South Africa: How To Appeal Or Not To Appeal – The Procedural Conundrum

Last Updated: 19 July 2012
Article by Stephen Langbridge

The Constitutional Court recently handed down judgments in two competition law matters on Tuesday 26 June 2012. First, in the matter of Competition Commission v Loungefoam (Pty) Ltd and Others and a second decision in the Competition Commission v Yara South Africa (Pty) Ltd and Others matter – dismissing, in both instances, the Competition Commission's applications for leave to appeal.

Competition Commission v Loungefoam (Pty) Ltd and Others

The Competition Commission lodged a formal complaint against Loungefoam (Pty) Ltd and Vitafoam (Pty) Ltd on 3 September 2007. The formal complaint was lodged following an initial complaint of anti-competitive conduct by a former employee of Loungefoam who had subsequently become a competitor of Loungefoam and Vitafoam. Loungefoam, Gommagomma (Pty) Ltd, Vitafoam and Feltex are manufacturers and retailers of flexible polyurethane foam.

The Commission expanded its formal complaint by initiating a further complaint on 27 November 2007, which also included Feltex Holdings (Pty) Ltd in allegations of the same conduct.  On 26 May 2008, the investigation was expanded yet again to include Steinhoff Africa Holdings (Pty) Ltd, Steinhoff International Holdings (Pty) Ltd, and Kap International Holdings (Pty) Ltd.

On 16 February 2010 the Commission applied to the Competition Tribunal to amend its complaint referral following further investigation into the matter, to which the Respondents objected.  The Tribunal allowed the amendments.  The Respondents appealed to the Competition Appeal Court ("CAC") to have the Tribunal's decision reviewed and set aside.  That appeal was upheld by the CAC on 6 May 2011.

The Commission applied to the Constitutional Court ("CC") for leave to appeal against the CAC's judgment (which overturned the Tribunal's decision to permit the Commission's amendment of its complaint referral to include new parties and allegations not listed in the original complaint).

In the majority judgment of the CC, the Commission should have followed one of two approaches:

  • Either to seek leave to appeal from the CAC and only if refused, may leave be requested to appeal to the Supreme Court of Appeal ("SCA") or the CC; or
  • Appeal directly to the CC on constitutional matters raised, but only if the interests of justice permit such direct access.

No decision was made on which approach is the correct one to follow and the Commission's application for leave to appeal was dismissed by the majority of the court on the basis that the Commission had, in any event not satisfied the requirements for either of the two approaches.

A minority judgment which was much more sympathetic to the Commission's case, set out that there is nothing stopping a litigant from seeking leave to appeal directly from the CC.  Emphasis was placed on the fact that the pending application for leave to appeal to the SCA in the CAC should have been made conditional to the application for leave to appeal being refused by the CC.  The minority judgment highlights the following as important reasons why the Commission may apply for direct leave to appeal to the CC:

  • The Commission's important public role;
  • The significance of the issues to be determined in the appeal;
  • The prospects of success of the appeal; and
  • The fact that this matter is not at the  "complex intersection of law and economics, but somewhat removed from it".

Because it would have been of no practical use, the minority did not consider the merits, as these will be decided by another court.

Competition Commission v Yara South Africa (Pty) Ltd and Others

The Commission received a complaint from Nutri-Flo CC and Nutri-Fertilizer CC regarding anti-competitive conduct by Yara South Africa (Pty) Ltd, Omnia Fertilizer Ltd and Sasol Chemical Industries Ltd.

As in the Loungefoam matter, the Commission applied directly to the CC for leave to appeal against the CAC's judgment overturning the Tribunal's decision to allow the Commission to amend its complaint referral against the Respondents. 

The Commission simultaneously lodged an application for leave to appeal with the SCA and the CC.  The Commission's application to the CAC for leave to appeal to the SCA is still pending before the CAC.

Similar to the CC's decision in the Loungefoam matter, two possible approaches to the procedure to be followed in applications for leave to appeal are prescribed, and once again no correct approach was decided on.  What is highlighted by the majority is that if leave to appeal were to have been granted in the CC, the constitutional issues would be whether the Tribunal has the power to grant leave to the Commission to amend its complaint as the Tribunal is a creature of statute. The majority held that the interests of justice do not dictate that the CC should entertain the application for leave to appeal. 

The minority judgment held that the Commission must not only raise a constitutional issue for approaching the CC for application for leave to appeal, but it must also show that it is in the interests of justice to do so.  The view is that the Commission should be permitted to seek access directly to the CC as a first port of call as the Act envisages appeals directly from the CAC to the CC. 

Implications for other cases

As a consequence of the Yara and Loungefoam decisions, it appears that the approach that will be taken by the Commission in regard to the dozen or so applications to the Tribunal which are based upon procedural points, will be to suspend further action until the Yara / Loungefoam matters proceed before the CAC, the SCA and possibly the CC.  This could take at least another year before these processes are finalised.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Webber Wentzel
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Webber Wentzel
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions