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THE COMPETITION APPEAL COURT OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 274/CAC/Aug25
In the matter between:
NEVILLES TOURS AND LOGISTICS (PTY) LTD Applicant
and
THE COMPETITION COMMISSION OF
SOUTH AFRICA Respondent
Coram: Manoim JP, Poyo-Dlwati and Lekhuleni AJJA
Heard: 20 May 2026
Delivered: 26 August 2026
Neutral citation: Nevilles Tours and Logistics (Pty) Ltd v The Competition
Commission of South Africa (274/CACAug25) [2026] ZACAC 6 (26 AUGUST 2026)
Summary: Competition law – Competition Commission’s decision not to refer a
complaint to the Competition Tribunal in terms of s 50(2) of the Competition Act 89 of
1998 – Review for non-referral not to be easily countenanced - The correct procedure
to review such decision – The principle of legality the correct pathway to review the
Commission’s non-referral decision to the Tribunal – Abuse of dominance in terms of
s 8 to be established in excessive pricing and predatory complaints – Desktop
investigation by the Commission deficient – Commission not properly investigating the
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predatory pricing complaint - Relevant stakeholders not interviewed – Review
application upheld.
ORDER
A review of: The decision of the Competition Commission:
1. The Competition Commission’s decision not to refer the applicant’s complaint
to the Competition Tribunal is hereby set aside.
2. The matter is remitted to the Competition Commission’s market conduct
division for investigations to be conducted by a different, properly appointed
inspector/s in terms of s 49B(3) of the Competition Act 89 of 1998 within 90
days from the date of this order.
3. Each party is ordered to pay its own costs.
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JUDGMENT
Lekhuleni AJA (Manoim JP and Poyo-Dlwati AJA concurring):
Introduction
[1] This is an application to review and set aside the Competition Commission’s
(the Commission) decision not to refer the applicant’s complaint to the Competition
Tribunal (the Tribunal). The applicant seeks an order setting aside the Commission’s
non-referral decision and remitting the matter to the Commission for investigation by
different investigators. In addition, the applicant seeks an order directing the
Commission to conduct and complete its investigation within 90 days and to take the
necessary conseq uential steps.
[2] The Commission did not oppose the applicant’s application. Instead, the
Commission filed a notice to abide by this Court’s decision on the relief sought by
the applicant. However, the Commission filed an explanatory affidavit and heads of
argument to assist this Court in determining the applicant’s review application. To
properly address the complexity of the issues woven into the applicant’s case, we
deemed it appropriate to invite and grant permission to an amicus curiae to make
submissions on the intricate questions raised in this matter. In arriving at our decision
and in formulating the reasons that follow, this Court derived considerable benefit
from both the heads of argument and the oral submissions advanced by Dr
Muvangua, who appeared with Ms Cachalia and Ms Tshabalala on behalf of the
amicus curiae at the Court’s request. To them, this Court owes a significant debt of
gratitude.
[3] For clarity and systematic analysis, I propose to structure this judgment as
follows. First, I will provide a summary of the applicant’s complaint to the
Commission. Second, I will set out the Commission’s investigation and its ultimate
decision not to refer the matter to the Tribunal. Third, I will address the applicant’s
grounds of review. Fourth, I will consider the preliminary issue concerning whether it
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is competent for this Court to entertain the application as a court of first instance
notwithstanding a remedy available to the applicant in terms of s 51(1) of the
Competition Act 89 of 1998 (the Competition Act) . Fifth, I will consider whether the
correct standard of review is that provided under PAJA or the principle of legality.
Sixth, I will examine whether the Commission’s decision complies with the principles
of legality. Finally, I will consider the question of costs and conclude by proposing
the order I consider appropriate in light of the evidential material presented.
A summary of the applicant’s complaint to the Commission
[4] The applicant is one of the interprovincial bus operators. It holds operating
permits for city -to-city operations, including routes to Johannesburg , Cape Town ,
Durban, Pretoria and Mthatha. The applicant is a relatively new entrant in the intercity
provincial passenger transportation industry. It expanded and operated services to
most major cities from 2022 after acquiring offices and loading ba ys at Park Station
in Braamfontein, Johannesburg.
[5] The applicant filed a complaint with the Commission , which the Commission
acknowledged receipt of on 21 August 2024 . In that complaint, the applicant
requested that the Commission investigate alleged anti -competitive conduct in the
long-distance passenger transportation sector that allegedly breached several
provisions of the Competition Act. Specifically, the applican t urged the Commission
to regulate the industry by establishing a minimum fare of R550 per person for
journeys of 650 kilometres or more. The applicant further requested that the
Commission prohibit false marketing practices, including the opening of sales for bus
services to be combined with others.
[6] The complaint was directed against four respondents. The first respondent
was PRASA, an organ of state trading as City to City, with offices at Park Station,
was PRASA, an organ of state trading as City to City, with offices at Park Station,
Johannesburg. The second respondent was Eag le Liner , also known as Intercity,
with offices at Park Station, Johannesburg. The third respondent was Delta Coaches,
likewise based at Park Station, Johannesburg. The fourth respondent was Intercape
Ferreira Mainliner (Pty) Ltd, trading as Intercape, with its head office in Pretoria West.
Each respondent operated luxury bus services from Pretoria, Germiston, Midrand,
and Heidelberg to various towns and destinations in the Eastern Cape via the N1
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and N3 routes. According to the applicant, the respondents jointly and/or severally
possessed market power and were dominant players in the intercity bus operations
market in South Africa, as contemplated in s 7 of the Competition Act.
[7] In its complaint to the Commission, the applicant alleged predatory pricing in
violation of s 8(1) (d)(iv) of the Competition Act against the respondents . The
applicant stated that the fares charged by the respondent firms were extremely low,
anti-competitive, and exclusionary. With respect to Intercape, the applicant based its
complaint on s 8(1)(a) of the Competition Act and contended that Intercape charges
excessive prices for its services, thereby adversely affecting consumers, particularly
during periods identified as peak travel times, such as long weekends and the
periods surrounding school closures and reopenings.
