CCT81/11

[2012] ZACC 14

2012 (9) BCLR 923 (CC)

Zondo AJ Majority judgment

Froneman J separate judgment

Cameron and Yacoob JJ dissenting judgment

26 June 2012

http://hdl.handle.net/20.500.12144/3655

Application for leave to appeal directly to the CC against the judgment and order of the Competition Appeal Court: Yara South Africa (Pty) Ltd v Competition Commission and Others, In re Competition Commission v Sasol Chemical Industries Ltd and others, In re Omnia Fertiliser Ltd v Competition Commission [2011] 1 CPLR 78 (CAC). The CAC overturned an order of the Competition Tribunal.

Application for leave to appeal against a decision of the Competition Appeal Court that the Competition Commission could not amend its complaint referral against respondents before the Competition Tribunal. The Commission concurrently sought to appeal to the Supreme Court of Appeal (SCA). Its application for leave to appeal to the SCA was still pending before the Competition Appeal Court when leave to appeal to the Constitutional Court was lodged. The majority held that the application fell to be dismissed as the delay in lodging the application was inordinate and the explanation provided was so poor that it amounted to no explanation at all. It was also preferable that the matter be dealt with by the SCA first if leave to appeal there was granted. A concurring judgment found that the application should be dismissed as it was not in the interests of justice to hear the matter before the views of the Competition Appeal Court on the application for leave to appeal were obtained. A dissent found that the Commission’s delay in approaching this Court was reasonable and sufficiently explained. Furthermore, the importance of the Commission’s public role suggested that it was in the interests of justice to have the matter heard. Moreover, section 63(2) was no absolute statutory bar to the Commission appealing directly to this Court without first obtaining (or being refused) leave by the Competition Appeal Court. The application for leave to appeal was dismissed. Majority: Zondo AJ (Mogoeng CJ, Jafta J and Nkabinde J concurring). Separate concurrence: Froneman J (Skweyiya J and Van der Westhuizen J concurring). Dissent: Cameron and Yacoob JJ (Moseneke DCJ concurring).