CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 175/20
In the matter between:
COMPETITION COMMISSION Applicant
and
BEEFCOR (PROPRIETARY) LIMITED First Respondent
CAPE FRUIT PROCESSORS (PROPRIETARY)
LIMITED Second Respondent
Neutral citation: Competition Commission v Beefcor Proprietary Ltd and Another
[2021] ZACC [9]
Coram: Mogoeng CJ, Jafta J, Khampepe J, M adlanga J, Majiedt J ,
Mhlantla J, Pillay AJ, Theron J, Tlaletsi AJ and Tshiqi J.
Judgments: Jafta J (unanimous)
Heard on: 23 February 2021
Decided on: 13 May 2021
Summary: Competition Act 89 of 1998 — interpretation of section 67(2) —
Competition Commission — withdrawn complaint —
completed proceedings
ORDER
JAFTA J
2
On application for leave to appeal to the Constitutional Court , the following order is
made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order granted by the Competition Appeal Court is set aside.
4. There is no order as to costs.
JUDGMENT
JAFTA J ( Mogoeng CJ, Khampepe J, Madlanga J, Maji edt J, Mhlantla J, Pillay AJ,
Theron J, Tlaletsi AJ and Tshiqi J concurring):
Introduction
[1] This application for leave to appeal concerns the question whether the
Competition Commission (Commission) can reinstate a complaint t hat was withdrawn
before the Competition Tribunal (Tribunal). The determination of this issue turns on
the proper meaning of section 67(2) of the Competition Act (Act).1
[2] The Act establishes an independent Commission which is subject only to the
Constitution and the law ,2 with jurisdiction that covers the entire territory of the
1 89 of 1998.
2 Section 20(1) provides:
“(1) The Competition Commission—
(a) is independent and subject only to the Constitution and the law; and
(b) must be impartial and must perform its functions without fear, favour, or
prejudice.”
JAFTA J
3
Republic.3 Organs of state are obliged to assist th e Commission to exercise its powers
and carry out its functions effectively.4
[3] The powers and functions of the Commission are tabulat ed in section 21 of the
Act.5 Among the powers vested in the Commission is the power to refer matters and
3 Section 19(1) provides:
“(1) There is hereby established a body to be known as the Competition Commission,
which—
(a) has jurisdiction throughout the Republic;
(b) is a juristic person; and
(c) must exercise its functions in accordance with this Act.”
4 Section 20(3) provides:
“(3) Each organ of state must assist the Commission to maintain its independence and
impartiality, and to effectively carry out its powers and duties.”
5 Section 21 provides:
“(1) The Competition Commission is responsible to—
(a) implement measures to increase market transparency;
(b) implement measures to develop public awareness of the provisions of this
Act;
(c) investigate and evaluate alleged contraventions of Chapter 2;
(d) grant or refuse applications for exemption in terms of Chapter 2;
(e) authorise, with or without conditions, prohibit or refer mergers of which it
receives notice in terms of Chapter 3;
(f) negotiate and conclude consent orders in terms of section 63;
(g) refer matters to the Competition Tribunal, and appear before the Tribunal, as
required by this Act;
(gA) initiate and conduct market inquiries in terms of Chapter 4A;
(gB) conduct impact studies in terms of section 21A;
(gC) grant or refuse applications for leniency in terms of section 49E;
(gD) develop a policy regarding the granting of leniency to any firm contemplated
in section 50;
(gE) issue guidelines in terms of section 79; and
(gF) issue advisory opinions in terms of section 79A;
(h) negotiate agreements with any regulatory authority to co -ordinate and
harmonise the exercise of jurisdiction over competition matters within the
relevant industry or sector, and to ensure the consistent application of the
principles of this Act;
(i) participate in the proceedings of any regulatory authority;
(j) advise, and receive advice from, any regulatory authority;
(k) over time, review legislation and public regulations, and report to the Minister
concerning any provision that permits uncompetitive behaviour; and
JAFTA J
4
appear before the Tribunal to prosecute matters so referred. The Commission is also
authorised to participate in the proceedings before the Tribunal and other fora.
