
(3) SA 171
(CAC)
at para 61.
16
Id
at para 61.
17
Section
52(1) provides:
“
The Competition Tribunal must
conduct a hearing, subject to its rules, into every matter referred
to it in terms of this Act.”
18
Pharmaceutical
Manufacturers Association of SA
and Another: In Re Ex Parte
President of the Republic of South Africa and Others
[2000] ZACC
1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 35.
19
Preamble
to the Act.
20
Section
50 of the Act provides:
“
(1) At any time after
initiating a complaint, the Competition Commission may refer the
complaint to the Competition Tribunal.
(2) Within one year after a complaint was submitted to
it, the Commissioner must—
(a) subject to subsection (3), refer the complaint to
the Competition Tribunal, if it determines that a prohibited
practice has
been established; or
(b) in any other case, issue a notice of non-referral
to the complainant in the prescribed form.”
21
Section
49B(3) provides:
“
Upon initiating or receiving
a complaint in terms of this section, the Commissioner must direct
an inspector to investigate the
complaint as quickly as
practicable.”
22
Section
51(1) provides:
“
If the Competition Commission
issues a notice of non-referral in response to a complaint, the
complainant may refer the complaint
directly to the Competition
Tribunal, subject to its rules of procedure.”
23
Section
58 provides:
“
(1) In addition to its other
powers in terms of this Act, the Competition Tribunal may—
make an appropriate order in relation to a prohibited
practice, including—
interdicting any prohibited practice;
ordering a party to supply or distribute goods or
services to another party on terms reasonably required to end a
prohibited
practice;
imposing an administrative penalty, in terms of
section 59, with or without the addition of any other order in
terms of this
section;
ordering divestiture, subject to section 60;
declaring conduct of a firm to be a prohibited
practice in terms of this Act, for the purposes of section 65;
declaring the whole or any part of an agreement to be
void;
ordering access to an essential facility on terms
reasonably required;
confirm a consent agreement in terms of section 49D as
an order of the Tribunal; or
subject to sections 13(6) and 14(2), condone, on good
cause shown, any non-compliance of—
the Competition Commission or Competition Tribunal
rules; or
a time limit set out in this Act.”
24
Section
1(1)(viii)
25
The
boards were called the Maize Board and the Wheat Board.
26
These
boards were established and operated in terms of the Marketing Act
59 of 1968.
27
Deregulation
was effected in terms of the
Marketing of Agricultural Products Act
47 of 1996
.
28
Senwes
above n 14 at para 52.
29
Section
55
provides:
“
(1) Subject to the
Competition Tribunal’s rules of procedure, the Tribunal member
presiding at a hearing may determine any
matter of procedure for
that hearing, with due regard to the circumstances of the case, and
the requirements of
section 52(2).
(2) The Tribunal may condone any technical
irregularities arising in any of its proceedings.
(3) The Tribunal may—
(a) accept as evidence any relevant oral testimony,
document or other thing, whether or not—
(i) it is given or proven under oath or affirmation; or
(ii) would be admissible as evidence in court; but
refuse to accept any oral testimony, document or other
thing that is unduly repetitious.”
30
Senwes
above n 14 at para 53.
31
Section
52
provides:
“
(1) The Competition Tribunal
must conduct a hearing, subject to its rules, into every matter
referred to it in terms of this Act.
(2) Subject to subsections (3) and (4), the Competition
Tribunal—
(a) must conduct its hearings in public, as
expeditiously as possible, and in accordance with the principles of
natural justice;
and
(b) may conduct its hearings informally or in an
inquisitorial manner.
(2A) Despite subsection (2)(a), the Chairperson of the
Tribunal may order that a matter be heard—
in chambers, if no oral evidence will be heard, or
that oral submissions be made at the hearing; or
by telephone or video conference, if it is in the
interests of justice and expediency to do so.
(3) Despite subsection (2), the Tribunal member
