CONSTITUTIONAL COURT OF SOUTH AFRICA
Cases CCT 158/18, 179/18 and 218/18
Case CCT 158/18
In the matter between:
COMPETITION COMMISSION
OF SOUTH AFRICA Applicant
and
STANDARD BANK OF SOUTH
AFRICA LIMITED Respondent
Case CCT 179/18
In the matter between:
COMPETITION COMMISSION
OF SOUTH AFRICA Applicant
and
STANDARD BANK OF SOUTH
AFRICA LIMITED Respondent
Case CCT 218/18
In the matter between:
COMPETITION COMMISSION
OF SOUTH AFRICA Applicant
2
and
WACO AFRICA (PTY) LIMITED First Respondent
TEDOC SGB CAPE JV Second Respondent
SUPERFECTA SGB CAPE JV Third Respondent
MTSWENI SGB CAPE JV Fourth Respondent
TEDOC INDUSTRIES (PTY) LIMITED Fifth Respondent
SUPERFECTA TRADING 159 CC Sixth Respondent
MTSWENI CORROSION CONTROL (PTY) LIMITED Seventh Respondent
Neutral citation: Competition Commission Of South Africa v Standard Bank Of
South Africa Limited [2020] ZACC 2
Coram: Cameron J , Froneman J, Jafta J, Khampepe J, Ledwaba AJ,
Madlanga J, Mhlantla J, Nicholls AJ, and Theron J.
Judgments: The Court: [1] to [2]
Theron J (minority): [3] to [124]
Jafta J and Khampepe J (majority): [125] to [206]
Froneman J (part concurrence / part dissent): [207] to [224]
Madlanga J (concurrence with majority): [225]
Heard on: 5 March 2019
Decided on: 20 February 2020
Summary: Competition Commission Rules — Rule 15 — access to record of
investigation — public access to information — section 32(1) of
the Constitution — Competition Tribunal Rules — Rule
22(1)(c)(v) — discovery procedures
Competition Act 89 of 1998 — section 38(2A) — procedural
directions — Uniform Rules of Court — Rule 53 — competence
to order pr oduction of the Rule 53 record — Rule 53 —
jurisdiction of Competition Appeal Court
3
ORDER
On appeal from the Competition Appeal Court (hearing an appeal from the Competition
Tribunal) and on direct appeal from the Competition Tribunal:
In CCT 158/18:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Competition Appeal Court is set aside and replaced with
the following:
“The appeal is dismissed.”
4. There is no order as to costs in this Court and in the Competition Appeal
Court.
In CCT 179/18:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Competition Appeal Court is set aside.
4. The matter is remitted to the Judge President of the Competition Appeal
Court.
5. There is no order as to costs in this Court and in the Competition Appeal
Court.
In CCT 218/18:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Competition Appeal Court is set aside and replaced with
the following:
4
“The Rule 15 application is dismissed.”
4. There is no order as to costs in this Court and in the Competition Appeal
Court.
JUDGMENT
THE COURT
The first judgment, written by Theron J, dismisses the appeals in CCT158/18
and CCT218/18 (the Rule 15 appeals), upholds the appeal in CCT179/18 (the review
appeal), and remits it to the Competition Appeal Court. The second judgment
(majority), written by Jafta J and Khampepe J, with Ledwaba AJ, Mhlantla J, and
Nicholls AJ concurring, upholds the Rule 15 appeals. It agrees with the outcome of the
first judgment regarding the review appeal. The third judgment, written by Froneman
J, with Cameron J concurr ing, agrees with the outcome of the second judgment in
respect of the Rule 15 appeals. Froneman J dissents from the first and second judgments
in respect of the review appeal. The fourth judgment, written by Madlanga J, agrees
with the outcome of the second judgment in relation to the Rule 15 appeals, but does so
on the reasoning of the third judgment. Madlanga J also agrees with the outcome in the
first and second judgments in relation to the review appeal.
The effect of these four judgments is that eight members of the Court grant leave
to appeal and uphold the appeal in the Rule 15 appeals. Seven members of the Court
grant leave to appeal and uphold the appeal in the review appeal.
THERON J:
THERON J
2
Introduction
This matter concerns three consolidated applications by the Competition
Commission of South Africa (Commission). These applications involve companies
which stand accused by the Commission of egregious anti-competitive behaviour. After
complaints against the companies were referred by the Commission to the Competition
Tribunal (Tribunal) , the companies sought to access certain information held by the
Commission. The Commission disputes the companies’ entitlement to access the
information at this stage.
This case turns on the relationship between various pieces of legislation and
rules. As a point of departure, it is necessary to lay out a schema of these laws and rules
before considering the facts of this case.
Rules 14 and 15 of the Commission Rules
The Competition Act1 was passed in 1998 to promote and maintain competition.2
It establishes the Competition Commission,3 a regulatory body tasked with monitoring
South Africa’s economic markets, investigating prohibited anti-competitive conduct
and approving mergers between firms. 4 Section 21(4) of the Competition Act
empowers the Minister of Trade and Industry (Minister) to promulgate regulations, in
consultation with the Commission er of the Commission , for matters relating to the
functions of the Commission . To this end, the Min ister promulgated the Commission
Rules.5
1 89 of 1998.
2 See section 2 of the Competition Act.
3 Section 19 of the Competition Act.
4 See the Long Title of the Competition Act and section 21. See further Competition Commission of South Africa
v Senwes Limited [2012] ZACC 6; 2012 JDR 0579 (CC); 2012 (7) BCLR 667 (CC) (Senwes) at paras 3-4.
5 Rules for the Conduct of Proceedings in the Competition Commission, Proc R12 GG 22025 of 1 February 2001
(Commission Rules).
THERON J
5
Rules 14 and 15 of the Commission Rules are at the heart of the dispute in both
CCT 158/18 and CCT 218/18. The two rules are located in Part 3 of the Commission
Rules, which is headed “Access to Commission Records”. From the outset, I emphasise
that these disputes directly implicate the right in section 32(1) of the Constitution which
provides that everyone has the right of access to any information held by the State. 6
This right is enjoyed by natural and juristic persons.
Rule 15 of the Commission Rules , which is headed “Access to information”,
provides that “any person” may have access to any Commission record, so long as it is
not restricted information.7 It therefore provides a means by which the public can access
information held by the Commission, giving effect to the right of access to information
in section 32 of the Constitution. Rule 14 of the Commission Rules , which is headed
“Restricted information”, prescribes when access to information is restricted under this
access to information regime.8
6 Section 32 of the Constitution reads:
“(1) Everyone has the right of access to—
(a) any information held by the state; and
(b) any information that is held by another person and that is required for the
exercise or protection of any rights.
(2) National legislation must be enacted to give effect to this right, and may provide for reasonable
measures to alleviate the administrative and financial burden on the state.”
7 Rule 15 reads in relevant part:
“Any person, upon payment of the prescribed fee, may inspect or copy any Commission
record—
(a) if it is not restricted information; or
(b) if it is restricted information, to the extent permitted, and subject to any conditions
imposed, by
(i) this Rule; or
(ii) an order of the Tribunal, or the Court.”
Rule 15 was amended with effect from 25 January 2019 to expressly introduce the qualifications that are present
in section 7 of the Promotion of Access to Information Act 2 of 2000 (PAIA). See the Amended Regulation 15
of the Rules for the Conduct of Proceedings in the Competition Commission GN R64 GG 42191 of 25 January
2019. This amendment may impact the ability of respondents to seek access to information held by the
Commission under rule 15 with effect from 25 January 2019. Nothing further, however, needs to be said of this
amendment for the purposes of this case. This matter implicates a live dispute between the parties regarding the
entitlement of the respondents to invoke rule 15 as it read at the time they submitted their applications.
8 Rule 14(1) provides:
THERON J
6
“For the purpose of this Part, the following five classes of information are restricted:
(a) Information—
(i) that has been determined to be confidential information in terms of section
45(4), or
(ii) that, in terms of section 45(3), must be treated as confidential information.
(b) Identity of a complainant, in the following circumstances:
(i) A person who provides information in terms of section 49B(2)(a) may request
that the Commission treat their identity as restricted information; but that
person may be a complainant in the relevant matter only if they subsequently
waive the request in writing.
(ii) If a person has requested in terms of subparagraph (i) that the Commission
treat their identity as restricted information—
(aa) The Commission must accept that request; and
(bb) That information is restricted unless the person subsequently waives
the request in writing.
(c) Information that has been received by the Commission in a particular matter, other
than that referred to in paragraphs (a) and (b), as follows:
(i) The Description of Conduct attached to a complaint, and any other
information received by the Commission during its investigation of the
complaint, is restricted information until the Competition Commission issues
a referral or notice of non -referral in respec t of that complaint, but a
completed form CC 1 is not restricted information;
(ii) A Statement of Merger Information and any information annexed to it, or
received by the Commission during its investigation of that merger, is
restricted information until t he Commission has issued a certificate, or been
deemed to have approved the merger, in terms of section 13 or 14, or made a
recommendation in terms of section 14A, as the case may be;
(iii) An application and any information received by the Commission duri ng its
consideration of the application, or revocation of an exemption granted to the
applicant, is restricted information only to the extent that it is restricted in
terms of paragraph (a).
(d) A document:
(i) that contains—
(aa) an internal communication between officials of the Competition
Commission, or between one or more such officials and their
advisors;
(bb) an opinion, advice, report or recommendation obtained or prepared
by or for the Competition Commission;
(cc) an account of a consultation, disc ussion or deliberation that has
occurred, including, but not limited to, minutes of a meeting, for the
purpose of assisting to formulate a policy or take a decision in the
exercise of a power or performance of a duty conferred or imposed
on the Commission by law; or
(ii) the disclosure of which could reasonably be expected to frustrate the
deliberative process of the Competition Commission by inhibiting the
candid—
(aa) communication of an opinion, advice, report or recommendation; or
THERON J
7
In summary, it restricts access to five classes o f information held by the
Commission:
(a) confidential information;
(b) the identity of a person who has submitted information in
connection with an alleged prohibited practice who has requested
to remain anonymous;
(c) certain information received by the Commission relating to a
complaint, a merger or an exemption;
(d) documents relating to the Commission’s internal communications,
recommendations or discussions relating to policy formulation or
the performance of its statutory duties; and
(e) any other document to which a public body would be required or
entitled to restrict access in terms of the Promotion of Access to
Information Act9 (PAIA).
The last category of restricted information in rule 14 expressly links the access
to information regime that is provided in the Commission Rules to PAIA. This link is
also implicit in the purpose of the Commission Rules, which is to give effect to the right
to access information contained in section 32 of the Constitution. The access to
information mechanisms provided for in the Commission Rules and PAIA thus both fall
within the family of access to information provisions envisaged by section 32(2) of the
Constitution.
(bb) conduct of a consultation, discussion or deliberation; or
(iii) the disclosure of which could, by premature disclosure of a policy or
contemplated policy, reasonably be expected to frustrate the success of that
policy.
(e) Any other document to which a public body woul d be required or entitled to restrict
access in terms of the Promotion of Access to Information Act, 2000 (Act No. 2 of
2000).”
9 2 of 2000.
THERON J
8
Against the backdrop of secrecy that epitomised the apartheid state,10 section 32
of the Constitution constitutes an essential element of the constitutional guarantee of an
open and democratic society which requires that the exercise of public power be
transparent and justified. The preamble to PAIA notes:
“[T]he system of government in South Africa before 27 April 1994, amongst others,
resulted in a secretive and unresponsive culture in public and private bodies which often
led to an abuse of power and human rights violations.”
In Brümmer, this Court noted, in respect of the right to access information, that:
“The importance of this right [in section 32], in a country which is founded on values
of accountability, responsiveness and openness, cannot be gainsaid. To give effect to
these founding value s, the public must have access to information held by the State.
Indeed one of the basic values and principles governing public administration is
transparency. And the Constitution demands that transparency ‘must be fostered by
providing the public with timely, accessible and accurate information’.”11
In contrast to its predecessor in the interim Constitution,12 the ambit of the right
of access to information held by the State in section 32(1)(a) is wide. Section 32(1)(a)
provides that everyone has the right of access to any information held by the State.
Unlike the section 32(1)(b) right to access information held by private parties, there is
no stipulation in section 32(1)(a) that the information held by the State be “required for
the exercise or prot ection of any rights .” The right in section 32 (1)(a) can only be
limited in terms of section 36 of the Constitution.
10 Shabalala v Attorney-General, Transvaal [1995] ZACC 12; 1996 (1) SA 725 (CC); 1995 (12) BCLR 1593 (CC)
at para 26.
11 Brümmer v Minister for Social Development [2009] ZACC 21; 2009 (6) SA 323 (CC); 2009 (11) BCLR 1075
(CC) at para 62.
12 Section 23 of the interim Constitution reads:
“Every person shall have the right of access to all information held by the state or any of its
organs at any level of government in so far as such information is required for the exercise or
protection of any of his or her rights.”
THERON J
9
PAIA, as the legislation envisaged in section 32(2) of the Constitution, was
passed to give effect to the rights in section 32(1). It provides that if the body in question
is public, then an applicant need not show that the record sought is required for the
exercise or protection of any right. If the procedural requirements in PAIA are complied
with, the request must be granted unless the public body refuses access to the record in
terms of a valid ground of refusal contemplated in Chapter 4 of PAIA.13 In addition,
PAIA provides that a requester’s right of access to information held by a public body is
not affected by any reasons given by or imputed to the requestor for the request. 14 As
this Court recently held in Helen Suzman:
“PAIA affords any person the right of access to any information held by the State. The
person seeking the information need not give any explanation whatsoever as to why
[they] require the information. The person could be the classic busybody who wants
access to information held by the State for the sake of it.”15
Chapter 4 of PAIA envisages various grounds upon which a public body may
deny a request for access to information.16 Chapter 2 of PAIA is headed
“General Application Provisions”. The most relevant of these provisions to this matter
is section 7. It provides that PAIA does not apply to information sought for the purpose
13 Section 11(1) of PAIA, mimicking the inherent right to State -held information in section 32(1)(a) of the
Constitution, reads:
“A requestor must be given access to a record of a public body if—
(a) that requestor complies with all the procedural requirements in this Act relating to a
request for access to that record; and
(b) access to that record is not refused in terms of any ground for refusal contemplated in
Chapter 4 of this Part.”
14 Section 11(3) of PAIA provides:
“A requestor’s right of access contemplated in subsection (1) is, subject to this Act, not affected
by—
(a) any reasons the requestor gives for requesting access; or
(b) the information officer’s belief as to what the requestor’s reasons are for requesting
access.”
15 Helen Suzman Foundation v Judicial Service Commission [2018] ZACC 8; 2018 (4) SA 1 (CC); 2018 (7) BCLR
763 (CC) (Helen Suzman) at para 44.
16 For the most part, these grounds of refusal are irrelevant to this matter.
THERON J
10
of civil or criminal proceedings if the request for access is made after the
commencement of these proceedings and access to that information is provided for in
another law.17 This is the position irrespective of whether the information is held by a
public or private body.18
It is significant that section 7 of PAIA does not provide a ground upon which a
public body may restrict access to requested information under PAIA. Conversely, it
expressly limits PAIA’s scope of application from extending to information requested
for the purpose of court proceedings which have already commenced . It is also
important to note that rules 14 and 15 of the Commission Rules did not (at the relevant
time) contain similar provisions preventing the ir application where the information
sought relates to litigation.
Section 7 of PAIA reflects the rationale that the right of access to information,
as given effect to by PAIA, should not be used to circumvent the particular rules of
procedure in litigation – litigants should not be afforded a dual system of access to
information. In PFE International SCA, it was held that permitting “a dual system of
access to information, in terms of both PAIA and the particular court rules, has the
potential to be extremely disruptive to court proceedings”.19 The Supreme Court of
Appeal explained that:
17 Section 7(1) of PAIA provides that:
“This Act does not apply to a record of a public body or a private body if —
(a) that record is requested for the purpose of criminal or civil proceedings;
(b) so requested after the commencement of such criminal or civil proceedings, as the case
may be; and
(c) the production of or access to that record for the purpose referred to in paragraph (a) is provided
for in any other law.”
18 PFE International v Industrial Development Corporation of South Africa Ltd [2012] ZACC 21; 2013 (1) SA 1
(CC); 2013 (1) BCLR 55 (CC) at para 7.
19 Industrial Development Corporation of South Africa Ltd v PFE International Inc (BVI) [2011] ZASCA 245;
2012 (2) SA 269 (SCA) (PFE International SCA) at para 15.
THERON J
11
“This anomaly, that [a litigant] may be entitled to information the day before the
commencement of proceedings but not the day thereafter, must be seen as a necessary
consequence of the intentio n, on the part of the Legislature, to protect the process of
the court. Once proceedings are instituted then the parties should be governed by the
applicable rules of court.”20
This Court in PFE International endorsed the approach of the Supreme Court of
Appeal on the basis of the plain meaning of the language of section 7 of PAIA, and in
light of the presumed legislative intent of preventing a dual system of access to
documents and information that would be disruptive to c ourt proceedings. 21
Notwithstanding this, th e Court recognised that section 7 must be interpreted
restrictively:
“When construing section 7(1) it must be borne in mind that the purpose of PAIA is to
give effect to the right of access to information. On the contrary, section 7 excludes
the application of PAIA. A restrictive interpretation of the section is warranted so as
to limit the exclusion to circumstances contemplated in the section only. A restrictive
meaning of section 7(1) will thus ensure greater protection of the right.”22
The Competition Act also establishes a key public body, the Tribunal, with the
primary purpose of adjudicating matters provided for in the Competition Act.23 These
include matters concerning prohibited anti-competitive conduct.24 The Competition
Act empowers the Minister to promulgate regulations, in consultation with the Tribunal,
concerning the functions of the Tribunal. 25 The Minister has exercised this power by
20 Id at para 10.
21 PFE International above n 18 at para 31.
22 Id at para 18.
23 Section 26 to 27 of the Competition Act.
24 Section 27 of the Competition Act. See further the Long Title of the Competition Act.
25 Section 27(2) read with section 21(4) of the Competition Act.
THERON J
12
promulgating the Rules for the conduct of proceedings in the Competition Tribunal
(Tribunal Rules).26
After initiating a complaint regarding alleged prohibited practices, t he
Commission is empowered by the Competition Act to refer a complaint to the Tribunal
for adjudication. 27 The referral must be on affidavit and must contain a concise
statement of the grounds of the complaint and the material facts or the points of law that
are relevant to the complaint and relied on by the Commission .28 The Tribunal Rules
do not oblige the Commission to provide any further details at the referral stage, and
accordingly exclude the record of the Commission’s investigation which gave rise to
the referral. Instead, a respondent who wishes to oppose a complaint must file an
answer within 20 business days.29 The answer must be on affidavit, and must contain—
(a) a concise statement of the grounds on which the complaint referral is
opposed;
(b) the material facts or points of law on which the respondent relies; and
(c) an admission or denial of each ground and each material fact relevant to
each ground set out in the complaint referral.30
The Commission then has the opportunity to reply to the answer.31 The Tribunal
Rules also permit the amending of documents.32 Once the filing of documents has been
completed, a member of the Tribunal who is assigned by the Chairperson of the Tribunal
may convene a pre-hearing conference.33 This Tribunal member has various procedural
powers and discretions. Most importantly for this case, the member has a discretion
26 Competition Tribunal Rules GG 22025 GN 253 of 1 February 2001.
27 See section 50(1) of the Competition Act.
28 Rule 15(2) of the Tribunal Rules.
29 Rule 16(1) of the Tribunal Rules.
30 Rule 16(4) of the Tribunal Rules.
31 Rule 17 of the Tribunal Rules.
32 Rule 18 of the Tribunal Rules.
33 Rule 21 of the Tribunal Rules.
THERON J
13
under rule 22(1)(c)(v) of the Tribunal Rules to issue directions concerning discovery.
