Most Read Contributor in South Africa, September 2016
An amendment contained in the Constitution 17th Amendment Bill,
which has received little attention thus far, is one which could
potentially permanently alter the system of appeal in specialised
courts. This amendment, if implemented, will have a dramatic effect
on the South African competition law regime.
This is according to Lee Mendelsohn, Director and Head of
Department (Competition) at ENS – Africa's largest
Law firm, who says the amendment bill has the effect of limiting
the Supreme Court of Appeal's powers to adjudicate matters of
appeal from certain specialised courts, in particular the
Competition Appeal Court.
"If the bill becomes law, the result will be that the
Competition Appeal Court and not the Supreme Court of Appeal will
become the apex court for all competition-related
According to Mendelsohn, the constitution is currently drafted
such that decisions of the Competition Appeal Court can, with leave
from the Competition Appeal Court, be appealed to the Supreme Court
of Appeal or the Constitutional Court in relation to certain
matters listed in the Competition Act. The Constitution currently
provides that the Supreme Court of Appeal "may decide appeals
in any matter".
The bill will amend section 168 of the Constitution by the
substitution for subsection (3) of the following subsection:
"(3)(a) The Supreme Court of Appeal may decide appeals in
any matter arising from the High Court of South Africa or a court
of a status similar to the High Court of South Africa, except where
an Act of Parliament provides otherwise.
(b) The Supreme Court of Appeal may decide only –
issues connected with appeals; and
any other matter that may be referred to it in circumstances
defined by an Act of Parliament."
Because the Competition Act sets out that the Competition
Tribunal and Competition Appeal Court have exclusive jurisdiction
in regard to certain matters, the amendment to section 168 will
have the effect articulated above.
Mendelsohn says proponents of the amendment contend that
competition matters require specialised courts and judges, as they
involve complex matters of economics, law, commerce, industry and
public affairs, whilst the Supreme Court of Appeal is a generalist
court, which deals with all areas of the law.
"The specialist bodies designated for this purpose are the
Tribunal and the Competition Appeal Court. As specialist bodies
involved in these matters on a daily basis, they have the required
specialist knowledge and will be empowered by their exclusive
jurisdiction to develop a consistent body of competition law
Mendelsohn says an added benefit of the amendment is that a it
will allow for more efficient finalisation of competition matters,
and will avoid possible abuses that flow from the ability to appeal
competition law matters to the SCA.
According to Mendelsohn, opponents of the amendment have noted
that the removal of the ability to appeal a decision of the
Competition Appeal Court to the Supreme Court of Appeal effectively
renders the first court of appeal, namely the Competition Appeal
Court, also the last court of appeal.
"An obvious benefit to an appeal process is that it allows
for checks and balances. One of the benefits to having a multitude
of avenues for appeal is that the greater the scrutiny, the greater
the chance that the correct decision will ultimately be reached. In
addition, competition law is governed by the Competition Act, which
is a law subject to the same legal application as any other law.
Therefore, it is arguable that much benefit can be gained from
allowing South Africa's senior judges an opportunity to play a
role in its development," she says.
Mendelsohn expects that the focus of the opposition to the bill
will be on the constitutional issues rather than the effect on
South African competition law.
"In light of this opposition, it is unclear if the bill
will be passed in its current form. However, if the bill does
become law, the landscape applicable to competition law in South
Africa will be forever changed," says Mendelsohn.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
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