[8] The applicant stated that any fare charged to passengers for long -distance
travel of 600 kilometers or more, priced below R500 excluding agent commissions
such as Computicket, constituted predatory pricing. In the applicant’s view, such
fares were unreason ably low, fell below market levels, and were exclusionary to
other operators, particularly new entrants. The applicant illustrated that a competitor
operating a single coach on the same route, if compelled to match respondents’ fares
at approximately R300 per passenger, would incur losses if the coach carried 25
passengers or fewer on that day.
[9] According to the applicant, at times the respondents marketed more than one
coach, including sister coaches, departing from the same town within approximately
two hours and heading to the same destination. When both coaches failed to attract
sufficient passenger numbers, the respondents allegedly consolidated passengers
into a single coach. The applicant characterised this practice as ‘double dipping’ ,
contending that it was anti -competitive and exclusionary.
contending that it was anti -competitive and exclusionary.
[10] The allegation is that the respondents, aware that both coaches might not be
filled, acted with a preconceived intention to consolidate passengers, thereby
misleading the market. The applicant further asserted that this conduct placed
competitors at a disadvantage. In particular, a taxi or coach operator without a sister
coach on the same route, departing within a reasonable time of the original timetable,
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would be unable to compete effectively. If such an operator carried less than 50% of
its seat capacity, it would be compelled to operate at a loss, whereas the respondents
could mitigate their losses by consolidating passengers into one coach.
[11] The applicant believes the Commission should set minimum and maximum
prices for bus tickets in South Africa to prevent margin compression and predatory
pricing. In the applicant’s view, the lack of price regulation often leads to conflict and
criminal activities, including extortion, intimidation, and violence against coaches. This
stifles fair competition, as taxi operators complain about predatory prices imposed by
bus operators. The applicant therefore urged the Commission, in its complaint, to
investigate the alleged excessive and predatory pricing.
The Commission’s investigation and its ultimate decision of non-referral
[12] In its explanatory affidavit, the Commission stated that it acknowledged
receipt of the applicant’s complaint on 21 August 2024 and thereafter engaged not
only with the applicant but also with the respondents identified in the complaint. The
Commission noted that the decision not to refer the complaint to the Tribunal was
made at the screening stage of its investigation . The Screening Unit of the
Commission operates as an internal branch within the Advocacy Division, assisting
with investigations into prohibited practices. The Screening Unit begins by receiving
and evaluating all third -party complaints submitted to the Commission to determine
which cases warrant further inquiry and which may be closed without further action.
The Unit targets a 90 -day turnaround for third-party complaints, although this
depends heavily on the level of cooperation received when requesting additional
information from those involved.
[13] The Commission noted further that screening fulfils a dual role of centralising
the strategic direction of cases and managing the workload of the Commission’s
the strategic direction of cases and managing the workload of the Commission’s
main investigative divisions. Complaints that are transferred from the Screening Unit
to the Commission’s specialist divisions , are those that warrant the Commission’s
time and resources and necessitate the collection of further information. Such
information requires the specialised skills and experience of investigators within the
market conduct and cartel divisions. The Commission emphasised that the
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Screening Unit’s role is to assess whether new complaints raise competition
concerns and are likely to succeed.
[14] The Commission emphasised that the screening process enables complaints
to be resolved more expeditiously by eliminating matters that do not raise competition
concerns, thereby allowing investigators in the market conduct and cartel divisions
to focus on issues of greater significance.
[15] Regarding the applicant’s complaint, the Commission recorded that it
conducted a desktop assessment of the pricing practices of the various bus
operators, using data obtained from the Computicket ticketing platform . The
Commission compared ticket prices across various bus operators on the
Johannesburg-to-Kokstad and Johannesburg -to-Queenstown routes during two
periods: the peak period from 15 to 22 April 2025 (which includes Easter weekend)
and the off -peak period fro m 5 to 10 February 2025. Ultimately, the Commission
concluded, without making a definitive finding on dominance, that the applicant’s
complaints did not raise competition concerns warranting referral t o the Competition
Tribunal for determination.
[16] In reaching its decision not to refer the complaint, the Commission explained
that it had considered the following: with respect to the allegation of predatory pricing,
the Commission observed that bus operators, including the applicant, employ
dynamic pricing strategies. These strategies enable operators to cover operating
expenses and achieve profitability by varying f are levels during peak and off -peak
periods in response to fluctuations in demand. The Commission followed its 2017
market inquiry, 1 which found that to remain profitable operators of Intercity land
transport would raise prices during peak periods to offset off -peak losses, and that
flat-rate pricing would not be effective in this market.
[17] In response to the excessive pricing complaint against Intercape, the
Commission found that a comparative analysis of fares charged by competing
Commission found that a comparative analysis of fares charged by competing
1 See Competition Commission of South Africa ‘Market Inquiry into the Land Based Public Passenger
Transport Sector’ available at https://www.compcom.co.za/wp-content/uploads/2021/04/PTMI-Non-
Confidential-14-April-2021-FINAL.pdf accessed on 19 August 2026.
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operators on the same routes during both peak and off -peak periods demonstrated
that Intercape did not consistently charge the highest fares and that its profit margins
remained within acceptable limits. As to the allegation that Delta Coaches and Eagle
Liner failed to adhere to their advertised timetables and consolidated passengers
from separate bookings onto a single coach, the Commission concluded that such
conduct amounts to a breach of the operators’ licensing conditions. It held that this
issue fell outside the scope of the Commission’s investigative mandate and was a
matter to be reported to, and dealt with, by the relevant provincial licensing regulatory
authority.
[18] The Commission concluded by noting that central to the applicant’s pricing
complaints was its request that the Commission fix prices for operational routes. The
Commission emphasised that it is not within its mandate to fix prices, particularly in
an industry where the dynamic pricing model has been recognised as the fairest and
most reasonable mechanism for determining fares. Consequently, on 30 May 2025,
the Screening Unit recommended that the complaint not be referred. In accordance
with section 50 of the Competition Act, the Commission issued a certificate of
non-referral, in the form of Notice CC 8, on 10 July 2025. The notice recorded the
Commission’s conclusion that the complaint did not raise any competition concerns.
It is this decision that the applicant impugns in the present review application.
