Competition Commission of South Africa v Telkom SA LTD and Others (623/2009) [2009] ZASCA 155; [2010] 2 All SA 433 (SCA) (27 November 2009)

THE SUPREME COURT OF APPEAL

REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 623/2008

THE COMPETITION COMMISSION OF

SOUTH AFRICA

Appellant

and

TELKOM SA LIMITED First Respondent

THE COMPETITION TRIBUNAL OF

SOUTH AFRICA Second Respondent

Neutral citation: Competition Commission v Telkom (623/2008) [2009] ZASCA 155 (27 November 2009)

Coram: Harms DP, Brand, Malan JJA and Wallis AJA

Heard: 2 November 2009

Delivered: 27 November 2009

Summary: Competition Act 89 of 1998 – s 3(1A)(a) – concurrent jurisdiction – telecommunications industry – review of complaint referral – bias - non-compliance with s 50(4)(a) concerning extension of time for complaint referral - memorandum of agreement between Commission and ICASA – s 82 Competition Act

[24] The court a quo found that that the Commission did not obtain the consent of all the complainants concerned. It observed that ‘[w]hen the so-called consent by the various people who have given such consent is analysed, it is clear that they did not represent all the complainants, although they claimed to have.’ The uncontroverted evidence on behalf of the Commission does not support this

conclusion.28 Twenty one complainants filed complaints. The complaint referral was made on 24 February 2004. The joint complaint of the first twenty complainants is referred to as the SAVA complaint. The twenty first complainant, Omnilink, together with Internet Solutions filed a further complaint on 22 August 2002, the ‘Omnilink complaint’. The Commission consolidated both the Omnilink and SAVA complaints since they involved similar issues.

[25] The Omnilink complaint was extended to 31 October 2003 by Angus MacRobert. Telkom objected to this extension on the basis that it is not clear which complainant he represented. However, the Commission alleges that he acted on behalf of both Omnilink and Internet Solutions. When the consent is read with the covering letter of the attorney it is clear that he signed on behalf of both complainants. He indeed signed the original complaint on behalf of both Omnilink and Internet Solutions and there identified himself as the managing director of both complainants. On 29 October 2003 a further extension was given by M Furman on behalf of both these complainants to 29 February 2004. Telkom submitted that there was no satisfactory evidence establishing that he acted on behalf of both complainants. However, this is the allegation made in the answering papers and it is apparent from the consent itself. The time period in respect of both Omnilink and Internet Solutions provided for in s 50 therefore did not lapse.

[26] The SAVA complaint was submitted on 8 May 2002. On 11 April 2003 the Commission requested the complainants to extend the period. On 14 April 2003 SAVA’s chairman, Mr Mike van den Bergh, funished a consent signed by Mr EJ Thompson extending the investigation to 30 October 2003. Van den Bergh’s letter to the Commission said that he enclosed the ‘the signed agreement from SAVA’. Thompson signed ‘on behalf of ISPA’. ISPA is one of the twenty complainants in the SAVA complaint. Van den Bergh and Thompson signed the original referral on behalf of all complainants and there is nothing to indicate that their authority to represent them all had lapsed. However, the Commission produced an affidavit from Thompson to the effect that the extension ‘was intended to cover SAVA and its members who were also complainants, and not only ISPA.’ Thompson was the joint chairman of ISPA at the time. His authority to consent on behalf of all the SAVA complainants is confirmed by Van den Bergh the then chairman of the SAVA, one of the complainants in the VANS complaint. Another complainant was ISPA. Van den Bergh stated specifically, and also Thompson, that the latter consented on behalf of ‘SAVA and its members who were also complainants’. The Commission acknowledged receipt the letter of 14 April 2003 by writing to Van den Bergh. The attorneys for the complainants in the SAVA complaint furnished a signed extension agreement to the Commission on behalf of their clients dated 23 October 2003 enclosing an extension signed by Van den Bergh on behalf of the complainants extending the period to 29 February 2004. The Competition Act does not prescribe a specific format for the consent of a complainant. The complaint was referred to the Tribunal on 24 February 2004 which is within the extended period of time.

