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[2012] ZACC 14
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Competition Commission v Yara South Africa (Pty) Ltd and Others (CCT 81/11) [2012] ZACC 14; 2012 (9) BCLR 923 (CC) (26 June 2012)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 81/11
[2012] ZACC 14
In the matter between:
COMPETITION COMMISSION
….....................................................................
Applicant
and
YARA SOUTH AFRICA (PTY) LTD
…..................................................
First
Respondent
OMNIA FERTILIZER LTD
….............................................................
Second
Respondent
SASOL CHEMICAL INDUSTRIES LTD
…..........................................
Third
Respondent
Heard on : 24 November 2011
Decided on : 26 June 2012
JUDGMENT
ZONDO AJ (Mogoeng CJ, Jafta J and Nkabinde J concurring):
Introduction
The
Competition Commission (Commission), a body established by section
19(1) of the Competition Act
1
(Act), has applied for leave to appeal directly to this Court
against the judgment and order
2
of the Competition Appeal Court
3
(CAC), which set aside a decision of the Competition Tribunal
4
(Tribunal) granting the Commission leave to amend its referral of a
certain complaint to the Tribunal and another decision of
the
Tribunal dismissing a counter-application that had been brought by
the second respondent. The second respondent’s
counter-application was aimed at setting aside the referral of the
Commission’s complaint to the Tribunal. The background
to the
decision of the CAC and the present application is set out below.
Background
The
Chief Executive Officer of the Commission is the Commissioner.
5
The Commissioner is responsible for the general administration of
the Commission and for carrying out its functions.
6
The first respondent is Yara South Africa (Pty) Ltd (Yara),
previously known as Kynoch Fertilizer (Pty) Ltd. The second
respondent
is Omnia Fertilizer Ltd (Omnia). The third respondent is
SASOL Chemical Industries Ltd (SASOL). The Commission seeks no
relief
against SASOL and joined it in these proceedings only for the
interest it might have in the matter. SASOL did not participate in
this application. Yara and Omnia opposed the Commission’s
application.
The
functions of the Commission
7
include investigating complaints that it initiates itself and those
it receives from members of the public concerning alleged
contraventions of the provisions of Parts A and B of Chapter 2 of
the Act
8
and, in appropriate cases, referring complaints to the Tribunal for
adjudication. These include contraventions of the provisions
of
sections 4, 8 and 9 of the Act.
9
In
December
2003 the Commission received a
complaint from two close corporations, namely, Nutri-Flo CC and
Nutri-Fertilizer CC (Nutri-Flo
complainants) concerning alleged
contraventions of the Act. The Nutri-Flo complainants filled in the
relevant form prescribed
for lodging a complaint with the Commission
and put up an affidavit they had previously used in support of an
application for
interim relief in the Tribunal.
10
The Nutri-Flo complainants produce, distribute and supply blended
fertilizers out of the raw material either manufactured or
imported
by Yara, Omnia and SASOL.
In
the form prescribed for lodging complaints with the Commission, the
Nutri-Flo complainants
filled
in the words
“SASOL Chemical Industries Proprietary” in the box in
which they were required to state whom the complaint
concerned. This
suggested that the complaint concerned SASOL. In the box in which
they were required to give a description of
the complaint, they
wrote:
“
The
respondents (SASOL) have imposed price increases in respect of raw
materials it supplies to the complainants, to
such
an
extent as to render its continued operation unviable and to
constitute various prohibited practices as amplified in the affidavit
attached hereto.”
This
statement suggested that the prohibited practices that the Nutri-Flo
complainants were complaining about were “amplified
in the
affidavit” accompanying the complaint form.
In
the
affidavit
that accompanied the
complaint form, the following was said:
“
KCL
and Urea are imported by a cartel (‘the cartel’), of
which SASOL is a member and which cartel collusively controls
the
price at which these products are sold in the local market. The other
members of the cartel are the Third Respondent (‘KYNOCH’)
and the Fourth Respondent (‘NITROCHEM’).”
The third
and fourth respondents to which reference is made in this quotation
were Yara and Omnia respectively.
Pursuant
to the complaint, the Commission conducted an investigation. It then
referred the complaint to the Tribunal for adjudication
in terms of
the Act. In that referral Yara, Omnia and SASOL were cited as the
respondents. Subsequently, the Commission amended
the referral
twice. After lengthy negotiations, SASOL and the Commission
concluded a settlement agreement in terms of which SASOL
admitted
having acted in contravention of the provisions of section 4(1)(b)
of the Act by agreeing to various pricing formulae
for, and
discounts to, products manufactured or supplied by itself, Yara and
Omnia. SASOL provided the Commission with details
of how these
agreements were reached and enforced. It also undertook to
co-operate with the Commission in “prosecuting”
Yara and
Omnia. SASOL also agreed to pay an administrative penalty of R250
680 000,00.
11
Ahead
of the hearing of the complaint by the Tribunal the parties
exchanged further particulars and witness statements. The Commission
made it known that, in order to prove its complaint, it would use
information received from SASOL. Yara and Omnia indicated that
they
considered that information to fall outside the scope of the amended
referral of the complaint. As a result of this attitude
on the part
of Yara and Omnia, the Commission applied to the Tribual for a
further amendment of the referral which Yara and Omnia
opposed on
the basis that the proposed amendment fell outside the scope of the
Nutri-Flo complaint. The proposed amendment covered
alleged
collusive behaviour on the part of Yara and Omnia. Omnia brought a
counter-application to have the referral of the complaint
set aside
on the basis that the Nutri-Flo complainants had not submitted any
complaint concerning collusive behaviour by itself
and Yara.
The
Tribunal decision
On 2
December 2009 the Tribunal heard the two applications. On 24
February 2010 the Tribunal granted the Commission’s
application for leave to amend the referral to include alleged
collusive
behaviour by Yara and Omnia and dismissed Omnia’s
counter-application.
The CAC
decision
Omnia
appealed to the CAC against the decision of the Tribunal. The CAC
heard the appeal against the two decisions of the Tribunal
and
handed down its judgment on 14 March 2011. The CAC upheld Omnia’s
appeal, set aside the Tribunal’s two decisions
and replaced
them with—
a
decision dismissing with costs the Commission’s application
for leave to amend;
a
decision effectively granting Omnia’s counter-application; and
a
decision setting aside the referral of the complaint against Yara
and Omnia.
