Case CCT 158/18, 179/18 and 218/18
 ZACC 02
Hearing Date: 05 March 2019
Judgement Date: 20 February 2020
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Thursday, 20 February 2020 at 10h00 the Constitutional Court handed down judgment in three consolidated applications for leave to appeal brought by the Competition Commission of South Africa (Commission) against decisions of the Competition Appeal Court (CAC) and the Competition Tribunal (Tribunal).
The applications involve companies, Standard Bank of South Africa Limited (Standard Bank) and a group of seven companies referred to as “the Waco respondents” against whom the Commission referred complaints to the Tribunal for anti-competitive behaviour. After complaints against the companies were referred, the companies sought to access certain information held by the Commission. Two of the applications before the Constitutional Court concerned the same question: whether a party can access the Commission’s record of investigation after a complaint has been referred to the Tribunal but before the party has answered the complaint (Rule 15 applications). The third application concerned the power of the CAC, in review proceedings, sitting as a court of first instance and with a single judge presiding, to order the Commission to furnish the record of its referral decision (Rule 53 application).
In the Rule 15 applications, Standard Bank and the Waco respondents relied on rule 15 of the Competition Commission Rules (Commission Rules) seeking access to the Commission’s record of investigation after the complaint referral but before they had answered the complaint. Standard Bank approached the Tribunal for an order compelling the Commission to disclose its record under rule 15. Standard Bank was unsuccessful before the Tribunal. The Tribunal held that Standard Bank was entitled to the Commission’s record of investigation under rule 15. However, the fact that Standard Bank is a litigant is a relevant consideration in determining what constitutes a reasonable period for production of the record. Standard Bank was therefore only entitled to the record at the time of discovery. Standard Bank appealed to the CAC. The CAC held that the Commission must make its record available to Standard Bank, as soon as the record could be compiled. The primary basis for its decision was that the CAC was bound by its previous decision in Group Five, which held that a party in Standard Bank’s position was entitled to the record. The Waco respondents subsequently made a similar application to the Tribunal, and were also successful. The Tribunal held that it was bound by the CAC’s previous decisions, and so the record had to be disclosed.
In the Rule 53 application, Standard Bank had applied directly to the CAC to review the decision by the Commission to refer the complaint to the Tribunal. As part of the review proceedings, Standard Bank sought access to the Commission’s record of its referral decision, including its record of investigation, pursuant to rule 53 of the Uniform Rules of Court (Uniform Rules). The Commission failed to furnish Standard Bank with a rule 53 record and Standard Bank sought directions from the Judge President of the CAC. The Judge President assigned the matter for hearing by a single judge in terms of section 38(2A) of the Competition Act. The CAC held that an order directing a party to produce a rule 53 record was a procedural direction as envisaged in section 38(2A) and could be heard by a single judge. The CAC directed the Commission to produce a rule 53 record in the review proceedings. It did so without first determining whether the CAC had jurisdiction to hear the review as a court of first instance.
The first judgment, penned by Theron J, held in the Rule 15 applications that rule 15, properly interpreted, allows a litigant as a member of the public to access information held by the Commission post-referral and before pleadings close. This interpretation is in line with the plain wording of the rule and its purpose, which is to facilitate access to information and give effect to section 32 of the Constitution. In addition, the constitutional imperative of interpreting rule 15 so as to best promote the constitutional values of openness and transparency requires a generous, rather than a restrictive reading of the rule. The first judgment further held that rule 14 of the Commission Rules, which incorporates the grounds upon which access to information may be restricted under the Promotion of Access to Information Act (PAIA), cannot be seen as precluding a litigant in proceedings before the Tribunal from accessing information held by the Commission. Rule 14 does not incorporate the provision in PAIA that excludes information requested for the purpose of litigation from PAIA’s scope of application.
The first judgment held that what constitutes a reasonable period for the production of the record should be determined by having regard to the length of time that the Commission might need to prepare its record. The identity of the requestor and the purpose of the request are not relevant to the determination of reasonableness. The first judgment would therefore have dismissed the rule 15 appeals.
In the Rule 53 application, the first judgment held that it would be inappropriate for this Court to determine whether the CAC has jurisdiction to hear the review application as a court of first instance. This is because the CAC, as a specialist court which is most familiar with its own jurisdiction, has yet to pronounce on this question. The first judgment left open the question of whether a single judge of the CAC may order production of a rule 53 record in terms of section 38(2A) of the Competition Act, as it is linked to the question of jurisdiction.
The first judgment, however, held that the CAC could not order production of the rule 53 record without first determining whether it had jurisdiction to hear the review application. This is because its order may turn out to be a nullity. The applicant must establish jurisdiction in its founding papers and is not entitled to the rule 53 record in the hope that it may clothe the CAC with jurisdiction. This is distinguishable from the merits of the review application, as a party is entitled to the rule 53 record even if their grounds of review are meritless. The first judgment would therefore have upheld the appeal and remitted the matter to the Judge President of the CAC.