Concurrent Jurisdiction

[27] The Competition Act ‘applies to all economic activity within, or having an effect within the Republic …29 These are, as was remarked, ‘words of great generality extending the operation of the section to ‘the countless forms of activity

which people undertake in order to earn a living.’30 Originally, the now repealed s 3(1)(d) excluded from the application of the Competition Act ‘acts subject to or authorised by public regulation’.31 The effect of this provision was that certain anti-competitive acts were immune from the Competition Act despite their anti-competitive aspects not being regulated by the other regulatory authorities. The repeal of s 3(1)(d) expanded the range of economic activities to which the Competition Act applies. ICASA is a ‘regulatory authority’ as defined. Following the repeal of s 3(1)(d) ICASA no longer has exclusive jurisdiction in competition matters since the Competition Act by virtue of s 3(1) now applies to all economic activity within or having an effect within South Africa, including those that are authorised by or subject to public regulation.32 The legislature established the competition authorities as the primary authority in competition matters and by introducing s 3(1A)(a) established that where another regulator has jurisdiction over any area of matters covered by the Competition Act their jurisdiction would be concurrent with that of the competition authorities.33 The section provides as follows:34

‘(1A) (a) In so far as this Act applies to an industry, or sector of an industry, that is subject to the jurisdiction of another regulatory authority, which authority has jurisdiction in respect of conduct regulated in terms of Chapter 2 or 3 of this Act, this Act must be construed as establishing concurrent jurisdiction in respect of that conduct.

(b) The manner in which the concurrent jurisdiction is exercised in terms of this Act and any other public regulation, must be managed, to the extent possible, in accordance with any applicable agreement concluded in terms of sections 21(1) (h) and 82(1) and (2).’

[28] The term ‘jurisdiction’35 in s 3(1A)(a) refers to the power or competence to hear and determine matters concerning the conduct regulated in terms of Chapters 2 and 3 of the Competition Act. Section 3(1A)(a) applies only where the other regulatory authority has jurisdiction in respect of conduct regulated in terms of Chapter 2 or 3 of the Competition Act, ie ‘restrictive practices’ (which include restrictive horizontal and vertical practices, and abuses of dominance) and mergers. The Telecommunications Act which provided for ‘piecemeal competition jurisdiction’,36 did not in so many words regulate these matters but the conduct regulated overlapped to some extent with the conduct referred to in Chapters 2 and 3 of the Competition Act. In respect of this conduct ICASA enjoyed competition jurisdiction. Concurrent jurisdiction exists only where the other regulatory authority has the competence to adjudicate the competition aspects of the conduct.37

[29] Section 3(1A)(a) establishes concurrent jurisdiction ‘in so far as’ the Competition Act may be applicable to an industry, or sector of an industry, that is subject to the jurisdiction of another regulatory authority, and which authority has jurisdiction in respect of the conduct regulated in terms of Chapter 2 and 3 of the Competition Act. It is conceivable that the jurisdiction of the competition authorities may by legislation be excluded entirely from a particular industry. The operation of competition legislation may also be retained expressly such as under ss 52 and 53 of the Telecommunications Act which in a limited sense provided for concurrent jurisdiction between the competition and telecommunication authorities.38 The jurisdiction of the competition authorities may also continue but subject to certain reservations such as under s 67(9) of the Electronic

Communications Act which provides that ‘[s]ubject to the provisions of this Act, the Competition Act applies to competition matters in the electronic industry.’ It was submitted on behalf of Telkom, with reference to this section, that the Commission and the Tribunal lacked the power or competence to refer the complaint to the tribunal and to adjudicate on it. The Electronic Communications Act came into operation on 19 July 2006, long after the complaint referral was made. There is no suggestion that it applies retrospectively and, consequently, cannot affect the validity of the Commission’s decision and the complaint referral. Nor can it affect the competence of the Tribunal to adjudicate the matter. The Tribunal’s jurisdiction to adjudicate the complaint referral derives from the law as it stood at the time the complaint referral was made, 23 February 2004, and continues to exist to the end of the proceedings.