To decide
the appeal, the CAC’s approach in its judgment was to determine
whether or not the complaint lodged by the Nutri-Flo
complainants was
also a complaint against Yara and Omnia or whether it was a complaint
against SASOL only. The CAC focused on the
ambit of the Nutri-Flo
complaint. It found that the Nutri-Flo complaint was against SASOL
only. To reach this conclusion the CAC
relied heavily on its view
that the Nutri-Flo complainants had not intended to lodge a complaint
against Yara and Omnia. It drew
this inference from the fact that
Yara and Omnia were not mentioned in the box of the prescribed
complaint form where the complainants
were required to specify whom
the complaint concerned.
The
CAC accepted that in the affidavit accompanying the complaint form
the deponent implicated Yara and Omnia in conduct prohibited
by the
Act. However, the CAC took the view that, as long as this
information did not relate to a complaint that had been submitted
to, or initiated by, the Commission against Yara and Omnia, the
referral to the Tribunal could not be amended to include it.
The CAC
said that the Commission’s amendment sought to introduce a
different cause of action or complaint into the referral.
In other
words, the CAC held that an amendment of an existing referral to the
Tribunal could not introduce a new complaint (or
a new cause of
action) that had not previously been submitted to, or initiated by,
the Comission, nor could such an amendment
introduce a complaint
against a party who had not previously been the subject of such
complaint submitted to, or initiated by,
the Commission.
12
Proceedings in this Court
The
Commission has now applied for leave to appeal directly to this
Court. There is also an application pending before the CAC
for leave
to appeal against the CAC’s decision to the Supreme Court of
Appeal. The Commission has indicated in the affidavit
of its
Commissioner that, if this Court grants the Commission leave to
appeal to this Court, it will not pursue its application
for leave
to appeal to the Supreme Court of Appeal.
Jurisdiction
If
the Commission is granted leave to appeal the issues that will arise
for determination relate to the extent of the power of
the Tribunal,
if it has such power, to grant leave for the amendment of a referral
of complaints to it. In
Senwes
13
this Court held that a dispute on whether the Tribunal went beyond
its powers raises a constitutional issue.
14
I am of the opinion that an issue concerning the power of the
Tribunal to grant or refuse an amendment in regard to complaints
referred to it in terms of the Act is a constitutional issue.
Accordingly, this Court has jurisdiction.
What
the application is about
The
Commission seeks leave to appeal against the decision of the CAC to
the effect that the referral of a particular complaint
to the
Tribunal against a respondent cannot be amended to introduce a new
complaint against the same respondent or cannot be
amended to join a
new respondent to the referral unless the new complaint had
previously been submitted to, or initiated by,
the Commission or the
new respondent had been the subject of a complaint submitted to, or
initiated by, the Commission.
The
Commission submits that the decision of the CAC is not justified by
the provisions of the Act. Indeed, the Commission complains
that the
decision of the CAC undermines the investigative nature of its
powers. It contends that the decision is based on a
misinterpretation by the CAC in this case and in
Loungefoam (Pty)
Ltd and others v Competition Commission and others; In re Feltex
Holdings (Pty) Ltd v Competition Commission
and others
15
(
Loungefoam
) of the judgment of the Supreme Court of Appeal
in
Woodlands Dairy (Pty) Ltd and Another v Competition
Commission
16
(
Woodlands
). The
Woodlands
judgment was handed down in
September 2010.
Although
the Commission initially applied to this Court for leave to appeal
against the
Woodlands
judgment, it later withdrew its
application. Despite this, the Commission says that it never
accepted the correctness of
Woodlands
. Indeed, it lays the
blame for the position in which it says it finds itself which has
prompted it to apply for leave to appeal
to this Court in this
matter on the
Woodlands
judgment and on how that judgment has
been interpreted by the CAC and the Tribunal. It contends that this
can be seen in the
CAC judgment in this case, the Tribunal’s
order (without the reasons) in the
South African Breweries Ltd &
others v Competition Commission; In re Competition Commission v
South African Breweries Ltd
and others
17
(
SAB
) and in the CAC judgment in
Loungefoam
.
The
section 63(2) point
Before
I turn to the Commission’s applications for condonation and
for leave to appeal, I need to deal with a preliminary
point based
on section 63(2) of the Act. In its opposition to the Commission’s
application, Omnia contends that, contrary
to the provisions of
section 63(2), the Commission failed to apply to the CAC for leave
to appeal to this Court. It is necessary
to refer to sections 62(4),
63(1) and 63(2). Section 62(4) reads:
“
An
appeal from a decision of the Competition Appeal Court in respect of
a matter within its jurisdiction in terms of subsection
(2) lies to
the Supreme Court of Appeal or the Constitutional Court, subject to
section 63 and their respective rules.”
Section
63(1) reads as follows in the relevant part:
“
(1)
The right to appeal in terms of section 62(4)—
(a) is subject to any law that—
(i) specifically limits the
right of appeal set out in that section; or
(ii) specifically grants, limits
or excludes any right of appeal”.
Section
63(2) reads as follows:
“
(2) An
appeal in terms of section 62(4) may be brought to the Supreme Court
of Appeal or, if it concerns a constitutional matter,
to the
Constitutional Court, only—
(a) with leave of the
Competition Appeal Court; or
(b) if the Competition Appeal
Court refuses leave, with leave of the Supreme Court of Appeal or the
Constitutional Court, as the
case may be.”
Section
63(2) must be read in the light of section 167(6) of the
Constitution
18
and section 16(1) and (2) of the Constitutional Court Complementary
Act
19
(CCC Act). Section 16(1)(a) of the CCC Act gives the Chief Justice
the authority to make rules by notice in the Gazette “relating
to the manner in which the Court may engage in any matter in respect
of which it has jurisdiction”. Section 16(2) reads:
“
The
rules shall, when it is in the interests of justice and with leave of
the Court, allow a person—
(a) to bring a matter directly
to the Court; or
(b) to appeal directly to the
Court from any other Court.”
The
respondents contend that, before the Commission could apply to this
Court for leave to appeal, it was obliged to first apply
to the CAC
for leave to appeal to this Court and to obtain a positive or
negative decision of the CAC on that application.
There
are two possible approaches to section 63(2). One approach is that
non-compliance with section 63(2) constitutes a bar and,
until its
requirement is complied with, an application to this Court for leave
to appeal against a CAC decision cannot be entertained.
Another
approach is that access to this Court is regulated by section 167(6)
of the Constitution and the Rules of this Court
which do not lay
down any requirement that a litigant who wishes to apply to this
Court for leave to appeal against a decision
of any court must first
apply to that court for leave to appeal to this Court. In terms of
this approach section 63(2) must be
interpreted not to constitute a
bar but the Court must take non-compliance with section 63(2) into
account as one of the factors
relevant to determining whether or not
it is in the interests of justice to grant the litigant leave to
appeal to this Court.
