South Africa: Shortening The Competition Law Value Chain

Last Updated: 12 December 2012
Article by 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 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 numerous occasions.

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 a whole.

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 matters.

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 Court.

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 of Parliament".

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 certainty.


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 entitled to.

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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