Factual Background
[4] In September 2017, the Commission referred a complaint to the Tribunal against
Beefcor (Pty) Limited (Beefcor) and Cape Fruit Processors (Pty) Limited (Cape Fruit)
whom it accused of having been engaged in a prohibited practice under section 4(1)(b)
of the Act .6 The Commission alleged that Beefcor and Cape Fruit had agreed not to
compete in the market for processi ng wet peels and citrus peel pulp used in th e
production of livestock feed. The Commission asserted that this agreement constituted
a breach of section 4(1)(b)(ii) of the Act.
[5] The Tribunal set the matter down for hearing from 2 to 4 July 2018. However
less than a week before that hearing, the Commission approached Cape Fruit, seeking
an agreement to postpone the hearing in order to explore settlement. Cape Fruit
responded by stating that it would only agree to a settlement if the Commission
(l) deal with any other matter referred to it by the Tribunal.
(2) In addition to the functions listed in subsection (1), the Competition Commission
may—
(a) report to the Minister on any matter relating to the application of this Act;
(b) enquire into and report to the Minister on any matter concerning the purposes
of this Act; and
(c) perform any other function assigned to it in terms of this or any other Act.”
6 Section 4(1) provides:
“(1) An agreement between, or concerted practice by, firms, or a decision by an association
of firms, is prohibited if it is between parties in a horizontal relationship and if —
(a) it has the effect of substantially preventing, or lessening, competition in a
market, unless a party to the a greement, concerted practice, or decision can
prove that any technological, efficiency or other pro -competitive gain
resulting from it outweighs that effect; or
(b) it involves any of the following restrictive horizontal practices:
(i) directly or indirectly fixing a purchase or selling price or any other
trading condition;
(ii) dividing markets by allocating customers, suppliers, territories, or
specific types of goods or services; or
(iii) collusive tendering.”
JAFTA J
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withdraws the matter before the Tribunal. For its part, Beefcor advised the Commission
that its lawyer who was handling the matter was on leave and suggested that settlement
discussions be scheduled for 2 July 2018. Beefcor pointed out that in its view, the
referred complaint had no substance and that it should be withdrawn.
[6] The Commission responded by informing both respondents that it had decided
to withdraw the matter to give settlement negotiations a fair chance. Indeed, a notice
of withdrawal was filed at the Tribunal. While Beefcor accepted the withdrawal, it
informed the Commission that it was not willing to negotiate any settlement other than
in relation to costs. Cape Fruit’ s response was that the Commission took t he wrong
route. It should have asked for a postponement instead of a withdrawal.
[7] The Tribunal notified the parties on 29 June 2018 that the matter was removed
from the roll, following the Commission’s notice of withdrawal. The Tribunal further
informed the Commission that should it wish to reinstate the matter, it would have to
file a substantive application.
[8] Since the respondents were not willing to negotiate a settlement of the matter,
negotiations did not occur. In October 2018, the Commission filed its application for
reinstatement in the Tribunal. The respondents oppose d it on the ground that
section 67(2) of the Act precluded the Commission from referring that complaint to the
Tribunal for the second time. In addition, the respondents argued that the relevant rules
do not empower the Tribunal to reinstate a withdrawn matter.
[9] The Tribunal identified three issues as arising from the application. The first
was whether the matter had been withdrawn or simply removed f rom the roll. The
second was whether the withdrawal settled the dispute between the parties. And the
third was whether the withdrawal constituted “completed proceedings” as envisaged in
section 67(2) of the Act.
JAFTA J
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[10] With regard to the first issue, the Tribu nal held that the matter had been
withdrawn, befor e it was removed from the roll. As to the question whether the
withdrawal settled the dispute, the Tribunal concluded that a withdrawal does not have
the effect of a settlement in law. The Tribunal reason ed, rightly so, that a settlement
involves some form of agreement by both sides to a dispute and that the withdrawal was
a unilateral act which did not address any of the issues in the matter.
[11] Regarding the question whether the withdrawal amo unted to “com pleted
proceedings” under section 67(2), having referred to various decisions of the
Competition Appeal Court, the Tribunal held that the withdrawal did not am ount to
completed proceedings. Departing from this premise, the Tribunal concluded that the
Commission was not forbidden from seeking reinstatement. However, the Tribunal was
not persuaded that a proper case for reinstatement w as made out by the Commission.
Consequently, reinstatement was refused.