I do
not think that on the facts of this case it is necessary to decide
which one of these approaches to section 63(2) is correct.
This is
so because, if the correct approach is that non-compliance with
section 63(2) constitutes a bar, this application falls
to be
dismissed, and, if the correct approach is the second, this
application, in my view, still falls to be dismissed. This
is
because of the conclusion one is bound to arrive at either on the
condonation application or on the merits of the application
for
leave to appeal. I now turn to the Commission’s application
for condonation.
Condonation
In
determining whether to grant condonation, this Court considers
whether it would be in the interests of justice to do so. It
is
common cause that in this matter the Commission failed to comply
with the requirement of Rule 19 that an application for leave
to
appeal to this Court against a decision of any court must be lodged
with the Registrar of this Court within 15 court days
from the date
of the handing down of the judgement sought to be appealed against.
20
Both Yara and Omnia oppose the application for condonation and
contend that the Commission has failed to make out a proper case
for
condonation. In support of their opposition they refer to various
factors which they submit militate against granting condonation.
The
Commission persists in its contention that it has made out a proper
case for condonation.
The extent of the delay
The
judgment against which the Commission seeks leave to appeal was
handed down on 14 March 2011. In terms of Rule 19 the Commission
was
obliged, if it wanted to appeal to this Court against that judgment,
to lodge its application on or before 6 April 2011.
It lodged its
application only on 25
August 2011. This means that the
Commission took over five months after the CAC judgment had been
handed down before it lodged
its application. There can be no doubt
that a delay of four and a half months,
21
where the Rules prescribe 15 court days, is excessive.
Explanation
for the delay
The
Commissioner says that initially the Commission intended to follow
the usual appeal process by applying for leave to appeal
to the
Supreme Court of Appeal. Accordingly, the Commission caused counsel
to be instructed to prepare an application for leave
to appeal to
the Supreme Court of Appeal that was to be made to the CAC. That
application was lodged on 19 April 2011. In that
application the
Commission also set out the constitutional issues which it submitted
arose out of the matter. This means that
as at 19 April 2011 the
Commission was aware that the matter raised constitutional issues.
The
Commissioner also refers to the handing down of
Loungefoam
and says that it compounded the legal uncertainty concerning the
Commission’s powers of investigation and referral. He
then
says that the Tribunal set aside the complaint referral in the
SAB
matter on the basis of the principles set out in
Woodlands
and reinforced by the CAC’s decision in the present matter. At
that time the Tribunal had not given reasons for its order
in the
SAB
matter.
The
Commissioner also states that “[s]ince then, the Commission
has received a slew of challenges in its current investigations
and
to its pending referrals.” Importantly, after saying this, the
Commissioner says: “It accordingly became clear
that this
matter required urgent attention from a higher court.” The
impression created by the Commissioner’s affidavit
is that by
7 April 2011, when the
SAB
order was issued, it had decided
that there was a need for it to seek a decision from this Court.
The
Commissioner also states that “[o]n being advised that an
application for direct access to this Court was possible,
the
Commission caused these papers to be prepared as expeditiously as
possible.” The Commissioner does not disclose:
when
the Commission received the advice;
from
whom the Commission received the advice;
the
steps the Commission took to cause the papers to be prepared;
when
the Commission took the steps to cause the papers in this matter to
be prepared;
who
prepared the papers; and
when
the preparation of the papers was completed.
All
of this is important information that would have helped us in
assessing the diligence with which the Commission dealt with
the
matter.
The
Commissioner elected not to take this Court into his confidence and
provide it with all relevant facts. A litigant who approaches
a
court for an indulgence and fails in this serious way to take the
Court into its confidence does not deserve the indulgence
of the
Court. It is difficult to see how it can ever be in the interests of
justice for the Court to come to the assistance of
a litigant who
withholds so much relevant information from it which it needs to
decide whether or not to come to his assistance
after failing to
comply with its Rules.
The
Commissioner does not say when the CAC handed down its judgment in
Loungefoam
. One has been able to establish this from the
judgment itself. The judgment was handed down on 6 May 2011.
However, the Commissioner
ought to have informed this Court of the
date and also ought to have told this Court when the Commission
became aware of
Loungefoam
. In failing to inform this Court
the Commissioner has failed to take the Court into his confidence
and apprise it of all relevant
facts. He ought to have taken this
Court into is confidence even if that may have shown the Commission
in a negative light in
regard to its delay in lodging the
application. When
Loungefoam
was handed down and when the
Commission became aware of it are highly relevant factors to the
question whether the Commission
acted diligently in lodging the
application when it did. This is so because the Commissioner relies
on the handing down of the
CAC judgment in
Loungefoam
as one
of the factors that convinced the Commission that it should lodge an
application for leave to appeal to this Court. I
think it is fair to
expect that the Commission must have become aware of
Loungefoam
soon after it had been handed down on 6 May 2011.
The
Commissioner states that the Tribunal also set aside the complaint
referral in the
SAB
matter on the basis of the principles set
out in
Woodlands
and reinforced in the present case. He says
that at the time of the preparation of his affidavit the Tribunal
had not yet given
its reasons for its decision in the
SAB
matter. Just as he failed to do in regard to his reliance on the
handing down of
Loungefoam
, the Commissioner also failed, in
relation to his reliance upon the issuing by the Tribunal of its
order in the
SAB
matter, to inform the Court of the date when
that order of the Tribunal was issued and when it was that the
Commission became
aware of the order. Once again, in failing to do
this, the Commissioner has failed to take this Court into his
confidence and
place before it all relevant facts which the Court
should have in considering how to exercise its discretion.
It
appears from the judgment of the Tribunal in
SAB
that the
Tribunal issued its order on 7 April 2011 and gave its reasons on 16
September 2011. So, actually, contrary to the impression
that one
gets from the sequence of events as set out in the Commissioner’s
affidavit, the Tribunal’s decision in
SAB
was issued
before the judgment of the CAC in
Loungefoam
.
Furthermore, the
Commission’s application for leave to appeal to the Supreme
Court of Appeal raised constitutional issues.
This was about
mid-April 2011. It is difficult not to ask the question: Since the
Commission had decided that it was appealing
against the decision of
the CAC in this matter and knew even the constitutional issues that
it wanted to pursue in support of
its appeal, why then did it not
lodge the present application at the same time? There is no answer
to this question in the Commissioner’s
affidavit.
No
matter how one looks at the Commission’s explanation, there
is, at least, a period of over three months for which no
explanation
whatsoever is provided.
22
That is the period from 7 May to about 24 August
2011. In my view the explanation that the Commission attempts to
advance is so
manifestly unsatisfactory that it can almost be
rejected as no explanation at all.