The rule provides:
“At a prehearing conference, the assigned member of the Tribunal may—
. . .
(c) give directions in respect of—
. . .
(v) the production and discovery of documents whether formal or
informal.”
The Commission argues that rule 22(1)(c)(v) is relevant because it provides for
access to the information sought by the respondents. The Commission contends that
the respondents must instead rely on the se ordinary rules of discovery under the
Tribunal Rules to access the information sought. This access can only be granted under
the Tribunal Rules after pleadings have closed . The Commission argues that the
Tribunal proceedings would be disrupted if a respondent to a complaint referral were
permitted to invoke both rule 15 of the Commission Rules and the discovery process
under the Tribunal Rules.34
Rule 53
The Competition Act also establishes the Competition Appeal Court. 35 The
Competition Appeal Court hears reviews and appeals from the Competition Tribunal.36
Moreover, and as discussed later, it may be possible for the Competition Appeal Court
to hear a review of a decision taken by the Commission as a court of first instance under
section 62 of the Competition Act.37
34 As envisaged in PFE International above n 18 at para 31.
35 Section 36 of the Competition Act.
36 Section 37 of the Competition Act.
37 See [117].
THERON J
14
Rule 34 of the Competition Appeal Court Rules,38 which is headed “Conduct of
hearings”, provides that:
“(1) The Judge President may give any directio ns that are considered just and
expedient in matters of practice and procedure.
(2) If, in the course of proceedings, a person is uncertain as to the practice and
procedure to be followed, the presiding judge—
(a) may give directions on how to proceed; and
(b) for that purpose, if a question arises as to the practice or procedure to
be followed in cases not provided for by these Rules or by a direction
of the Judge President in terms of subrule (1), the judge may have
regard to the High Court Rules or the Rules of the Supreme Court of
Appeal.”
Rule 34 gives the presiding judge a fairly wide power to issue procedural
directions when questions concerning practice and procedure arise in the course of
proceedings. In addition, r ule 34 empowers presiding judges to have regard to the
Uniform Rules of Court (Uniform Rules) to regulate procedure in the
Competition Appeal Court where there is a lacuna in the Competition Appeal Court
Rules. Of particular relevance to t his matter is rule 53 of the Uniform Rules , which
provides:
“(1) Save where any law otherwise provides, all proceedings to bring under review
the decision or proceedings of any inferior court and of any tribunal, board or
officer performing judicial, quasi-judicial or administrative functions shall be
by way of notice of motion directed and delivered by the party seeking to
review such decision or proceedings to the magistrate, presiding officer or
chairperson of the court, tribunal or board or to the officer, as the case may be,
and to all other parties affected—
(a) calling upon such persons to show cause why such decision or
proceedings should not be reviewed and corrected or set aside; and
38 Rules for the conduct of proceedings in the Competition Appeal Court GG 21504 GNR 857 of 1 September 2000
(Competition Appeal Court Rules).
THERON J
15
(b) calling upon the magistrate, presiding officer, chairperson or officer,
as the case may be, to despatch, within fifteen days after receipt of the
notice of motion, to the registrar the record of such proceedings sought
to be corrected or set aside, together with such reasons as he or she is
by law required or desires to give or make, and to notify the applicant
that he or she has done so.”
In Helen Suzman , this Court held that a rule 53 record is integral to review
proceedings:
“The purpose of rule 53 is to ‘ facilitate and regulate applications for review ’. The
requirement in rule 53(1)(b) that the decision -maker file the record of decision is
primarily intended to operate in favour of an applicant in review proceedings. It helps
ensure that review proceedings are not launched in the dark. The record enables the
applicant and the court fully and properly to assess the lawfulness o f the
decision making process. It allows an applicant to interrogate the decision and, if
necessary, to amend its notice of motion and supplement its grounds for review.
Our courts have recognised that rule 53 plays a vital role in enabling a court to perform
its constitutionally entrenched review function:
‘Without the record a court cannot perform its constitutionally
entrenched review function, with the result that a litigant’s right in
terms of section 34 of the Constitution to have a justiciable dispute
decided in a fair public hearing before a court with all the issues being
ventilated, would be infringed.’
The filing of the full record furthers an applicant’s right of access to court by ensuring
both that the court has the relevant information before it and that there is equality of
arms between the person challenging a de cision and the decision-maker. Equality of
arms requires that parties to the review proceedings must each have a reasonable
opportunity of presenting their case under conditions that do not place them at a
substantial disadvantage vis-à-vis their opponents. This requires that —
THERON J
16
‘all the parties have identical copies of the relevant documents on which to
draft their affidavits a nd that they and the court have identical papers before
them when the matter comes to court’.”39
The Judge President is authori sed to supervise and direct the work of the
Competition Appeal Court.40 The Judge President assigns each matter before the Court
to a bench composed of three judges of th at Court.41 This is with one exception: the
Judge President may assign a single judge to sit in circumstances specified in section
38(2A) of the Competition Act. The provision reads:
“The Judge President, or any other judge of the Competition Appeal Court designated
by the Judge President, may sit alone to consider an—
(a) appeal against a d ecision of an interlocutory nature, as prescribed by
the rules of the Competition Appeal Court;
(b) application concerning the determination or use of confidential
information;
(c) application for leave to appeal, as prescribed by the rules of the
Competition Appeal Court;
(d) application to suspend the operation and execution of an order that is
the subject of a review or appeal; or
(e) application for procedural directions.”
Section 38(2A) is relevant because one of the issues raised in this matter is
whether a direction to produce t he record under rule 53 is a “procedural direction” as
envisaged in section 38(2A)(e).
39 Helen Suzman above n 15 at paras 13 -5. See further Turnbull-Jackson v Hibiscus Coast Municipality [2014]
ZACC 24; 2014 (6) SA 592 (CC); 2014 (11) BCLR 1310 (CC) at para 37.
40 Section 38(1)(a) of the Competition Act.
41 Section 38(2) of the Competition Act.
THERON J
17
Background to CCT 158/18 and CCT 179/18
In CCT 158/18, the Commission referred a complaint against eighteen banks,
including Standard Bank (the respondent in CCT 158/18 and 179/18) to the Competition
Tribunal. The complaint concerned alleged collusive practices in the buying and selling
of the South African Rand in contravention of section 4(1)(b)(i) and (ii) of the Act
(Forex Referral).42 Tribunal Rule 16(1) required Standard Bank to file an answer within
20 business days of being served with the complaint referral. Standard Bank, however,
raised an exception to the Forex Referral and had not yet filed an answer at the time of
the hearing of this matter. At the same time, Standard Bank brought an application for
access to the Commission ’s record of investigation in the Forex Referral in terms of
rule 15 of the Commission Rules.
It is important to understand that Standard Bank’s exception to the complaint
referral stands separately from its application for access to the record under rule 15.
The rule 15 application had no effect on Standard Bank’s obligation to answer the Forex
Referral. It is clear that a litigant cannot refuse to answer a complaint against them on
the basis that a rule 15 application has been instituted and has not yet been finalised. It
is the exception to the complaint referral , rather than the rule 15 application, wh ich
occasioned the delay in the filing of Standard Bank’s answer.
The history of the proceedings in the Tribunal reveals that the considerable delay
which has occurred in the finalisation of the adjudication of the Forex Referral stems
exclusively from the exception proceedings . The hearing of the exceptions that were
brought by Standard Bank and a number of other respondents against the compla int
referral was beset by postponements and delays. The first postponement was
occasioned by the Commission’s late expression of its intent to join further respondents.
A further postponement was occasioned by the Commission’s filing of a supplementary
affidavit nearly a year after the complaint was referr ed, which led to the filing of fresh
exceptions.
42 This was done in terms of the Tribunal Rules.
THERON J
18
In relation to Standard Bank’s rule 15 application, t he Tribunal held that
Standard Bank was only entitled to the record of investigation at the time of discovery.43
Dissatisfied with this result, Standard Bank appealed to the Competition Appeal Court.
On appeal, the Competition Appeal Court reversed the Tribunal’s decision and ordered
that the Commission produce the record.44 It held that under rule 15 of the Commission
Rules, Standard Bank was entitled to access to the record of investigation. The
Commission approaches this Court seeking leave to appeal against this order (rule 15
appeal).
In CCT 179/18, Standard Bank launched a separate and direct application in the
Competition Appeal Court , bypassing the Tribunal, to review and set aside the
Commission’s referral decision. As part of the review proceedings, Standard Bank
sought access to the record of the Commission’s referral decision, including the
Commission’s record of investigation . When the Com mission refused to produce the
record on the basis that the rule 15 appeal was not yet finalised, Standard Bank requested
directions from the Judge President. The Judge President assigned the matter for
hearing by a single judge, Boqwana JA, in terms of section 38(2A).
The Commission contended before Boqwana JA that the
Competition Appeal Court did not have the jurisdiction to hear the review as a court of
first instance and that a single judge was not empowered to order the production of a
rule 53 record under section 38(2A). On 22 June 2018 , Boqwana JA directed the
Commission to produce the rule 53 record in the review proceedings.45 Boqwana JA
did so without first determining whether the Competition Appeal Court had jurisdiction
to hear the review as a court of first instance. The Commission seeks leave to appeal
43 Standard Bank of South Africa Limited v Competition Commission of South Africa [2017] 2 CPLR 883 (CT)
(Standard Bank Tribunal decision) at 895.
44 Standard Bank of South Africa Limited v Competition Commission of South Africa [2018] ZACAC 5; [2018]
JOL 40244 (CAC) (Rule 15 judgment) at para 60.
45 Standard Bank of South Africa Limited v Competition Commission of South Africa [2018] ZACAC 3; [2018] 1
CPLR 121 (CAC) (Rule 53 judgment) at para 33.
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19
against that direction on the ground, among others, that Boqwana JA should first have
determined the question of jurisdiction before granting the direction (review appeal).
Background to CCT 218/18
On 18 March 2016, the Commission received a complaint from Eskom that the
respondents in CCT 218/18 (Waco respondents) had colluded in bidding for a tender.46
On 6 February 2018, after conducting an investigation, the Commission ref erred the
complaint to the Tribunal. 47 On 16 February 2018, and following the referral to the
Tribunal, the Waco respondents requested access to the Commission’s record of
investigation. The Commission refused to comply with this request. Invoking rule 15
of the Commission Rules, the Waco respondents brought an application in the Tribunal
to compel the Commission to produce its record of investigatio n.48 The Tribunal
granted the Waco respondents the relief they sought and directed that the Commission
produce its record of investigation.49
The Commission then launched proceedings in this Court seeking leave to
directly appeal against the Tribunal’s order. The issues raised in this application are
substantively similar to the rule 15 appeal.
46 The Waco respondents are seven juristic persons. At the time, Eskom had received four bids from these seven
juristic persons: (a) the first respondent tendering on its own; (b) the first respondent tendering together with the
fifth respondent by forming the second respondent to submit the tender; (c) the first respondent tendering together
with the sixth respondent by forming the third respondent to submit the tender; and (d) t he first respondent
tendering together with the seventh respondent by forming the fourth respondent to submit the tender.
47 Eskom withdrew its complaint for unknown reasons on 13 March 2017, but the Commission initiated a
complaint and pursued it.
48 The Waco respondents also brought three other applications to: (a) dismiss the referr al because it was not
lawfully initiated; (b) dismiss the referral because it did not make out a cause of action; and (c) strike out certain
parts of the Commission’s complaint referral. These are irrelevant to this matter.
49 Waco Africa (Pty) Ltd v Compe tition Commission: In re: Competition Commission v Waco Africa (Pty) Ltd
[2018] 2 CPLR 888 (CT) (Waco Tribunal decision).
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20
In this Court
Issues
There are, as always, the preliminary issues of jurisdiction and leave to appeal.
In the rule 15 appeal, the substantive issues raised are:
(a) May a litigant rely on rule 15 of the Commission Rules to gain access to
the Commission’s record of investigation before the close of pleadings?
(b) If rule 15 is available to a litigant, what factors may the Commission and
the Tribunal take into a ccount in determining a reasonable time for the
production of the record?
In the review appeal , the issues raised are whether the Competition Appeal
Court:
(a) Sitting as a single judge, can direct the production of a rule 53 record
under section 38(2A) of the Competition Act; and
(b) Has first instance jurisdiction to entertain the review application and to
order the production of the rule 53 record.
Jurisdiction
The rule 15 appeal concerns the overarching question of whether (and, if so,
when) respondents in referral proceedings before the Tribunal may lawfully demand
access to information held by the Commission regarding the complaint referral before
the discovery stage.
The rule 15 appeal directly concern s the constitution al right of access to
information, and the legislation and rules giving effect to this right.50 It requires careful
consideration of the delicate balance between ensuring the fulfilment of Standard Bank
and the Waco respondents’ right of access to information, and the public interest in
50 Section 32 of the Constitution. See, for example, PFE International above n 18 at para 16.
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21
safeguarding the Commission’s ability to efficiently prosecute anti-competitive conduct
and in fair litigation. This Court has repeatedly affirmed the principle that the
interpretation of legislation in conformity with the constitutional imperative to best
promote the spirit, purport and object of the Bill of Rights constitutes a constitutional
issue that engages our jurisdiction.51
The review appeal raises the question whether the Competition Appeal Court,
sitting as a sin gle judge and a court of first instance, may order the Commission to
produce the record of its referral decision , without first deciding the question of its
jurisdiction.
This Court has held that disputes regarding the powers of the Tribunal , and the
determination of whether the Tribunal acted within its legal powers invoke the principle
of legality, are constitutional matters.52 There is no reason that these authorities should
not apply with equal force to the powers of the Competition Appeal Court.
Furthermore, the correct interpretation of the C ompetition Appeal Court’s powers in
relation to first instance record disclosure is critical to fair litigation and to enabling the
effective prosecution of collusion.53
In my view , the disputes raise constitutional issues and therefore engage this
Court’s jurisdiction.
51 Jordaan v City of Tshwane Metropolitan Municipality [2017] ZACC 31; 2017 (6) SA 287 (CC); 2017 (11)
BCLR 1370 at para 8 and S v Shaik [2007] ZACC 19; 2008 (2) SA 208 (CC); 2 007 (12) BCLR 1360 (CC) at
para 83.
52 Senwes above n 4 at para 17, which reads:
“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.”
See also Competition Commission v Yara South Africa (Pty) Ltd [2012] ZACC 14; 2012 JDR 1118 (CC) ; 2012
(9) BCLR 923 (CC) (Yara) at para 13.
53 See Senwes above n 4 at para 19.
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22
Interests of justice
The rule 15 appeals
I would grant leave to appeal in CCT 158/18 because the matter raises important
issues in respect of rule 15 that need to be clarified. This is especially so in light of the
implicated right of access to information and the alleged impact of the
Competition Appeal Court’s approach to the Commission’s capacity to prosecute
cartels. The Commission has also been unyielding in its view that the Competition
Appeal Court’s decision in Group Five is incorrect .54 This Court thus needs to
pronounce upon Group Five.55
In CCT 218/18, the Commission applies for a direct appeal primarily on the basis
of convenience, claiming that it would be futile for it to follow the prescribed path of
appealing the Tribunal’s decision to the Competition Appeal Court first. It submits that
an appeal would be fruitless given that the Competition Appeal Court has already ruled
on this matter in the rule 15 judgment and Group Five.
It cannot be ignored that the Competition Appeal Court is an apex specialist court
in competition matters, and that this Court derives substantial benefit from its views.56
Nonetheless, I would grant leave for a direct appeal in CCT 218/18 on the basis of this
Court’s judgment in Union of Refugee Women .57 In this regard , it is noteworthy that
there will be little disadvantage flowing from the bypassing of the Competition Appeal
Court as it has repeatedly aired its views on the relevant issues. Some of the other
54 Group Five Ltd v Competition Commission [2016] ZACAC 1 (Group Five)
55 In an order dated 25 October 2016, this Court summarily dismissed an application by the Commission for leave
to appeal against the Competition Appeal Court’s order in Group Five on the basis that the application did not
bear any reasonable prospects of success. I am prepared to assume in the Commission’s favour that such an order
does not bind this Court in the same way that its judgments do. The question regarding the precedential force of
such an order dismissing an appeal for lack of prospects of success is left open for another day.
56 Yara above n 52 at para 71. This Court’s comments in respect of bypassing the Labour Appeal Court in Dudley
v City of Cape Town [2004] ZACC 4; 2005 (5) SA 429 (CC); 2004 (8) BCLR 805 (CC) at para 9 are equally
apposite in the context of the Competition Appeal Court, which is also a specialist court.
57 Union of Refugee Women v Director : Private Security Industry Regulatory Authority [2006] ZACC 23; 2007
(4) SA 395 (CC); 2007 (4) BCLR 339 (CC) at para 21.
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23
factors in Union of Refugee Women also support granting leave. For instance, the matter
involves constitutional issues arising from common cause facts, the issues are
important, and there is an advantage in this Court simultaneously addressing two
substantively similar applications.58
Review appeal
Standard Bank contends that the order of Boqwana JA is interlocutory and
therefore not appealable. The test for appealability has , however, been developed to
accord with “the equitable and more context -sensitive standard of the interests of
justice”.59 What is paramount is not whether the order is final or interim but whether it
is in the interests of justice to grant leave to appeal.60
The rule 53 order is final in effect and determinative of the relevant rights
between the Commission and Standard Bank .61 This is because the order requires the
Commission to disclose the record – which would have the final effect of furnishing
Standard Bank with the information it seeks to pursue its review under rule 53 . The
handing over by the Commission of the record under rule 53 w ould be irrevocable .
Standard Bank would have access to the information contained in it, and no subsequent
court order could materially change that.
In this Court, the Commission persisted in its argument that Boqwana JA should
not have ordered the production of the record before settling the issue of the
Competition Appeal Court’s jurisdiction as a court of first instance. The Commission
has strong prospects of succeeding with this argument. Therefore, it is in the interests
of justice to grant the Commission leave to appeal against the Boqwana JA procedural
direction. Leave to appeal is accordingly granted in CCT 179/18.
58 Id.
59 International Trade Administration Commission v SCAW South Africa (Pty) Ltd [2010] ZACC 6; 2012 (4) SA
618 (CC); 2010 (5) BCLR 457 (CC) at para 53.
60 Tshwane City v Afriforum [2016] ZACC 19; 2016 (6) SA 279 (CC); 2016 (9) BCLR 1133 (CC) at para 40 and
Khumalo v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC); 2002 (8) BCLR 771 (CC) at para 8.
61 Zweni v Minister of Law and Order [1992] ZASCA 197; 1993 (1) SA 523 (A) at 536A-B.
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Rule 15 appeal
In its application in terms of rule 15 for an order compelling the Commission to
produce its record of investigation in the Forex Referral, Standard Bank simply alleged
that it was entitled to access the record because rule 15 empowers “any person” to access
“any Commission record”. Standard Bank also accept s, as it must, that if rule 15 is
available to it, then the Commission is empowered to invoke the various grounds in rule
14 to limit access to restricted information in the record.
In Standard Bank’s rule 15 application, the Tribunal held that the rule established
by t he Competition Appeal Court ’s decision in Group Five is that “regardless of
whether the party knocking at the window of the Commission’s registry is a litigant or
someone just off the street they should be treated in an equal fashion of their request”.62
The Tribunal stressed that its decision in relation to Standard Bank’s application would
be no different if a member of the public had requested the record. 63 The Tribunal
interpreted Group Five as granting it a discretion to determine a reasonable time period
for the production of the requested information, depending on the facts of each case. 64
The Tribunal reasoned that when the applicant is a litigant, the fact that discovery
proceedings are impending could be a relevant factor to the exercise of this discretion.65
The Tribunal granted Standard Bank’s request for the record of investigation and
ordered the Commission to provide Standard Bank wi th the record of investigation at
the same time as it produces discovery in the Forex Referral . The Tribunal held that
Standard Bank had not put forward a factual basis to justify the production of the record
prior to discovery in the Forex Referral.
62 Standard Bank Tribunal decision above n 43 at para 56.
63 Id at para 74.
64 Id at para 58.
65 Id at para 67.
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25
On appeal, t he Competition Appeal Court overruled the Tr ibunal’s decision,
holding that it was bound by its judgment in Group Five. It explained that on a proper
interpretation, the rule emerging from Group Five is that access to the record under
rule 15 of the Commission Rules is a general public -access right which applies
irrespective of whether the requestor is a litigant in proceedings before the Tribunal .66
This is notwithstanding section 7, which provides that the provisions of PAIA cannot
be used to obtain access to information for the purposes of litigation once litigation has
commenced. According to Group Five, section 7 of PAIA cannot be a basis to withhold
information as contemplated in rule 14(1)(e) of the Commission Rules. 67 The
Competition Appeal Court reasoned that this is because section 7 of PAIA does not
empower a body to restrict access to information (as contemplated in rule 14(1)(e)).
Instead, the effect of section 7 of PAIA is that PAIA does not apply to information
requested for the purpose of litigation .68 The Competition Appeal Court further held
that the only consideration to be taken into account by the Tribunal in determining a
reasonable time for the production of the record under rule 15 was the practical time
which the Commission would require to compile the record.
The Tribunal in the Waco matter similarly found for the Waco respondents on
the basis that it was bound by the Group Five and Standard Bank rule 15 judgments.69
Before the Tribunal and the Competition Appeal Court, the Commission
accepted the binding auth ority of Group Five. It sa ys it did so because those forums
are bound by the precedent of the Competition Appeal Court.70 However, in this Court,
the Commission submits that Group Five was incorrectly decided or was, at the very
least, misapplied by the C ompetition Appeal Court. The Commission’s argument
regarding Group Five and rule 15 can be summarised into four independent arguments:
66 Rule 15 judgment above n 44 at para 24.
67 Id at para 33.
68 Id at para 34.
69 Waco Tribunal decision above n 49 at para 76.
70 The principle of stare decisis et non quieta movere requires that a court is bound by the previous decisions of a
higher court and by its own previous decisions in similar matters.
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26
(a) Rules 14 and 15 incorporate section 7 of PAIA into the Commission
Rules, and so rule 15 does not avail the respondents;
(b) The Commission Rules no longer apply once a matter is referred to the
Tribunal – the latter’s rules take over entirely;
(c) Group Five is contrary to the Competition Appeal Court’s decision in
Continental Tyres;71 and
(d) Policy considerati ons and t he purpose of rule 15 demand that rule 15
should not avail the respondents after a complaint has been referred to the
Tribunal.
Before addressing the arguments raised by the Commission in this Court, I set
out what is, in my view, the proper interpretation of rule 15 of the Commission Rules.
It is well -established that t his interpretive exercise depends on the plain wording,
context and purpose of rule 15 informed by the spirit, purport and object of the Bill of
Rights.72
The wording of rule 15 is clear. It provides that “any person” may have access
to information held by the Commission, subject only to the proviso that the information
is not restricted in terms of rule 14. There is nothing in the text of rule 15 that excludes
access by litigants in proceedings before the Tribunal.
The purpose of rule 15, which is to facilitate access to information held by the
Commission and to give effect to section 32 of the Constitution, bolsters my reasoning.
In addition, the interpretation of rule 15 must be informed by the right in section 32 and
the constitutional values of openness and transparency. In the context of a different rule
that implicated the right of access to information, this Court held in PFE International:
71 Continental Tyres South Africa (Pty) Limited v Competition Commission , unreported judgment of the
Competition Appeal Court 157/CAC/Nov 2017 (11 October 2018) ( Continental Tyres).
72 For a recent summary of legislative interpretation under the Constitution see Road Traffic Management
Corporation v Waymark Infotech (Pty) Limited [2018] ZACC 12; 2019 (5) SA 29 (CC); 2019 (6) BCLR 749 (CC)
at paras 29-32.
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27
“[T]he rule must be generously and purposively interpreted so as to give the holders of
the right the fullest protection they need.
In addition, section 39(2) of the Constitution plays an important role in the
interpretation of the rule. In peremptory terms, this section imposes an oblig ation on
all courts to promote ‘ the spirit, purport and the objects of the Bill of Rights ’, when
interpreting legislation. In Phumelela Gaming And Leisure Limited v André
Gründlingh this Court observed:
‘A court is requir ed to promote the spirit, purport and objects of the
Bill of Rights when ‘interpreting any legislation, and when developing
the common law or customary law’. In this no court has a discretion.
The duty applies to the interpretation of all legislation and whenever a
court embarks on the exercise of developing the common law or
customary law. The initial question is not whether interpreting
legislation through the prism of the Bill of Rights will bring about a
different result. A court is simply obliged to deal with the legislation
it has to interpret in a manner that promotes the spirit, purport and
objects of the Bill of Rights. The same applies to the development of
the common law or customary law.’
The Supreme Court of Appeal rejected the narrow, literal reading of the rule and opted
for a construction that promotes wider access to information. This construction is also
in line with the purpose for the exclusion of PAIA in cases where access to information
is regulated by the rules of court. Even before the adoption of the Constitution in 1994,
our courts construed the rules in a manner that advanced the process of litigation if the
literal reading would hamper its progress.”73
In sum, the constitutional imperative of interpreting legislation and rule s to
promote the right of access to information, as contained in section 32 of the
Constitution, must govern this Court’ s approach to interpreting rule 15. This Court
must prefer an interpretation which best promotes the right of access to information held
by the State.74 This favours a generous, rather than a restrictive reading of rule 15.
73 Id at paras 25-7.
74 Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd [2008] ZACC 12; 2009 (1) SA 337 (CC); 2008 (11) BCLR 1123
(CC) at paras 46-7.
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28
It follows, in my view, that rule 15 must be read as conferring upon litigants in
proceedings before the Tribunal a right of access to information held by the
Commission.
Rule 15 and PAIA
The Commission contends that rule 15 is subject to the same qualifications on
the right of access to information as provided for in section 7 of PAIA. It argues that
the right that is founded in rule 15 is subject to the express limitation of the wording of
rule 14, which provides that the right does not extend to “restricted” information. One
class of information that rule 14(1)(e) classifies as “restricted information” is any
“document to which a public body would be requ ired or entitled to restrict access in
terms of [PAIA]”.
The Commission is a public body as envisaged in PAIA. 75 The intention and
effect of rule 14(1)(e) of the Commission’s Rules, so the Commission’s argument goes,
is to afford the Commission the same g rounds for refusing disclosure as other public
bodies facing applications for access to information under PAIA. This must ostensibly
include the qualifications provided for in section 7 of PAIA. The Commission argues
that because section 7 applies in thi s case, Standard Bank and the Waco respondents
cannot be granted access to the respective records of investigation.
The Commission’s argument must fail for a number of reasons. T he ordinary
meaning of the language used in rule 14 does not support the Commission’s argument.
As mentioned, rule 14(1)(e) envisages the Commission being entitled to restrict access
to any “document to which a public body would be required or entitled to restrict access
in terms of [PAIA]”. Section 7 of PAIA does not provide any grounds upon which a
public body would be required or entitled to restrict access to information. This is
75 The definition in section 1 of PAIA provides that a public body includes a functionary or institution when:
(i) exercising a power or performing a duty in terms of the Constitution or a provincial constitution ; or
(ii) exercising a public power or performing a public function in terms of any legislation.
THERON J
29
because section 7 concerns PAIA’s scope of application. Section 7 is located in Part 1,
Chapter 2 of PAIA, which is headed “General Application Provisions”, and specifically
provides “[t] his Act does not apply ” to certain information. A ccess to information
sought for the purposes of litigation cannot be restricted in terms of PAIA , because
section 7 expressly states that PAIA is inapplicable to requests for information under
these circumstances . It follows that the Commission may not restrict access to the
information sought by Standard Bank by invoking PAIA even if the jurisdictional
requirements of section 7 of PAIA are met. PAIA also makes this explicit by placing
section 7 outside of Part 2, Chapter 4 of PAIA, which concerns the grounds which are
available to a public body to refuse access to information. It is only these grounds of
refusal that are incorporated by rule 14(1)(e).
In other words, rule 14(1)(e) of the Commission Rules includes, by reference,
the substantive grounds upon which access to records may be restricted under PAIA. It
does not render rule 15 of the Commission Rules inapplicable in the same manner in
which PAIA is rendered inapplicable to civil and criminal proceedings by the operation
of section 7(1)(a) of PAIA.
The interpretation of rule 14 contended for by the Commission is not only
contrary to the ordinary meaning of the words in the text, but would also fall foul of the
constitutional injunction to interpret the provision to promote the spirit, purport and
objects of the Bill of Rights. 76 On this interpretation, rule 14 would restrict the wide
ambit of the right of access to information in section 32 of the Co nstitution. As
recognised by this Court in PFE International, rules facilitating access to information
must be restrictively interpreted so as to ensure greater protection of the constitutional
right of access to information .77 The interpretation contended for by the Commission
76 Section 39(2) of the Constitution. See Investigating Directorate: Serious Economic Offences v Hyundai Motor
Distributors (Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit N.O. [2000] ZACC 12; 2000 (2) SACR
349 (CC); 2000 (10) BCLR 1079 (CC) (Hyundai) at paras 23-4.
77 PFE International above n 18 at para 18.
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30
would have the effect of reading in a restriction which is not contemplated within the
clear meaning of the text of the rule.
However, even if section 7 were available to the Commission as a basis upon
which to refuse Standard Bank access to the record of its investigation under
rule 14(1)(e), it is unclear whether its jurisdictional requirements could be met in this
case.78 Assuming that the proceedings before the Tribunal are criminal or civil in
nature, section 7(1)(c) of PAIA expressly provides that PAIA does not apply where the
production of the record is provided for in another law. As Group Five recognised,
there is no other law regarding the production of the information sought by the
respondents under rule 15. In this regard, I emphasise that the Tribunal Rules do not
provide for access to the documents contained in the record as of right. Instead, as
already indicated, the presiding officer at a pre-hearing conference has the discretion to
issue directions concerning di scovery.79 The presiding officer determines the
documents to be disclosed at discovery, and the Commission is able to rely on litigation
privilege to resist disclosure.80
Finally, the Commission argue d that rule 15 “domesticates PAIA” and, like
PAIA, gives effect to the constitutional right of access to information. It sought to
deduce from this premise that section 7 applied, and so access to the information sought
by Standard Bank should be restricted. However, rule 15 seeks to give effect to the
78 The three conditions for the application of section 7 are : (a) the record must be requested for the purpose of
criminal or civil proceedings; (b) after the commencement of such proceedings; and (c) any other law provides
for access to the record in question. See PFE International SCA above n 19 at para 8 : “[a]ll three of the
requirements of section 7(1) must be met in order to render PAIA inapplicable to the request” . This Court held
on appeal that it “is plain from its language that the section lays down three c onditions which must be met if the
application of PAIA is to be denied”. See PFE International above n 18 at para 20.
79 The Competition Appeal Court in Group Five above n 54 at para 16 noted that the Tribunal Rules make
provision for discovery within the discretion of the Tribunal, unlike the rules in civil litigation. In accordance
with rule 20 of the Tribunal Rules, complaint proceedings are governed by the orders made by the Tribunal at a
pre-hearing. The assigned member of the Tribunal presiding at a pre-hearing “may” give directions in respect of
“the production and discovery of documents whether formal or informal” (rule 22(1)(c)(v) of the Tribunal Rules),
but there is no obligation to do so.
80 This is clearly different from rule 15, which provides for a public access right, with the Commission able to rely
on rule 14’s restrictions to restrict access to certain categories of information.
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31
right of access to information in section 32 of the Constitution and must be interpreted
to promote that right. 81 This means that, contrary to the Commission’s submissions,
rule 15 cannot be restrictively interpreted to incorporate section 7. To do so would
undermine the right in section 32, because access to information would be restricted. It
follows that to interpret the rule as incorporating section 7 would be contrary to the
constitutional imperative to interpret the rule to best promote the spirit, purport and
objects of the Bill of Rights.82
Commission Rules versus Tribunal Rules
The Commission’s second argument is that its rules categorically do not apply
to litigants once a matter is before the Tribunal. According to the Commission, rule 15
therefore cannot avail the respondents because the proceedings have been referred to
the Tribunal , and Standard Bank and the Waco respondents are litigants in these
proceedings.
Instead, the Commission submits that the Tribunal Rules are the only rules that
can avail Standard Bank and the Waco respondents once a matter has been referred to
the Tribunal. The Commission argues that the Tribunal Rules do not provide for the
automatic disclosure of documents before the close of pleadings.83 Rule 22(1)(c)(v) of
the Tribunal Rules provides that the Tribunal decides when and how discovery should
occur. It does so at the pre -hearing conference, but only after pleadings have closed.
According to the Commission, the position under the Tribunal Rules is that access to
the Commission’s record of investigation and other documents may only be granted
after pleadings have closed.
81 Section 39(2) of the Constitution; Hyundai above n 76; and PFE International above n 18 at paras 25-7.
82 Id.
83 See Group Five Ltd v Competition Commission : In re: Competition Commission v Group Five Ltd [2016] 1
CPLR 359 (CT) (Group Five Tribunal decision) at para 66. The Tribunal correctly held that its rules “do not
contemplate premature discovery by the Commission or any other litigant”.
THERON J
32
The Commission accepted that the Tribunal Rules provide for pre -discovery
access in certain circumstances. Rule 55 of the Tribunal Rules allows for the application
of the Uniform Rules in Tribunal proceedings. The Uniform Rules make provision for
discovery before the close of pleadings, but only in certain circumstances. Rule 35(12)
and (14) of the Uniform Rules permit access to documents before the close of pleadings.
Rule 35(12) may be invoked only where the document is referred to in the pleadings
and rule 35(14) only where a litigant can show that the documents are reasonably
necessary to plead. The Commission submitted that these r ules should not be negated
by rule 15. Instead, they contend that the respondents should have relied on rule 35(12)
or (14) of the Uniform Rules to access the record of investigation after referral. The
Commission says that the respondents should have alleged and proven that the record
of investigation was necessary for them to answer to the complaints.
There is no merit in the Commission’s argument that the Commission Rules
should be interpreted as being applicable only until a complaint is referred to the
Tribunal, and that once litigation commences, the Tribunal Rules are all-encompassing.
There is nothing in the language of the Commission Rules that provides that they no
longer apply once a complaint is referred to the Tribunal. To the contrary, the preamble
to the Commission Rules provides that the rules relate to the “functions of the
Competition Commission”, which necessarily extend to the Commission’s appearance
in proceedings before the Tribunal. It is an express function of the Commission to refer
complaints to the Tribunal and to appear before the Tribunal as the latter adjudicates on
these complaints. 84 Quite clearly , the two sets of rules envisage a nuanced inter -
relationship, where certain Commission rules apply when a matter is before the
Tribunal. Whether a Commission rule applies despite proceedings being before the
Tribunal depends on the rule. It does not follow that a Commission rule cannot apply
or be invoked by the Commission or other parties once a referral to the Tribunal is made.
84 Section 21(1)(g) of the Competition Act.
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33
To hold otherwise would be absurd. The Commission must act in terms of its
own rules. These rules constrain its powers and functions, and also empower the
Commission. If the Commission Rules no longer apply to it, or cannot be invoked by
anyone else the moment the Commission is a litigant before the Tribunal, then it is
unclear where the Commission sources its authority to act. This would have absurd
consequences85 and the Commission’s argument accordingly stands to be rejected.
Rule 15 clearly continues to apply after a complaint is referred to the Tribunal.
A request for access to information held by the Commission under rule 15 is entirely
separate from proceedings before the Tribunal. It cannot be suggested that a member
of the public can no longer request access to information relating to a matter simply
because the matter is before the Tribunal. On the contrary, rule 14(1)(c)(i) envisages
that the record of investigation only becomes accessible upon referral of a complaint to
the Tribunal. Moreover, the Tribunal Rules do not contain a mechanism through which
a member of the public may request access to information held by the Commission.
Continental Tyres
The third ground of appeal advanced by the Commission places reliance on the
Competition Appeal Court’s findings in Continental Tyres. The Commission invokes
Continental Tyres in support of its proposition that rule 15 of the Commission Rules
does not apply to a litigant before the Tribunal. The Commission emphasises that in
Continental Tyres, the Competition Appeal Court noted that the term “any person” in
rule 15 refers to a very wide category, and might appear to include persons who are
respondents in a referral complaint by the Commission. According to the Commission,
the Competition Appeal Court concluded in Continental Tyres that “this is not the
correct construction of rule 15”. 86 Instead, the Commission submits that the
85 For example, rule 6 of the Commission Rules provides that “[t] he Commissioner, in writing, may assign any
function or power to a member of the staff of the Commission, either generally or in connection with a particular
matter”. If a matter is before the Tribunal, then on the Commission’s argument its rules cannot apply to it, and so
the Commissioner cannot assign a function or power to staff in relation to a matter.