The applicant’s main grounds of review
[19] The applicant’s grounds of review , discernible from its founding and
supplementary affidavits, may be succinctly s ummarised as follows : The applicant
asserted that the Commission misdirected itself, acted with bias, and was reluctant
to investigate the complaint with an open and impartial mind. It contended that the
Commission was tasked with investigating whether fares below R350 for distances
Commission was tasked with investigating whether fares below R350 for distances
exceeding 700 kilometres from towns such as Mthatha, Kokstad, and Mount Frere
constituted predatory pricing and an abuse of dominance as contemplated in
s 8(1)(a) of the Competition Act. Notwithstanding, the Commission failed t o
investigate the complaint and issued a certificate of non -referral.
[20] The applicant further asserted that the Commission neglected to interview
managers, drivers, and other relevant personnel from the liquidated companies to
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establish the causes of their demise. The applicant also criticised the Commission
for failing to consult iintercity operators such as Luvalo Brothers Transport or Transit
Liner, who, according to the applicant, had suffered similar experiences. The
applicant added that the Commission failed to interview members of the taxi industry
in Gauteng, the Eastern Cape, and the Western Cape, particularly those engaged in
interprovincial long-distance travel. In the applicant’s view, the failure to consult the
taxi industry, which regards itself as a competitor of interprovincial bus operators,
constituted a gross irregularity on the part of the Commission.
[21] The applicant contended that the Commission’s view that operators could
offset low fares during off-peak periods by charging higher fares during peak periods
was flawed, irregular, and without substance. In the applicant’s view, this stance
ignored the reality that when fares are as low as R350 for a journey of 800 kilometres
or more, smaller operators, including the applicant, are compelled to withdraw from
competition and cancel services to avoid losses. Once the applicant and other small
operators exit the market, the larger operators, such as the respondents, can
increase fares, attract more passengers, and operate profitably, thereby benefiting
from the absence of competition.
[22] The applicant noted that in some instances, a small operator may cancel a
scheduled journey and sell its passengers to a larger operator to avoid losses. This
can result in the smaller operator losing customers. The larger operator may
ultimately become profitable by gaining additional passengers from the smaller
operator that cancelled its journey to avoid financial losses. In addition, the applicant
contended that the Commission failed to visit the bus operators' depots to conduct
in-house interviews and make the necessary observations as part of its investigation.
in-house interviews and make the necessary observations as part of its investigation.
In the applicant’s view, this omission constituted a procedural irregularity. While the
applicant acknowledged and welcomed price fluctuations in line with demand, it
maintained that minimum prices should be set to avoid prolonged losses, which could
exclude small and medium -sized enterprises from the market. The applicant
accepted that operators may increase fares during peak periods but argued that such
increases should remain within the b ounds of reasonableness.
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[23] The applicant impugned the Commission’s conclusion that the practice of
advertising several coaches with different travel times, and thereafter consolidating
passengers from separate bookings onto a single coach, was not anti -competitive.
The applicant con tended that this conclusion was fundamentally flawed. In its view,
such conduct constituted a clear breach of operating permits, which are designed to
regulate the orderly provision of passenger services. By permitting operators to
consolidate passengers f rom different coaches outside the scope of their licensed
routes and times, the Commission’s decision effectively condoned unfair
competition. The applicant urged the Court to grant the relief sought in the notice of
motion.
Should this Court entertain the application as a court of first instance?
[24] The applicant approached this Court, predicating its application on the
provisions of the Promotion of Administrative Justice Act 3 of 2000 (PAJA),
alternatively on the principle of legality. As foreshadowed above, o n 10 July 2025,
the Commission issued a notice of non -referral in respect of the applicant’s
complaint. In that communication, the Commission drew the applicant’s attention to
s 51(1) of the Competition Act , as amended. In terms of this provision, the
Commission advised the applicant that, should it disagree with the non-referral
decision, it may itself refer the matter to the Tribunal for consideration. Furthermore,
the Commission informed t he applicant that , in terms of Rule 14(1)(b) of the Rules
for the Conduct of Proceedings in the Tribunal, an applicant has 20 business days
from the date on which the Commission issues a notice of non -referral to refer its
complaint to the Tribunal.
[25] Notwithstanding, the applicant opted not to refer the matter to the Tribunal but
instead to approach this Court for appropriate relief. The question that begs is
whether it is competent for this Court to consider the applicant’s application
whether it is competent for this Court to consider the applicant’s application
notwithstanding the remed y provided for in s 51(1) of the Competition Act. It is this
question that I turn to consider in the discussion hereunder. For clarity and precision,
s 51(1) and (2) of the Competition Act provide as follows:
‘(1) If the Competition Commission issues a notice of non-referral in response to a complaint,
the complainant may refer the complaint directly to th e Competition Tribunal, subject to its
rules of procedure.
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(2) A referral to the Competition Tribunal, whether by the Competition Commission in terms
of section 50(1) or by the complainant in terms of subsection (1), must be in the prescribe
form.’
[26] The purpose of the Competition Act as set out in s 2 of the Act is, among other
things, to promote and maintain competition in the Republic in order to promote the
efficiency, adaptability and development of the economy. Section 1(2) (a) of the Act
enjoins this Court to interpret the Competition Act in a manner that is consistent with
the Constitution. Expressed differently, s 1(2)(a) of the Competition Act requires that
the Competition Act be interpreted through the prism of the Constitution. This is
consistent with the constitutional injunction in s 39(2) of the Constitution , which is to
ensure that the interpretation of legislation aligns with the spirit, purport and objects of
the Bill of Rights.2 In Investigating Directorate: Serious Economic Offences and Others
v Hyundai Motor Distributors (Pty) Ltd and Others : In re Hyundai Motor Distributors
(Pty) Ltd and Others v Smit NO and Others ,3 the Constitutional Court interpreted s
39(2) to mean, inter alia, that all statutes must be interpreted through the prism of the
Bill of Rights and that the Constitution requires that judicial officers read legislation,
where possible, in ways which give effect to its fundamental values.
