As far as the appeal avenue in competition matters is concerned,
the landscape is about to change significantly with the adoption of
the Constitution 17th Amendment Bill (the "Bill") by the
National Assembly on 20 November 2012. The amendments to the
Constitution of the Republic of South Africa, No. 108 of 1996 (the
"Constitution") contained in the Bill are far reaching
and will likely have a significant effect on the entire legal
system in South Africa.
The issue of hierarchy of the courts in South Africa has
received much attention because of concerns over the delays in
finalisation of cases due to the insistent appeals that litigants
are able to file. In this regard competition law matters have been
referred to and used as examples demonstrating this issue on
In his submissions to Parliament with regard to the Bill, Judge
Dennis Davis of the Competition Appeal Court ("CAC"),
argued that the current appeal process in relation to competition
law matters was very time consuming and allowed matters to
"drag on endlessly" and that this prolonged
process has a negative effect on small litigants and the economy as
Judge Davis has been clear in his views that the CAC should
become the final Court of Appeal over the years. He has remarked
that in Europe and in the United State of America there were only
"two bites at the cherry", with those
dissatisfied with a judgment able to appeal only once to a superior
court. The Bill is a clear directional shift in line with those
criticizing a lengthy and costly legal process, currently rightly
being explored the by competition authorities and parties alike, to
ensure that justice prevails.
In terms of the current wording of section 168 of the
Constitution, the Supreme Court of Appeal ("the SCA") is
the apex court in relation to competition and labour appeals. In
terms of the Bill such authority has been removed, effective
rending the CAC as the court of final instance in all competition
It is submitted that this new approach in terms of the Bill is
in fact what the legislator intended in terms of the Competition
Act, 1989 of 1998 ("the Act"), when provision was made in
terms of Section 36 for the established of a Court to be known as a
CAC which is a Court with similar status to that of a High
The amended section 168 will read as follows, " The
Supreme Court of Appeal may decide appeals in any matter arising
from the High Court of South Africa or a court of status similar to
the High Court of South Africa, except in respect of labour or
competition matters to such extent as may be determined by an Act
The bill also rewrites section 167 of the Constitution to state
that the Constitutional Court has jurisdiction in all
constitutional matters "and any other matter in which it
may grant leave to appeal on the grounds that the matter raises an
arguable point of law of general public importance".
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
non-constitutional matters, in so far as they relate to competition
law, labour law and matters that raise an arguable point of law of
general public importance.
One would however be curious to know whether the Constitutional
Court will in future deem it important in the interest of the
importance to the general public to elaborate on the public
interest provisions as stipulated in the Act.
A question to ask is therefore, whether the grounds of public
interest will simply be limited to the grounds as provided under
section 12(3) of the Act, or will they in future be extend beyond
the current boundaries and well in relation to other issues that
may not have been envisaged by the drafters of the Act?.
The broad policy and socio-economic objectives of the Act
prescribes that the judges should not simply pay attention to the
black letter of the law but must be mindful of the socio-economic
circumstances that are prevalent in South Africa. The consideration
of the socio-economic circumstances places the Constitutional Court
in an enviable position. What is called for is certainty,
specifically in the current economic climate. Going forward it
would be up to the Constitutional Court to provide this
Werksmans welcome the move towards a leaner and faster appeal
process and it would definitely be interesting to learn in future
whether public interest will attract more attention that it may be
It should be noted that before the Bill becomes operational it
must still be referred to the President of South Africa for assent
and published in the Government Gazette.
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.
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