86 Continental Tyres above n 71 at para 31.
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34
Competition Appeal Court held that “rule 15 cannot be interpreted expansively to be of
application to respondents in referral proceedings”.87
These isolated comments by the Competition Appeal Court in Continental Tyres
must, however, be seen in their proper context. The dicta relied upon by the
Commission concerned dis covery and are wholly distinguishable from the present
matter. Standard Bank and the Waco respondents do not seek discovery (under
rule 22(1)(a)(v) of the Tribunal Rules) , but rather access to the investigation record
under rule 15. In Continental Tyres, the Commission invoked the restrictions in rule 14
in an attempt to refuse to make full discovery.88 The Competition Appeal Court held
that the Commission is not entitled to invoke the grounds for restriction in rule 14 when
a respondent seeks discovery of documents. This finding, and the associated reasoning
advanced by the Competition Appeal Court, is clearly distinguishable from the present
matter.89 Discovery is available after pleadings have closed and takes place in terms of
the Tribunal Rules, while access to the record under rule 15 can be sought at any stage
and is in terms of the Commission Rules.
According to Unterhalter AJA in Continental Tyres, “the regime of exclusion
that is set out in rule 14 cannot be of application to the class of persons constituting
litigants who are respondents in a referral brought against them by the Commission”, 90
because the Commission “has duties of disclosure to re spondents that it does not have
to the public at large”. 91 Unterhalter AJA’s statement regarding rule 14 is clearly
limited to the discovery mechanism provided for in the Tribunal Rules. The
Commission’s heightened duties of disclosure to a respondent vis-à-vis a member of
the public cannot be used to justify a more restrictive approach to access to information
87 Id.
88 Id at paras 5-9.
89 Id at paras 28 and 38.
90 Id at para 31.
91 Id.
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being applied to a respondent. Unterhalter AJA concluded that the Commission must
discover the yield of its investigation to respondents in complaint referrals to the extent
that the information is not covered by recognised privilege.92 According to Unterhalter
AJA, a “regime of restriction of application to respondents that was wider than the
protection already given by privilege would damage the fairness of proceedings”.93
The rationale for the decision in Continental Tyres is therefore that the
Commission cannot invoke rule 14 to restrict access when a respondent relies on the
discovery process under the Tribunal Rules to seek access to the invest igative record.
Instead, the Commission can only rely on the established rules of privilege to limit its
disclosure.
Continental Tyres clearly does not mean that rule 15 cannot be relied on by a
respondent in the position of Standard Bank and the Waco respondents . The
Competition Appeal Court did not purport to curtail the right of access to the
investigation record afforded under rule 15, and did not purport to overturn Group Five.
To the contrary, Unterhalter AJA emphasised that rule 15 “s hould be understood to
create a regime of access by the public to information held by the Commission ”. 94
Unterhalter AJA further affirmed the position adopted in Group Five that rule 15 is a
public access rule.95 It is clear from Unterhalter AJA’s affirmations of the findings in
Group Five that Continental Tyres cannot constitute authority for the proposition that
rule 15 of the Commission Rules does not apply to a litigant.
92 Id.
93 Id at para 34.
94 Id at para 35. The concurring judgment of Davis JP in Continental Tyres further affirmed the
Competition Appeal Court’s decision in Group Five. In this regard, Davis JP stated:
“Rule 14 read together with rule 15 is a rule which regulates access by members of the public
to the records of the Commission. It is, in short, a public access rule and confers a public access
right. So much is clear from the jurisprudence of this Court in [Group Five].”
95 Id at para 35.
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In any event, even if Unterhalter AJA’s comments in Continental Tyres
suggested that a litigant cannot demand access to information held by the Commission
under rule 15 of the Commission Rules once a complaint against them has been referred,
these comments would be obiter dicta (what is said by the way) . In this regard, the
doctrine of precedent decrees that only the ratio decidendi (rationale or basis of the
decision), and not obiter dicta , have binding effect .96 It would be contrary to the
doctrine of precedent to prefer any obiter dicta that were ostensibly made by
Unterhalter AJA in Continental Tyres over the clear ratio decidendi in Group Five and
by the Supreme Court of Appeal in Arcelormittal that a litigant may invoke rule 15 of
the Commission Rules .97 The judgment penned by my colleagues Jafta J and
Khampepe J (second judgment) finds that Arcelormittal is not authority for the
proposition that the Commission’s rules apply to proceedings before the Tribunal as
this issue appears to have been common cause between the parties in that matter. The
Commission in that matter, however, submitted that rule 15 finds no application once
litigation has commenced.98 In rejecting this submission, the Supreme Court of Appeal
correctly held that it would be absurd to prohibit a litigant from invoking rule 15 when
a member of the public would be entitled to make use of the rule.99
The Commission’s third ground of appeal is accordingly without merit.
Purpose and policy
Finally, the Commission submitted that Group Five undermines the role of the
Commission in investigating anti-competitive behaviour. The Commission argued that
the purpose of rule 15 and public policy considerations demand that rule 15 must not
96 See Turnbull-Jackson above n 39 at para 56; Camps Bay Ratepayers and Residents Association v Harrison
[2010] ZACC 19; 2011 (4) SA 42 (CC) ; 2011 (2) BCLR 121 (CC) at para 30; and R v Crause 1959 (1) SA 272
(A) at 281C-D.
97 Competition Commission v Arcelorm ittal South Africa Ltd [2013] ZASCA 84; 2013 (5) SA 538 (SCA)
(Arcelormittal).
98 Id at para 19.
99 Id at para 46.
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avail the respondents. The Commission invoked four policy bogeys in support of this
contention.
The first was that to allow the invocation of rule 15 would disrupt the
Commission’s investigative powers and the Tribunal’s ability to effectively adjudicate
a complaint referral. According to the Commission, the purpose of section 7 of PAIA
is to prevent the right of acce ss to information from negatively impacting on the law
governing discovery or compulsion of evidence in civil and criminal proceedings.
Section 7 ostensibly achieves this by prohibiting access after t he commencement of
litigation. It contends that the underlying rationale for this prohibition is to ensure that
“litigants make use of the remedies as to discovery in terms of the rules . . . and to avoid
the possibility that one litigant gets an unfair advantage over his adversary”.100
What the Commission’s argument ultimately boils down to is that a respondent,
upon receiving the record of investigation and before pleading, could tailor its answer
to the detriment of the Commission and the Tribunal. Assuming that a respondent’s
access to the record would all ow for tailoring, it is unclear how this tailoring would
legally prejudice the Commission. On the contrary, the record would allow the
respondent to better understand the material facts on which the complaint referral is
based. This enables a respondent to respond fully to the complaint and assists in the
fair adjudication of the complaint. This is particularly significant given that the
Tribunal R ules require that an answer “must be in affidavit form” with detailed
requirements for specificity. In par ticular, respondents are required to “qualify or
explain” any denial “if necessary in the circumstances”. 101 This is a level of exaction,
plus oath-taking, that is generally not present in other forms of pleading. It accentuates
the importance of and need for access to the investigation record.
100 CCII Systems (Pty) Ltd v Fakie (Open Democracy Advice Centre as Amicus Curiae) 2003 (2) SA 325 (T) at
para 21.
101 See [19].
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To the extent that the Commission is “losing out” on respondents implicating
themselves in illicit anti-competitive conduct, it is unclear why this justifies a denial of
access to the record under rule 15 (which in turn promotes a litigant’s right under
section 32 of the Constitution). The Commission has no right to “catch out”
respondents in their answer , or to procedures which prompt respondents to implicate
themselves. On the other hand, respondents have a const itutional right of access to
information held by public bodies.
Under the scheme of the Competition Act, the Commission first initiates a
complaint.102 It then investigates the complaint, invoking its powers under Part B of
Chapter 5 where necessary.103 Once the investigation is concluded , the Commission
decides whether to refer the complaint to the Tribunal for adjudication. 104 Initiation,
investigation and referral are thus three jurisdictionally interdependent steps.105 At the
stage of investigation, the Co mmission has wide investigatory powers .106 The
Commission’s powers have been likened by this Court and the Supreme Court of
Appeal to those exercised by police in criminal investigations. 107 In terms of the
Competition Act, the Commission may during its investigation:
(a) search and seize documents, with or even without warrant (sections 46 to
49 of the Competition Act); and
(b) issue summons requiring a person to answer questions under oath.108
102 Section 49B of the Competition Act.
103 Part B of Chapter 5 of the Competition Act provides for coercive powers of search and seizure (sections 47 to
49) and of subpoena (section 49A).
104 Section 50 read with section 51 of the Competition Act.
105 Woodlands Dairy (Pty) Ltd v Competition Commission [2010] ZASCA 104; 2010 (6) SA 108 (SCA) at para 43.
106 Id at para 20, where they are described as “far-reaching invasive powers”.
107 Id at para 10 and Senwes above n 4 at para 65.
108 Section 49A of the Competition Act.
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39
In addition, the Competition Act imposes crim inal liability on any person who
fails to appear when summoned to do so by the Commission,109 fails to answer fully or
truthfully110 or fails to comply with the Competition Act in certain respects.111
The Commission clearly has powerful statutory tools at its disposal for its
investigations. The Competition Act envisages the use of these powers to gather
evidence before the Commission refers a complaint to the Tribunal. There is no reason
why the Comm ission should be entitled to rely on an answer to sustain or bolster its
case against a respondent . If a referral to the Tribunal is premature, or premised on
insufficient evidence, then the Commission should bear the risk of losing its referral. It
should not rely on its r ules to mitigate that risk by prohibiting access to its record of
investigation. It should use its extensive powers to investigate and gather evidence
against a respondent. As the Competition Appeal Court held in Continental Tyres:
“The Commission is engaged upon adversarial litigation with respondents in
proceedings of great consequence for the public and the respondents. Such litigation
must be fair. One aspect of fairness is disclosure. The Commission is given large
powers to conduct investigations. The yield of that investigation must be disclosed to
respondents, unless it is privileged, and subjected to an appropriate confidentiality
regime.”112
If the Commission is hamstrung in the effective and successful prosecution of
cartels (no conclusive evidence was placed before this Court in this regard), then the
solution may be found in legislative amendment to alter the definition of cartel activity,
enhance the Commission’s capacity or give the Commission more powers. The solution
cannot be to interpret the Commission Rules to co -opt the Tribunal as the appropriate
forum to catch out a litigant. The Tribunal is not there to assist the Commission in the
109 Section 71 of the Competition Act.
110 Section 72 of the Competition Act.
111 Section 73 of the Competition Act.
112 Continental Tyres above n 71 at para 31.
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investigation of anti -competitive behaviour, but to fairly adjudicate on the c omplaint
referral.113 To amend the purpose of the Tribunal to become a forum for the enticement
of a litigant to self-incriminate would not only blur the lines between adjudication and
investigation (which the Competition Act envisages as distinct), but wou ld also
undermine the Tribunal’s independence and impartiality.
The Commission also argued that access by the respondents to the record before
discovery could jeopardise its investigations of suspected cartel members who are not
(yet) joined in the compla int referral because the Commission may not yet have
sufficient evidence against them. In this regard, the Commission emphasised the
secrecy which is inherent in cartel activity and the resultant difficulty faced by it in
prosecuting cartel members. It a lso cited the following statement by the Competition
Tribunal:
“The attitude in other jurisdictions towards hard core cartels or conduct of the type
contemplated in [section 4(1)(b)(i) and (ii) of the Competition Act] has been one of
utmost repugnance. Cartels are viewed as the most abhorrent anti -trust practices and
have been described as a cancer to competition and harmful to consumers and economic
development:
‘Fighting cartels is one of the most important areas of activity of any
competition authority . . . . Of all restrictions of competition, cartels
contradict most radically the principle of a market economy based on
competition.’
While fighting cartels is viewed as one of the most important areas of activity for
competition agencies globally, the ability of agencies to effectively do so is often
hampered by the difficulties pertaining to the gathering of direct evidence. This is not
surprising given the nature of cartel activity. Competitors engaging in co -ordination
rather than competition tend to conduct themselves in secretive and stealthy ways;
meeting behind closed doors, ensuring that there is no paper trail, agreeing on signals
which they can send to each other and at times cloaking their activities in the guise of
113 See section 27 of the Competition Act.
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41
normal commercial practic es thereby seeking to mislead and divert anti -trust
agencies.”114
There is no doubt that cartels engage in egregious and pernicious forms of anti -
competitive behaviour, that they are difficult to prosecute and the Commission must be
properly empowered to deal with them. But it is unclear how preventing the
respondents from accessing the record under rule 15 w ould in any way prevent third
parties who are members of a cartel, but against whom there is no complaint referral in
the Tribunal, from accessing the information sought by the respondents. O n the
Commission’s own argument , third parties (including potent ial suspects in cartel
activity) can be granted access to the record s under rule 15 because they are not
respondents in the complaint referral . Instead, they would be regarded as members of
the public. On the Commission’s approach, the prohibition against accessing its record
of investigation under rule 15 applies only to a respondent . In any event, the Tribunal
Rules require the Commission to plead the material facts regarding the complaint
referral in its supporting affidavit. 115 In this sense, the Comm ission’s pleadings will
always enable respondents accused of cartel activity to “tailor” their defence to the
specific pleaded activity. The “tailoring” which the Commission seeks to avoid could
then occur whenever a complaint is referred. The Commission has failed to demonstrate
either that its prosecutions of cartels would be frustrated if access is allowed after
referral and before the close of pleadings, or that it would be more successful if access
is not allowed.
The interpretation of rule 15 advanced by the Commission yields absurd results:
all persons other than a respondent in referral proceedings would be entitled to obtain
the record of the Commission’s investigation. A n unidentified member of a cartel, a
journalist, a ratings analyst, an academic researcher, a potential intervening party, a
possible damages claimant or a witness could obtain the record, but not the party whose
rights are materially and potentially adversely affected by the referral. It would also
114 Competition Commission v Pioneer Foods (Pty) Ltd [2010] ZACT 9; [2010] JOL 25542 (CT) at paras 31-2.
115 Rule 17(2) of the Tribunal Rules.
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42
mean that a party like Standard Bank, which only learnt of the Commission’s
investigation when the complaint was referred to the Tribunal, could never exercise a
right of access to information under rule 15(1). The Commission’s interpretation of
rule 15 yields the absurd outcome that the public may access its record of investigation
but that this mechanism is unavailable to a respondent who, after the complaint has been
referred to the Tribunal, learns of the complaint and wishes to oppose the proceedings
in the Tribunal.
This outcome results in a Kafkaesque state of affairs. 116 The Commission can
accuse a firm of cartel behaviour, and when the firm asks : “Why?”, the Commission
responds: “No. You tell us why.” Generally, even in civil proceedings, the onus is on
an applicant to establish its claim. A respondent is not usually under a duty to make or
bolster an applicant’s case. No cogent reason has been advanced why firms accused of
cartel activity should be an exception.
At no point did the respondents claim unrestricted access to the record. The
Commission, both in its written and oral submissions, repeatedly mischaracterised the
respondents’ request for access as being for “the full evidence” against them, or “full
discovery”. The respondents seek access only to the record of the Commission’s
investigation under rule 15(1), and then only to the extent that it is not covered by the
restrictions on disclosure provided for under rule 14 (which are more extensive than and
inclusive of legal privilege). They do not seek “full evidence” or “full discovery”. On
the contrary, the respondents demand exactly what the Commission claimed to be
offering: restricted, controlled access to the record. This is precisely what is envisaged
in rule 14, which empowers the Commission to restrict access to avoid the ills identified
by the Commission. It is unclear how this restricted access could cause any legally
recognised harm to the Commission.
116 This is with reference to The Trial, the famous 1925 novel by Franz Kafka i n which a man is arrested by an
unknown authority for a crime that is never revealed to him.
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43
It is also unclear whether the Commission is arguing for the restriction of access
to information to be limited to alleged cartel behaviour. In relation to access to
information, the Commission Rules do not expressly distinguish between different
forms of anti -competitive conduct or complaint referrals. For this Court to make a
finding that only litigants who are alleged to have engaged in cartel activity cannot rely
on rule 15 would be tantamount to reading in an exception to the Commission Rules.
There is merit in Standard Bank’s submission that the Commission’s argument
regarding the disruption that would be caused by access to the record after referral is
inconsistent with the position adopted by competition authorities in various foreign
jurisdictions. In the European Union, companies that r eceive Statement of Objections
(the equivalent of a complaint referral) are allowed to access the European
Commission’s file. 117 In the United Kingdom, generally at the same time as the
Statement of Objections is issued, the Competition and Markets Authority will also give
the respondent an opportunity to inspect the file. 118 The fact that certain foreign
jurisdictions grant access before the close of pleadings suggests that this approach is
workable.119
The second policy reason advanced by the Commission was that discovery is
rendered nugatory by the approach in Group Five . But, as Rogers AJA held in
Group Five, this is clearly not so.120 In discovery proceedings, rule 14 would not avail
the Commission, and so the content of the record under discovery could be totally
different to that of a rule 15 disclosure.121 The Commission would also need to invoke
discovery to gain access to the respondent’s documents as (until that stage) it would not
117 Article 17 of the European Commission (EC) Regulation No 802/2004. Alternative procedures aimed at
enhancing efficiency (such as negotiated disclosure and data room procedures) are used to alleviate the burden of
drawing up non-confidential versions of submissions.
118 Rule 6 of the United Kingdom Competition and Markets Authority’s Competition Act 1998 Rules.
119 This Court has repeatedly been guided by the methods adopted by foreign jurisdictions. See recently
S v Mlungwana [2018] ZACC 45; 2019 (1) SACR 429 (CC); 2019 (1) BCLR 88 (CC) at para 100.
120 Group Five above n 54 at paras 13-4.
121 Id at para 13.
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44
be entitled to access certain documents held by the respondent .122 The two processes
(rule 15 and discovery) are geared towards different aims (even where , in the
circumstances of a case, they may factually yield the production of the same record).
Discovery is aimed at securing documentation required for litigation , while rule 15
concerns a member of the public’s constitutional right to access documents held by a
public body. Allowing a respondent access by means of rule 15 does not necessarily
extinguish the purpose of discovery. Discovery is therefore not rendered nugatory by
the application of rule 15.
The third policy bogey raised by the Commission was delay. The Commission
argued that respondents will use rule 15 to subvert their obligations to plead within the
applicable time frames. This argument assumes that the lodging of an application to
access information from the Commission by a respondent via rule 15 relieves the
respondent of its duty to answer the complaint referral against them. There is, however,
no connection whatsoever between the obligation of a respondent to plead and the ir
right under rule 15 to access to information held by the Commission.
