CCT61/11

[2012] ZACC 6

2012 (7) BCLR 667 (CC)

Jafta J Majority judgment

Froneman J dissenting judgment

12 April 2012

http://hdl.handle.net/20.500.12144/3653

Application for leave to appeal against a judgment of the SCA: Senwes Ltd v Competition Commission [2011] ZASCA 99; [2011] 1 CPLR 1 (SCA)

Application for leave to appeal against a judgment of the Supreme Court of Appeal setting aside a finding by the Competition Tribunal against the respondent company, on the ground that the Competition Commission’s complaint, of “margin squeeze”, had not been properly advanced. The central question was whether the respondent was guilty of anti-competitive conduct in terms of section 8(c) of the Competition Act 89 of 1998 (the Act). In addition, the questions whether the charge of “margin squeeze” falls within the ambit of section 8(c) and whether it formed part of the initial complaint referral against Senwes were also before the Court. The majority held that the Supreme Court of Appeal erred in concluding that a complaint relating to a contravention of Section 8(c) of the Act was not part of the referral. The error committed by the Competition Tribunal was to call the breach a “margin squeeze”, a term not used in the Act. There can be no prejudice to the respondent flowing from this. It received the referral which contained the complaint that it contravened section 8(c) in advance and before the hearing at the Tribunal. That same complaint formed part of the issues to be determined by the Tribunal. In addition, the respondent received statements of witnesses who were going to testify in support of that complaint. All of this happened before the hearing at the Tribunal. At the hearing, the respondent was given an opportunity to refute the complaint. The order granted by the Supreme Court of Appeal was set aside and the Tribunal’s ruling was amended by deleting the reference to margin squeeze, but otherwise reinstated. A dissenting judgment held that the referral is capable of two reasonable interpretations, namely, the one preferred by the majority in this Court, and the one assigned to it by the Supreme Court of Appeal. For this reason, Senwes would be prejudiced by the disposal of the matter by this Court on the basis of the interpretation it prefers. Therefore, it was held that the matter ought to have been remitted to the Tribunal for a re-hearing to ensure fairness to Senwes. Majority: Jafta J (Mogoeng CJ, Moseneke DCJ, Nkabinde J, Skweyiya J, Van der Westhuizen J, Yacoob J and Zondo J concurring). Dissent: Froneman J (Cameron J concurring).