Prospects
of success
Since
the appeal in this matter may still be heard by another court, and
the CAC is yet to decide the Commission’s application
for
leave to appeal to the Supreme Court of Appeal, it would be
undesirable for this Court to express a view on the Commission’s
prospects of success. Therefore, for the purposes of condonation and
the application for leave to appeal, I shall assume in favour
of the
Commission that it has reasonable prospects of success if leave to
appeal is granted. However, the assumption that the
Commission may
have reasonable prospects of success does not necessarily mean that
the Commission would be entitled to condonation
or that it should be
granted leave to appeal to this Court at this stage. All the factors
must be taken into account to arrive
at the decision whether or not
it is in the interests of justice to entertain this matter at this
stage or to grant the Commission
condonation.
The importance of the constitutional issues raised in the matter
If
leave to appeal were granted, the constitutional issues would relate
to the scope of the power of the Tribunal to grant leave
for the
amendment of a complaint referred to it in terms of the Act.
Although this is an important constitutional issue, its
importance
must be weighed against other factors which are also important. If
this Court does not entertain the Commission’s
appeal at this
stage, all it will mean is that this is not the right time for it.
Not only are there prospects that the constitutional
issue may, in
due course, receive the attention of the Supreme Court of Appeal, if
leave to appeal is granted, but also that
the constitutional issue
may receive the attention of this Court in due course.
The application for leave to appeal
I
have already pointed out that whether this Court grants or refuses
the Commission leave to appeal depends on the view it takes
as to
what the interests of justice dictate. There are two important
aspects to the question whether or not this Court should
grant the
Commission leave to appeal. The one relates to the merits of the
appeal if leave is granted. The other is whether,
assuming that
there are prospects of success, this Court should grant leave at
this stage without allowing the matter to first
go to the Supreme
Court of Appeal if the necessary leave were to be granted. I shall
address both aspects of the matter.
As
far as the merits of the appeal are concerned, we have to deal with
the application for leave to appeal on the assumption that
the
Commission has reasonable prospects of success. However, the
reasonableness of the prospects of success is not decisive of
the
question whether or not it is in the interests of justice that this
Court grants the Commission leave to appeal at this stage.
All
relevant factors must be taken into account.
As to
whether or not this Court should entertain this matter at this
stage, the Commission has said that a problem has arisen
as to the
correct interpretation of
Woodlands
. In the light of this, it
seems to me that the preferable approach is for the Supreme Court of
Appeal to be first afforded an
opportunity to hear and pronounce on
the merits of the Commission’s complaints with regard to
Woodlands
. The pronouncement of the Supreme Court of Appeal
in this regard may well make it unnecessary for the Commission to
approach
this Court. The pronouncement may be in the Commission’s
favour, or, even if it is against it, the Supreme Court of Appeal
may explain the situation in its judgment in such a way that the
Commission decides not to take the matter any further.
The
Commission has sought to make the case that, if this matter has to
first go to the Supreme Court of Appeal, that it will cause
undue
delay and during that period the legal uncertainty about the extent
of its investigative powers will continue and that
would be
unacceptable. Part of the difficulty with the Commission’s
argument is that, while it is the entity that should
primarily be
adversely affected by an undue delay in the resolution of its
perceived difficulties in this regard, it itself has
not acted with
the urgency with which it now would like this Court to act. After
the CAC had handed down its judgment in the
present matter, the
Commission failed to lodge timeously its application with the CAC
for leave to appeal to the Supreme Court
of Appeal. The Commission
also failed to lodge its application to this Court within the
prescribed period of 15 court days but
took over five months to do
so. The Commission failed to make an application to the CAC in
accordance with section 63(2) of the
Act for leave to appeal to this
Court.
In
making the point in the last sentence of the preceding paragraph I
am not, for purposes of this judgment, suggesting that the
Commission was obliged to comply with section 63(2) of the Act
because, as I said earlier, it is not necessary to make a decision
on the section 63(2) point. The only point I am making is that, if
the Commission regarded the matter of obtaining a decision
of this
Court on the issue as urgent, one would have expected that, out of
caution, it would have simply made the application
contemplated in
section 63(2) so as to ensure that there would be as few hurdles to
this Court entertaining its application as
possible. The Commission
did not do so. Finally, when the Registrar of the CAC offered the
parties early dates for the hearing
by the CAC of the Commission’s
application for leave to appeal to the Supreme Court of Appeal, it
was the Commission that
failed to make itself available for that
matter to be heard earlier rather than later.
No
case is made by the Commission that bringing the matter to this
Court as opposed to taking it to the Supreme Court of Appeal
will
result in the matter being heard sooner.
Conclusion
In
the light of all the above it seems to me that, if one were not to
refuse the Commission’s application for condonation
and
consider whether it is in the interests of justice to grant leave
to appeal, one would conclude that it is not in the interests
of
justice to grant the Commission leave to appeal directly to this
Court. Accordingly, whether it is because it is not in
the
interests of justice to grant the Commission condonation or because
it is not in the interests of justice to grant the
Commission leave
to appeal, the fact of the matter is that the interests of justice
do not favour this Court entertaining this
matter at this stage.
It
seems to me that the Commission’s application falls to be
dismissed. With regard to costs, I am of the opinion that
the
Commission should pay Yara’s and Omnia’s costs. I also
think that those costs should include the costs consequent
upon the
employment of two counsel where two counsel were employed.
Order
In
the result I make the following order:
The application for leave to appeal is dismissed with costs,
including the costs consequent upon the
employment
of two counsel where two counsel were employed.
CAMERON and YACOOB JJ (Moseneke DCJ concurring):
This
is an application by the Competition Commission for leave to appeal
against a decision of the Competition Appeal Court,
which
overturned an order of the Competition Tribunal (Tribunal). Both
the Competition Appeal Court and the Tribunal had to
consider
whether the Tribunal had the power to grant an amendment to a
complaint referral to include two entities that were
not identified
as respondents in the initiating complaint, even though the
affidavit which formed part of the initiating complaint
expressly
mentioned them both.
23
The Tribunal held that it did have that power while the Competition
Appeal Court held that it did not.
We
have had the benefit of reading the judgments prepared by Zondo AJ
(the main judgment) and by Froneman J. We agree that this
Court has
jurisdiction to entertain the appeal, since the scope and exercise
of the Commission’s powers of investigation
and referral of
complaints of anti-competitive conduct under the Competition Act
24
(Act) plainly raise constitutional issues. But we differ from the
main judgment in that we conclude that leave to appeal should
be
granted.