As explained in relation to CCT 158/18, there have been considerable delays in
finalising the adjudication of the Forex Referral and Standard Bank had, by the date of
hearing, not been required to file an answer to the complaint. I agree with the second
judgment that the delays in the proceedings in the Tribunal are unfortunate. However,
it is clear that these delays result entirely from the exception proceedings brought before
the Tribunal. In terms of the Uniform Rules applicable to exceptions in the High Court,
it is not necessary to deliver any further pleadings if an exception is taken. 123 In
addition, the Tribunal made plain in a direction that it did not expect any of the
respondents to the Forex Referral (including Standard Bank) to plead until such time as
all of the exceptions had been disposed of. It is clear that the delay in finalising the
adjudication of the Forex Referral is wholly independent of Standard Bank’s separate
122 This is with exception to any documents that the Commission may have had access to during its investigation
stage.
123 Rule 23(4) of the Uniform Rules.
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45
application under rule 15 of the Commission Rules to be granted access to the
Commission’s record of investigation.
Where a respondent does plead late, or refuses to plead at all, the Commission is
empowered to take appropriate steps under the Tribunal Rules. 124 For example, the
Commission can apply to bar a respondent from answering.125
Finally, the Commission submitted that a balanced approach would require the
respondents to prove that they need the record to plea d as envisaged in rule 35(14) of
the Uniform Rules. There is, however, no reason why the potential availability of this
rule to a respondent sh ould detract from the right given to respondents under rule 15.
In any event, placing the onus on a private party to justify access to a record held by a
public body runs roughshod over the right in section 32 of the Constitution. This Court
held in Helen Suzman that section 32 of the Constitution means that a person seeking
access to information held by the State need not give an explanation as to why the
information is required.126 The interpretive approach advanced by the Commission falls
foul of this Court’s obligation to interpret legislation and rules in a manner which best
promotes the spirit, purport and object of the Bill of Rights.
Conclusion on the rule 15 appeal
Transparency and accountability are key constitutional values which govern the
conduct of an administrative body like the Commission. 127 The Commission is no
124 Rule 54 of the Tribunal Rules provides:
“(1) If, in the course of proceedings, a person is uncertain as to the practice and procedure
to be followed, the member of the Tribunal presiding over a matter—
(a) may give directions on how to proceed; and
(b) for that purpose, if a question arises as to the practice or procedure to be
followed in cases not provided for by these Rules, the member may have
regard to the High Court Rules.”
125 Rule 26 of the Uniform Rules.
126 Helen Suzman above n 15 at para 44.
127 Section 195 of the Constitution.
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46
ordinary litigant. It is a regulator and ought to act responsibly, conscious of its role as
a crucial organ of S tate. The Competition Appeal Court has expressed similar
sentiments:
“Laudable as the work of the Commission is, it is also subject to the rubrics as well as
the principles of accountability and transparency, and I say this conscious of the
Commission’s work and its efforts in ensuring that transgressors of the Act are held to
account.”128
The right to access information held by the State established by section 32 of the
Constitution is broadly and generously framed – “everyone” may acces s “any
information held by the S tate.” With this overarching reason in mind, as we ll as the
reasons discussed, the Commission’s arguments for this Court overturning Group Five
do not withstand scrutiny.
This conclusion may appear to create an inexplicable discrepancy. Why should
a litigant before the High Court be precluded from relyi ng on PAIA while a litigant
before the Tribunal is entitled to rely on rule 15 of the Commission Rules?
The answer is simple: Standard Bank and the Waco respondents are not relying
on PAIA and have never argued that PAIA should apply before the Tribunal. It is the
Commission who argues that PAIA “applies” to prevent access to information.
Standard Bank and the Waco respondents are relying on rule 15 – not PAIA – to access
the record of investigation. They invoke section 32 of the Constitution indirectly to
guide the interpretation of rule 15 (in a manner similar to that adopted in
PFE International).129 Rules 14 and 15 thus need to be interpreted to ascertain whether
they allow a litigant in proceedings before the Tribunal to obtain access to the
Commission’s record after referral but before pleadings close. Textual, purposive and
constitutional reasons why rule 15 does allow access have already been addressed.
128 Rule 53 judgment above n 45 at para 31.
129 PFE International above n 18 at para 25.
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47
On a deeper level, the apparent contradiction may be that if access to a record is
not allowed in the High Court before pleadings close, then access similarly should not
be allowed before the Tribunal. The problem with this premise is that the Minister, in
consultation with the Competition Commissioner, decided to promulgate rules 14 an d
15. The lawfulness of this decision has not been challenged in this matter. The rules
promulgated by the Minister could quite easily make procedure before the Tribunal
different from that of the High Court. It is the Minister’s prerogative to make pol icy
decisions to this effect. 130 It is not for this Court to usurp the role of the Minister and
the Commissioner in this regard, absent a constitutional challenge or review of these
rules. As explained by this Court in the First Certification judgment:
“The principle of separation of powers, on the one hand, recognises the functional
independence of branches of government. On the other hand, the principle of checks
and balances focuses on the desirability of ensuring that the constitutional order, as a
totality, prevents the branches of government from usurping power from one
another.”131
In Economic Freedom Fighters, this Court further cautioned that:
“The Judiciary is but one of the three branches of government. It does not have
unlimited powers and must always be sensitive to the need to refrain from undue
interference with the functional independence of other branches of government.”132
This Court cannot interfere with the Minister’s decision merely because a litigant
before the Tribunal may be in a different position regarding access to information before
the close of pleadings as opposed to a litigant before the High Court. The mere fact that
access to information is governed in the High Court in a particular way does not mean
130 As previously explained at [5] and [18] , the Minister may promulgate regulations for matters relating to the
functions of the Commission under section 21(4) of the Competition Act.
131 Certification of the Constitution of the Republic of South Africa, 1996 [1996] ZACC 26; 1996 (4) SA 744 (CC);
1996 (10) BCLR 1253 (CC) (First Certification judgment) at para 109.
132 Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the
National Assembly [2016] ZACC 11; 2016 (3) SA 580 (CC); 2016 (5) BCLR 618 (CC) at para 92.
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48
that the Minister and Commissioner are bound to regulate access to information before
the Tribunal in the same fashion.
Without a constitutional challenge or review, the only question before us is how
access to information is regulated before the Tribunal. As I have demonstrated, rule 15,
properly interpreted, allows a litigant, as a member of the public, to access information
held by the Commission post-referral and before pleadings close.
The Commission argued i n the alternative, and only in its written submissions,
that even if Group Five was considered to be correct, it was incorrectly applied by the
Competition Appeal Court. This is, so the argument went, because the Competition
Appeal Court unduly narrowed the factors which the Tribunal can have regard to when
determining a reasonable period for the production of the record. For instance , the
Tribunal can have regard to the reason why the information is sought. According to
this argument, the Tribunal can order disclosure only after the pleadings have closed in
order to prevent disruption to proceedings.
I agree with the second judgment that this ground of appeal falls within our
jurisdiction because it raises an arguable point of law. It requires this Court to engage
in an interpretive exercise concerning what constitutes a “reasonable” period in relation
to the time within which the Commission is required to produce its record of
investigation.133 However, I differ from the conclusion reached in the second judgment
that t he identity of the requestor and t he purpose of the request are relevant to the
determination of a reasonable period. Group Five made it clear that the right of access
in rule 15(1) is a public access right and not a right given specifically to litigants. 134 It
held:
“From this it follows that the determination of a reasonable period within which the
Commissioner must give access is not affected by whether or not the requestor is a
133 Second judgment at [189].
134 Group Five above n 54 at para 11.
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49
litigant. Put differently, Group Five’s entitlement to the record within a reasonable
period of time cannot be negatively affected by its status as a respondent. The
determination of a reasonable period is only concerned, in my view, with the time the
Commission would reasonably require to prepare its record and identify what parts are
restricted. That may vary from case to case but would not be affected by the identity
of the requestor.”135
The Competition Appeal Court applied this test correctly. It refused to factor in
the close of pleadings when determining a “reasonable time” for disclosure as envisaged
in rule 15. It correctly determined reasonableness by having regard to the length of time
that the Commission might need to prepare its record.
I would accordingly dismiss the appeals in CCT 158/18 and CCT 218/18.
Review appeal
Standard Bank launched its review application in the Competition Appeal Court
while its rule 15 challenge was pending. The Commission alleges that Standard Bank
sought access to essentially the same documents and evidence as it sought in its rule 15
application. The Commission counter-applied for an order that the Competition Appeal
Court lacked jurisdiction to hear the review; alternatively, that the review (and the
production of a rule 53 record) be stayed either permanently or pending the finalisation
of Standard Bank’s rule 15 challenge and Standard Bank’s exception before the
Tribunal.
Standard Bank sought directions from the Judge President in terms of
rule 34(2)(a) of the Competition Appeal Court Rules. The Judge President designated
Boqwana JA to preside as a single judge under section 38(2A) of the Competition Act.
Boqwana JA directed that the Commission must file the record of its decision to
refer Standard Bank to the Tribu nal. With reference to a long list of authorities ,
135 Id.
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50
Boqwana JA concluded that compliance with rule 53 is a procedural matter . She
accordingly concluded that that she was empowered, sitting as a single judge, to issue
a “procedural direction” envisaged in section 38(2A)(e) compelling the production of
the rule 53 record. She held that “the filing of the record is a procedural step which is
there to facilitate the review” and accordingly that the “dispatching of the record is an
issue within the contemplation of section 38(2A)(e) of the Competition Act”.136
The Competition Appeal Court made this order while leaving open the issue of
whether it had jurisdiction as a court of first instance to hear the review. Boqwana JA
rejected the Commission’s contention that the Competition Appeal Court was precluded
from directing that the record be produced because the Commission had challenged its
jurisdiction.137 In doing so , she referred to Computicket,138 in which the
Supreme Court of Appeal held, in the face of a similar refusal by the Commission to
produce the record , that in terms of rule 53 , “the obligation to produce the record
automatically follows upon the launch of the application, however ill -founded the
application may later turn out to be”.139
Boqwana JA further held that, having regard to the distinction between “pure
competition” reviews and legality reviews , the rule 53 record may be relevant to the
determination of the Competition Appeal Court’s jurisdiction to hear the review as a
court of first instance.140
136 Rule 53 judgment above n 45 at para 16. The cases cited by Boqwana JA include Democratic Alliance v Acting
National Director of Public Prosecutions [2012] ZASCA 15; 2012 (3) SA 486 (SCA) at para 37 where the Court
held:
“[w]ithout the record a court cannot perform its constitutionally entrenched review function,
with the result that a litigant ’s rights in terms of section 34 of the Constitution to hav e a
justiciable dispute decided in a fair public hearing before a court with all the issues being
ventilated, would be infringed”.
137 Rule 53 judgment above n 45 at paras 25ff.
138 Competition Commission v Computicket (Pty) Ltd [2014] ZASCA 185; 2014 JDR 2507 (SCA) (Computicket).
139 Id at para 20.
140 Rule 53 judgment above n 45 at para 29.
THERON J
51
In my view, it would be inappropriate for this Court to adjudicate on the
Competition Appeal Court’s jurisdiction in relation to Standard Bank’s review
application. This is because the Competition Appeal Court is ye t to pronounce on
whether it has jurisdiction in the review application as a court of first instance. There
is simply no reason why this Court, as a court of first and last instance, should pre-empt
the Competition Appeal Court ’s finding regarding its jur isdiction. The Competition
Appeal Court is a specialist Court with a status similar to that of a High Court.141 It
accordingly enjoys the inherent power to regulate its own processes. 142 It is also most
familiar with its processes and jurisdiction. It would therefore be inappropriate for this
Court to make a pronouncement on the Competition Appeal Court’s jurisdiction before
the Competition Appeal Court has first applied its independent mind to the question.143
The question then is whether Boqwana JA could have ordered the production of
the record before deciding whether the Competition Appeal Court had jurisdiction to
hear the review application. The answer must be no. Although the information
contained in the record might later be relevant to determining jurisdiction once Standard
Bank has supplemented its founding papers, Boqwana JA should have first decided the
question of jurisdiction on the founding papers before her. Her failure to do so could
result in the order which she issued being a nullity should the Competition Appeal Court
find that it is incompetent to hear the review application as a court of first instance. This
would have irrevocable implications in the context of this case. Compliance with the
Boqwana JA order would have required the Commission to disclose the record of its
141 Section 36(1) of the Competition Act provides that the Competition Appeal Court is a c ourt contemplated in
section 166(e) of the Constitution with a status similar to that of a High Court.
142 This Court has held that the Labour Court and the Land Claims Court both enjoy the inherent power to protect
and regulate their own process, and to develop the common law . See Mwelase v Director -General for the
Department of Rural Development and Land Reform [2019] ZACC 30; 2019 (6) SA 597 (CC); 2019 (11) BCLR
1358 (CC) at para 66 and Public Servants Association on behalf of Ubogu v Department of Health, Gauteng;
Head of the Department of Health, Gauteng v Public Servants Association on behalf of Ubogu [2017] ZACC 45;
2018 (2) SA 365 (CC); 2018 (2) BCLR 184 (CC) at para 32. The same logic would apply to the
Competition Appeal Court, which is similarly a specialist court.
143 See Yara above n 52 and Dudley above n 56.
THERON J
52
investigation, giving Standard Bank the information which it sought . No subsequent
court order could have changed that outcome.
Boqwana JA was correct to find that the rule 53 record may be relevant to
jurisdiction, since the test for assessing the jurisdiction of the Competition Appeal Court
in a review application is connected to the grounds of review. 144 This does not,
however, imply that jurisdiction should not be established up front on the basis of what
is pleaded in the founding papers. The court chosen by an applicant in a review
application must be able to assert its jurisdiction on the basis of the founding papers.145
Where no facts are alleged in the founding papers upon which jurisdiction could be
founded, the applicant is not entitled to the production of the record in the hope that it
will help clothe the court with the necessary jurisdiction. Standard Bank was required
to first establish jurisdiction in its founding papers before the Competition Appeal Court
could direct the production of a rule 53 record. As mentioned, the question of
jurisdiction has not yet been adjudi cated by the Competition Appeal Court.
Boqwana JA should not have directed that the rule 53 record be produced without first
deciding whether the Competition Appeal Court was competent to hear the review
application as a court of first instance.
This finding is entirely consistent with what the Supreme Court of Appeal and
this Court have said about the importance of the rule 53 r ecord and its availability to
litigants. This is because a distinction must be made between the jurisdiction of the
forum to hear the review application and the merits of the review application. If a
review application is launched in a forum that enjoys jurisdiction, then a party is entitled
to the record even if their grounds of review are meritless. As the
144 In TWK Agricult ure Limited v Competition Commission [2007] ZACAC 3 ; [2007] JOL 20764 (CAC) and
Johnnic Holdings Limited v Competition Tribunal in re: Mercanto (Pty) Ltd v Johnnic Holdings Ltd [2008]
ZACAC 2, the Competition Appeal Court held that a purely competition law matter cannot be directly reviewed
to the Competition Appeal Court, whereas a constitutional matter can. The correctness of these decisions was not
before us.
145 As this Court has held, jurisdiction must be assessed from the pleadings. See Gcaba v Minister for Safety and
Security [2009] ZACC 26; 2010 (1) SA 238 (CC); 2010 (1) BCLR 35 (CC) at para 75.
THERON J
53
Supreme Court of Appeal put it, “the obligation to produce the record automatically
follows upon the launch of the application, however ill -founded that application may
later turn out to be ”.146 This is because, a s recognised by the majority decision in
Helen Suzman, rule 53 envisages the grounds of review changing after the record has
been furnished.147 The record is essential to a party’s ability to make out a case for
review. It is for this reason that a prima facie case on the merits need not be made out
prior to the filing of record.
I accept that there are good reasons for the obligation to produce the record
following automat ically upon the launching of a review application. Delaying the
production of the record is inimical to the exercise of the courts’ constitutionally
mandated review function. A lengthy del ay may impede the court s’ ability to assess
the lawfulness, reasonableness and procedural fairness of the decision in question and
undermine the purpose of judicial review.148 One reason for this is that documents and
evidence, which should be included within the rule 53 record, may be lost if there is a
considerable delay in the production of the review record. 149 This does not, however,
imply that a court should order production of a rule 53 record without first determining
its competence to hear the review application.
I leave open the question whether a judge of the Competition Appeal Court may
order production of a rule 53 record sitting as a single judge. I do so because the
question of the Competition Appeal Court’s jurisdiction as a court of first instance in
review applications impacts upon a single judge’s competence under section 38(2A). It
146 Computicket above n 138 at para 20.
147 Helen Suzman above n 15 at para 26.
148 As stated by this Court in Khumalo v Member of the Executive Council for Education: KwaZulu Natal [2013]
ZACC 49; 2014 (5) SA 579 (CC); 2014 (3) BCLR 333 (CC) at para 48—
“In addition, it is important to understand that the passage of a considerable length of time may
weaken the ability of a court to assess an instance of unlawfulness on the facts. The clarity and
accuracy of decision -makers’ memories are bound to decline with time. Documents and
evidence may be lost, or destroyed when no longer required to be kept in archives. Thus the
very purpose of a court undertaking the review is potentially undermined where, at the cause of
a lengthy delay, its ability to evaluate fully an allegation of illegality is impaired.”
149 Id.
THERON J
54
is only if the Competition Appeal Court can be approached as a court of first instance
in respect of review proceedings that it would be in a position to direct the production
of the record. This is because only courts of first instance may order the production of
a review record in respect of review proceedings in that court. In other words, if the
Competition Appeal Court does not have the jurisdiction to be the court of first instance,
then a single judge of the Competition Appeal Court would not be able to direct the
production of the record, because the record would have been produced in the review
before the Tribunal. A finding by this Court that a single judge of the
Competition Appeal Court has the competence to direct the production of a rule 53
record would presuppose that th e Competition Appeal Court can be approached as a
court of first instance for that review. It would be inappropriate for this Court to make
a pronouncement in this regard, as any finding may impact directly on the question of
the jurisdiction of the Competition Appeal Court.
In my view it follows that the Commis sion should succeed in its appe al in
CCT 179/18. For the reasons mentioned, this Court shou ld not pre -empt the
Competition Appeal Court’s decision on its jurisdiction, and it would be in the interests
of justice to remit the matter to the Judge President of the Competition Appeal Court.
Order
I would have made the following order:
In CCT 158/18:
1. Leave to appeal is granted.
2. The appeal is dismissed.
3. The applicant is ordered to pay the costs of the respondent in this Court.
In CCT 179/18:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Competition Appeal Court is set aside.
THERON J / JAFTA J AND KHAMPEPE J
55
4. The matter is remitted to the Judge President of the Competition Appeal
Court.
5. There is no order as to costs in this Court and in the Competition Appeal
Court.
In CCT 218/18:
1. Leave to appeal is granted.
2. The appeal is dismissed.
3. The applicant is ordered to pay the costs of the respondents in this Court.
JAFTA J and KHAMPEPE J (Ledwaba AJ, Mhlantla J and Nicholls AJ concurring)
Introduction
We have had the benefit of reading the judgment of our colleague, Theron J (first
judgment). We agree that the appeal in the review matter should succeed. With regard
to the claim for access to the Commission’s record of investigation based on rule 15 of
the Commission Rules, we take a view dissimilar to the one expressed in the first
judgment. In our opinion, this appeal too should succeed.
