After the Competition Commission (“Commission”) scored a Constitutional Court victory in the recent case of Senwes, the Constitutional Court this week dismissed the Commission’s application for leave to appeal in the Yarra and Loungefoam cases.

“The Commission attempted to bypass the Supreme Court of Appeal (“SCA”), by applying for leave to appeal directly to the Constitutional Court, as it feared that the SCA would follow its previous decision in Woodlands Dairy, in which the Commission’s powers to investigate and amend complaints was greatly circumscribed, as the SCA held that strict procedural requirements had to be complied with in full,” says Jac Marais, partner – law firm Adams & Adams Competition Law Group.

“The Constitutional Court’s decision was based largely on technical aspects, in particular the Commission’s failure to follow the appeal procedure - on either of two possible interpretations - as set out in the Competition Act, 1998.
“It is the failure, together with the absence of facts indicating that granting leave would be in the interests of justice, which led to the dismissal of the applications and as such does not have significant implications for competition jurisprudence in South Africa.”

Marais says the upshot of this is that the Commission is bound by the Yara decision (by the CAC) Woodlands decision (by the SCA), notwithstanding its protestations with regard the impact on the Commission’s ability to investigate and prosecute complaints.

Adams & Adams, Jac Marais, Partner: Adams & Adams Competition Law Group – 012 432 6000