The
main judgment places significant emphasis on the Commission’s
four-and-a-half-month delay in coming to this Court,
its failure to
provide a satisfactory reason for this, and the absence of an
account of precisely what happened. It concludes
that the
Commission’s conduct is so wanting that condonation should be
refused. This, even if there are prospects of
success and despite
the considerable importance of the issue.
We
do not agree. The Commission performs an important public function:
one essential to the success of our democracy and to
creating a
competitive commercial sector. The Act deliberately sets out both
equity and efficiency-based goals. This shows
that competition law
and the competitive market it seeks to attain is not for the
benefit of businesses alone but also for
consumers,
25
workers,
26
and to promote a greater spread of ownership, in particular to
increase the ownership stakes of historically disadvantaged
persons.
27
It exists for the benefit of all South Africans.
28
The Commission is the primary vehicle through which much of this is
to be achieved.
29
It is the lifeblood of the Act. We consider that the Commission has
sufficiently explained the delay in bringing its application
to
this Court. We further consider that there is no absolute statutory
bar to its appealing directly here. We hold that it
should be
granted leave to appeal against the decision of the Competition
Appeal Court. But since the majority concludes that
leave should be
refused, it would not be appropriate to set out our views on the
merits of the Commission’s case. This
is because the merits
may come before the Supreme Court of Appeal and, in due time,
before this Court too.
Condonation
The
Commission seeks condonation for the late filing of its application
for leave to appeal. The judgment of the Competition
Appeal Court
it seeks to challenge was delivered on 14 March 2011. The Rules of
this Court
30
gave the Commission 15 days from then to lodge its application –
that is, on or before 5 April 2011. Instead, it lodged
its
application only on 25 August 2011. That is a delay of over four
months.
We
accept that four and a half months would ordinarily be excessively
long. But this was not deliberate, wanton delay. Nor was
it the
product of inattention or idleness. The Commission decided at first
not to apply to this Court, but to seek leave from
the Competition
Appeal Court to appeal to the Supreme Court of Appeal. This
application was lodged in the Competition Appeal
Court on 19 April
2011 and was later set down for hearing on 5 December 2011.
Meanwhile,
the Tribunal on 7 April 2011 handed down its decision in
SAB
,
31
in which, applying various decisions of the Competition Appeal
Court, it dismissed a complaint referral by the Commission because
of lack of congruence with the initiating complaint.
32
The Competition Appeal Court handed down judgment in
Loungefoam
33
on 6 May 2011, in which it also strictly enforced a requirement
that the complaint referral must match the complaint initiation.
The
main judgment correctly notes that the order in
SAB
was
issued before the decision in
Loungefoam
.
34
The statement accompanying the order was enough to cause
significant concern in relation to the efficacy of the Commission’s
procedures.
35
The Tribunal itself says that the outcome was “regrettable”
and its statement foreshadowed that it would, in its
reasons, take
the extraordinary step of—
“
explain[ing]
why the case law, which is binding upon us, has led us to this
conclusion.
We
will also indicate why this case law may need re-consideration by
superior courts in the future
so that a complainant's rights of access to justice and the
Commission's investigative powers are not unduly compromised.”
36
(Emphasis added.)
The
statement, rather than necessarily encouraging the Commission to
appeal directly to this Court immediately, might have increased
the
Commission’s confusion and encouraged it to wait for the
reasons promised by the Tribunal which would “indicate
why
[the] case law may need re-consideration by superior courts”,
including this Court. The assertion that the Commission’s
delay is “manifestly unsatisfactory” must therefore be
qualified.
The
Commission complains that the decisions in issue unduly constrict
its power to amend complaint referrals. It explains that
they
provoked a multiplicity of challenges to the procedures it uses in
the performance of this public function. It says –
and the
respondents have not been able to controvert this – that the
decisions have thrown all its current investigations
and referrals
into disarray. Currently, it says, it is facing procedural
challenges in 12 of its 34 pending referrals. Hence,
it decided in
August 2011 to appeal to this Court directly to seek expeditious
determination of the issues.
We
accept, and there is no reason to doubt this, that it was the
Commission’s desire to perform its important public functions
properly that led to its seeking further legal advice. And that was
in relation to whether the Commission could appeal directly
without
first asking the Competition Appeal Court for leave to appeal to
this Court. This is the first time an issue of this
kind has had to
be considered. As we will show, it is a difficult question that
would have given competent legal advisors pause,
and on which the
main judgment expresses no final view. This, in our view,
extenuates the delay.
We
agree that it would have been better if the Commission had made its
decision more smartly. We agree that its explanation
of the 20-week
delay is patchy. A detailed timeline would have been informative
and helpful. Despite this, the position of
the Commission is to a
degree understandable.
It
should be noted that the respondents were not unduly prejudiced by
the delay. They knew from the outset that the Commission
intended
to challenge the Competition Appeal Court’s decision. The
only question was in what forum.
What
is more, the delay must be seen against the background of the
complexity of the entire litigation process in this case.
The
proceedings started in October 2003. The respondents, which are
accused of anti-competitive conduct, have exercised all
the legal
options available to them. That is their right. And they are
entitled to complain, as they do, because the Commission
has
delayed the process by further months. But they cannot expect to be
heard to complain too loudly.
Most
important to the condonation assessment is the fact that the
Commission was trying in good faith to discharge its important
public functions. It floundered around, but not inordinately. It
wasted valuable time, but it explains its prevarication. We
think
its explanation is sufficient.
Leave to appeal
In
addition to raising a constitutional issue, the Commission must
satisfy us that the interests of justice favour granting
it leave.
Here, we point out that delay and a satisfactory explanation for it
feature more intensely in the assessment of condonation
for
lateness. These aspects, though they must be given due weight, are
not crucial in evaluating whether the interests of justice
favour
granting leave to appeal.
Two
other aspects are more important here. The first is whether the
Commission should be permitted to come directly to this
Court,
instead of first approaching the Supreme Court of Appeal. We think
it should. We appreciate that the opinion of the
Supreme Court of
Appeal would be of some value in determining the difficult question
of what congruence is required between
complaint initiation and
complaint referral. But we do not think the value of that Court’s
views should preclude the
Commission’s appeal.
The
Act envisages appeals directly from the Competition Appeal Court to
this Court.
37
In matters involving the constitutionality of the Commission’s
interpretation and exercise of its statutory powers, this
Court is
necessarily the final Court. The questions at issue here are so
important that it is nearly inevitable that, whoever
succeeds in
the Supreme Court of Appeal, this Court will be asked to have the
last word. The issues do not involve matters
of common law, on
which this Court particularly values the views and experience of
the Supreme Court of Appeal.
