The Supreme Court of Appeal (SCA) has handed down a decision which will effectively bar a group of litigants from claiming damages against Premier Foods (Pty) Ltd (Premier), a self-confessed cartelist in a bread cartel uncovered by the competition authorities a few years ago.

The SCA found that the Competition Tribunal could not on the facts issue a section 65(6)(b) certificate, certifying that Premier's conduct has been found to be a prohibited practice, because Premier had not been included in the referral of the complaint by the Commission to the Tribunal. The Commission in its referral of the matter to the Tribunal did not include Premier as a respondent and did not ask for any relief against Premier given that it had been granted conditional immunity under the Commission's Corporate Leniency Policy. The Tribunal did, however, grant an order declaring Premier's conduct a prohibited practice.

The SCA found that:

• because Premier was not included in the complaint referral, the Tribunal had no power to grant the declaratory order and the order was in fact a nullity; and
• the Tribunal, as a creature of statute, may only make an order in respect of a matter referred to it by the Commission.

Without the Section 65(6)(b) certificate, civil damages claims may not be instituted against Premier. The Commission has applied for leave to appeal to the Constitutional Court against the SCA's judgment. The

SCA's judgment is available here.