CCT90/11

[2012] ZACC 15

2012 (9) BCLR 907 (CC)

Maya AJ Majority judgment

Yacoob ADCJ and Cameron J dissenting judgment

26 June 2012

http://hdl.handle.net/20.500.12144/3656

Application for leave to appeal directly to the CC against the judgment and order of the Competition Appeal Court. The CAC overturned an order of the Competition Tribunal: Competition Commission v Loungefoam (Pty) Ltd and Others, In re: Competiti1on Commission v Loungefoam (Pty) Ltd and Others (103/CR/Sep08) [2010] ZACT 39 (8 June 2010).

Application for leave to appeal against decision that the Competition Commission cannot amend its complaint referral against respondents who are alleged to have engaged in anti-competitive conduct in breach of the Competition Act 89 of 1998 (Act). The majority held that leave to appeal should be refused. Section 63(2) of the Act is capable of two constitutionally compliant interpretations: (a) it bars a litigant seeking leave to appeal against a decision of the Competition Appeal Court (CAC) from approaching either the Supreme Court of Appeal or this Court directly without first applying to the CAC for leave; or (b) it constitutes such bar unless the interests of justice under section 167(6) of the Constitution permit a direct approach to this Court. The majority concluded that it was unnecessary to decide which interpretation was to be preferred and dismissed the application on the basis that there was noncompliance with either interpretation. A dissent held that section 63(2) does not bar the Commission from seeking leave to appeal directly from this Court, even if its provisions have not been met. It held that that the importance of the Commission’s public role, the significance of the issues it raised, their prospects of success in the appeal and the fact that the matter did not lie at the complex intersection of law and economics, warranted the grant of leave. Majority: Maya AJ (Mogoeng CJ, Froneman J, Jafta J, Khampepe J, Nkabinde J, Skweyiya J, van der Westhuizen J and Zondo AJ concurring). Dissent: Yacoob ADCJ and Cameron J.