[27] Section 49B(2)( b) of the Competition Act allows any person to submit a
complaint concerning an alleged prohibited practice to the Commission in the
prescribed form. The Commissioner must, in terms of s 50(2), within one year after
submission of the complaint either refer it to the Tribunal, if the Commission
determines that a prohibited practice has been established, or issue a notice of non -
referral to the complainant. Section 50(4)( a) provides that in a particular case the
Commission and the complainant may agree to extend the period allowed in
Commission and the complainant may agree to extend the period allowed in
subsection (2). If the Commission has not referred the complaint to the Tribunal or
issued a notice of non-referral within the one-year or extended period, the Commission
2 Section 39(2) of the Constitution provides that ‘when interpreting any legislation, and when developing
the common law or customary law, every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights.’
3 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty)
Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2000
(10) BCLR 1079 (CC); 2001(1) SA 545 (CC); 2000 (2) SACR 349 (CC) paras 21 and 22.
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is deemed to have issued a notice of non -referral upon the expiration of the relevant
period.4
[28] It is trite that once a complaint is lodged with the Commission , a complainant
(the applicant in this case), is not entitled to a hearing before the Commission refers a
complaint to the Tribunal. The Tribunal’s power to determine a complaint only arises
when a complaint is referred to it in terms of the Competition Act. This was confirmed
by the Supreme Court of Appeal (the SCA) in Woodlands Dairy (Pty) Ltd and Another
v Competition Commission ,5 which held that a complaint referral is a necessary
jurisdictional fact for the exercise of the Tribunal’s powers in respect of prohibited
practices. In this case, after conducting what I will term as its preliminary
investigations, the Commission concluded that the complaint did not give rise to any
competition issues and issued a total non-referral letter to the applicant.
[29] Instead of referring the matter to the Tribunal in terms of s 51(1) of the
Competition Act, the applicant has approached this Court to review the
Commission’s decision. The Competition Act, however, provides the applicant with
a remedy: namely, the referral of its complaint to the Tribunal. The applicant has
elected to impugn the Commission’s decision in this Court. The question that arises
is whether such a course is permissible .
[30] At the hearing of this matter, Mr Gwabeni, who appeared with Mr Mpakati on
behalf of the applicant, submitted that the applicant could not reasonably refer the
matter to the Tribunal in terms of s 51(1) of the Competition Act. Mr Gwabeni argued
that because the complaint had not been properly investigated by the Commission,
the applicant would be prejudiced if it referred the complaint to the Tribunal without
the benefit of a proper investigation. I am of the view that this proposition has merit.
The Commission is a specialist administrative body with investigative, compliance,
and enforcement functions.
and enforcement functions.
4 Section 50(5) of the Competition Act.
5Woodlands Dairy (Pty) Ltd and Another v Competition Commission [2010] ZASCA 104; 2010 (6) SA
108 (SCA); [2011] 3 All SA 192 (SCA) para 12.
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[31] In Simelane and Others NNO v Seven -Eleven Corporation SA (Pty) Ltd and
Another (Simelane),6 the SCA noted that b oth the Commission and the Tribunal are
creatures of statute, the statute being the Act. 7 Both bodies must exercise
their functions in accordance with the Act. The Commission is independent and
subject only to the Constitution and the law. 8 It must act impartially and perform its
functions without fear, favour or prejudice.9 Its functions include, amongst others, the
investigation and evaluation of alleged prohibited practices listed in Chapter 2 of the
Act.10 The Commission is tasked to refer complaints to the Tribunal where a prohibited
practice has been established. 11 Having so referred a matter , it is then its duty and
right to appear before the Tribunal and participate in its proceedings.12
[32] In Simelane, the SCA quoted with approval the Tribunal’s reasoning in Norvatis
SA (Pty) Ltd and Others v Competition Commission and Others,13 that the function of
the Commission is investigative and not subject to review, save in cases of ill faith,
oppression, vexation or the like. However, this Court noted in Competition Commission
of South Africa v Computicket (Pty) Ltd,14 that a public body such as the Commission
is subject to the principle of legality envisaged in ss 1, 7 and 34 of the Constitution and
its decisions can be reviewed, albeit in the set of limited circumstances as
foreshadowed in the dictum of the SCA postulated in Simelane.
[33] As a matter of principle, a review of the non-referral of a matter to the Tribunal
in a case such as the one before us ought not to be readily countenanced, particularly
where, as in the present case, the Act provides a remedy to the applicant. Consistent
with the principle of subsidiarity, an applicant should ordinarily not be permitted to
bypass the statutory scheme and the procedures expressly contemplated in the Act.
However, notwithstanding this dictum, I am of the view that this matter stands on a
However, notwithstanding this dictum, I am of the view that this matter stands on a
6Simelane And Others NNO v Seven -Eleven Corporation SA (Pty) Ltd And Another 2003 (3) SA 64
(SCA); [2003] All SA 82 (SCA) para 12.
7Section 19(1)(c) and s 26(1)(d).
8Section 20(1)(a) of the Act.
9Section 20(1)(b).
10Section 21(1)(c).
11Section 21(1)(c) and g.
12Section 20(1)(g) and s 53(a).
13Norvatis SA (Pty) Ltd and Others v Competition Commission and Others, (CT 22/CR/B/Jun 01,
2.7.2001 paras 7 and 35 - 61).
14Competition Commission of South Africa v Computicket (Pty) Ltd [2013] 2 CPLR 383 (CAC).
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different footing. As I will demonstrate later in this judgment, the Commission failed
to discharge its statutory duty under the Competition Act as it neglected to properly
investigate the applicant’s complaint.
[34] The Commission dismissed the applicant’s complaint at the screening stage
after conducting what was ostensibly a cursory desktop investigation, albeit longer
than the 90 -day period which is usually the target of the screening stage . Such an
investigation offends both the principle of legality and the rule of law. In particular, it
contravenes the provisions of ss 49B(3) and (4) of the Competition Act, which impose
a clear statutory duty upon the Commission to conduct a proper investigation into
complaints lodged with it. 15 These provisions enjoin the Commission to gather the
necessary information and investigate the compl aint as quickly as practicable and
determine whether a prohibited practice has been established.
