Wiseman Khuzwayo

The Constitutional Court by majority judgments dismissed with costs two applications for leave to appeal by the Competition Commission yesterday.

The court also refused an application by the commission for a condonation of its failure to file the applications within the required period.

The commission wanted to appeal the judgments by the Competition Appeal Court (CAC) against a decision by the Competition Tribunal. The commission concurrently applied to the Supreme Court of Appeal (SCA) and the Constitutional Court to appeal the decision of the CAC.

The commission’s applications to the CAC for leave to appeal its decisions to the SCA are still pending.

In both matters, the tribunal had allowed the commission to amend its complaints against the respondents, who were alleged to have engaged in anti-competitive conduct in breach of certain provisions of the Competition Act.

However, these changes were overturned by the CAC.

In the Yara South Africa matter, most of the Constitutional Court judges held that the commission’s delay in lodging its application was excessive. They cited the rule that an application to the Constitutional Court against a decision of any court must be lodged within 15 court days from the date of the original judgment sought to be appealed.

In this case, the commission took longer than five months after the CAC judgment before it lodged its application.

The Constitutional Court held the commission’s explanation for its delay was so manifestly poor as to amount to almost no explanation at all.

It decided it was preferable that the matter should first go to the SCA if leave to appeal was granted by the CAC.

No case was made by the commission that bringing the matter to the Constitutional Court as opposed to taking it to the SCA would result in the matter being heard sooner.

In a concurring judgment by Justice Johan Froneman, with Justice Louis Skweyiya and Justice Johann van der Westhuitzen in support, he agreed the application for leave to appeal should be dismissed, but for different reasons.

He found the application should be refused because it was in the best interests of justice first to obtain the views of the CAC on what role the economic expertise of the tribunal should play in determining the proper legal ambit of its powers.

In the dissenting judgment written by Justice Edwin Cameron and Justice Zak Yacoob, with Deputy Chief Justice Dikgang Moseneke agreeing, they found the leave to appeal should be granted as the commission’s delay was not excessive and the respondents were not unduly prejudiced.

In the Loungefoam matter, the commission had delayed by four months before seeking leave to appeal directly from the Constitutional Court.

The majority judgment found the commission did not meet the “bar” test because of its failure to seek leave from the CAC before approaching the Constitutional Court.

It also found that the commission had not shown any compelling circumstances that would justify a direct appeal to avoid a substantial injustice.

In a dissenting judgment, Justices Yacoob and Cameron found there was no statutory bar preventing the commission from seeking leave directly from the Constitutional Court and it had made out a case for condonation of its delay.