38
It is true that even where common law matters are not at issue,
this Court values the views of the Supreme Court of Appeal.
Nevertheless, the largely statutory and constitutional nature of
the questions at issue counts against requiring an appeal
to the
Supreme Court of Appeal first.
So
does the delay those proceedings will entail – a delay the
Commission says it cannot afford, because the rulings it
seeks to
challenge have plunged its investigations into disarray.
39
We think its assertion must be given not only credence, but also
substantial weight, in affording it a direct appeal. Given
the
importance of the issues, the need for their speedy resolution, and
the Commission’s plight until that happens, the
weight of our
system’s multiplicity of appeals should not be made to fall
too heavily on it.
The
second issue is this. Can the Commission apply to this Court for
leave to appeal without first seeking leave to do so from
the
Competition Appeal Court? We think it can. Section 62(4) of the Act
empowers an appeal from a decision of the Competition
Appeal Court
on, amongst others, constitutional matters to this Court, “subject
to section 63 and [this Court’s]
rules.”
40
Section 63(1)(a)(ii) provides that this right of appeal is subject
to any law that “specifically grants, limits or excludes
any
right of appeal”. Section 63(2) provides that an appeal in
terms of section 62(4)—
“
may
be brought to the Supreme Court of Appeal or, if it concerns a
constitutional matter, to the Constitutional Court, only—
(a) with leave of the
Competition Appeal Court; or
(b) if the Competition Appeal
Court refuses leave, with leave of the Supreme Court of Appeal or
the Constitutional Court, as the
case may be.”
The
second respondent, Omnia, contended that this provision means that
a litigant seeking to appeal to this Court against a
decision of
the Competition Appeal Court may not approach this Court until it
has sought and obtained, or been denied, the
leave of that Court.
This is not correct. First, the right of appeal is expressly
subject to “any law” that “specifically
grants”
a right of appeal.
41
Plainly, section 167(6) of the Constitution is a law of this kind.
It provides that national legislation or the rules of this
Court
“must allow” a litigant, “when it is in the
interests of justice and with leave of the Constitutional
Court”,
to bring an appeal directly to this Court.
42
This Court has explained that—
“
[t]he
Constitution enables this Court to exercise control over the cases
it will entertain and by doing so, to be the supreme
guardian of the
Constitution. It does this by enabling this Court to decide whether
it will hear an appeal on a particular constitutional
matter
regardless of whether or not there is a right of appeal to any other
Court.”
43
The
provisions of section 63 must be interpreted to accord with this
constitutional scheme. And that is not difficult, since
the
section, by providing that the right of appeal is subject to any
law that specifically grants a right of appeal, subordinates
its
requirements to the express constitutional right of direct access
to this Court in section 167(6) of the Constitution.
What
then to make of “only” in section 63(2)? The second
respondent argued that this imposes an absolute bar on
an
unfettered approach to this Court. But that is to overrate its
importance in a more complex statutory and constitutional
scheme.
44
Although the constitutionality of the provision was not directly
challenged, the interpretation contended for, on the face
of it,
may necessitate the conclusion that the provision is in conflict
with section 167(6). That should be avoided if reasonably
possible.
The provision should, if reasonably capable of a constitutionally
compliant interpretation, be given it.
Reading
section 63(2) together with section 63(1)(a)(ii), and in the light
of the Constitution’s imperative injunction
that direct
access must be capable of being afforded to this Court, it is clear
that the bar cannot be absolute. The bar operates
only when the
interests of justice, as envisaged in the Constitution, do not
require that leave to appeal directly be granted
to this Court. In
those cases, the Competition Appeal Court must first be approached.
But in cases where the interests of justice
require that this Court
grant direct access, the bar is not absolute.
The
express provisions of the Constitution and the provisions of the
Act can thus be reconciled. The two appellate structures
–
one mandated by the Constitution; the other embodied in the statute
– recognise the primacy of the Constitution,
45
with the result that the specialist institutions in the competition
field are subordinate to the appeal provisions in the Constitution.
This
does not mean that the word “only” has no significance,
but merely that it must be read as subordinate to the
constitutional imperative of direct access to this Court.
Practically speaking, the legislation envisages that litigants will
in the usual course seek the leave of the Competition Appeal Court
before approaching this Court. This is because the views
of that
Court, as a specialist forum, will be helpful or in some cases even
necessary for this Court to assess the constitutional
strength of
the challenge to the decision in issue. But the interests of
justice may require that a litigant be afforded direct
access to
this Court. Here, the fact that a litigant has not sought the leave
of the Competition Appeal Court would be pertinent
to its
application to this Court, but will not disable it. This Court is
at liberty to grant direct access, as the Constitution
requires,
and nothing in the legislation need be read to detract from its
power.
In
considering whether it is in the interests of justice to allow an
appeal directly to this Court, the nature of the matter
is
relevant. In the same way as the views of the Supreme Court of
Appeal are particularly pertinent in common law matters,
so are the
views of the Competition Appeal Court, as a specialist body,
important in competition matters that lie at the complex
intersection of law and economics.
That
is not the position here. The matter concerns the public power of
the Commission and the Tribunal, and not the substance
of their
expert decisions in promoting competition. The Commission has
moreover explained why it did not approach the Competition
Appeal
Court first. It was advised that it was entitled to come directly
to this Court. Given the nature of the issues, that
advice was
correct. The considerations the Commission has advanced militate
strongly in favour of granting it leave to appeal
directly, even
though it has not obtained the views of the Competition Appeal
Court on the strength of its constitutional challenge.
Other
matters are being held up while this appellate process proceeds.
The need for finality is plain.
In
our view, leave to appeal should be granted. We say nothing about
the strength of the prospects of success, though that there
are
indeed prospects is an indispensable part of our decision.
FRONEMAN J (Skweyiya J and van der Westhuizen J concurring):
I
have had the benefit of reading both the judgment prepared by Zondo
AJ (main judgment) and the judgment of Cameron and Yacoob
JJ
(dissenting judgment). I agree with the main judgment that leave to
appeal should not be granted, not on the basis that
condonation
should be refused, but because it is not in the interests of
justice for leave to be granted. My reasons for this
proceed from a
somewhat different perspective from that of the main judgment.
The
Competition Commission (Commission) performs an important public
function. I would be hesitant to refuse leave on condonation
grounds where there are reasonable prospects of success on appeal,
as I believe there are in this case. For the reasons set
out in
paragraphs 50 to 59 of the dissenting judgment, I thus agree that
condonation should be granted.