[30] Section 3(1A)(a) potentially establishes concurrent jurisdiction between the competition authorities and ICASA for conduct regulated in terms of Chapters 2 and 3 of the Competition Act. Chapter 2 deals with prohibited practices. Restrictive horizontal practices and restrictive vertical practices are prohibited in terms of ss 4 and 5. Sections 6, 7, 8 and 9 concern the abuse of a dominant position. Chapter 3 is concerned with merger control. The conduct of Telkom complained of concerns

alleged contraventions of ss 8 and 9. In its complaint referral the Commission alleges contraventions of ss 8(a), (b), (c), (d)(i) and 9 of the Competition Act. The prohibitions in ss 8 and 9 depend on showing that the firm concerned is ‘dominant’.39 Section 8(a) and (b) describe per se abuses.40 An ‘exclusionary act’ is defined as ‘an act that impedes or prevents a firm entering into, or expanding, within a market’.

Section 8(a) prohibits the charging of an excessive price by a dominant firm.41 Section 8(b) condemns the refusal by a dominant firm to give a competitor access to an essential facility42 when it is economically feasible to do so.43 Subsections (c) and (d) require that both the elements of the exclusionary act and its alleged anti-competitive effect be proved in order to undertake the balancing required by the pro-competitive defence that is permitted in respect of these exclusionary acts.44 Subsection (c) prohibits a dominant firm from engaging in an exclusionary act, other than those listed in paragraph (d), when the

anti-competitive effects outweigh its pro-competitive gains. Subsection (d)(i) specifically prohibits as an abuse of dominance

conduct by which a dominant firm requires or induces a supplier or customer not to deal with a competitor unless the dominant firm can show pro-competitive gains outweighing anti-competitive effects. Section 9 requires the Commission to prove the existence of price discrimination by the dominant firm and that the discrimination is likely to have the effect of substantially preventing or lessening competition in a market.45 The price discrimination must relate to a sale, in equivalent transactions, of goods or services of like grade and quality to different purchasers, and that the discrimination involves discriminating between those purchasers in terms of the aspects listed in s 9(1)(c).

[31] The primary object of the Telecommunications Act was to provide for the regulation and control of telecommunication matters in the public interest. Its objects included ensuring the development of a competitive and effective telecommunications manufacturing and supply sector as well as fair competition within the telecommunications industry.46 ICASA is the regulating authority.47 In so far as the conduct regulated under Chapter 2 of the Competition Act is concerned it had some jurisdiction but it was limited. The remedies to regulate anti-competitive conduct were equally limited. The Competition Act also contains more comprehensive criminal sanctions.48 Section 36(1)(d) of the Telecommunications Act, for example, provided:

‘Where it appears to the Authority that Telkom, in the provision of its telecommunication services, is taking or proposing to take any step which confers or may confer on it an undue advantage over any person who may in future be granted a licence in competition with Telkom, the Authority may direct Telkom to cease or refrain from taking such step, as the case may be.’

Conduct of the kind regulated by s 36(1)(d) invariably involved conduct falling within the ambit of Chapter 2, for example, the abuse of dominance. ICASA was also given powers to regulate the terms of telecommunications supply contracts in relation to the interconnection of services,49 and the leasing or making available of telecommunication services.50 Similar issues could arise under s 43 which obliged the holder of a public switched telecommunication service licence to interconnect its systems to that of a provider of telecommunications services pursuant to an agreement to be concluded between them. ICASA was empowered to resolve disputes between the parties and to determine the reasonableness of a request for interconnection as well as a dispute as to the terms and conditions of an agreement providing for the interconnection of systems. It could impose the terms and conditions on the agreement (s 43(4)). ICASA had similar powers where Telkom was requested to lease or make available telecommunications services to a telecommunications service provider (s 44(2) and (6)). Moreover, s 53(1) of the Telecommunications Act dealt expressly with ‘uncompetitive actions’:

‘If it appears to the Authority that the holder of a telecommunication licence is taking or intends taking any action which has or is likely to have the effect of giving an undue preference to or causing undue discrimination against any person or category of persons, the Authority may, after giving the licensee concerned an opportunity to be heard, direct the licensee by written notice to cease or refrain from taking such action, as the case may be.’