In the Competition Appeal Court
[12] Unhappy with the r efusal to reinstate the referral, the Commission appealed t o
the Competition Appeal Court. That Court determined that the meaning of the word
“completed” as used in section 67(2) was central to the appeal and that its correct
meaning would dispose of the appeal.7
[13] With reference to its decision in Sappi,8 the Competition Appeal Court held that
the purpose of section 67(2) is to protect fi rms against double jeopardy .9 The Court
proceeded to trace the prevention of double jeopardy in criminal trials from th e period
of the Roman Dutch law to the pre sent Criminal Procedure Act. 10 Relying on the
prohibition entrenched in section 35(3)(m) of the Constitution, the Competition Appeal
Court held that the inquiry was whether the protection afforded by that provision should
7 Competition Commission of South Africa v Beefcor (Pty) Ltd [2020] ZACAC 5 (CAC judgment) at paras 14-6.
8 SAPPI Fine Paper (Pty) Ltd v Competition Commission [2003] ZACAC 5; [2003] 2 CPLR 272 (CAC).
9 CAC judgment at para 17.
10 51 of 1977.
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be extended to firms unde r section 67(2) of the Act. 11 The Court stated that under
section 67(2), firms were entitled to the right to fair admi nistrative process and
observed:
“The word ‘completed’ in s 67(2) is open to two possible interpretation s: either the
withdrawal of a complaint completes the case and thus a new complaint on the same
cause is precluded; or the withdrawal alone is not enough and th e case can only be
rendered complete on the Tribunal making a determination of the complaint. On the
latter interpretation, the Commission is allowed t o re -refer or reinstate a fresh
complaint on the same cause to the Tribunal.”12
[14] In determining which meaning of “completed” between those two is to be
preferred, the Competition Appeal Court took acco unt of a number of considerations.
Eventually that Court rejected the meaning that says for proceedings to be completed,
there must be a decision taken by the Tribunal on whether the firm is guilty of the
misconduct charged or not. The Court stated:
“To my mind, s 67(2) must be interpreted broadly and as a constitutional protection
which is analogous to that created under s 106(4) of the [Criminal Procedure Act]. The
word ‘completed’ in its ordinary and natural meaning can be applied to proceedings
which have come to an end in one way or another - whether following a trial on the
merits, a consent order or an abandonment of the proceedings by way of withdrawal.”13
[15] Thus the Competition Appeal Court held that the withdrawal of the complaint
here by the Com mission, amounted to completed p roceedings under s ection 67(2).
Consequently, the Commission was precluded from reinstating or referring the same
complaint to the Tribunal.14 The appeal was dismissed and the Commission was
ordered to pay costs.
11 CAC judgment at paras 24-7.
12 Id at para 15.
13 Id at para 53.
14 Id at para 57.
JAFTA J
8
[16] What is unusual with this order is that the Commission did not appeal against the
interpretation of section 67(2) by the Tribunal. In fact, the Tribunal approved the
Commission’s interpretation of the section. But in the exercise of a discretion, the
Tribunal refused to grant reinstatement on the ground that such ord er would be unfair
and prejudicial to the respondents. Before the Competition Appeal Court, the
Commission had contended that the Tribunal had not exercised its discretion judicially
and requested that Court to intervene.
[17] By holding that the meaning of section 67(2) was dispositive of the appeal before
it, the Competition Appeal Court overlooked the fact that it was also required to express
views on the exercise of discretion. This was particularly necessary in the event of a
further appeal, especially if the appeal court disagreed with the Competition Appeal
Court on the question of interpretation.
Leave to appeal
[18] There can be no doubt that this matter raises cons titutional issues. In its
judgment the Competition Appeal Court, whose decision is the subject of the appeal,
invokes the Constitution in the process of deciding the ma tter.15 Moreover, in
Pickfords,16 this Court has held that the duty imposed by section 39(2) of the
Constitution when a cou rt interprets legislation , is triggered when section 67 is
construed. Section 67(2) with which we are concerned here implicates the right of
access to the Tribunal which is entrenched in section 34 of the Constitution.17
[19] The fact that in this matter it is the Commission and not a private party that seeks
leave makes no difference. The section prohibits both the Commission and private
15 Id at paras 24-5, 27, 31, 40-1, 44-5, 47 and 53.
16 Competition Commission of South Africa v Pickfords Removals SA (Pty) Limited [2020] ZACC 14; 2020 JDR
1227 (CC); 2020 (10) BCLR 1204 (CC).