[35] From a reading of the Competition Act, in particular Chapter 2 thereof, the
Commission is the only State organ empowered to investigate and police restrictive
practices and abuse of market dominance in the South African economy. The
Commission is required to investigate and prosecute cases against respondent firms
that it believes are guilty of infringing the Competition Act. 16 In doing so, it will initiate
investigations and thereafter, depending on the evidence it uncovers in the course of
its investigations, refer those firms and the conduct in question for determination by
the Tribunal.
[36] It must be stressed that once a complaint is initiated, the Commission must
investigate it. This investigative obligation is peremptory. Significantly, the
Commission has the machinery necessary to investigate anti -competitive behaviour.
The Competition Act sets out the powers and procedures the Commission has for
entering and searching premises under a warrant. 17 In certain circumstances, a
entering and searching premises under a warrant. 17 In certain circumstances, a
15Section 49B (3) and (4) provides as follows: (3) Upon initiating or receiving a complaint in terms of
this section, the commissioner must direct an inspector to investigate the complaint as quickly as
practicable. (4) At any time during an investigation, the commissioner may designate one or more
persons to assist the inspector.
16See Kellu L, Unterhalter D and Goodman I Principles of Competition Law in South Africa (2022) at
60.
17See s 46 of the Act.
15
Commission’s inspector may enter and search premises without a warrant, particularly
where the inspector believes on reasonable grounds that a warrant would be issued
under the Act if applied for and that the delay in first obtaining a warrant would defeat
the object or purpose of the entry and search.18
[37] This machinery is not readily available to an applicant who believes that a
dominant firm is engaged in restrictive practices. In the explanatory affidavit and in its
heads of argument, the Commission explained that t he desktop assessment of the
various bus operators’ pricing was based on data the Screening Unit obtained from
Computicket (a ticketing platform). No further investigation was conducted beyond
that. In its Memorandum to the Commissioners (Screening Memoran dum), the
Screening Unit recommended that the applicant’s complaint n ot be referred to the
Tribunal, on the basis that it ‘did not give rise to any competition issues’.
[38] Clearly, a proper investigation would have placed the applicant in a position
to make an informed decision whether to refer the matter to the Tribunal in terms of
s 51(1) of the Act. Put simply, it would have enabled the applicant to evaluate
whether a referral was worth pursuing. It is my firm view that a referral to the Tribunal
without the benefit of the in -depth investigation envisaged by the Act could prejudice
the applicant at the hearing before the Tribunal .
[39] As I see it, the applicant would have been better placed to make an informed
decision whether to refer the matter in terms of s 51(1) had it been furnished with the
information that a proper investigation would have yielded. Without a thorough
investigation, the applicant is deprived of the evidentiary material necessary to
assess the viability of a referral in terms of s 51(1).
[40] In my view, the outcome would have been different had the Commission
thoroughly investigated the matter and, despite that investigation, the applicant still
thoroughly investigated the matter and, despite that investigation, the applicant still
approached this Court. By undertaking a perfunctory desktop exercise, the
Commission failed to comply with its statutory mandate. This failure warrants judicial
scrutiny to ensure the Commission remains true to its legislative obligations. On this
18See s 46 read with s 47(2) of the Act.
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basis, I am of the view that the applicant’s referral of its application for review to this
Court must be condoned. In these circumstances, I believe the applicant cannot be
faulted for approaching this Court to vindicate its rights. The review application is
therefore properly before us. I now turn to consider whether the correct standard of
review is that provided under PAJA or the principle of legality.
PAJA or the principle of legality ?
[41] The applicant brought its application and relied on the principle o f legality
and/or PAJA. The applicant contended that the Commission’s decision not to
conduct a proper investigation into its complaint and to issue a non -referral is
susceptible to review under PAJA. In both Simelane and Competition Commission
of South Africa v Telkom SA Ltd and Another (Telkom),19 matters to which this Court
was referred to by the amicus, the SCA dealt with a review of the Commission’s
decision to refer a matter to the Tribunal. In preparing this judgment, we were unable
to locate any authority directly on point with the present matter, where a review of
the Commission’s decision was sought on the basis of a non -referral. Neither did
counsel refer us to any such authority. This absence of precedent underscores the
novelty of the issue before us.
[42] For clarity, PAJA defines an administrative action as:
‘[A]ny decision taken, or any failure to take a decision, by-
(a) an organ of state, when-
(i) exercising a power 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; or
(b) a natural or juristic person, other than an organ of state, when exercising a public
power or performing a public function in terms of an empowering provision, which adversely
affects the rights of any person and which has a direct, external legal effect. ’ (Emphasis
added.)
This definition envisages two requirements namely : (a) that a decision must be of an
added.)
This definition envisages two requirements namely : (a) that a decision must be of an
administrative nature and (b) that it must have the capacity to affect legal rights.
19Competition Commission of South Africa v Telkom SA Ltd and Another [2010] 2 AII SA 433 (SCA).
17
[43] In Telkom,20 the SCA noted that the ultimate decision to refer a matter to the
Tribunal and the referral itself are of an investigative nature and not an administrative
nature. To this end, PAJA does not apply to such a decision. This is so because PAJA
requires that a decision be administrative in nature and that it have the capacity to
affect legal rights. The court pointed out that the Commission’s decision may, however,
be set aside on the principle of legality even if it is not reviewable under PAJA. From
this authority, it is my firm view that a non-referral of a complaint to the Tribunal does
not satisfy the second requirement of affecting legal rights in that the applicant still has
a remedy in terms of s 51(1) of the Competition Act.
[44] Therefore, I conclude that the principle of legality is the appropriate procedure
for reviewing the Commission’s non -referral decision . I now turn to consider the
applicant’s application on the merits.
Whether the Commission’s decision complies with the principle of legality?
[45] The principle of legality is an incident of the rule of law which is one of the
founding values of the Constitution. 21 It is the product of the Constitution and is
premised on the idea that administrators and other public actors must act lawfully
within the bounds of the Constitution. It requires that all exercises of public power are,
at a minimum, lawful and rational. 22 In Pharmaceutical Manufacturers Association of
South Africa and Another: In re Ex parte President of the Republic of South Africa and
Others,23 it was held that it is a requirement of the rule of law that the exercise of public
power by the Executive and other functionaries should not be arbitrary. The Court
noted that decisions must be rationally related to the purpose for which the power was
given, otherwise they are in effect arbitrary and inconsistent with this requirement.