The conduct regulated by this section would also involve conduct falling within Chapter 2 of the Competition Act, the applicability of which to the conduct in question was specifically retained.51 Section 53 applied to a very narrow ambit, viz conduct

‘which has or is likely to have the effect of giving an undue preference to or causing undue discrimination against any person or category of persons’.

However, It is apparent that the same conduct that could, for example, constitute a contravention of s 9 of the Competitions Act could also fall within the ambit of s 53.

[32] Section 100 of the Telecommunications Act gave ICASA powers to investigate and adjudicate alleged contraventions of the Act, licences, any agreement for the provision of telecommunications facilities or directions given in terms of ss 36(1), 53 or 98; or a failure by a telecommunications service provider to provide those services to a customer of an end-user. ICASA had the power to direct the licensee to desist, to pay a fine, to take remedial action or, in the case of repeated failures or contraventions, to revoke the licence (s 100(3)).

Jurisdiction

[33] Telkom contends that the subject matter of the complaint referral falls within the exclusive jurisdiction of ICASA and beyond that of the competition authorities. This submission relates to both the appeal and the cross-appeal. Its contention is that the conduct in question was authorised by the Telecommunications Act and its licence and that, consequently, the legislature could not have intended the competition authorities to have the power or competence to adjudicate on conduct that is authorised by the Telecommunications Act, by the regulations made under it or by Telkom’s licence or that might have been authorised by ICASA under its empowering provisions.

[34] In response52 to the first complaint concerning Telkom’s imposition of contractual restrictions in the provision of backbone and access facilities, Telkom relies on the terms of its licence authorizing its conduct. For example, by virtue of its licence Telkom was entitled to bind a licensee contractually not to obtain a telecommunications facility from a person other than Telkom; not to resell capacity on any telecommunications facility; and not to convey voice telephony as part of any value–added network service.53 In addition, Telkom invokes several provisions of the Telecommunications Act that authorised it to act in the manner of which the Commission complains.54 Telkom’s answer to the second complaint justifying its refusal to lease access facilities to licensees directly as it had done until September 1999 is that it did so because the provision of telecommunication facilities directly to licensees would facilitate the illegal operation of a private network. Its conduct was otherwise justified in terms of the provisions of its licence.55 In response to the third complaint that it engaged in price discrimination and or excessive pricing in contravention of ss 8(a) and (c) and 9 of the Competition Act, Telkom contends that the rates and tariffs that form the subject matter of the complaint were regulated by ICASA. Section 45 of the Telecommunications Act dealt with the fees and charges that may be levied by a licensee. Clause 7.1 of the Telkom’s licence requires Telkom to file with ICASA the rates and terms for those services that it wished to provide pursuant to its public switched telecommunications service licence. These rates were subject to control in terms of paragraph 7 of the licence and the Telecommunications Act, and formed part of a basket that was approved by ICASA. Telkom’s answer to the fourth complaint that it refused to peer is that peering is a matter that falls solely within the technical competence of ICASA and a matter that was provided for in its licence. Peering, in addition, is a discretionary matter.

