Agri Wire (Pty) Limited and Another v Commissioner of the Competition Commission and Others (7585/2010) [2011] ZAGPPHC 117 (5 July 2011)

Agri Wire (Pty) Limited and Another v Commissioner of the Competition Commission and Others (7585/2010) [2011] ZAGPPHC 117 (5 July 2011)

The High Court lacks jurisdiction to review the Competition Commission's grant of conditional immunity under the Corporate Leniency Policy, as exclusive jurisdiction for such reviews is vested in the Competition Tribunal and Competition Appeal Court by sections 62(1) and 27(1)(c) of the Competition Act, read with Rule 42 of the Tribunal Rules. Even if the Court had jurisdiction, the Commission's grant of conditional immunity is lawful under the Act, which contemplates agreements between the Commission and respondents that may be confirmed as consent orders. The Commission's discretion to seek or not seek relief against certain cartel participants is supported by the Act and does not...

Citation
[2011] ZAGPPHC 117
Parties
Applicant: Agri Wire (Pty) Limited; Applicant: Agri Wire Upington (Pty) Limited; Respondent: Commissioner of the Competition Commission; Respondent: Minister of Trade and Industry; Respondent: Consolidated Wire Industries (Pty) Limited; Respondent: Cape Gate (Pty) Limited; Respondent: Allens Meshco (Pty) Limited; Respondent: Hendock (Pty) Limited; Respondent: Wire Force (Pty) Limited; Respondent: Agri Wire North (Pty) Limited; Respondent: Capre Wire (Pty) Limited; Respondent: Forest Wire (Pty) Limited; Respondent: Independent Galvanising (Pty) Limited; Respondent: Associated Wire Industries (Pty) Limited t/a Meshrite; Respondent: Competition Tribunal
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 July 2011
Case Number
7585/2010
Procedural Posture
Review Application / Judgment on Review Application; Jurisdiction and Merits
Outcome
Application dismissed with costs, including costs of two counsel for the first and third respondents.
Judges
Zondo
Legal Topics
Corporate Leniency Policy, Conditional Immunity, Review Jurisdiction, Admissibility of Evidence, Selective Prosecution, Consent Orders
Competition Law Civil Procedure Corporate Leniency Policy Conditional Immunity Review Jurisdiction Admissibility of Evidence Selective Prosecution Consent Orders

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Parties

Agri Wire (Pty) Limited

Applicant

Agri Wire Upington (Pty) Limited

Applicant

Commissioner of the Competition Commission

Respondent

Minister of Trade and Industry

Respondent

Consolidated Wire Industries (Pty) Limited

Respondent

Cape Gate (Pty) Limited

Respondent

Allens Meshco (Pty) Limited

Respondent

Hendock (Pty) Limited

Respondent

Wire Force (Pty) Limited

Respondent

Agri Wire North (Pty) Limited

Respondent

Capre Wire (Pty) Limited

Respondent

Forest Wire (Pty) Limited

Respondent

Independent Galvanising (Pty) Limited

Respondent

Associated Wire Industries (Pty) Limited t/a Meshrite

Respondent

Competition Tribunal

Respondent

Procedural Posture

Review Application / Judgment on Review Application; Jurisdiction and Merits

Legal Issues

  1. 1 Does the High Court have jurisdiction to review the Competition Commission's grant of conditional immunity under the Corporate Leniency Policy?
  2. 2 Is the Commission's grant of conditional immunity to the third respondent lawful under the Competition Act?
  3. 3 Is the initiation and referral of the complaint to the Tribunal unlawful due to alleged selective prosecution?

Ratio Decidendi

The High Court lacks jurisdiction to review the Competition Commission's grant of conditional immunity under the Corporate Leniency Policy, as exclusive jurisdiction for such reviews is vested in the Competition Tribunal and Competition Appeal Court by sections 62(1) and 27(1)(c) of the Competition Act, read with Rule 42 of the Tribunal Rules. Even if the Court had jurisdiction, the Commission's grant of conditional immunity is lawful under the Act, which contemplates agreements between the Commission and respondents that may be confirmed as consent orders. The Commission's discretion to seek or not seek relief against certain cartel participants is supported by the Act and does not...

Court Disposition

Application dismissed with costs, including costs of two counsel for the first and third respondents.

Orders

  • The application is dismissed.
  • Costs are awarded against the applicants, including costs for two counsel for the first and third respondents.