17 Section 34 of the Constitution provides:
“Everyone has the 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 an d
impartial tribunal or forum.”
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complainants who are bearers of the section 34 right s, from having access to the
Tribunal under certain circumstances. One meaning is to be assigned to section 67(2),
regardless of whether the complainant is the Commission or a private party.
Consequently, the importance of the matter transcends the interests of the Commission
alone.
[20] What remains for consideration on this a spect of the matter is whether the
interests of justice favour the granting of leave. The decision of the
Competition Appeal Court has a precedential effect over the Tribunal and if left intact,
it will be binding on the Tribunal and the parties involved in similar cases.
[21] With regard to the interpretation of section 67(2), there are reasonable prospects
of success. While the Competition Appeal Court accepted that the provision is capable
of two possible meanings, it appears that th e interpretation favoured by that Court
undermines the right of access to the Tribunal instead of promoting it. In fact, while
the Competition Appeal Court invoked section 39(2) of the Constitution, it is not clear
from its j udgment that its preferred interpretation advan ces the objects of the
Bill of Rights. Reference was made to administrative law fairness without explaining
how that was promoted by the chosen interpretation. Nor was it shown how the other
interpretation would undermine administrative justice rights. The result was an
improper application of section 39(2) of the Constitution.
[22] In these circumstances, it will be in the interests of justice to grant leave.
Issues
[23] Two main issues arise. The first is the proper meaning of section 67(2) of the
Act. The s econd is whether the Tribunal exercised its discretion improperly when it
declined to reinstate the present complaint. But it will be necessary in the process of
determining those issues, to have consideration of other ancillary issues.
JAFTA J
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Section 39(2) injunction
[24] In mandatory terms, section 39(2) of the Constitution obliges every court to
promote the spirit, purport and objects of the Bill of Rights when interpreting
legislation.18 But this obligation is not triggered if the legislation under interpretation
does not implicate any of the rights entrenched in the Bill of Rights.19
[25] Here the section 39(2) duty is activated because section 67(2) affects the right of
access to the Tribunal which is guaranteed by section 34 of the Bill of Rights. Since
section 67(2) is reasonably capable of two interpretations, the duty obliges us to discard
a meaning that impacts negatively on the right of access. The obligation does not end
there. If the other meaning also promotes that right, we are obliged to choose it. In
Makate this Court declared that:
“The objects of the Bill of Rights are promoted by, where the provision is capable of
more than one meaning, adopting a meaning that does not limit a right in the Bill of
Rights. If the provision is not only capable of a construction that avoids limiting rights
in the Bill of Rights but also bears a meaning that promotes those rights, the court is
obliged to prefer the latter meaning.”20
Meaning of section 67(2)
[26] Section 67(2) of the Act provides:
“A complaint may not be referred to the Competition Tribunal against any firm that
has been a respondent in completed proceedings before the Tribunal under the same or
another section of this Act relating substantially to the same conduct.”
[27] Textually the provision prohibits a second referral to the Tribunal if that referral
is based on conduct that is substantially similar to the one that was involved in the first
18 Fraser v ABSA Bank Ltd (National Director of Public Prosecutions as Amicus Curiae) [2006] ZACC 24; 2007
(3) SA 484 (CC); 2007 (3) BCLR 219 (CC) at para 43.
19 Makate v Vodacom (Pty) Limited [2016] ZACC 13; 2016 (4) SA 121 (CC); 2016 (6) BCLR 709 (CC) at para 88.
20 Id at para 89.
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referral. But this prohibition is subject to the sole condition that the proceedings were
completed in respect of the first referral.
[28] It is the meaning of words describing that condition which is at the heart of this
matter. It is that meaning which will reveal whether the prohibition in the provision
was triggered. In other words, whether the withdrawn complaint cou ld be reinstated.
Crucial to this interpretative exercise are the words “completed proceedings”.
[29] The purpose of section 67(2) to a large degree illuminates the sense in which
those words were employed. That purpose is to protect firms from harassment in the
form of repeat referrals arising out of one and the same conduct. The provision seeks
to immunise firms from vexatious complaints. But even so, the provision does not
insulate firms against all repeat referrals. The scope of the protective shield is restricted
to completed proceedings only.