[35] It was contended on behalf of Telkom that conduct authorised under specific legislation will ordinarily not be conduct to which a general enactment applies: what Parliament regulates specifically it does not undo by general enactment: generalia specialibus non derogant.56 The implication of exclusivity contended for will be refuted where it is clear that the intention is that the later general enactment

should regulate the subject matter. Where this is the position the later enactment necessarily supersedes the earlier specific

legislation to the extent that they may differ. Both the repeal of s 3(1)(d) and the introduction of s 3(1A)(a) brought about a complete change from the earlier position. They are general provisions intended to regulate the subject matter comprehensively

and intended to establish the general jurisdiction of the competition authorities in all competition matters. The Competition Act applies to all economic activity within or having an effect within South Africa. It provides for wide powers and general remedies more

effective than the limited ones given by the Telecommunications Act. There is no room for the implication of exclusive jurisdiction vested in ICASA contended for. The authorising legislative and other provisions Telkom relied upon did not oust the jurisdiction of the Commission and the Tribunal but could well give rise to defences to the complaints referred. The competition authorities not only have the required jurisdiction but are also the appropriate authorities to deal with the complaint referred.

Appropriate Forum

[36] The court a quo dismissed the contention advanced on behalf of the Commission that the Tribunal was the appropriate or preferred forum to hear the matter by observing that since the case had been fully argued there was no point in referring it to the Tribunal. This contention was not an objection to the jurisdiction of the court but rather a submission that, given the nature of the alleged contraventions, it would have been preferable that the Tribunal hear the matter. As will be shown, Parliament has conferred the competence to investigate, evaluate, refer and adjudicate complaints concerning infringements of Chapter 2 on a series of specialist bodies. The Competition Act creates a hierarchy of institutions to apply and enforce its provisions: the Commission, the Tribunal and the Competition Appeal Court.57 The Commission’s functions include the investigation of mergers and the investigation and referral of complaints of prohibited practices to the Tribunal. The Tribunal is the adjudicative body of first instance. It is a specialist administrative tribunal adjudicating referrals from the Commission and by private individuals. It also has the power hear appeals from certain decisions of the Commission and to review them. The Competition Appeal Court is a specialist court hearing appeals from and reviews of decisions of the Tribunal. Where specialist structures have been designed for the effective and speedy resolution of particular disputes it is preferable to use that system.58

[37] Determining whether a matter involves a contravention of Chapter 2 may be complex and technical. The Tribunal should not be lightly deprived of the authority to decide whether the complaints referred to involve such contraventions.59 It was submitted on behalf of the Commission that it would have been appropriate, perhaps preferable, for Telkom to have raised the objection to the Tribunal’s jurisdiction at the commencement of the proceedings. Exercising its specialist authority under the Act, the Tribunal would have been able to determine whether the matters fell within its authority, ie whether they involved contraventions of Chapter 2.

[38] The Competition Tribunal is a specialist administrative tribunal created by s 26(1). Its functions must be exercised in accordance with the Act.60 It must adjudicate on any matter referred to it under the Act, and each matter will be referred to a panel of three. Members need not be lawyers: they may have qualifications and experience in economics, law, commerce, industry or public affairs.61 However, the chairperson must, when assigning a matter to the Tribunal, ensure that at least one member of the panel is a person

who has legal training and experience. The Chairperson designates one of the three members of a panel to preside over each proceeding.62 The Tribunal does not function as an ordinary court does.63 Competition proceedings involve the public interest, and under the Act, the Tribunal has an active role to play in protecting that

interest.64 The Tribunal may conduct its proceedings in an inquisitorial manner,65 calling its own witnesses, accepting evidence not normally admissible in a court, allowing a broad range of participants, and adjusting its procedures as it sees fit.66 It is a tribunal of record (s 26(1)(c)). Its functions include the power to adjudicate any conduct prohibited in terms of Chapter 2, to determine whether prohibited conduct has occurred, and, if so, to impose any remedy provided for by the Act (s 27(1)(a)).67 It must conduct its hearings in public and in accordance with the principles of natural justice.68 Legal representation is permitted (s 53). Powers are given to it to summon and interrogate and to order the production of books,

documents or items required for the hearing (ss 54(c) and 56). After the conclusion of a hearing it must make an order permitted by the Act and must issue reasons for the order (s 52(4). It may also

‘(b) adjudicate on any other matter that may, in terms of this Act, be considered by it, and make any order provided for in this Act;

(c) hear appeals from, or review any decision of, the Competition Commission that may in terms of this Act be referred to it; and

(d) make any ruling or order necessary or incidental to the performance of its functions in terms of this Act.’