Where
I differ from the dissenting judgment is whether the interests of
justice require this Court to hear the matter, before
the
Competition Appeal Court (CAC) decides the application for leave to
appeal still pending before it. I do not think that
the interests
of justice are best served by allowing that to happen.
For
the purposes of this judgment I proceed on the assumption that the
dissenting judgment’s interpretation of sections
62 and 63 of
the Competition Act
46
(Act) is correct.
47
But even that finding does not imply that the pending application
for leave before the CAC is impermissible. Indeed the dissenting
judgment recognises that procedure to be the usual course to follow
and that the views of the CAC, “as a specialist forum,
will
be helpful or in some cases even necessary to this Court in
assessing the constitutional strength of the challenge to
the
decision in issue”.
48
In my view this is one of those cases. There are two reasons for
following the usual course.
The
first is a general one. Simultaneous applications for leave to
appeal to this Court and the Supreme Court of Appeal are
allowed by
this Court’s rules, but with specific requirements of
disclosure of when and where other leave has been sought,
and
whether conditionally or not.
49
In my view the obvious purpose of these provisions is to enable
this Court to assess whether it is in the interests of justice
to
grant leave where leave is also being sought to another court. In
order properly to make that assessment it is necessary
to know what
the status of a competing application for leave to appeal before
another court is. The Commission’s application
to this Court
was brought after the application to the CAC for leave to appeal to
the Supreme Court of Appeal was already set
down for hearing. That
kind of ambivalence does not serve the interests of justice well.
In general it is better to await another
court’s views if
there are hierarchical provisions involved.
50
The
dissenting judgment finds overriding justification for jumping this
hurdle on the basis that the issue at stake concerns
the public
powers of the Commission and not its expert function of promoting
competition.
51
It is true that the constitutional issue at stake is the public
powers of the Commission, but I disagree that this issue does
not
also “lie at the complex intersection of law and economics”,
52
where the views of the CAC are admittedly important.
The
constitutional issue relating to the public power of the Commission
is, in my respectful view, inextricably bound to, and
perhaps even
finally determined by, a court’s view on the extent to which
there should be deference to the determination
of economic issues
by the Competition Tribunal (Tribunal).
53
As I understand its essence, that is exactly what the Commission’s
complaint against the recent judgments of the CAC
and Supreme Court
of Appeal amounts to, namely that the economic expertise of the
Commission and the Tribunal is being undermined
by what is regarded
as an overly formalistic interpretation of their powers and
functions under the Act.
I
doubt that this argument can be squarely and substantively met by
asserting that legality (the powers of the Commission) is
a purely
“legal” question. Underlying any legal determination of
the powers of the Commission and the Tribunal
is some understanding
of what role economics, and what kind of economics, should play in
the process. For my part, I would
value as much articulation and
debate of these often unarticulated premises by all concerned,
before making a final determination
on the issue. It is a matter of
regret that this means more time has to be taken before the issue
can finally be determined,
but much is at stake and I fear that
precipitate granting of direct appeal to this Court will not, in
the longer run, serve
the interests of justice.
It
is for these reasons that I would not grant leave to appeal at this
stage of the process.
For
the Applicants: Advocate W Trengove SC, Advocate G Marcus SC,
Advocate MJ Engelbrecht and Advocate I Goodman instructed by
Cheadle
Thompson & Haysom Inc.
For the
First Respondent: Advocate J Pretorius instructed by Gerrit Coetzee
Inc.
For the Second Respondent:
Advocate D Unterhalter
SC and Advocate P Farlam instructed
by
Norton Rose South Africa.
1
Act
89 of 1998.
2
Yara
South Africa (Pty) Ltd v Competition Commission and Others
,
In
re Competition Commission v Sasol Chemical Industries Ltd and
others
,
In re Omnia Fertiliser Ltd v Competition Commission
[2011] 1 CPLR 78 (CAC).
3
The
Competition Appeal Court is established by section 36(1) of the Act.
4
The
Competition Tribunal is established by section 26(1) of the Act.
5
The
Commissioner is appointed by the Minister of Trade and Industry in
terms of section 22 of the Act.
6
Section
22(3) of the Act.
7
The
functions of the Commission are set out in section 21 of the Act.
8
The
initiation of a complaint by the
Commission
and
the submission of a complaint to the Commission by any person are
provided for in section 49B(1) and (2) of the Act. Section
49B(3)
provides for the assignment of an investigation to an inspector by
the Commissioner once a complaint has been initiated
or received by
the Commission. Section 49C provides for interim relief that the
Tribunal may grant in respect of a prohibited
practice. Section 49D
provides for consent orders. Section 50 provides for the Commission
to refer a complaint to the Tribunal
for adjudication if it
determines that a prohibited practice has been established. Section
50 also provides that if the Commission
decides not to refer a
complaint to the Tribunal, it must issue a notice of non-referral in
which case the complainant may in
terms of section 51(1) refer the
complaint to the Tribunal.
9
Essentially
section 4 deals with restrictive horizontal practices, section 8
deals with the abuse of dominance and section 9 deals
with price
discrimination.
10
That
is interim
relief
provided for in section
49C of the Act.
11
Section
58(1)(a) of the Act confers upon the Tribunal, among other powers,
the power to impose an administrative penalty on a
party that is
found to have committed certain prohibited practices under the Act.
12
The
CAC held, at
para 39
:
“
I can only
conclude
that the Legislature
intended that complaints be initiated or submitted as provided for
in section 49B(1) and 49B(2)(b) of the
Act. Further, the Legislature
must have intended that the Commission should only refer to the
Tribunal such a complaint as initiated
or submitted to it.
Consequently only particulars of the complaint as submitted by the
Nutri-Flo should have been referred to
the Tribunal. The information
relating to cartel activity and collusion was not intended by
Nutri-Flo to be a complaint.”
13
Competition
Commission of South Africa v Senwes Ltd
[2012]
ZACC 6
(
Senwes
).
14
Id
at paras 16-8.
15
[2011]
1 CPLR 19
(CAC).
16
2010
(6) SA 108
(SCA).
17
[2011]
2 CPLR 403
(CT).
18
Section
167(6) provides:
“
National legislation or the
rules of the Constitutional Court must allow a person, when it is in
the interest of justice and with
leave of the Constitutional Court—
(a) to bring a matter directly to the Constitutional
Court; or
(b) to appeal directly to the Constitutional Court from
any other court”.
19
Act
13 of 1995.
20
Rule
19(2) states in relevant part:
“
A litigant who is aggrieved by the decision of a
court and who wishes to appeal against it directly to the Court on a
constitutional
matter shall, within 15 days of the order against
which the appeal is sought to be brought and after giving notice to
the other
party or parties concerned, lodge with the Registrar an
application for leave to appeal”.