[30] For proceedings to be completed, they must have some element of finality. There
must be a decision on some of the issues raised. For example, there must be a decision
of the Tribunal on whether the firm agains t which the complaint was referred, was
responsible for the illegal conduct or that the conduct it was accused of does not violate
the Competition Act. Proceedings cannot be complete if no decision was rendered on
any of the issues arising from the compla int. This much is also clear from the text of
section 106(4) of the Criminal Procedure Act21 which was invoked by the Competition
Appeal Court, as being analogous to section 67(2) of the Act.
[31] Even where section 106(4) has been applied and a verdict of an acquittal has
been returned, it does not follow as a matter of course that the constitutional protection
against double jeopardy would be triggered. For double jeopardy to be sustained, the
21 Section 106(4) of the Criminal Procedure Act provides:
“An accused who pleads to a charge, other than a plea that the court has no jurisdiction to try
the offence, or an accused on behalf of whom a plea of not guilty is entered by the court, shall,
save as is otherwise expressly provided by this Act or any other law, be entitled to demand that
he be acquitted or be convicted.”
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accused is required to prove that he or she was in jeopardy of c onviction in the first
proceedings. For example, if the court that acquitted him lacked jurisdiction over the
charge or the charge itself was invalid, the plea of double jeopardy cannot succeed. 22
This plainly signifies th e need of some form of finality in the first proceedings, for
double jeopardy to arise.23
[32] Therefore, the words “completed proceedings” are employed in section 67(2) in
the sense of finalised proceedings in respect of which the Tribunal has disposed of
issues relating to the merits of the complaint.
[33] This interpretation promotes access to the Tribunal by restricting the prohibition
to finalised cases. It strikes the right balance between the rights of access to have
genuine complaints resolved by the Tribunal on the one hand, and the abuse of making
referrals of matters that have already been resolved , on the other . It follows that the
Competition Appeal Court erred in concluding that the withdrawn complaint constituted
completed proceedings.
Tribunal’s competence to reinstate
[34] In defend ing the interpretation assigned to section 67(2) by the
Competition Appeal Court, the respondents argued that the other interpretation leads to
uncertainty because the withdrawn complaint cannot be reinstated. They submitted that
the Tribunal has no power to reinstate withdrawn complaints, as both the Act and the
Tribunal rules do not confer such power on the Tribunal.
[35] The question whether the Tribunal has the power to reinstate has little bearing
on the correct meaning of section 67(2). While it is true that the rules of the Tribunal
22 S v Basson [2004] ZACC 13; 2005 (1) SA 171 (CC); 2004 (6) BCLR 620 (CC) at paras 62-5.
23 S v Delport alias Boucher 1984 (1) SA 511 (O) and S v Vermeulen 1976 (1) SA 623 (C).
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do not grant it the power to reinstate withdrawn complaints, 24 the Act does albeit
impliedly.
[36] A power is taken to have been impliedly conferred in our law if it is a logical or
necessary consequence of the expressly conferre d power.25 A power is implied if it is
necessary for the proper exercise of the expressly conferred power. This principle was
affirmed by this Court in a number of decisions. In Matatiele Municipality, this Court
stated:
“It is trite that the power to do that which is expressly authorised includes the power to
do that which is necessary to give effect to the power expressly given.”26
[37] The same principle was later applied in Masetlha27 in relation to a power
expressly granted by section 209(2) of the Constitution and in respect of a power
conferred by statute in Amabhungane.28 In Masetlha the issue that arose was whether
the power conferred on the President to appoint a head of the intelligence agency
24 Rule 50 of the Tribunal rules provides:
“Withdrawal and postponements
(1) At any time before the Tribunal has determined a matter, the initiating party may
withdraw all or part of the matter by—
(a) serving a Notice of Withdrawal in Form CT 8 on each party; and
(b) filing the Notice of Withdrawal with proof of service.
…
(3) Subject to section 57—
(a) a Notice of Withdrawal may include a consent to pay costs; and
(b) if no consent to pay costs is contained in a Notice of Withdrawal the other
party may apply to the Tribunal by Notice of Motion in Form CT 6 for an
appropriate order for costs.”
25 GNH Office Automation CC and Another v Provincial Tender Board Eastern Cape and Another [1998]
ZASCA 25; 1998 (3) SA 45 (SCA) at 51G–H.