The facts and litigation history of both cases are common cause and we gratefully
adopt the first judgment’s detailed account thereof.
Before we set out the reasons for our conclusion, it is necessary to clear the air
and state what this case is about. It is not about whether Standard Bank and the
Waco respondents are legally ent itled to have access to the Commission’s record of
investigation. That Standard Bank and the Waco respondents have this entitlement
emerges from a number of legislative instruments, which give effect to section 34 of
JAFTA J and KHAMPEPE J
56
the Constitution. 150 This provision confers the right of access to courts and other
independent and impartial tribunals. The Tribunal is a body envisaged in the provision
and the same provision also bestows on everyone the right to a fair hearing. The content
of this right includes being entitled to the resolution of a dispute before a court or
tribunal in a hearing that is fair to all parties concerned. The fairness required extends
to all procedural steps preceding the hearing. Therefore, access to information in
preparation for the hearing is a component of the right to fairness.
However, in the context of hearings, access to information of that nature is
regulated by the rules of courts or tribunals. Consequently, recourse must be had to
relevant rules in determining whether a litigant is entitled to the disclosure it seeks.
Therefore, in our opinion, the issue that arises here is a narrow one. It is whether
Standard Bank and the Waco respondents are entitled to the disclosure claimed under
rule 15 of the Commission Rules. The answer to this question requires us to determine
first whether rule 15, on which Standard Bank and the Waco respondents rely, regulates
disclosure of information relevant to complaints pending before the Tribunal.
It must further be underscored that the complaint and, by extension, the litigation
procedure employed by the competition authorities, have been subjected to protracted
legal challenges. Recognising this, the Competition Appeal Court in Senwes likened
the acts of attempting to avoid and evade responsibility to the “Stalingrad” method of
litigation.151 This was further echoed by the Supreme Court of Appeal in Woodlands
Dairy, where it stated that “a veritable forest of interlocutory paper is generated in order
to prevent cartel disputes from being determined on their merits”.152 A legion of cases
is not adjudicated on the merits due to these prolonged procedural challenges. The
prolonged challenges are made possible due to the extensive resources often available
150 Section 34 of the Constitution reads:
“Everyone has t he right to have any dispute that can be resolved by the application of law
decided in a fair public hearing before a court or, where appropriate, another independent and
impartial tribunal or forum.”
151 Senwes above n 4 at para 2.
152 Woodlands Dairy (Pty) Ltd v Competition Commission (88/CAC/MAR09) at para 8.
JAFTA J and KHAMPEPE J
57
to respondents in compet ition matters and the secretive, at times almost untraceable,
nature of the prohibited practices that the Competition Act aims to regulate. These
considerations challenge the notion that the Commission is an omnipotent state organ
that enjoys unfettered p owers and attacks defenceless and resource -constrained
individuals. The courts have to be alive to the reality that the Commission is engrossed
in complex legal and economic challenges against well-resourced, powerful entities.
It is against this backdro p that if the Commission is to fulfil the sundry of
objectives and purposes that are envisaged by the Competition Act, the rules and
procedures governing the litigation process must be read in a way that permits the
expeditious yet effective enforcement of substantive competition rules. It is trite that
this cannot be achieved to the detriment of the rights of the respondents. Therefore,
there is a delicate balance that has to be struck between the rights of the respondents
and proceedings being handled expeditiously.
Rule 15 Appeal
Tribunal Rules
Once a complaint is delivered to the Tribunal’s offices, its rules are activated.
The party that has filed the complaint is required to serve a copy on the respondents and
the Commission, if the complaint was n ot lodged by the Commission. 153 This service
153 Rule 14 of the Tribunal Rules provides:
“Initiating complaint proceedings
(1) A Complaint Referral may be filed—
(a) by the Commission, in terms of section 50(1) or 50(2)(a), in Form
CT 1(1);
(b) by a complainant, in terms of section 51(1), in Form CT1(2) within
20 business days after the Commission has issued, or has been
deemed to have issued, a Notice of non -referral to that complainant;
or
(c) by any party to an action in a civil court that has been referred to the
Tribunal in terms of section 65(2), in Form CT 1(3).
(2) If, in respect of a particular matter, more than one person files a Complaint
Referral in t erms of sub -rule (1), the registrar must combine those referrals
under a common case number.
JAFTA J and KHAMPEPE J
58
must be done within three business days from the date of lodging the complaint.
Rule 15 of the Tribunal Rules prescribes the form that must be followed when filing a
complaint. A complaint must be supported by an affidavit, concisely setting out the
grounds of the complaint and the material facts supporting the complaint. This affidavit
must also set out points of law on which the party that lodged the complaint relies.154
It is apparent from the details required that the complaint must contain sufficient
information to enable respondents to answer and oppose the complaint, if they so wish.
The level of detail demanded is equivalent to the one prescribed for pleadings initiating
proceedings in a court of law.
Should the complaint be insufficiently detailed, a party can raise an exception
before the Tribunal alleging that the complaint or referral contains a deficiency in its
details and fails to conform to the requirements in rule 15 of the Tribunal Rules. The
excipient may then demand further particulars in order to remedy the deficiency.155
(3) The person who files a Complaint Referral must serve a copy of it within 3
business days after filing on—
(a) The respondent;
(b) The Commission, if the Commission did not file the Referral; and
(c) On each other person who has previously filed a Complaint Referral
in that matter.”
154 Rule 15 of the Tribunal Rules provides:
“Form of Complaint Referral
(1) A complaint proceeding may be initiated only by filing a Complaint Referral
in Form CT 1(1), CT 1(2) or CT 1(3), as required by Rule 14.
(2) Subject to Rule 24 (1), a Complaint Referral must be supported by an affidavit
setting out in numbered paragraphs—
(a) a concise statement of the grounds of the complaint; and
(b) the material facts or the points of law relevant to the complaint and
relied on by the Commission or complainant, as the case may be.
(3) A Complaint Referral may allege alternative prohibited practices based on the
same facts.”
155 See generally Ags Frasers International (Pty) Ltd v Competition Commission; Competition Commission v Ags
Frasers International (Pty) Ltd; In re: Competition Commission v Ags Frasers International (Pty) Ltd [2016]
ZACT 25 and Pickfords Removals SA (Pty) Ltd v Competition Commission [2018] 1 CPLR 390 (CT).
JAFTA J and KHAMPEPE J
59
Parties who wish to oppose the complaint must file their answer within 20
business days and serve it on the party that initiated the process by lodging the
complaint. The answer must also be in the form of an affidavit, which must concisely
set out the grounds upon which the complaint is opposed and the material facts and
points of law on which the respondent relies. The respondent must respond to
allegations in the complaint and indicate if they are denied. A failure to deny may result
in an allegation being deemed to have been admitted.156
Within 15 business days from the date of service of an answer, a reply in the
form of an affidavit must be filed. The reply must address facts and points of law raised
in the answer. If no reply is filed, the allegations in the answer are deemed to have been
denied.157
Within 20 business days from the date on which the reply was filed, a member
of the Tribunal, designated by the Cha irperson of the Tribunal, may convene a
pre-hearing conference on a date determined by the Tribunal, after consulting the
parties.158 A host of issues are considered at this conference, including but not limited
to, the production and discovery of documents whether formal or informal. Rule 22
empowers the convenor of a pre -hearing conference to make rulings and orders on a
range of issues, including the terms under which parties to a hearing may have access
to information.
Unless ruled otherwise, a hearing is conducted in terms of rulings and orders
made at a pre-hearing conference. Of importance for present purposes are rulings and
orders made in relation to the production and discovery of documents as well as terms
under which parties may have access to information.
156 See rule 16 of the Tribunal Rules.
157 See rule 17 of the Tribunal Rules.
158 See rule 21 of the Tribunal Rules.
JAFTA J and KHAMPEPE J
60
It is apparent from this scheme that the rules of the Tribunal do not envisage
production and discovery of documents before a pre -hearing conference is held. This
will be discussed in further detail later. Before the pre -hearing stage, acce ss to
information is regulated by rule 13. However, this rule permits access to records of the
Tribunal and not documents in possession of litigants. If a document referred to in a
complaint does not form part of the record submitted to the Tribunal, acc ess to that
document may not be sought in terms of rule 13, which may be invoked by litigants and
non-litigants alike.
A careful reading of the Tribunal Rules suggests that the Commission Rules do
not apply to matters pending before the Tribunal, except w here they are specifically
incorporated into the Tribunal’s rules. For example, rule 31(7) of the Tribunal Rules
empowers the Tribunal to hear an appeal in terms of rule 30(3) of the Commission Rules
and grant certain specified orders.159
There is no lingu istic basis for concluding that the Commission Rules apply to
matters pending before the Tribunal, excluding the few that are incorporated by the
Tribunal Rules. Indeed, it would be remarkable to hold that rules of a lower body
govern proceedings in the a ppellate body where that appellate body has its own rules.
Appeals against decisions of the Commission lie to the Tribunal. 160 A list of those
appeals appears in rule 31 of the Tribunal Rules.
159 Rule 31(7) provides:
“Upon hearing an appeal in terms of Competition Commission Rule 30(3), the Tribunal may
make an order—
(a) Setting aside Form CC 13(2) entirely;
(b) Confirming any or all of the requirements set out in Form CC 13(2);
(c) Substituting other requirements for any of the requirements set out in Form
CC 13(2); or
(d) Combining any or all of the req uirements set out in Form CC 13(2) with
additional or substitute requirements.”
160 Section 10(8) of the Competition Act provides:
“The firm concerned, or any other person with a substantial financial interest affected by a
decision of the Competition Commis sion in terms of subsection (2), (4A) or (5), may appeal
that decision to the Competition Tribunal, in the prescribed manner.”
JAFTA J and KHAMPEPE J
61
However, the fact that Tribunal Rules are seemingly silent on discovery required
before the pre-hearing conference does not mean that disclosure may not be demanded.
As it appears below, a lacuna in the Tribunal Rules is filled by the Uniform Rules.
Relevant principles
A general principle is that where it is contem plated that rules of a lower body
would apply to proceedings in the appellate body, those rules must be specifically
incorporated in the rules of the appellate body. This principle was invoked in the Rules
of this Court. Rule 29 of the Rules of this Court incorporated certain specified rules of
the Uniform Rules into the Rules of this Court. This means that only those so
incorporated apply to proceedings in this Court. It can hardly be argued that all of the
Uniform Rules apply to proceedings in this Court. Nor can it be said that they apply to
appeals pending before the Supreme Court of Appeal. Moreover, in determining which
of those rules apply to proceedings in this Court, recourse is not had to their wording
but to the Rules of this Court.
In Chonco II, this Court affirmed that rule 42 of the Uniform Rules applies to
matters in this Court by reason of being incorporated by rule 29 of the Rules of this
Court.161 This Court stated:
“The dispute makes it necessary for the Court to remedy this. It has power to do so
under rule 29 of its Rules. This provides that, with such modifications as may be
necessary, rule 42 of the Rules of the High Court apply to proceedings in this Court.
rule 42 provides in relevant part that, in addition to any other powers it may have, ‘the
Court’ may, of its own accord or on application, rescind or vary ‘an order or judgment
in which there is an ambiguity, or a patent error or omission, but only to the extent of
such ambiguity, error or omission’. In view of the Constitution’s requirement that ‘at
least eight judges’ of this Court must hear a matter before it, and this Court’s practice
161 Minister for Justice and Constitutional Development v Chonco [2010] ZACC 9; 2010 JDR 0378 (CC) ; 2010
(7) BCLR 629 (CC) (Chonco II) at para 11.
JAFTA J and KHAMPEPE J
62
of sitting en banc, with all available judges, it is appropriate to read ‘the Court’ in this
Rule as referring to the quorate Court, as constituted from time to time.”162
Notably, rule 42 of the Uniform Rules does not apply to proceedings before the
Supreme Court of Appeal, despite the fact that in its text the rule uses language which
may be construed as covering all courts. The reason for its inapplicability is that the
rules of the Supreme Court of Appeal do not incorporate this rule.
High Court Rules
As mentioned, litigants before the Tribunal may seek disclosure of documents
even before a pre -hearing conference. Tribunal Rules express ly incorporate, with the
necessary adjustments, Uniform Rules. 163 The Competition Appeal Court has rightly
construed rule 55 as authorising the application of rules 35 and 38 of the Uniform
Rules.164
In Group Five, the Competition Appeal Court stated:
“In terms of rule 55(1)(b) of the Tribunal’s rules the Tribunal may have regard to the
High Court rules in respect of any matter not governed by the Tribunal’s rules. The
Tribunal could thus, upon application by a respondent in complaint proceedings, direct
the Commission to produce in accordance with High Court rule 35(12) a document
mentioned in the referral affidavit or direct the Commission in accordance with High
162 Id. See also Baphalane Ba Ramokoka Community v Mphela Family; In re Mphela Family v Haakdoornbult
Boerdery CC [2011] ZACC 15; 2011 JDR 0394 (CC); 2011 (9) BCLR 891 (CC) at para 26.
163 Rule 55(1) of the Tribunal Rules provides:
“Conduct of hearings
(1) If, in the course of proceedings, a person is uncertain as to the practice and
procedure to be followed, the member of the Tribunal presiding over a matter—
(a) may give directions on how to proceed; and
(b) for that purpose, if a question arises as to the practice or procedure
to be followed in cases not provided for by these Rules, the member
may have regard to the High Court Rules.”
164 See Glaxo Wellcome (Pty) Ltd v National Association of Pharmaceutical Wholesalers (15/CAC/FEB02) [2002]
ZACAC 3 and Arcelormittal South Africa Ltd v Competition Commission [2013] JOL 30105 (CAC) (Arcelormittal
CAC).
JAFTA J and KHAMPEPE J
63
Court rule 35(14) to make available for inspection specified documents reasonably
required by the respondent for purposes of filing its answering papers.”165
Rule 35(12) of the Uniform Rules entitles a party to proceedings to demand
discovery of documents referred to in the pleadings or affidavit of any party to litigation.
This demand may be made at any time before a hearing. But the rule only entitles a
party to discovery of documents specified in the affidavit or pleadings. In addition, rule
35(14) entitles a party to demand production of any documents or recordings in the
possession of the other party if the documents are relevant to a reasonably anticipated
issue in litigation. Once the document is produced, the requesting party is entitled to
make a copy of the document. The production of the document must be sought for the
purposes of pleading.
Here, Standard Bank and the Waco respondents sought discovery of the
Commission’s investigation record for purposes of formulating their answer, as
contemplated in rule 16 of the Tribunal Rules. Therefore, it was open to Standard Bank
and the Waco respondents to invoke rule 35 of the Uniform Rules to seek production of
the investigation record. They, however, chose to ground their claim on rule 15 of the
Commission Rules.
The question at the heart of this enquiry is whether rule 15 of the
Commission Rules may be applied to matters which are governed by the
Uniform Rules, as incorporated by the Tribunal Rules. In other words, may the
Commission Rules be applied contemporaneously with the Uniform Rules?
The Competition Appeal Court appears to have taken conflicting positions on
the issue. First, its decision in Group Five provides that rule 15 of the
Commission Rules applies to litigation pending before the Tribunal. In that matter and
following a referral by the Commission, Group Five, against which a complaint was
165 Group Five above n 54 at para 6.
JAFTA J and KHAMPEPE J
64
lodged, demanded production of the record of investigation in terms of rule 35(12) and
(14) of the Uniform Rules. The Commission failed to comply and Group Five also
failed to file its answer within 20 business days from the date of lodging the complaint.
When the Commission sought relief on default, Group Five instituted an application to
compel production of the record of investigation.
In opposing the application to compel, the Commission raised a legal point to
the effect that Group Five was not entitled to production of the record before the filing
of its answer. The Tribunal upheld this argument and dismissed Group Five’s
application. The Tribunal also ordered Group Five to file its answer within 20 business
days.
Dissatisfied, Group Five appealed to the Competition Appeal Court. It is not
clear from the judgment of that Court whether Group Five’s application to compel was
limited to the earlier demand that was based on rule 35 of the Uniform Rules or whether
that application included a claim based on rule 15 of the Commission Rules. But what
is apparent is that the Competition Appeal Court dealt with the appeal under both the
Uniform Rules and rule 15 of the Commission Rules. With regard to the Uniform Rules,
the Competition Appeal Court endorsed the conclusion that the demand did not comply
with rule 35, pertaining to specifying documents which are sought to be produced.
Regarding the reliance on rule 15 of the Commission Rules, the Tribunal had
concluded that t he rule should be read as entitling Group Five to access the relevant
record only after the close of pleadings. The Tribunal had reasoned that this meaning
would better harmonise the Commission Rules with the Tribunal Rules. The
Competition Appeal Court disagreed. Placing reliance mainly on the language of
rule 15, that Court pointed out that the rule serves a purpose different to the object of
the discovery rules of the Tribunal. The Court emphasised that whilst the
Tribunal Rules apply after the close of pleadings, rule 15 facilitates access to
information held by the Commission and the right of access is available to all persons,
JAFTA J and KHAMPEPE J
65
including litigants. The Court reasoned that the rule in its terms is not restricted to a
stage after the closing of pleadings.166
The Competition Appeal Court ordered the Commission to grant Group Five
access to portions of its record of investigation in terms of rule 15. But the disclosure
was limited to parts of the record which were not restricted information.
A careful reading of the judgment in Group Five reveals that the
Competition Appeal Court approached the matter on a footing similar to that followed
by the Tribunal. Both the Court and the Tribunal assumed, without deciding, that
rule 15 of the Commission Rules ap plied. They did not interrogate the basis of the
applicability of rule 15. We think that they erred in not first determining whether rule 15
applied.
In our view, the difficulty with the approach adopted in Group Five is that the
source of the authority to apply rule 15 to matters pending before the Tribunal is not
identified. As mentioned, the Tribunal Rules do not stipulate that rule 15 applies. Nor
does rule 15 itself say so. It is extraordinary to conclude that, without any provision
authorising its application, the Commission rule applies to complaints pending before
the Tribunal. This is compounded by the fact that the Commission appears as a litigant
before the Tribunal. It has not occurred in our law that rules of a litigant govern process
in which the same party participates as a litigant.
We do not share the view adopted by the Competition Appeal Court in
Group Five to the effect that rule 15 of the Commission Rules applies to a stage before
the close of pleadings and the discovery rules of the Tribunal apply once pleadings are
closed. While it is true that the Tribunal Rules themselves contemplate discovery to be
dealt with at a pre -hearing conference, this does not mean that under those rules
discovery may be done only after the exchange of pleadings. This is because the same
166 Group Five above n 54 at paras 12-5.
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Tribunal Rules incorporate the Uniform Rules. Indeed, in Group Five , the
Competition Appeal Court recognised that a claim based on rule 35 of the
Uniform Rules may be asserted even before the close of pleadings.167
It does not appear to us that had the Competition Appeal Court borne this in mind
it could have reached the same conclusion as to the stages at which the different rules
applied. We cannot appreciate the utility of rule 15 in litigation. As it was observed by
that Court in Group Five, rule 15 confers a general right of access to information. It
domesticates the constitutional right of access to information, given effect by PAIA.
