On 26 June 2012, the Constitutional Court (Court) ruled in two cases where the Competition Commission (Commission) sought to bypass the Supreme Court of Appeal (SCA) for the overturning of Competition Appeal Court (CAC) rulings. The cases are: Competition Commission v Loungefoam and Others (Loungefoam case) and Competition Commission v Yara South Africa and Others (Yara case). This ruling may impact on pending referrals before the Competition Tribunal (Tribunal).

In both of these cases, the Commission sought determination on whether it could amend its complaint referral to the Tribunal to include facts that may have arisen as a result of an investigation and were not listed in the initial complaint. In both of these cases, the CAC had ruled against the Commission. Click here to read the Yara decision and here for the Loungefoam decision.

In the Yara case, in light of the CAC ruling, the Commission sought leave to appeal directly to the Court and concurrently sought leave to appeal to the SCA from the CAC. In the Loungefoam case, the Commission did not seek leave to appeal to the SCA but sought leave to appeal directly to the Court.

In the Loungefoam case, the majority of the Court held that the provision in the Competition Act, 1998 that permits a request to the SCA or the Court for an appeal of a CAC decision may be interpreted in two ways.

The first interpretation is that the Commission may not request such an appeal before having sought leave to appeal and obtained a decision from the CAC itself. A second interpretation allows for a direct approach to the Court when it is in the interests of justice. The majority of the Court held that the Commission would fail on either interpretation.

In the Yara case, the majority of the court held that the Commission's delay in lodging its application to the Court was unduly excessive and that its explanation for this delay was poor. The Court further held that it is preferable that a matter should first proceed to the SCA.

Accordingly both appeals were dismissed with costs on these technical grounds and the Court did not decide on the substantive issues. In both cases, the Court was not required to decide on the question of the amendment of the referral to Tribunal.

For further analysis of this case, click here to read our recent e-Alert.