26 Matatiele Municipality v President of the RSA [2006] ZACC 2; 2006 (5) SA 47 (CC); 2006 (5) BCLR 622 (CC)
at para 50.
27 Masetlha v President of the Republic of South Africa [2007] ZACC 20; 2008 (1) SA 566 (CC); 2008 (1) BCLR
1 (CC).
28 Amabhungane Centre for Investigative Journalism NPC v Minister of Justice and Correctional Services (Media
Monitoring Africa Trust, Right2know Campaign and Privacy International Amicus Curiae) [2021] ZACC 3; 2021
JDR 0145 (CC); 2021 (4) BCLR 349 (CC).
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includes the power to dismiss such head. Mr Masetlha had disputed his dismissal by
the President on the ground that the President had no power to dismiss him.
[38] In rejecting the argument that the President did not have the power to dismiss a
head of the intelligence agency, this Court held:
“The power to dismiss is necessary in order to exercise the power to appoint. The High
Court is right that the power to dismiss a head of the Agency is a necessary power without
which the pursuit of national security through intelligence services would fail. Without the
competence to dismiss, the President would not be able to remove the head of the Agenc y
without his or her consent before the end of the term of office, whatever the circumstances might
be. That would indeed lead to an absurdity and severely under mine the constitutional pursuit
of the security of this country and its people. That is why the power to dismiss is an essential
corollary of the power to appoint and the power to dismiss must be read into s 209(2) of the
Constitution. There is no doubt that the power to appoint under s 209(2) of the Constitution and
the power under ISA implies a power to dismiss.”29
[39] This Court was of the view that once the head of the relevant agency had been
appointed, it was necessary for the President to have the power to dismiss him or her, if
circumstances warranted his or her removal from office. The Court reasoned that whilst
he or she was still in office, the President could not exercise the expressly granted power
to appoint his or her successor, hence the necessity of the power to dismiss. The
exercise of the implied power to dismiss would enable the President to exercise the
expressly granted power to appoint.
[40] Here, like in Masetlha, the power to reinstate w ithdrawn complaints is implied
in two provisions. The first is section 27(1) of the Act which authorises the Tribunal to
adjudicate complaints on conduct prohibited by chapter 2 of the Act.30 It will be recalled
29 Masetlha above n 27 at para 68.
30 Section 27(1) of the Act provides:
“(1) The Competition Tribunal may—
(a) adjudicate on any conduct prohibited in terms of Chapter 2 , to determine
whether prohibited conduct has occurred, and, if so, to impose any remedy
provided for in this Act.”
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that the complaint against the respondents was based on section 4(1)(b) of the Act which
is located in chapter 2.
[41] The second provision is section 52(1) of the Act which obliges the Tribunal to
conduct hearings into every matter referred to it in terms of the Act.31 Once a compliant
is referred, the Tribunal is afforded no choice but to conduct a hearing into the matter.
Both these provisions do not expressly confer power on the Tribunal to reinstate
withdrawn complaints. It cannot be gainsaid that the power to reinstate is necessary in
cases where complaints have been withdrawn, so as to enable the Tribunal to adjudicate
or conduct hearings into those complaints.
[42] The scheme of the Act indicates that t he Tribunal is in charge of proceedings
placed before it. It may decide that the hearing shall b e informal or even be held in an
inquisitorial manner or in chambers if no oral evidence is lead or by telephone or video
conference, if it is in the interests of justice. In view of these powers, it would be absurd
to hold that once a complaint is withdr awn, the Tribunal has no power to reinstate and
deal with it in terms of the Act.
Whether the Tribunal had exercised its discretion judicially
[43] The Commission urged us to remit the matter to the Tribunal beca use, in the
Commission’s view, the Tribunal had improperly exercised its discretion. Attention
31 Section 52 provides:
“(1) The Competition Tribunal must conduct a hearing, subject to its rules, into every matter
referred to it in terms of this Act.
(2) Subject to subsections (3) and (4), the Competition Tribunal—
(a) must conduct its hearings in public, as expeditiously as possible, and in
accordance with the principles of natural justice; and
(b) may conduct its hearings informally or in an inquisitorial manner.