[46] Consistent with these established principles, the Commission is required to
[46] Consistent with these established principles, the Commission is required to
exercise its referral powers to the Tribunal in a rational manner. This means that the
decision it t akes must be substantively and procedurally rational. Rationality review
20Ibid para 11.
21Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council
and Others 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC) para 58.
22Khumalo and Another v Member of the Executive Council for Education: KwaZulu Natal 2014 (5) SA
579 (CC); 2014 (3) BCLR 33 (CC) para 28.
23Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex parte President of
the Republic of South Africa and Others 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) para 85.
18
concerns the evaluation of the relationship between means and ends: the relationship,
connection or link between the means employed to achieve a particular purpose on
the one hand, and the purpose or end itself on the other .24 In Zuma v Democratic
Alliance and Others ,25 Navsa ADP stated that a rationality review also covers the
process by which the decision is made. The court pointed out that rationality includes
an assessment of whether the means , including everything done in the process of
taking the decision, links to the end.26 If a failure to take into account relevant material
is inconsistent with the purpose for which the power was conferred , there can be no
rational relationship between the means employed and the purpose.
[47] As discussed above, the Commission investigates and prosecutes complaints,
while the Tribunal, on the other hand, determines those complaints that have been
referred to it by the Commission or by private parties under s 51(1) of the Act. One of
the Commission’s most critical functions is the enforcement of ss 4, 5, 8 and 9 of the
Competition Act.27 In terms of s 49B(3) of the Act, upon the Commission receiving a
complaint, in this case, of a prohibited practice under chapter 2 of the Act, the
commissioner must appoint an inspector to investigate it ‘as quickly as practicable’. At
any time during the investigation, the commissioner may designate one or more
persons to assist the inspector.
[48] The inspector is entitled to question people , and they must answer each
question truthfully and to the best of that person ’s ability, unless the answer is self -
incriminating.28 Whilst an investigation is in progress , the commissioner is entitled to
summon any person for interrogation and may require production of books and
documents.29 Powers of entry, search and seizure are conferred by ss 46 to 49 of the
Act. After completion of the investigation the Commission must refer the matter to the
Act. After completion of the investigation the Commission must refer the matter to the
Tribunal if it determines that a prohibited practice has been established.
24Democratic Alliance v President of the Republic of South Africa and Others 2013 (1) SA 248 (CC) ;
2012 (BCLR) 1297 (CC) para 32.
25Zuma v Democratic Alliance and Others; Acting Director of Public Prosecutions and Another v
Democratic Alliance and Another 2018 (1) SA 200 (SCA); [2017] 4 All SA 726 (SCA) para 82.
26See also Albutt v Centre for the Study of Violence and Reconciliation and Others 2010 (3) SA 293
(CC); 2010 (5) BCLR 391 (CC) paras 33 and 34.
27Section 4 addresses restrictive horizontal practices; section 5 addresses restrictive vertical practices;
section 8 addresses Abuse of dominance; and section 9 addresses Price discrimination.
28See s 49A(2) of the Act.
29See s 49A(a) and (b).
19
[49] In Glaxo Wellcome (Pty) Ltd v National Association of Pharmaceutical
Wholesalers and Others ,30 this Court (the CAC) pointed out that although the Act
provides for a blend of public and private prosecutions of prohibited practices, the
Commission is clearly the legislature’s investigator and prosecutor of first choice. Only
after it has investigated a complaint and deci ded not to prosecute may the private
complainant do so. The court noted that , in conformance with this scheme, the Act
does not allow a complainant to bypass the Commission by holding back some of its
complaints, get a non-referral, and then add complaints of which the Commission was
never told.
[50] It is common cause that the applicant’s complaint was premised on a violation
of s 8 of the Act. The applicant’s core complaint concerned alleged anti -competitive
conduct, including predatory and excessive pricing, by alleged dominant inter -
provincial bus operators, which the applicant contends are forcing smaller, compliant
operators like itself out of the market. Section 8(1)(a) of the Competition Act prohibits
exploitative conduct in the form of excessive pricing. The section prohibits dominant
firms from charging an excessive price to the detriment of consumers, while s
8(1)(d)(iv) prohibits dominant firms from selling goods or services at a predatory price.
[51] The Competition Act defines a predatory price as a price for goods or services
below the firm’s average avoidable cost ( AAC) or average variable costs (AVC).
Average avoidable costs in terms of the Act means the sum of all costs, including
variable costs and product -specific fixed costs, that could have been avoided if the
firm ceased producing an identified amount of additional output, divided by the quantity
of the additional output . While average variable cost means the sum of all the costs
that vary with an identified quantity of a particular product, divided by the total
produced quantity of that product.
produced quantity of that product.
[52] As foreshadowed above, the applicant predicated its complaint on abuse of
dominance envisaged in s 8(1)(a) (excessive pricing) and predatory pricing in terms
of s 8(1)(d)(iv) of the Act. Section 8(2) of the Act provides that if there is a prima facie
30Glaxo Wellcome (Pty) Ltd v National Association of Pharmaceutical Wholesalers and Others [2002]
ZACAC 3 paras 26 to 28.
20
case of abuse of dominance because the dominant firm charged an excessive price,
the dominant firm must show that the price was reasonable . Section 8(1)(a) must be
read with s 8(3) , which provides that any person determining whether a price is an
excessive price must determine if that price is higher than a competitive price and
whether such difference is unreasonable, determined by taking into account all
relevant factors in s 8(3)(a) to (d).
[53] Mr Van Rooyen, who appeared for the Commission, asserted that because the
Screening Unit focused on the merits of the applicant’s complaint, the Commission ’s
memorandum does not expressly define the market or reach a final view on
dominance; instead, the Screening Unit evaluated the complaint on its merits to
assess whether the allegations made by the applicant amounted to excessive or
predatory pricing.