In a majority judgment penned by Jafta J and Khampepe J (Ledwaba AJ, Mhlantla J and Nicholls AJ concurring), the judges agree that the appeal in the rule 53 application should succeed. The majority however takes a different view with regard to the claim for access to the Commission’s record of investigation in rule 15 applications. According to the majority judgment, these applications too should succeed. The majority judgment examined the Tribunal Rules and held that, with regard to complaints that have been referred to the Tribunal, the Tribunal Rules do not envisage production and discovery of documents before the close of pleadings and the pre-hearing conference.
The majority judgment held that the question at the heart of the inquiry is whether rule 15 of the Commission Rules may be applied to matters that have been referred to the Tribunal for adjudication. In this regard, the majority judgment did not endorse the view adopted by the CAC in Group Five to the effect that rule 15 of the Commission Rules applies to complaints that have been referred to the Tribunal before the close of pleadings. According to the majority judgment, rule 15 of the Commission Rules was not designed to enable disclosure of information to litigants before the Tribunal. Rule 15 encompasses a general access right afforded to the public and not to a litigant seeking to formulate a defence.
The majority judgment held that the Commission Rules govern the Commission’s conduct in its own proceedings. In the proceedings before the Tribunal, on the other hand, resort must be had to the Tribunal Rules. The Commission Rules, like other rules, will find application before the Tribunal only when they have been expressly incorporated. Rule 15 cannot be interpreted so expansively as to include litigants. Once a complaint is referred to the Tribunal, the Tribunal Rules are triggered and govern the disclosure and discovery of documents between the litigating parties.
In relation to rule 22(1)(c)(v) of the Tribunal Rules, the majority held that respondents in referral proceedings enjoy an automatic right to discovery after close of pleadings; however, a Tribunal member has the discretion to decide when and how the production of the discovery will occur and whether it is informal or formal. On a proper construction of the rule, it is clear that the Tribunal member’s discretion is restricted to the question of when and how discovery will take place, and does not extend to the question of whether or not parties in a particular case are entitled to discovery. This construction of the rule would be in accordance with the principles of natural justice as required in terms of section 52(2)(a) of the Competition Act.
The majority found that since Standard Bank and the Waco respondents sought discovery of the record, their reliance on rule 15 of the Commission Rules was misplaced. Being litigants, Standard Bank and the Waco respondents ought to have relied on the powers conferred on the Tribunal by section 52(1) of the Competition Act read with Tribunal rule 22(1)(c)(v).
In addition, the majority held that the Commission’s alternative argument – that the CAC had incorrectly applied the test set out in Group Five must also succeed. This question engaged the Constitutional Court’s jurisdiction due to the divergence between the approaches of the Tribunal and Competition Appeal Court as to what constituted a “reasonable” period in terms of rule 15(1) of the Commission Rules. The CAC held that the identity of the requestor and the purpose of the request are immaterial and do not play a role in determining a reasonable time period. This approach is too narrow. Rule 15 was not designed to facilitate, or furnish the respondent with a defence. As a consequence, the identity of the requestor would be a relevant consideration in determining how long the reasonable period should be. This interpretation would align the public access right in the competition law context with the public access right in ordinary court proceedings.
With regard to the rule 53 appeal, the majority judgment cautioned against wasting scarce judicial resources on issuing orders which courts have neither the authority nor the competence to enforce. In this regard, the CAC erred in ordering the rule 53 disclosure of the Commission’s investigatory record before it had determined whether it had jurisdiction. In brief, the rule 53 appeal must succeed.
A third judgement penned by Froneman J and concurred in by Cameron J, agreed with parts of each of the first and majority judgment on the rule 15 applications, but disagreed with both judgments on the outcome of the rule 53 application. The third judgement found that the purpose for the request for public access is the key to resolving the apparent tension between the public access rule (rule 15 of the Commission Rules) and the litigation discovery rule (rule 22(1)(c)(iv) of the Tribunal Rules). The third judgment held that a practical solution to this tension is to determine what a “reasonable period” for providing the public access record might then be. A relevant factor to consider would be whether there is a reasonable probability that the public access record is sought not for general public interest purposes, but for strategic purposes in gaining advantages in the Tribunal proceedings. This according to the third judgment, would be a practical control mechanism for preventing abuse of the public access process and would also address any possible absurdity in allowing members of the public access during litigation, but not litigants.
The third judgment further held that it would have dismissed the rule 53 application. This is because section 38(2A) of the Competition Act empowers the Judge President or any Judge, designated by the Judge President to sit alone and consider, amongst others, an “application for procedural directions” and rule 53 is a rule of procedure. As a result, a request for the production of the record in terms of rule 53 decides nothing about the substance of the dispute and an order for production of the review record, but would merely provide the court with further evidential material upon which it must decide those factual or legal issues.
Madlanga J concurs in parts of each of the judgments. In the rule 15 applications, Madlanga J concurs in the outcome of the majority judgment, but for the reasons set out in the third judgment. In the rule 53 application, Madlanga J concurs in the outcome and reasons set out in the majority judgment and the first judgment.
In the result, the appeals in CCT 158/18 and CCT 218/18, in respect of the Rule 15 applications, were upheld. Similarly the appeal in CCT 179/18, in respect of the Rule 53 review application, was upheld..
The Full judgment here