The Competition Commission will have to follow the normal appeal procedure in two crucial cases dealing with its power to amend its complaint referrals after the Constitutional Court dismissed appeals against decisions of the Competition Appeal Court in long-running cartel complaints yesterday.
One case involved fertilizer producers YARA SA and Omnia Fertilizer Limited, and the other involved polyurethane foam manufacturers Loungefoam, Vitafoam and Feltex.
The Constitutional Court accepted that these issues concerning the powers of and function of any organ of state raise important Constitutional law questions. However, the Constitutional Court held that these issues should first be considered by the Competition Appeal Court (the specialist competition court), and then potentially also the Supreme Court of Appeal.
In the foam case, the Court held that the Commission had failed to show that the Supreme Court of Appeal would not deal with the matter expeditiously or give finality to some or even all of the issues between the parties. Section 63(2) of the Act, which regulates the rights of litigants to appeal against a decision of the Competition Appeal Court, serves the critical purpose of ensuring that the decision-making of the higher appellate courts is informed by the expert views of the specialist Court. Until the Legislature decides otherwise, the Supreme Court of Appeal also serves as a further filter in the appellate hierarchy.
In the Yara case, the majority of the Court dismissed the Commission’s application because of the Commission’s excessive delay in bringing this application.
The decision will have a significant impact on a number of pending referrals before the Tribunal in which similar objections to referral amendments by the Commission have been raised. It may be some time before the issue is resolved.
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