[54] To succeed on a complaint under section 8, the complainant must establish
that the respondent firm or firms are dominant and that they have committed an abuse
as set out in the Act. However, I consider it appropriate for the Commission at the
screening stage, where it concludes that a complaint lacks merit, to determine either
that the respondent firm is not dominant, without deciding whether the conduct
complained of constitutes an abuse, or that even if the firm is dominant the conduct in
question does not amount to an abuse as defined in section 8 of the Act. In this case,
however, the Commission did neither.31
[55] The applicant contended that the respondents charge unsustainably low
fares, often below cost, with the deliberate purpose of driving competitors from the
market, particularly on the Johannesburg –Kokstad and Johannesburg –Queenstown
routes. For example, the applicant explained that when fares drop to R350 for
journeys of 800 kilometers or more, the applicant and other SMME operators are
31Section 7 of the Act codifies the circumstances in which a firm may be held to be dominant. In terms
of s 7 of the Act, a firm is deemed dominant if it has more than 45 percent of the market share in the
market in which it operates. The presumption of dominance in this regard is irrefutable. A firm with a
market share of between 35 percent and 45 percent is presumed to be dominant. However, the firm
can rebut this presumption by adducing evidence that it does not have market power. A firm with a
market share of less than 35 percent in the relevant market in which it operates is presumed not to be
dominant. However, the Commission or a private complainant can rebut this presumption by adducing
evidence of market power. Market power is often described as the power to control prices: that is, to
increase prices above the competitive level.
21
sometimes compelled to withdraw from competition and cancel trips to avoid losses.
Once the applicant exits the market, the alleged dominant operators, such as Eagle
Liner/Intercity, typically raise their fares. They then attract more passengers, become
profitable, benefit from customers who would otherwise have chosen the applicant,
and capitali se on the absence of competition. The applicant contends that this
pattern of below -cost pricing followed by fare increases constitutes exclusionary
conduct designed to eliminate competitors, particularly small firms, and subsequently
to exploit market power.
[56] It is my firm view that the applicant’s complaint of predatory pricing ought to
have been properly investigated, particularly when one considers the findings of the
2017 Market Inquiry, which suggested the existence of predatory pricing in the
relevant market. That inquiry highlighted precisely the type of exclusionary conduct
alleged by the applicant in this matter. Against that backdrop, the Commission’s
decision to non -refer the complaint at the screening stage, without a thorough
investigation, is difficult to reconcile with the outcome of its own market inquiry.
[57] The applicant further stated that the respondents , Intercape, in particular,
charge what the applicant believed are exploitative and excessive fares during peak
travel periods, such as school holidays and long weekend s, to the prejudice of
consumers. The applicant illustrated this with a specific example: bus tickets for
R2 500 to R2 770 on a trip from Johannesburg to Cape Town during 4-7 February
2025. The applicant also attached a Computicket price screenshot showing prices
between R2,700 and R3,000 from Johannesburg to Cape Town on 1 February 2025,
which, according to the applicant, were more expensive than flight tickets.
[58] What compounds the difficulty in the investigation of the Commission is that the
applicant also levelled complaints of alleged predation in terms of s 8(1) (d)(iv) of the
applicant also levelled complaints of alleged predation in terms of s 8(1) (d)(iv) of the
Competition Act against PRASA/Autopax, Eagle Liner, and Delta Coaches. In addition,
the applicant alleged that Delta and Eagle Liner advertised several coaches to the
same destination at different times but would combine passengers from separate
bookings onto one coach to avoid running multiple under -filled coaches, enabling
offending bus operators to price much lower than others who abide by the times they
advertise. The applicant submitted that this practice places smaller operators like itself
22
at a structural disadvantage, because a competitor without such sister coaches would
be forced to travel with half or fewer passengers at a loss.
[59] To this end, the applicant provided an example of how this practice operates: a
dominant operator may advertise three departure times (e.g., 8h00, 8h20, and 8h40)
and, when each coach has only about 17 passengers, combine all 51 passengers into
one coach and postpone departure to 8h40. An SMME operator without three coaches
can only advertise one departure time and would be obliged to depart with only 17
passengers, operating at a loss, while the dominant operator ’s combined coach
departs with 36 passengers and is profitable.
[60] It is common cause that Delta Coaches did not respond at all to the
Commission’s request for information on this accusation . Notwithstanding, the
Commission concluded that Delta pricing does not give rise to competition concerns.
In its explanatory affidavit, the Commission stated that the absence of Delta ’s
response did not impact the Commission’s conclusion on the predatory pricing or false
advertising complaints against Delta. In particular, the Commission noted that bus
operators’ licenses specify the routes, starting points, times , and designated stops
they must follow. Operators are required to adhere strictly to these details. According
to the Commission, failure to comply with assigned locations or schedules is a breach
of license terms and should be handled by the Regulator, not the Commission,
because it is not a competition issue.
[61] The compounding difficulty is that the Commission reached its conclusion
regarding Delta’s pricing without any data or input from Delta. To this end, I share the
views expressed by the amicus that Delta’s non-response was not a peripheral matter.
It was a complete absence of evidence regarding one of the named respondents. The
Commission could not conduct a predatory pricing analysis of a specific respondent
Commission could not conduct a predatory pricing analysis of a specific respondent
without any data or contribution from that respondent . In the absence of Delta ’s cost
data, the Commission could neither determine nor apply the AAC-AVC test to Delta.
[62] The Commission’s decision not to exercise its coercive powers to compel a
response, or to simply accept the non-response as it did, is a procedural failure that
23
goes to the rationality of its decision on Delta. The Commission does not allege to
have issued summons for interrogation to Delta or to have conducted search and
seizures as mandated by s s 46, 47 and 49A of the Act. The Commission did not
provide any explanation and did not advance any argument whatsoever for how a
conclusion on Delta ’s pricing conduct could be reached in the absence of any data
from Delta. This gross failure on the part of the Commission renders the conclusion of
non-referral irrational.
[63] Troublingly, the PRASA -aligned operators whose pricing is most directly at
issue did not provide granular cost data or a breakdown of their expenses. They
provided only average monthly passenger and fare data and declined to furnish per -
trip cost and profit informati on, stating that PRASA does not compile its data in that
manner. The Commission accepted this response without seeking further information
or invoking any coercive power available to it to compel PRASA to produce the
required evidence. A finding that prici ng is not predatory, made in the absence of
any cost data from the alleged predator, lacks the necessary factual foundation. In
my view, this is a gross irregularity that vitiates the Commission ’s ultimate decision.