It follows that the Tribunal may hear appeals from, or review, decisions of the Commission referred to it. It may thus adjudicate on the matter under consideration.69 A direction may also be given in terms of Rule 21(2) that a point of law be heard by the Tribunal separately and prior to further

proceedings. It would have been the preferred forum to adjudicate the matter. For these reasons as well the court a quo should in the exercise of its discretion,70 have declined to review and set aside the decision of the Commission and the complaint referral.

[39] My colleague Van Heerden JA was present during the hearing of the appeal but has, by reason of subsequent indisposition, been incapable of being a party to the final decision. The judgment of the remaining members of the court consequently becomes the judgment of the court (see s 12(3) of the Supreme Court Act 59 of 1959).

[40] The following order is made:

(1) The appeal is upheld with costs including the costs of two counsel;

(2) The cross-appeal is dismissed with costs including the costs of two counsel;

(3) The order of the court a quo is set aside and replaced with the following;

‘the application is dismissed with costs including the costs of two counsel.’

Malan JA

Judge of Appeal

Counsel for Appellant: MSM Brassey SC

NH Maenetje

Instructed by: Edward Nathan Sonnenberg Inc Johannesburg

Matsepes Bloemfontein

Counsel for Respondent: DN Unterhalter SC

A Cockrell

Instructed by: Mothle Jooma Sabdia Inc Pretoria

Symington & De Kok Bloemfontein

1 Section 4(1)(a) of the Post Office Act 44 of 1958. See also s 78(1). The Post Office Act was repealed by s 106 of the Telecommunications Act 103 of 1996.

2 Sections 32A(1) and 36(1) of the Telecommunications Act repealed by s 97 of the Electronic Communications Act All existing licences remain in force until converted in terms of the Electronic

Communications Act (s 92(1)). ‘PSTS’ is described in ss 36A(1) and 36B of the Telecommunications Act.

4 Section 44(2) of the Telecommunications Act and further s 44(3) incorporating s 43(1)(b)(i) and (ii), (b) and (d). On Telkom’s obligation to provide interconnection services see s 43.

5 "> 5 Section 44(3) read with s 43(1)(bb)(i) and (ii), (c) and (d) and also s 43 of the Telecommunications Act.

5 Section 44(3) read with s 43(1)(bb)(i) and (ii), (c) and (d) and also s 43 of the Telecommunications Act.

7 See para 30 below.

8 2003 (3) SA 64 (SCA).

9 [2005] ZASCA 43; 2005 (6) SA 313 (SCA) para 23.

10 See ss 49A, 54 and 56 of the Competition Act.

12 In Simelane and Others NNO v Seven-Eleven Corporation (Pty) Ltd and Another 2003 (3) SA 64 (SCA) para 16 this court approved of the following interpretation of the words ‘determines that a prohibited practice has been established’ in Novartis SA (Pty) Ltd and Others v Competition Commission and Others (CT 22/CR/B/Jun 01, 2.7.2001) para 61: ‘On the basis of its investigation the commission determines whether or not a prohibited

practice has occurred. If the commission determines that a prohibited practice has occurred it cannot impose a fine or any

other remedy, it must refer the complaint to the tribunal. Referring a complaint to the tribunal is not determinative of the complaint.

All it means is that the respondent will have to face a hearing before the tribunal where it will be given an opportunity to respond to the allegations that it has engaged in a prohibited practice.’

