The hierarchical structure of the courts in South Africa has received much attention because of concerns over the delays in the finalisation of cases, as a result of the insistent appeals that litigants are able to file, says Werksmans Advisory Services director Ahmore Burger-Smidt.
“As far as the appeal avenue in competition matters is concerned, the landscape is about to change significantly with the adoption of the Constitution’s seventeenth Amendment Bill, which reduces the jurisdiction of the Supreme Court of Appeal by removing its power to review decisions of the Labour Appeals Court and the Competition Appeals Court (CAC),” she explains.
CAC Judge Dennis Davis argued in his submissions to Parliament about the Bill in September last year that the current appeal process, in relation to competition law matters, was time-consuming and allowed matters to drag on endlessly. He noted that this prolonged process had a negative effect on small litigants and the economy as a whole.
“My fundamental premise is that the country has too many levels of appeal. The principle of access to justice is currently at war with the broad structures of our judiciary. You cannot expect people to jump through three or four hoops if you want access to justice. Resources are precious, courts are under pressure and a whole range of similar resource-based and equity reasons dictate that we should think very carefully about that,” he says.
Davis also points out that the delayed process could potentially cause a retraction of any potential foreign investments. “If someone wanted to subvert a merger, they could drag the process out forever with inter- mediate litigation.”
Over the years, Davis has clearly and consistently maintained that the CAC should be the final court of appeal. The Bill provides a directional shift in line with reducing the delays in the finalisation of cases.
“It is suggested that this new approach in terms of the Bill is, in fact, what the legislator intended in terms of the Com-petition Act of 1998, when provision was made to establish a court to be known as CAC,” says Burger-Smidt.
She mentions that if the Bill is passed, it will rewrite Section 167 of the Constitution to state that the Constitutional Court not only has jurisdiction in all Constitutional matters, but also in a number of other matters.
“I don’t believe that there is any competition law practitioner that can honestly say he or she has agreed with every single decision of the CAC. An appeal process allows for checks and balances and ensures that the best possible outcome and decision are achieved.
“It is obvious that various avenues for appeal will result in the relevant facts being scrutinised and the possible outcome being enhanced. When the Bill does become operational, an additional avenue to be pursued in terms of an appeal process will no longer be available with regard to competition law matters,” explains Burger-Smidt.
The effect of the amendment is that the jurisdiction of the Constitutional Court to hear Constitutional matters or matters connected to the Constitution has been extended to include nonconstitutional matters, as far as they relate to competition law, labour law and matters that raise an arguable point of law of general public importance.
South Africa is creating robust jurisprudence that will provide clear guidance for competition law practitioners and for business. “The competition law regime is still in its infancy and is developing each year; we have to allow for numerous avenues when it comes to an appeal process,” she concludes.