presiding at a hearing may exclude members of the public, or
specific persons
or categories of persons, from attending the
proceedings—
(a) if evidence to be presented is confidential
information, but only to the extent that the information cannot
otherwise be protected;
(b) if the proper conduct of the hearing requires it;
or
(c) for any other reason that would be justifiable in
civil proceedings in a High Court.
(4) At the conclusion of a hearing, the Competition
Tribunal must make any order permitted in terms of this Act, and
must issue
written reasons for its decision.
(5) The Competition Tribunal must provide the
participants and other members of the public reasonable access to
the record of
each hearing, subject to any ruling to protect
confidential information made in terms of subsection (3)(a).”
32
Section
51 provides:
“
(1) If the Competition Commission issues a
notice of non-referral in response to a complaint, the complainant
may refer the complaint
directly to the Competition Tribunal,
subject to its rules of procedure.
(2) A referral to the Competition Tribunal, whether by
the Competition Commission in terms of section 50(1), or by a
complainant
in terms of subsection (1), must be in the prescribed
form.
(3) The Chairperson of the Competition Tribunal must,
by notice in the Gazette, publish each referral made to the
Tribunal.
(4) The notice published in terms of subsection (3)
must include—
(a) the name of the respondent; and
(b) the nature of the conduct that is the subject of
the referral.”
33
Biowatch
Trust v Registrar, Genetic Resources and Others
[2009] ZACC 14
;
2009 (6) SA 232
CC;
2009 (10) BCLR 1014
(CC) at para 43.
34
Act
89 of 1998.
35
Senwes
Ltd v Competition Commission
[2011] ZASCA 99
;
[2011] 1 CPLR 1
(SCA) at para 55.
36
Id
at para 38.
37
Id.
38
Id
at paras 51 and 52.
39
The
language of criminal penalty and procedure, and hence a restrictive
approach, may be more appropriate to the investigative
powers of the
Commission. See
Woodlands Dairy (Pty) Ltd and Another v
Competition Commission
2010 (6) SA 108
(SCA) (
Woodlands
)
at para 10.
40
Section
2 of the Act provides:
“
The purpose of this Act is to
promote and maintain competition in the Republic in order—
(a) to promote the efficiency, adaptability and
development of the economy;
(b) to provide consumers with competitive prices and
product choices;
(c) to promote employment and advance the social and
economic welfare of South Africans;
(d) to expand opportunities for South African
participation in world markets and recognise the role of foreign
competition in
the Republic;
(e) to ensure that small and medium-sized enterprises
have an equitable opportunity to participate in the economy; and
(f) to promote a greater spread of ownership, in
particular to increase the ownership stakes of historically
disadvantaged persons.”
41
Above
n 2 at para 38.
42
Main
judgment at [38]-[39] above.
43
As
the Supreme Court of Appeal (above n 2) pointed out in para 35 of
its judgment, the expert witness called on behalf of Senwes
refused
to take issue with the Commission’s expert on the matter of
margin squeeze, because, so he testified, he was advised
by Senwes’
legal representatives that it fell outside the ambit of the referral
and was therefore irrelevant.
44
The
Tribunal found that Senwes, as a “vertically integrated firm
that is dominant” (that is, a dominant storage provider
that
also competed against other firms trading in grain) had by
abolishing the “capped tariff” raised the costs to

traders competing with it in the grain trading market who were
dependent on Senwes for a service critical to it, namely grain

storage, which Senwes also self-supplied. In essence the Tribunal
found, and the CAC affirmed, that Senwes’ “squeeze”

in abolishing the cap for competitor traders precluded them from
obtaining a viable margin, and that this constituted an infringement

of section 8(c).
45
At
[66]-[69] above.
46
Above
n 6 at paras 9-20 and 34-6.
47
In
“accordance with the principles of natural justice” in
the language of section 52(2)(d) of the Act.
48
Sections
52(2) and 55.
49
Rule
21 of the Competition Tribunal Rules.