Arcelormittal South Africa Ltd and Another v Competition Commission and Others, Arcelormittal South Africa Ltd v Manoim NO and Others (103/CAC/Sep10) [2012] ZACAC 1 (2 April 2012)

Arcelormittal South Africa Ltd and Another v Competition Commission and Others, Arcelormittal South Africa Ltd v Manoim NO and Others (103/CAC/Sep10) [2012] ZACAC 1 (2 April 2012)

The court held that the Tribunal erred in finding that documents provided by Scaw under the Corporate Leniency Policy were restricted from disclosure solely by virtue of CC Rule 14(1)(e) and s 37(1)(b) of PAIA. Once the Commission referred to the leniency application in its complaint, Rule 35(12) of the Uniform Rules of the High Court entitled the appellants to request inspection and copying of those documents. The entitlement arises as soon as reference is made in the pleadings or affidavits, not only after close of pleadings. However, where confidentiality is claimed under s 44 of the Competition Act, the prescribed procedure under s 45 must be followed, requiring an application to the...

Citation
[2012] ZACAC 1
Parties
Appellant: Arcelormittal South Africa Limited; Appellant: Cape Gate (Pty) Limited; Respondent: Competition Commission; Respondent: Scaw South Africa (Pty) Limited; Respondent: Cape Town Iron and Steel Works (Pty) Limited; Respondent: South African Iron and Steel Institute; Respondent: Norman Manoim N.O
Court
Competition Appeal Court
Jurisdiction
South Africa
Judgment Date
2 April 2012
Case Number
103/CAC/Sep10
Procedural Posture
Review Application / Appeal and Review of Competition Tribunal Decision
Outcome
Appeal upheld in part; Tribunal's order set aside and matter remitted for determination of confidentiality claims.
Judges
Davis JP, Mailula, Dambuza
Legal Topics
Corporate Leniency Policy, Confidential Information, Litigation Privilege, Discovery of Documents, Competition Act, Access to Administrative Records
Competition Law Civil Procedure Corporate Leniency Policy Confidential Information Litigation Privilege Discovery of Documents Competition Act Access to Administrative Records

Case Brief

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Parties

Arcelormittal South Africa Limited

Appellant

Cape Gate (Pty) Limited

Appellant

Competition Commission

Respondent

Scaw South Africa (Pty) Limited

Respondent

Cape Town Iron and Steel Works (Pty) Limited

Respondent

South African Iron and Steel Institute

Respondent

Norman Manoim N.O

Respondent

Procedural Posture

Review Application / Appeal and Review of Competition Tribunal Decision

Legal Issues

  1. 1 Whether documents forming part of a leniency application referred to in the Commission's complaint must be disclosed to respondents.
  2. 2 Whether litigation privilege or confidentiality claims under the Competition Act and PAIA restrict access to such documents.
  3. 3 Whether High Court Rule 35(12) entitles respondents to discovery of documents referenced in pleadings or affidavits.

Ratio Decidendi

The court held that the Tribunal erred in finding that documents provided by Scaw under the Corporate Leniency Policy were restricted from disclosure solely by virtue of CC Rule 14(1)(e) and s 37(1)(b) of PAIA. Once the Commission referred to the leniency application in its complaint, Rule 35(12) of the Uniform Rules of the High Court entitled the appellants to request inspection and copying of those documents. The entitlement arises as soon as reference is made in the pleadings or affidavits, not only after close of pleadings. However, where confidentiality is claimed under s 44 of the Competition Act, the prescribed procedure under s 45 must be followed, requiring an application to the...

Court Disposition

Appeal upheld in part; Tribunal's order set aside and matter remitted for determination of confidentiality claims.

Orders

  • The order of the Competition Tribunal of 3 September 2010 CT Case No: 61/CR/Sep06 is set aside.
  • The information claimed to be confidential by Scaw as set out in Form CC 7 dated 9 July 2008 is remitted to the Competition Tribunal for a determination as to whether or not the information is confidential information as defined and, if so, for the Tribunal to consider making any appropriate order concerning access...