21
The
period from the day of the handing down of the CAC judgment to the
date when the Commission lodged its application to this
Court was
over five months but the period of delay in lodging the application,
which must be calculated from the expiry of the
period within which
the commission was obliged to lodge its application, was four and a
half months.
22
A
similar period of unexplained delay was sufficient cause for this
Court to refuse condonation in
Laerskool Generaal Hendrik
Schoeman v Bastian Financial Services (Pty) Ltd
[2009] ZACC 12
;
2009 (10) BCLR 1040
(CC).
23
See
the main judgment at [4]-[6] and [10]-[11] above.
24
Act
89 of 1998.
25
Preamble
and section 2(b).
26
The
Preamble provides:
“
The people of South Africa
recognise:
. . .
That an efficient, competitive economic environment,
balancing the interests of workers, owners and consumers and
focussed on
development, will benefit all South Africans.”
27
Section
2(f).
28
See
the Preamble of the Act which states that the statute is enacted in
order to—
“
provide all South Africans
equal opportunity to participate fairly in the national economy”.
29
Section
21.
30
Constitutional
Court Rule 19(2) provides:
“
A litigant who is aggrieved
by the decision of a court and who wishes to appeal against it
directly to the Court on a constitutional
matter shall, within 15
days of the order against which the appeal is sought to be brought
and after giving notice to the other
party or parties concerned,
lodge with the Registrar an application for leave to appeal:
Provided that where the President has
refused leave to appeal the
period prescribed in this rule shall run from the date of the order
refusing leave.”
31
South
African Breweries Ltd and others v Competition Commission; In re
Competition Commission v South African Breweries Ltd and
others
[2011] 2 CPLR 403
(CT) (
SAB
). This order was issued with an
accompanying statement, quoted below n 13.
32
In
later reasons, handed down on 16 September 2011, the Tribunal
decried at length what it described as the Competition Appeal
Court’s unwitting undermining of its and the Commission’s
powers (“We believe that entirely unwittingly, decisions
that
impact on the legal requirements for a valid referral based on the
prior complaint, have threatened to undermine the rights
of
complainants and the public as represented by the Commission to get
access to justice.”) (Id at para 98).
33
Loungefoam
(Pty) Ltd and others v Competition Commission and others; In re
Feltex Holdings (Pty) Ltd v Competition Commission
and others and
two related review applications
[2011] 1 CPLR 19
(CAC)
(
Loungefoam
).
34
Main
judgment at [32] above.
35
The
statement accompanying the Tribunal’s order reads:
“
Statement
on dismissal of complaint referral against SAB and the appointed
distributors, 7 April 2011
We have found
that we do not have jurisdiction to hear this referral. This is a
regrettable outcome but we are bound by recent
decisions of the
superior courts to come to this conclusion. Recent case law requires
that a complaint lodged by a complainant
to the Commission should be
the same as that referred to us unless it meets certain formalities
that have to be complied with,
prior to the referral.
When we give
reasons for our decision we will explain why the case law, which is
binding upon us, has led us to this conclusion.
We will also
indicate why this case law may need re-consideration by superior
courts in the future so that a complainant's rights
of access to
justice and the Commission's investigative powers are not unduly
compromised.
We regret that
this case has not been brought to finality so it could be decided on
the evidence and not a point of jurisdiction.
The complainant will
not know whether its complaint was well founded and the respondents
will not have an opportunity to clear
their names from accusations
of anticompetitive conduct.”
See
the Tribunal’s website,
http://www.comptrib.co.za/publications/press-releases/the-competition-commission-and-sab-07-april-2011/
,
accessed on 31 May 2012.
36
Id.
37
Sections
62(4) and 63(2).
38
Carmichele
v Minister of Safety and Security and Another (Centre for Applied
Legal Studies intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at paras 50-60.
39
The
judgment in
South African Breweries Ltd and others v Competition
Commission; In re Competition Commission v South African Breweries
Ltd and
others
[2011] 2 CPLR 403
(CT) at Part B para 97, the
order of which is referred to in [52]-[53] above, is pertinent here,
as the Tribunal squarely raises
its “concerns about the
effectiveness of the workings of [the complaint and referral
procedure] system” and the need
for guidance from the higher
courts.
40
The
relevant statutory provisions are set out in the main judgment at
[17] above.
41
Section
63(1)(a)(ii).
42
Section
167(6) of the Constitution provides:
“
National legislation or the
rules of the Constitutional Court must allow a person, when it is in
the interests of justice and
with leave of the Constitutional Court—
to bring a matter directly to the Constitutional
Court; or
to appeal directly to the Constitutional Court from
any other court.”
Section
16(2)(b)
of the
Constitutional Court Complementary Act 13 of 1995
is
in parallel terms.
43
Director
of Public Prosecutions, Cape of Good Hope v Robinson
[2004] ZACC
22
;
2005 (4) SA 1
(CC);
2005 (2) BCLR 103
(CC) at para 25.
44
American
Natural Soda Ash Corporation and Another v Competition Commission
and Others
2005 (6) SA 158
(SCA) at paras 8-15.
45
Section
1(2)(a) of the Act itself provides that it must be interpreted “in
a manner that is consistent with the Constitution”.
46
89
of 1998.
47
Although
that interpretation is appealing, I do not consider it necessary to
decide the issue in this case.
48
At
[70] of the dissenting judgment.
49
Rule
19(3) states:
“
An application referred to in
subrule (2) shall be signed by the applicant or his or her legal
representative and shall contain—
(a) the decision against which the appeal is brought
and the grounds upon which such decision is disputed;
(b) a statement setting out clearly and succinctly the
constitutional matter raised in the decision; and any other issues
including
issues that are alleged to be connected with a decision on
the constitutional matter;
(c) such supplementary information or argument as the
applicant considers necessary to bring to the attention of the
Court; and
(d) a statement indicating whether the applicant has
applied or intends to apply for leave or special leave to appeal to
any other
court, and if so—
(i) which court;
(ii) whether such application is conditional upon the
application to the Court being refused; and
(iii) the outcome of such application, if known at the
time of the application to the Court.”
50
Compare
Municipality of Plettenberg Bay v Van Dyk & Co Inc
[2003]
ZACC 23
;
2004 (2) BCLR 113
(CC) at paras 8-9.
51
At
[72] of the dissenting judgment.
52
At
[71] of the dissenting judgment.
53
Section
28(2) of the Competition Act states, in relevant part:
“
Each member of the
Competition Tribunal must have suitable qualifications and
experience in economics, law, commerce, industry
or public affairs”.