In the Tribunal the equivalent of rule 15 is rule 13 of the Tribunal Rules. The
latter rule regulates access to and use of information in the Tribunal’s possession. Like
rule 15, it confers a general right on everybody on condition of paying a prescribed fee.
It is not designed to facilitate access to information for purposes of litigation and
consequently it is not suitable for claims of discovery. It cannot be applied where a
party seeks disclosure fo r purposes of taking steps in litigation. Likewise, rule 15 of
the Commission Rules was not designed to enable disclosure of information relating to
litigation in the Tribunal. We can think of no sound basis for holding that rule 13 of the
Tribunal Rules does not apply to litigation but rule 15 of the Commission Rules does.
It seems to us that since rule 15 of the Commission Rules and rule 13 of the
Tribunal Rules play a role similar to PAIA, the proper approach to them must be the
one similar to what is envisaged in section 7 of PAIA. This is apparent from the
judgment of the Competition Appeal Court in Group Five. In that matter it was stated:
“The policy considerations underlying section 7 of PAIA might justify the introduction
of a similar qualification in Commission rule 15. An exclusion, defined with reference
to the purpose for which a record is requested (i.e. for purposes of litigation which has
already commenced) rather than with reference to the identity of the requester, does
not give rise to the absurdity mentioned in Arcelormittal. Where litigation has
167 Group Five above n 54 at para 6.
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commenced and a record is requested by a close associate of the litigant, it may not be
difficult to show that it has been requested for purposes of the litigation, i.e. that the
requester is a front for the litigant. However, and as I have said, rule 15 does not
currently contain any such qualification.”168
We can conceive of no policy consideration warranting that those who are facing
complaints in the Tribunal should be accorded more righ ts of access to information in
addition to the rights they enjoy under the Uniform Rules. The Uniform Rules on
discovery apply to both situations with equal force. The principle is that once litigation
commences the rules relating to discovery take over.169 This takeover occurs regardless
of the fact that rule 15 and the Tribunal Rules do not contain a provision similar to
section 7 of PAIA. And those who seek discovery in both situations exercise the right
to a fair hearing and not the right guaranteed in PAIA or section 32 of the Constitution.
The first judgment holds that the Commission Rules regulate the functions of the
Commission, and that these rules do not cease to apply when the Commission becomes
a litigant. The first judgment goes further and makes the argument that to find that the
Commission Rules do not apply to proceedings before the Tribunal once a referral has
been made would lead to absurd consequences because “if the Commission Rules no
longer apply to it, or cannot be invoked by anyone else the moment the Commission is
a litigant before the Tribunal, then it is unclear where the Commission sources its
authority to act”.170
Respectfully, there is no absurdity created. The Commission is a multi -faceted
body and has various functions. It has two primary functions – one being prosecutorial
and the other being regulatory. On a reading of the Commission Rules, it appears that
these rules govern the rights and obligations of the Commission when it is performing
168 Group Five above n 54 at para 19.
169 See PFE International SCA above n 19 at para 9; National Director of Public Prosecutions v King [2010]
ZASCA 8; 2010 (2) SACR 146 (SCA) at para 39 and Unitas Hospital v Van Wyk [2006] ZASCA 34 ; 2006 (4)
SA 436 (SCA) at para 19.
170 First judgment at [71].
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its regulatory role. Thus, the Commission Rules will still find application and members
of the public may rely on these rules, especially rule 15, to exercise their right to access
to information, amongst other rights. However, once a referral is made, the
Tribunal Rules apply to both the Commission, as a litigant, and the other party against
whom the referral is made. Thus, the Tribunal Rules appear to find application when
the Commission is engaged in its prosecutorial functions as a litigator. Once a party
appeals a decision made by the Tribunal in a matter, the rules of the relevant appellate
court will find application and govern the Commission’s rights and obligations before
that court. Accordingly, the Commission Rules and Tribunal Rules govern different
aspects of the Commission and the Commission Rules will only find application before
the Tribunal in matters where those rules have been expressly incorporated as
mentioned before.
It must be buttressed that the incorporation of the Uniform Rules in the
Tribunal Rules ensures that litigants in competition law matters are not in a better or
worse position than litigants in ordinary civil or criminal matters. There is no provision
in either the Commission Rules or the Tribunal Rules that suggests parties who are
involved in competition law litigation should be treated differently.
Once a referral is made to the Tribunal, all rights and obligations pertaining to
the referral and its ensuing litigation are governed by the Tribunal Rules. This includes
the procedural steps to be complied with. This is not to find that the Commission Rules
are rendered nugatory after referral as the Commission will still perform its regulatory
functions and thus will still be governed by the Commission Rules, which the public
can rely on to enforce their rights.
Recently, the Competition Appeal Court in Continental Tyres 171 adopted a
position that was at variance with a view it had previously adopted in Group Five.
171 Continental Tyres above n 71.
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Continental Tyres
The first judgment mischaracterises the facts of Continental Tyres , which it
purports supports the Group Five decision. In order to properly understand the import
of Continental Tyres , the facts are crucial. In that case, the Commission accused
Continental Tyres and Goodyear of price fixing. Continental Tyres sought t he
production by the Commission of its record of investigation and Goodyear sought
discovery from the Commission. 172 The Commission disclosed the documents sought
except for three categories of documents, on the basis that those documents were subject
to li tigation privilege, alternatively, that the documents constituted restricted
information in terms of Commission rule 14. 173 The parties both challenged the
Commission’s decision before the Tribunal on both grounds. The Tribunal dismissed
both these parties’ applications.
On appeal to the Competition Appeal Court, the Commission invoked rule 15
read with rule 14 of the Commission Rules in defending the Tribunal’s decision. The
Commission argued that what is disclosable under rule 15 is restricted by rule 1 4. The
majority in the Competition Appeal Court noted that discovery under the Uniform Rules
promotes the fairness of a hearing and that rule 15 read with rule 14 seriously
undermines this purpose by restricting what may be disclosed.
In that case the Co mpetition Appeal Court affirmed the position it held in
Group Five to the effect that rule 15 must be understood as creating a regime of access
by the public to information held by the Commission. 174 The Court proceeded to state
that rule 15 was not intende d to restrict access to documents disclosable under the
Uniform Rules and thereby create an advantage for the Commission, one of the
litigants.175 The Competition Appeal Court concluded that—
172 Id at para 2.
173 Id.
174 Id at para 35.
175 Id at para 37.
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“rule 15 read with the rule [14 of the Tribunal Rules] is not of application when a
litigant seeks discovery of documents. Accordingly, the Commission could not rely
upon the rule to resist production of the transcripts.”176
Evidently the Competition Appeal Court held that rule 15 does not apply to a
request for discov ery of documents. The ratio in support of this conclusion was
articulated in Unterhalter AJA’s judgment. He said:
“However, this is not the correct construction of rule 15. It is precisely because the
class of ‘any persons’ is so wide that the regime o f exclusion that is set out in rule 14
cannot be of application to the class of persons constituting litigants who are
respondents in a referral brought against them by the Commission. The Commission
has duties of disclosure to respondents that it does not have to the public at large. The
Commission is engaged upon adversarial litigation with respondents in proceedings of
great consequence for the public and the respondents. Such litigation must be fair. One
aspect of fairness is disclosure. The Commis sion is given large powers to conduct
investigations. The yield of that investigation must be disclosed to respondents, unless
it is privileged, and subjected to an appropriate confidentiality regime.”177
He further expatiated that—
“[R]ule 15 cannot be interpreted expansively to be of application to respondents in
referral proceedings because the Commission has a duty to disclose all relevant
documents (absent a valid claim of privilege) so as to promote truth finding and
fairness.
. . .
A respondent s ecures disclosure as a litigant under the powers conferred on the
Tribunal by section 52(1) [of the Competition Act] read with Tribunal rule 22(1)(c)(v).
It is the Tribunal that determines the duty of litigants to make discovery. Rule 15 of
176 Id at para 38.
177 Id at para 31.
JAFTA J and KHAMPEPE J
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the Commission Rules cannot be read as a derogation from the Tribunal’s powers to
stipulate for a regime of disclosure that ensures a fair and effective hearing for the
litigants.”178
He finally concluded that “Continental sought the record under rule 15. But it
did not do so as a member of the public but as a litigant. As such, it sought what is in
effect discovery, and no different result is warranted in its case.”179
There are two fundamental principles arising from this case. First, the rule 15
record and the discovery record are different. This is primarily because of the broader
restrictions that are housed under rule 14. Accordingly, if a litigant relies on rule 15
after referral of a complaint to the Tribunal, it would be furnished with a thin record
because of the carving out of restricted information in terms of rule 14. Unterhalter AJA
perspicuously states that a litigant would be prejudiced if they were to be furnished with
this record of investigation, as it is a record that is prepared for and provi ded to the
public, and not a litigant. It is trite that rule 15 is a public access right, which is geared
to give effect to section 32 of the Constitution. It is equally trite that the rules of
discovery are geared towards a different purpose, which is to give effect to fair hearing.
Therefore, discovery is only subject to limited grounds of restrictions, for example, legal
privilege.
This is so because rule 15(1) of the Commission Rules is a right of public access
and not a right given to a litigant, a nd it is not intended to facilitate a litigant with
formulating a defence. There are multiple reasons to support this. Rule 15(1) gives
effect to section 32(1)(a) of the Constitution, which provides that everyone has a right
of access to any information held by the State. Rule 15(1) also does not mention any
timelines as to when the record ought to be disclosed, which makes this provision
different from a myriad of provisions that govern litigation which generally impose
timelines to be complied with for purposes of efficiency and certainty. Furthermore,
178 Id at paras 34 and 36.
179 Id at para 41.
JAFTA J and KHAMPEPE J
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the provisions of rule 15(1) are mirrored in rule 13(1) of the Tribunal Rules and the
Competition Appeal Court Rules. The Tribunal and the Competition Appeal Court,
unlike the Commission, are neither litigants nor investigative entities – they are entities
that hold public records. Accordingly, rule 15(1) is a right enjoyed by the public and is
not specifically given to litigants.
Second, although Continental Tyres invoked rule 15 to acquire the record , it
could not do so because it was a litigant and not a member of the public. Thus,
Unterhalter AJA correctly concluded that because it was a litigant, what
Continental Tyres wanted, in seeking the record of the Commission’s investigation, was
discovery. This is because the Commission has different obligations and duties to the
public and a litigant. Rule 15 is a duty that the Commission owes to the public, and not
a litigant. Discovery is a duty that the Commission owes to a litigant. This is in
harmony with the different roles that the Commission occupies.
Continental Tyres affirms and endorses the view in Group Five that rule 15 is a
public access rule but it does not endorse the proposition that litigants can invoke rule 15
in Tribunal proceedings . This is more evident in light of perspicuous statements, for
example that “[i]t is the Tribunal that determines the duty of litigants to make
discovery”.180 Continental Tyres therefore should be understood to mean that rule 15
in litigation proceedings before the Tribunal finds no application because it is restrictive
and a litigant should utilise the discovery procedure provided under rule 22 of the
Tribunal Rules or the relevant provisions of the Uniform Rules, which would give the
litigant broader access to information and documents.
To the extent that Continental Tyres concludes that rule 15 does not apply to
requests for discovery, it contradicts Group Five and the judgment of the
Competition Appeal Court in this matter. Both these judgments were de cided before
Continental Tyres. Therefore, Continental Tyres must be taken as having overruled the
180 Continental Tyres above n 71 at para 36.
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earlier judgment on the applicability of rule 15 to discovery. It is a principle of our law
that where a court of the same status hands down successive conflicting judgments, the
latest judgment is regarded as having overruled the earlier ones. This principle applies
in cases where the later judgment does not say expressly that the earlier one is
overturned.181
However, we need to point out that in Group Five the Competition Appeal Court
made reference to Arcelormittal, a decision of the Supreme Court of Appeal which
applied rule 15 to proceedings in the Tribunal.182
But this does not mean that Arcelormittal was correct in applying rule 15 and
that the decision is authority for the proposition that the Commission’s Rules apply to
proceedings before the Tribunal, parallel to the Tribunal’s Rules and the Uniform Rules.
This is because the Supreme Court of Appeal in that matter proceeded from the
assumption that the Commission Rules apply because this appears to have been
common cause between the parties.183
The Supreme Court of Appeal does not explicate the basis for why rule 15 should
apply to proceedings before the Tribunal. The primary reasoning proffered for the
application of rule 15 is that—
181 In Nonzamo Cleaning Services Cooperative v Appie 2009 (3) SA 276 (CkH) at para 33 , with regard to
conflicting decisions of this Court in Fredericks v MEC for Education & Training, Eastern Cape 2002 (2) SA
693 (CC) and Chirwa v Transnet Ltd 2008 (4) SA 367 (CC), the High Court observed: “In the absence of express
indication, a judgment will overrule an earlier decision of the court if the two judgments are mutually
irreconcilable. And the court will be assumed to intend to overrule the earlier judgment if it delivers its judgment
with knowledge of the conflict”. See also Makhanya v University of Zululand [2009] ZASCA 69; 2010 (1) SA
62 (SCA) at para 8 and Gcaba above n 145 at para 77.
182 Group Five above n 54 at para 9, which refers to Arcelormittal above n 164 at paras 45-50.
183 In Group Five above n 54 at para 9, the Competition Appeal Court clarified this point in these words:
“In terms of Commission rule 1 5(1) ‘any person’ is entitled to . . . access to ‘any Commission
record’ provided the document in question is not ‘restricted information’ contemplated in
rule 14(1). It was held in Arcelormittal that ‘any person’ includes a litigant. Group Five was
thus entitled to access to the Commission’s record of its investigation save to the extent that any
part thereof was restricted information in terms of rule 14(1). Both the Commissioner and
Tribunal accepted this.”
JAFTA J and KHAMPEPE J
74
“[i]f it is correct that a member of the public may gain access to the Commission record
under rule 15, subject to any restrictions under rule 14, and this must be so on a plain
reading of the rule, it would be absurd to prevent a litigant from being given access.”184
As discussed above, rule 15 cannot be interpreted so expansively as to include
litigants. Once a complaint is referred to the Tribunal, the Tribunal Rules are triggered
and govern the disclosure and discove ry of documents between the litigating parties.
There is no absurdity created by this because both regimes of disclosure are different.
Nevertheless, Ngcobo J, in Ingledew, noted that the adoption of the approach that once
litigation has commenced discovery should be regulated by the Uniform Rules, can give
rise to “certain anomalies”.185 To this end, this Court held that:
“Under the wording of section 32(1)(a), the applicant would prima facie have been
entitled to all the documents he now seeks until the day before summons was served
on him. Moreover, a third party might have approached another for access to those
documents during the course of the applicant’s litigation.”186
This dictum found support in PFE International SCA, where the Supreme Court of
Appeal found that:
“This anomaly, that an applicant may be entitled to information the day before the
commencement of proceedings but not the day thereafter, must be seen as a necessary
consequence of the intention, on the part of the Legislature, to protect the process of
the court. Once proceedings are instituted then the parties should be governed by the
applicable rules of court.”187
Since Standard Bank and the Waco respondents sought discovery of the record,
their reliance on rule 15 of the Commis sion Rules was mistaken. That rule does not
184 Arcelormittal above n 164 at para 46.
185 Ingledew v Financial Services Board: In re Financial Services Board v Van der Merwe [2003] ZACC 8; 2003
(4) SA 584 (CC); 2003 (8) BCLR 825 (CC) at para 29.
186 Id.
187 PFE International SCA above n 18 at para 10.
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apply. As litigants, Standard Bank and the Waco respondents ought to have relied on
the powers conferred on the Tribunal by section 52(1) of the Competition Act read with
Tribunal rule 22(1)(c)(v).
Rule 22(1)(c)(v)
Standard Bank and the Waco respondents contend that rule 22(1)(c)(v) does not
confer a right to discovery but, instead, they contend that the Tribunal is vested with the
discretion to permit the production of discovery. This, as the argument goes, m eans
that the respondents in a referral do not enjoy an automatic general right to discovery.
They cite Group Five to support this proposition, which states:
“A respondent in complaint proceedings does not have an automatic right to discovery
once the pl eadings are closed. Whether and to what extent the parties must make
discovery is determined from case to case by directions given by the Tribunal in terms
of Tribunal rule 22(1)(c)(v). It may well be that in most if not all cases the Tribunal
will give directions for general discovery but that is not as such a right afforded by the
Tribunal’s rules.”188
Rule 22(1) of the Tribunal Rules provides:
“At a prehearing conference, the assigned member of the Tribunal may—
. . .
(c) give directions in respect of—
. . .
(v) the production and discovery of documents whether formal or
informal.”
The use of the word “may” in this provision suggests that the assigned Tribunal
member enjoys a discretion. Thus, we agree with Standard Bank and the Waco
respondents that this section vests a discretion to a Tribunal member; however, we
disagree that thi s discretion is in terms of the decision to permit the production of
188 Group Five above n 54 at para 12.
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discovery. Respondents in referral proceedings enjoy an automatic right to discovery
after close of pleadings; however, a Tribunal member has the discretion to decide when
and how the pr oduction of the discovery will occur, informal or formal. On a proper
construction of the rule, it is clear that the Tribunal member’s discretion is restricted to
the questions of when and how discovery will take place, and does not extend to the
question of whether or not parties in a particular case are entitled to discovery.
This construction of the rule would be in accordance with the principles of
natural justice as required in terms of section 52(2)(a). 189 The role of discovery in
litigation proceedi ngs is fundamental and paramount, and it would be incorrect to
interpret the rules in a manner that denies litigants a general right to discovery. In any
event, on a proper reading of rule 22(1)(c)(v), the Tribunal member has a discretion in
deciding when and how discovery is to take place on a case by case basis, taking into
account the provisions in section 52 of the Competition Act. This is to allow the
Tribunal to conduct the proceedings before it in an expeditious manner in light of the
facts of the case before it. However, this does not mean tha t this discretion is
unfettered – it is still naturally bound by the requirements of reasonableness, fairness
and lawfulness.
It is on this proper construction of rule 22, read with section 52, that the following
becomes evident. An accused firm does not lose its right of access to documents and
information upon the referral of a complaint to a Tribunal; it is still entitled to
information and documents held by the Commission. The principal and material
difference is that the right is not exercised through rule 15; it is now exercised through
rule 22 of the Tribunal rules, which gives the litigant a right to discovery and leads to a
record that is different to the record envisaged in rule 15 of the Commission Rules.