(2A) Despite subsection (2)(a), the Chairperson of the Tribunal may order that a matter be
heard—
(a) in chambers, if no oral evidence will be heard, or that oral submissions be
made at the hearing; or
(b) by telephone or video conference, if it is in the interests of justice and
expediency to do so.”
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was drawn to paragraph 57 of the Tribunal’s ruling as proof of the application of the
wrong test to the application for reinstatement. In that paragraph, the Tribunal stated:
“In other words, as a matter of law, while the complaint referral has been withdrawn
by the Commission, this does not mean that the Commission cannot bring another
complaint referral against the respondents, which would be equivalent to the
reinstatement of charges of criminal proceedings. However, it will have to explain why
this ‘new’ complaint was different from the withdrawn complaint. For example, it will
have to explain that new facts have come to light or the same evidence has been
reviewed by the Commission’s investigators in a different light.”
[44] A perusal of the ruling reveals that this statement was made in a context that is
different to reinstatement. The test mentioned in that paragraph was not applied to
determine whether reinstatement should be granted. In the statement, the Tribunal
expressly mentions the bringing of “another complaint referral against the respondents,
which would be equivalent to the reinstatement of charges in criminal proceedings ”.
This was said in answer to the question whether the withdrawal amounted to a
settlement of the lis (disputes) between the parties.
[45] The Tribunal held that the withdrawal did not as a matter of law amount to a
settlement of the dispute. It concluded that , since the matter was not settled , the
Commission was entitled to bring another complaint, on condition that there was an
explanation for why the new complaint differs from the withdrawn one. Therefore, the
test mentioned in paragraph 57 relates to a new c omplaint which differs from the one
that was withdrawn.
[46] It must be emphasised that the test in question was not directed at reinstatement.
This is put beyond doubt by what the Tribunal stated in paragraph 59. It said:
“This then brings us to the question of whether the Commission is precluded from
reinstating the withdrawn complaint and whet her the withdrawal constituted
‘completed proceedings’ before the Tribunal under section 67(2).”
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[47] This paragraph plainly tells us that the Tribunal was turning to consider two
questions. First, whether the Commission was precluded from reinstating the
withdrawn complaint. Second, whether the withdrawal constituted completed
proceedings under section 67(2). The Tribunal proceeded to address the second
question first and concluded that the withdrawal did not amount to completed
proceedings, as contemplated in section 67(2) of the Act.
[48] The first question was dealt with from paragraph 68. Having found that the
withdrawal was not a removal of the matter from the roll, the Tribunal held that the
Commission was not precluded from reinstating the complaint. But in the next
paragraph, the Tribunal held that an inadequate explanation was furnished for seeking
reinstatement and that the Commission’s application had to be dismissed.
[49] In paragraph 70, the Tribunal amplified its reasons for declining to reinstate. It
pointed out that “the Commission might have played fast and loose with the rules of the
Tribunal”. It reasoned that fairness lies at the heart of an applica tion for reinstatement
and concluded that fairness and the interests of justice did not support reinstatement. It
is quite plain from paragraph 70 that the Tribunal applied the right test and exercised its
discretion against granting reinstatement.
[50] The q uestion that arises is not whether this Court could have granted
reinstatement but whether the Tribunal had improperly exercised its discretion.
Interference with that discretion on appeal is permissible only if the Tribunal had
applied wrong legal principles or misdirected itself on material facts.32
[51] I have already accepted that the correct test of the interests of justice was applied,
together with the other relevant principles. And no misdirection relating to the facts has
been established. Consequently, there is no basis for interfering with the exercise of the
discretion by the Tribunal. The request for the remittal of the matter must fail. In the
32 South African Broadcasting Corp Ltd v National Director of Public Prosecutions [2006] ZACC 15; 2007 (1)
SA 523 (CC); 2007 (2) BCLR 167 (CC) at para 41.
JAFTA J
18
circumstances the effect of overturning the order granted by the Competition Appeal
Court is that the order that was issued by the Tribunal is revived.
Order
[52] In the result, the following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order granted by the Competition Appeal Court is set aside.
4. There is no order as to costs.
For the Applicant:
For the First Respondent:
For the Second Respondent:
T Ngcukaitobi SC, C Tabata and
I Kentridge instructed by Ndzabandzaba
Attorneys Incorporated
G Marriot instructed by Manley
Incorporated
M Le Roux and L Phaladi instructed by
Werksmans Attorneys