Constitutional Court grants appeal on costs

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Constitutional Court

Independent Newspapers.

The Constitutional Court. Picture: Antoine de Ras.

Johannesburg - The Competition Commission's application for leave to appeal a cost order made against it was granted by the Constitutional Court on Wednesday.

The cost order, which was awarded against the commission by the Competition Appeal Court, was also set aside.

No order as to costs was made in the Constitutional Court judgment.

The Competition Appeal Court originally made the cost order after the commission prohibited a proposed merger between two parties in terms of the Competition Act.

The merging parties then asked the Competition Tribunal to reconsider the commission's decision.

The tribunal prohibited the merger on similar grounds to those of the commission and made no order as to costs.

The decision was appealed in the Competition Appeal Court, which set aside the tribunal's order and approved the merger subject to certain conditions.

It ordered the commission to pay the merging parties' costs in both the tribunal and the appeal court.

The commission's application to appeal the whole judgment and order in the Supreme Court of Appeal was dismissed.

The Competition Appeal Court granted leave to appeal to the Constitutional Court, only against the costs order.

In the Constitutional Court, the commission argued that the Competition Appeal Court had no power to order costs against it, and could award costs only in relation to proceedings in that court.

The merging parties did not oppose the commission's appeal.

Representatives of the Johannesburg Bar Council made submissions as friends of the court.

They submitted that while a state functionary should not generally have costs orders issued against it when litigating in performance of its duty, the Competition Appeal Court had broad discretion to make appropriate costs orders against it. - Sapa

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