[64] Another difficulty in the Commission’s perfunctory investigation is that it
confined its alleged investigations to operators still active in the market. It made no
effort whatsoever to identify or interview operators that had ceased trading, whether
through liquidation, withdrawal, or financial distress. The applicant specifically
requested that the Commission interview personnel from interprovincial bus
operators that had been liquidated since approximately 2020, in order to ascertain
what role predatory p ricing may have played in their demise. The Commission
declined to do so as it did not regard such interview as necessary.
[65] Similarly, the Commission failed to interview other SM ME intercity operators
[65] Similarly, the Commission failed to interview other SM ME intercity operators
active on the relevant routes, including Luvalo Brothers Transport and Transit Liner,
whose operational experience was invaluable in determining the applicant’s
complaint. Nor did the Commission engage with the taxi industry operating on
interprovincial routes in Gauteng, the Eastern Cape, and the Western Cape. These
operators, who regard themselves as competitors of interprovincial bus operators,
may have had independent e vidence of anti -competitive conduct. By excluding
24
and/or neglecting to interview th ese affected parties, the Commission undermined
its statutory mandate to conduct an in-depth investigation to curb prohibited
practices.
[66] It must be stressed that these are precisely the operators who, during the
Commission’s own Market Inquiry in 2017, raised concerns about below-cost pricing.
Notwithstanding this, the Commission declined to interview them, taking the view
that such engagement was unnecessary. This stance is difficult to reconcile with the
Commission’s subsequent finding in the 2021 Online Intermediation Platform Market
Inquiry (OIPTMI), where it acknowledged that bus operators had raised concerns
about dominant operators charging s ignificantly low prices. It found that evidence of
low pricing by Autopax was suggestive of anti -competitive behaviour by Autopax,
given its financial performance.
[67] The operators who were ostensibly affected by the alleged conduct and did
not survive it were the most directly relevant witnesses available for interview. Their
exclusion from the investigative process deprived the Commission of crucial
evidence and undermined the rationality of its ultimate non-referral decision . The
Commission’s failure to interview such witnesses reflects not only a superficial
investigation but a failure to carry out its mandate. In my view, this constitutes a
fundamental investigative failure. It reflects a closed mind and a superficial approach
inconsistent with the Commission’s statutory obligations under s 49B (3) of the Act.
[68] In these circumstances, the non -referral decision cannot be said to be
rationally connected to the purpose for which the investigative power was conferred.
As previously stated, rationality includes an assessment of whether the means ,
including everything done in the process of taking the decision, links to the end. Both
the process by which the decision is made, and the decision itself must be rational. In
the process by which the decision is made, and the decision itself must be rational. In
my view, the process that the Commission undertook to reach its decision was
fundamentally flawed, and it ultimately contaminated its ultimate decision not to refer
the matter to the Tribunal.
25
Conclusion
[69] From the above discussion , it is evident that the investigation by the
Commission was inadequate and perfunctory and did not meet the threshold for
investigation as contemplated in the Competition Act. The Commission did not
exercise its investigative powers mandated by the Act. Furthermore, dominance was
not assessed. This is a prerequisite for any finding under s 8(1). In the premises, I
hold the view that the matter should be remitted to the Commission’s market conduct
division for investigation to be conducted by a different inspector or inspectors
appointed in terms of s 49B (3).
Costs
[70] Section 61 of the Competition Act provides that the Competition Appeal Court
may make an order for the payment of costs against any party in the hearing, or
against any person who represented a party in the hearing, according to the
requirements of the law and fairness. The ordinary course is for costs to follow the
result. But the Commission is not an ordinary civil litigant. The Act’s explicit reference
to the notion of fairness invites this Court to consider factors not limited to instances
of mala fides or irregularity on the part of the Commission. The ordinary meaning of
fairness goes to the idea of treating parties equitably and in an even-handed way.
[71] In Competition Commission of South Africa v Pioneer Hi-Bred International Inc
and Others,32 the Constitutional Court noted that in the context of similar institutional
roles, such as that of a prosecutor, an important principle has emerged that the usual
rule that costs follow the result does not ordinarily apply to these state actors. The
Court noted that this Court should be alive to any undue financial prejudice that may
result from its order, taking into account the inherently limited means of the
Commission as a statutory body acting in the public interest, the particularities of the
parties before it, and th e nature of the proceedings. The Court also stressed that
parties before it, and th e nature of the proceedings. The Court also stressed that
fairness in the light of the Commission’s role and in giving effect to the aims of the Act
ought to mean that even when this Court disagrees with the Commission’s position or
32Competition Commission of South Africa v Pioneer Hi-Bred International Inc and Others 2014 (2) SA
480 (CC); 2014 (3) BCLR 251 (CC) para 23.
26
finds its actions to be mistaken, this is not necessarily sufficient to justify an adverse
costs order.
[72] In this case, the Commission filed a notice to abide and did not oppose the
applicant’s application. The Commission also filed an explanatory affidavit and heads
of argument which were of assistance to the court in forming a balanced perspective
on the applicant’s grounds of review. Consequently, I am of the view that each party
must pay its own costs.
Order
[73] In the result, the following order is made:
1. The Competition Commission’s decision not to refer the applicant’s complaint
to the Competition Tribunal is hereby set aside.
2. The matter is remitted to the Competition Commission’s market conduct
division for investigations to be conducted by a different, properly appointed
inspector/s in terms of s 49B(3) of the Competition Act 89 of 1998 within 90
days from the date of this order .
3. Each party is ordered to pay its own costs.
_ ____
J D Lekhuleni
Acting Judge of Appeal
Competition Appeal Court of South Africa
27
Appearances
Counsel for Applicant: T Mpakati & M Gwabeni
Instructed by: Mpakati Inc Attorneys, Pretoria
Amicus curiae: N Muvangua, A Cachalia & M
Tshabalala (pupil)