189 Section 52(2)(a) of the Competition Act provides:
“(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.”
JAFTA J and KHAMPEPE J
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Reasonable time to produce the record
The Commission argued, in the alternative, that should Group Five be found to
be correct, it was incorrectly applied by the Competition Appeal Court. Standard Bank
and the Waco Respondents argue that this Court does not have jurisdiction to adjudicate
this matter because it concerns the application of the law.190 This cannot be correct.
In our view, this is an unduly narrow approach, which overlooks the fundamental
issue in question. The true issue is the in terpretation of “reasonable” in relation to the
reasonable period in which the Commission is required to produce its record of
investigation. The Tribunal in Competition Commission v Standard Bank had a
particular view concerning what constitutes a reason able period.191 In this regard, the
Tribunal held that a reasonable period would be dependent on the facts of each case.192
Relevant factors would be the identity of the person requesting the record and the reason
for or purpose of the request.
In contrast, the Competition Appeal Court held a divergent view. 193 In essence,
it held that what constitutes a reasonable period is dependent on how long the
Commission would take to carve out the information and documents that are considered
to be restricted under rule 14.194 Therefore, according to the Competition Appeal Court,
the identity of the requestor and the reason for or purpose of the request are immaterial
and do not play a role in determining a reasonable time period.195
In the Group Five matter, the Tribunal and the Competition Appeal Court held
similarly divergent views.196 In our view, there is an arguable point of law of general
190 It should be noted that the reasonable time argument is raised in the alternative. While we find in favour of
the Commission in respect of its main argument, we also decided to engage this argument.
191 Standard Bank Tribunal decision above n 43.
192 Id at paras 58 and 60-8.
193 Rule 53 judgment above n 45 at para 38.
194 Id at para 56.
195 Id at para 35.
196 See Group Five Tribunal decision above n 83 at para 77 and Group Five above n 54 at para 11.
JAFTA J and KHAMPEPE J
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public importance which this Court ought to consider in light of the conflicting views
that have been expressed by the specialist courts.
For a decision or action to be reasonable, one has to consider the facts of that
specific case. Reasonableness is context -specific and cannot be determined in the
abstract – divorced from the facts and context of each case. Accordingly,
reasonableness has a subjective element to it. Therefore, in order for the time by which
the record is produced to be considered reasonable, there are certain relevant factors
that the Commission has to consider. The identity of the requestor is one of these factors
as is the purpose of the request.
The Competition Appeal Court took a narrow view on the reasonableness aspect
of this leg of the argument and finding of the Tribunal.
The right created by rule 15(1) is not intended to facilitate, or furnish the
respondent with, a defence. 197 This is supported by the fact that the same right to the
record is provided both when the Commission elects to refer a case and where it elects
not to. The same right to the record exists in both situations.198 This strongly points to
the fact that the rule is disconnected and divorced from the litigation process. 199
Accordingly, the argument by the respondents that they cannot properly plead without
the investigative record must fail on this ground.
It is important that “reaso nable” in this context be understood against the facts
of the case. If the requestor of the record is a litigant in the matter, it is most likely that
the record is being requested for purposes of litigation. These are important factors to
take into cons ideration when determining a reasonable time period. This is because
litigation would be ongoing and the litigant would have an opportunity to request further
197 Group Five Tribunal decision above n 83 at para 67.
198 Id.
199 Id.
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discovery under rule 22 of the Tribunal Rules. Therefore, it may be efficacious and
reasonable for the record to be provided at the close of pleadings.
This is further buttressed by the fact that section 32(2) of the Constitution states
that the right to access to information will be subject to “reasonable measures to
alleviate the administrative financial burden on the state.” The Commission would be
financially prejudiced if it were obliged to produce a record under rule 15 and then later
to produce a substantially similar record again for the purposes of discovery. This
would be an unnecessary burden, particularly when the “reasonable” period can be
interpreted in a manner that would lead to efficacious and expeditious proceedings
before the Tribunal. This preferred interpretation would also lead to less disruptive
proceedings as elucidated in PFE International.
Although PFE International concerned the application of PAIA, it is relevant as
it sets out an important policy approach. The Competition Appeal Court’s proposed
approach would be to interpret rules and procedures in a way that would d isrupt the
ordinary rules of litigation. As the Supreme Court of Appeal stated:
“[T]o create a dual system of access to information, in terms of PAIA and the particular
court rules, has the potential to be extremely disruptive to court proceedings.”200
This was echoed by this Court when it held that “allowing PAIA to apply in cases such
as this would be disruptive to court proceedings.”201
The same principle applies here. To narrowly interpret “reasonable period” in a
way that would allow for disruptive and unrestricted requests for information would be
untenable.
200 PFE International above n 18 at para 15.
201 PFE International above n 18 at para 31.
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A reasonable period requires the Commission, as the decision-maker, to employ
the reasonableness test and apply its mind to the prevailing set of facts before it and
then “weigh up the burden on the Commission and thus the public interest in the most
efficient allocation of its resources with the right of the requester to obtain the record
more expeditiously than the litigants otherwise would.”202
Accordingly, the appeal in respect of CCT 158/18 and CCT 218/18 must, in our
view, succeed.
Review Appeal
As mentioned, we agree with the first judgment that the appeal should succeed.
Where the jurisdiction of the court before which a review application is brought is
contested, a ruling on this issue must precede all other orders.203 This is because a court
must be competent to make whatever orders it issues. If a court lacks authority to make
an order it grants, that order constitutes a nullity. Scarce judicial resources should not
be wasted by engagin g in fruitless exercises like making orders which cannot be
enforced.
By its very nature, rule 53 of the Uniform Rules finds application where review
proceedings are instituted before a competent court. The rule was designed to serve a
dual purpose of informing both the applicant for a review and the court of what actually
happened in the process of making the impugned decision. 204 Before 1994,
administrative functionaries had no duty to give reasons for their decisions and did not
uphold the value of openness in making decisions. More often than not, those on whom
decisions had an adverse impact had no knowledge of what transpired in the process
and were placed at a disadvantage when they sought to challenge the decisions in
202 Standard Bank Tribunal decision above n 43 at para 69.
203 Makhanya above n 181 at para 29.
204 Helen Suzman above n 15 at paras 13 and 123 and Democratic Alliance above n 136 at paras 13-5.
JAFTA J and KHAMPEPE J
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question. Rule 53 became a us eful tool in terms of which access to information could
be achieved.
Therefore, the rule enables an applicant to raise relevant grounds of review, and
the court adjudicating the matter to properly perform its review function. However, for
a court to perform this function, it must have the necessary authority. It is not prudent
for a court whose authority to adjudicate a review application is challenged to proceed
to enforce rule 53 and order that disclosure s hould be made, before the issue of
jurisdiction is settled. The object of rule 53 may not be achieved in a court that lacks
jurisdiction.
For these additional reasons, we agree with the first judgment that Boqw ana JA
erred in ordering that the Commission should disclose its record of investigation before
the question of jurisdiction was determined. Once carried out, and in the event that the
Competition Appeal Court concluded that is has no jurisdiction, what i s to be done in
terms of the order cannot be undone.
It is unfortunate that proceedings in the Tribunal have been delayed unduly by
procedural skirmishes which have been pursued up to the highest court in the land. The
present parties should have heeded the Competition Appeal Court’s caution which was
sounded in Group Five. That Court said:
“It would obviously be improper for the Commission to delay production of its record
for tactical reasons or to contrive disputes about privilege and confidentiality. By the
same token, however, respondents should not be encouraged to delay the filing of their
answering papers on the basis of a right of access to information which has nothing to
do with their status as litigants.”205
An important objective of the Tribunal Rules read with the Uniform Rules is to
facilitate the speedy resolution of disputes. Had those rules been properly followed,
205 Group Five above n 54 at para 21.
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there can be no doubt that finality could have been reached a long time ago. Both the
Tribunal and the Competition Appeal Court should not allow parties to drag
proceedings for lengthy periods of time.
Although the Commission has been successful, as we have concluded that the
matter raises a constitutional issue togeth er with the fact that the Commission is an
organ of state, it follows that each party should pay their own costs.
Order
The following order is made:
In CCT 158/18:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Competition Appeal Court is set aside and replaced with
the following:
“The appeal is dismissed.”
4. There is no order as to costs in this Court and in the Competition Appeal
Court.
In CCT 179/18:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Competition Appeal Court is set aside.
4. The matter is remitted to the Judge President of the Competition Appeal
Court.
5. There is no order as to costs in this Court and in the Competition Appeal
Court.
In CCT 218/18:
1. Leave to appeal is granted.
JAFTA J and KHAMPEPE J / FRONEMAN J
83
2. The appeal is upheld.
3. The order of the Competition Appeal Court is set aside and replaced with
the following:
“The Rule 15 application is dismissed.”
4. There is no order as to costs in this Court and in the Competition Appeal
Court.
FRONEMAN J (Cameron J concurring):
I have had the privilege of reading both the judgment of Theron J (first judgment)
and the judgment of Khampepe J and Jafta J (second judgment). I am in the rather
unenviable position that I agree with parts of each of the judgments in the rule 15 appeal,
but disagree with both on the outcome of the review appeal. My reasons will be brief.
The public access rule appeal
I accept that we have jurisdiction and I would in the normal course also have had
little difficulty in accepting that it is in the interests of justice to determine the appeal.
But rule 15 was amended on 25 January 2019, about a month and a half before the
hearing. The amendment provides that the public access right to any Commission
record under the rule does not apply to a record that is requested (i) for the purpose of
proceedings in criminal or civil proceedings or proceedings before an administrative
body, including the Competition Tribunal; and (ii) after the commencement of these
proceedings.206
206 Rule 15(1) now formulates a public access right that is “[s]ubject to sub -rule (5)”. Rule 15(5) provides as
follows:
“Sub-rule (1) does not apply to a record if—
(a) that record is requested—
(i) for the purpose of proceedings in criminal or civil proceedings or proceedings before
an administrative body, including the Competition Tribunal; and
(ii) after the commencement of the proceedings referred to [in] sub-paragraph (i); and
FRONEMAN J
84
This amendment might be thought to make the constitutional legal issue moot.
It was however argued that the emphasis in the amendment on the purpose for which
the public access record might be sought remains contentious for the future and needs
to be clarified. As will be seen, I consider the purpose for the request for public access
as the key to resolving the apparent tension between the public access rule (rule 15 of
the Commission Rules) and the litigation discovery rule (rule 22(1)(c)(iv) of the
Tribunal Rules) and will thus accept that it remains relevant.
The Commission’s public access rule and the Tribunal’s litigation discovery rule
create different entitlements to aspects of information relating to the Commission’s
investigation. They serve different purposes. The former creates and regulates the
entitlement of any member of the public to the record of the Commission’s investigation
in order to give specific content to the fundamental right of access to information in the
Constitution.207 The latter regulates a litigant’s entitlement to access the record of
discovery ordered by the Tribunal for purposes of the litigation before it.
Although the record of investigation under the public access rule and the record
under the litigation discovery rule may often overlap, they are not always identical. The
exclusions under the public access rule are those set out in rule 14, 208 while the
exclusions under discovery are the ordinary ones requiring a fair process, like those
relating to privilege. 209 Each rule and its own respective exceptions serve different
purposes: the one a general purpose as part of public entitlement to access information;
the other a specific purpose to prepare for litigation.
(b) the production of or access to that record for the purpose referred to in paragraph (a) is
provided for in, or may be determined in terms of, any other law or the rules of any
court or administrative body, including the rules of the Competition Tribunal.”
207 Section 32 of the Constitution.
208 See rule 14 as fully set out in the first judgment above at fn 8.
209 The leading case on litigation privilege in the competition law context is Arcelormittal above n 97. On privilege
generally, see Schmidt and Rademeyer “Privilege” in Law of Evidence Service 15 (2017) and Zeffert and Pai zes
“Privilege” in Essential Evidence (LexisNexis, Durban 2010).
FRONEMAN J
85
As long as a member of the public, including a litigant, seeks public access under
the public access rule strictly in accordance with i ts purpose and requirements, there
should in principle be no objection to it being done even after the commencement of
legal proceedings under the Competition Act. But here principled theory and practical
reality may well collide.
The litigant seeking the record under the public access rule will only be entitled
to a record that is subject to the exclusions under rule 14. 210 If access under the public
access rule is sought after the commencement of Tribunal proceedings, not for public
entitlement purposes but rather for litigation purposes, the clash between ostensible
principle and practical strategy occurs.
How is that to be reconciled?
A practical and sensible solution lies in determining what a “reasonable period”
for providing the public access record might then be. Pending litigation in the Tribunal
would be a relevant factor to consider in determining the “reasonable period” for
providing access, if there is a reasonable probability that the public access record is
sought not for general public int erest purposes, but for strategic purposes in gaining
advantages in the Tribunal proceedings. It presents itself as an appropriate and practical
control mechanism for preventing abuse of the public access process for an ulterior
purpose. That would also address any possible absurdity in allowing members of the
public access during litigation, but not litigants. Litigants will simply be under stricter
scrutiny to prevent them from using public access for an ulterior purpose.
210 Group Five above n 54 and Continental Tyres above n 71 are not in conflict with each other in this regard.
Both insist on the clear identification of the right -holder for determining their entitlement: “any person” may
request the Commission’s record of investigation in terms of rule 15’s public access right, while only litigants are
entitled to the record of discovery under the Tribunal’s regime of discovery. Further, both cases address
mismatches between the right-holder and the entitlement sought to be claimed or restricted: Group Five clarifies
that a litigant remains “any person” entitled to access the rule 15 record of investigation, while Continental Tyres
affirms that rule 14 restrictions cannot be used to resist disclosure of the record of discovery as directed by the
Tribunal during litigation.
FRONEMAN J
86
It follows that I am of the v iew that the Tribunal got things more or less right.
For these different reasons, I agree with the second judgment that the appeal in respect
of the public access record appeal must succeed.
The review appeal
Section 38(2A) of the Competition Act provides that the Judge President, or any
other Judge of the Competition Appeal Court designated by the Judge President, may
sit alone to consider, amongst others, an “application for procedural directions”.211
Rule 53 of the Uniform Rules is a rule of procedure. Disclosure of the record
under the rule decides nothing about the substance of the dispute between the parties.
I know of no authority that jurisdictional disputes must be determined before a
matter is procedurally ripe for hearing in accordance with court rules. Substantive legal
and factual issues are only determined after pleadings have closed and litis contestatio
has thus been reached. Makhanya made this clear:
“When cases come before a court on appeal or on application the issues are presented
to the court simultaneously and that might at times obscure the various issues if they
logically arise sequentially. I think it is useful, for proper analysis in such cas es, to
envisage how they would have arisen in an action, where the issues are often pleaded
and disposed of sequentially.
Jurisdictional challenges will be raised either by an exception or by a special plea,
depending on the grounds upon which the challenge arises. There will be some cases
in which the jurisdiction of a court is dependent upon the existence of a particular fact
(often called a ‘jurisdictional fact’). Where the existence of that fact is challenged it
will usually be in a special plea, and the matter will proceed to a factual enquiry
confined to that issue. In other cases the existence or otherwise of jurisdiction to
consider the case will appear from the particulars of claim and in those cases the
challenge will be raised by an exception. In such cases a court that considers the
211 See section 38(2A) as reproduced in the first judgment at [26] above.
FRONEMAN J
87
challenge might not even be aware of whether or not the plaintiff intends raising any
defence at all to the claim. But in both cases the issue must necessarily be disposed of
first, because upon it depends the power of the court to make any further orders.212
In applications, the parties’ affidavits serve as the pleadings that define the issues
a court must decide. 213 Disclosure of the review record un der rule 53 is a valued
procedural mechanism to provide further evidence for the proper decision to be made
by the court eventually hearing the review. An order for production of the review record
decides no factual or legal issue in dispute in the main r eview application – it merely
provides the court with further evidential material upon which it must decide those
factual or legal issues. If a party contends that a legal point should be determined at the
outset of application proceedings, the rules make provision for it.214 So too for striking
out irrelevant evidential material, 215 or for non-disclosure of parts or the whole of the
record.216 All these procedural rules could have been raised before Boqwana JA.
212 Makhanya above n 181 at paras 28-9.
213 Rule 6(1) of the Uniform Rules provides as follows:
“Save where proceedings by way of petition are prescribed by law, every application must be
brought on notice of motion supported by an affidavit as to the facts upon which the applicant
relies for relief.”
On the role of affidavits for defining the issues in application proceedings, see Molusi v Voges N.O. [2016] ZACC
6; 2016 (3) SA 370 (CC); 2016 (7) BCLR 839 (CC) at paras 27-8 and Naidoo v Sunker [2011] ZASCA 216; 2011
JDR 1634 (SCA) at para 19. S ee further Cilliers, Loots and Nel Herbstein and Van Winsen : The Civil Practice
of the High Courts and the Supreme Court of Appeal of South Africa 5 ed (Juta, 2009) at 439-440.
214 Rule 6(5)(d) of the Uniform Rules provides as follows:
“Any person opposing the grant of an order sought in the notice of motion must—
. . .
(iii) if he or she intends to raise any question of law only he or she must deliver notice of
his or her intention to do so, within the time stated in the preceding sub -paragraph,
setting forth such question.”
215 Rule 23(2) of the Uniform Rules provides as follows:
“Where any pleading contains averments which are scandalous, vexatious, or irrelevant, the
opposite party may, within the period allowed for filing any subsequent pleading, apply for the
striking out of the matter aforesaid, and may set such application down for hearing in terms of
paragraph (f) of subrule (5) of rule 6, but the court shall not grant the same unless it is satisfied
that the applicant will be prejudiced in the conduct of his claim or defence if it be not granted.”
216 See authorities referred to above fn 209.
FRONEMAN J / MADLANGA J
88
A determination of any of them would still not have disposed of any factual or
legal issue that may or may not be determined by the Competition Appeal Court,
depending on its review jurisdiction.
I would accordingly dismiss the review appeal.
MADLANGA J:
Having read the judgments by my colleagues Theron J (first judgment), Jafta J
and Khampepe J (second judgment) and Froneman J (third judgment), I concur in parts
of each. Here is how. In the applications for leave to appeal under CCT158/18 and
CCT218/18, I concur in the outcome set out in the second judgment, but I do so for the
reasons set out in the third judgment. On what the first and second judgments refer to
as the “review appeal”, I concur in the outcome and reasons set out in those judgments.
89
For the Applicant in CCT 158/18, 179/18
and CCT 218/18
T Ngcukaitobi, F Hobden, L Zikalala ,
I Kentridge, H Drake instructed by
Ndzabandzaba Attorneys Inc.
For the Respondent in CCT 158/18 and
179/18
J Gauntlett SC, M Engelbrecht, L Kelly,
T Ramogale instructed by Herbert Smith
Freehills South Africa Attorneys Inc.
For the Respondents in CCT 218/18
MM Le Roux instructed by Werksmans
Attorneys