Wiseman Khuzwayo
THE SUPREME Court of Appeal (SCA) ordered the Competition Commission on Friday to make available documents sought by ArcelorMittal South Africa and Cape Gate to enable them to answer to allegations of engaging in prohibited practices as part of a steel cartel.
The court dismissed an appeal by the commission and upheld a cross-appeal by the two companies.
One firm that applied for leniency, Scaw South Africa, was given conditional immunity from prosecution on condition it co-operated with the commission in prosecuting the other cartel members.
The commission used this information to lodge a complaint with the Competition Tribunal against ArcelorMittal SA and Cape Gate over their anti-competitive practices.
ArcelorMittal SA and Cape Gate sought disclosure of Scaw’s leniency application to the commission and the documents that were part of the application and became the main point in the dispute.
The commission had resisted disclosing the documents on the grounds that they were privileged because they had been prepared for the purpose of litigation, and also because they could be restricted under the commission’s rules.
The tribunal upheld the commission’s opposition to the disclosure of the documents.
ArcelorMittal SA and Cape Gate then appealed to the Competition Appeal Court.
The court held that, to the extent that Scaw claimed confidentiality in respect of the documents, until such time as ArcelorMittal SA and Cape Gate made a proper application under the Promotion of Access to Administrative Justice Act for access to these documents, the claim of confidentiality must be respected.
The court remitted the matter to the tribunal to decide on issues relating to the confidentiality claim.
However, ArcelorMittal SA and Cape Gate instead took the matter on appeal to the SCA, which ruled the commission was entitled to claim privilege over the documents because they had been prepared for the purpose of litigation. But the commission had waived that privilege by making reference to the documents in its complaint against the companies.
It consequently ruled the documents were to be disclosed, subject to any claim by Scaw that the documents were confidential, which was a matter for the tribunal to decide. The court accordingly referred the matter back to the tribunal for decision on this question.