13 Eskom Holdings Ltd and Another v New Reclamation Group (Pty) Ltd 2009 (4) SA 628 (SCA) para 9; Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae) 2006 (2) SA 311 (CC) para 97; Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others [1998] ZACC 17; 1999 (1) SA 374 (CC) paras 56-9; President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) para 148.

14 Masetlha v President of the Republic of South Africa and Another [2007] ZACC 20; 2008 (1) SA 566 (CC) para 80.

15 2003 (3) SA 64 (SCA).

16 Simelane NO and Others v Seven-Eleven SA Corporation (Pty) Ltd and Another 2003 (3) SA 64 (SCA) paras 33 and 34. See Chairman, Board on Tariffs and Trade and Others v Brenco Inc and Others 2001 (4) SA 511 (SCA) para 65 and JR de Ville Judicial Review of Administrative Action in South Africa Revised First Edition (2005) 270-1 n 462.

17 See S v Harksen; Harksen v President of the Republic of South Africa and Others; Harksen v Wagner NO and Another 2000 (1) SA 1185 (C) para 71 and Sager v Smith 2001 (3) SA 1004 (SCA); [2001] 3 All SA 401 (A) where it was said (para 17): ‘The test to be applied is an objective one, requiring not only that the person apprehending the bias must be a reasonable person but also that the complaint must be reasonable … This two-fold feature of the required objective standard has been described … as the double requirement of reasonableness. In SACCAWU [South African Commercial Catering and Allied Workers Union and others v Irvin & Johnson Ltd (Seafoods Division Fish Processing) [2000] ZACC 10; 2000 (3) SA 705 (CC)] … at paragraphs [11] to [17]] it was said that the double reasonableness requirement highlights the fact that mere

apprehension on the part of a litigant that a Judge will be biased – even a strongly and honestly felt anxiety – is not enough.’

18 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) para 38.

19 See Minister of Environmental Affairs and Tourism and Another v Scenematic Fourteen (Pty) Ltd [2005] ZASCA 11; 2005 (6) SA 182 (SCA); [2005] 2 All SA 239 (SCA) para 20.

20 Section 25(a).

21 "> 21 See para 27 ff below.

21 See para 27 ff below.

22 GN 1747 of 2002 (GG 23857 of 20 September 2002).

23 Section 21(1)(h) requires the Commission to ‘negotiate agreements with any regulatory authority to co-ordinate and harmonise the exercise of jurisdiction over competition matters within the relevant industry or sector, and to ensure the consistent application of the principles of this Act …’ Section 82 concerns the Commission’s relationship with other regulatory agencies: ‘(1) A regulatory authority which, in terms of any public regulation, has jurisdiction in respect of conduct regulated in terms of Chapter 2 or 3 within a particular sector - (a) must negotiate agreements with the Competition Commission, as anticipated in section 21 (1) (h); and (b) in respect of a particular matter within its jurisdiction, may exercise its jurisdiction by way of such an agreement. (2) Subsection (1) (a) and (b), read with the changes required by the context, applies to the

Competition Commission. (3) In addition to the matters contemplated in section 21 (1) (h), an agreement in terms

of subsection (1) must - (a) identify and establish procedures for the management of areas of concurrent jurisdiction; (b) promote

co-operation between the regulatory authority and the Competition Commission; (c) provide for the exchange of information and the protection of confidential information; and (d) be published in the Gazette.’

24 See the discussion by Wellington Ngwepe ‘Serving Two Masters: Concurrent Jurisdiction between the Competition Commission and the Independent Communications Authority of South Africa’ (2003) 120 SALJ 243 249 ff.

25 Director of Hospital Services v Mistry 1979 (1) SA 626 (A) 635H – 636B.

26 See ss 1 and 6 of the Interpretation Act 33 of 1957.

27 Omnia Fertilizer Ltd v Competition Commission and Others; Sasol Chemical Industries Ltd v Competition Commission and Others [2006] 1 CPLR 27 (CAC) para 11.

28 See the approach in Eskom v Soweto City Council 1992 (2) SA 703 (W) 706 C–F.

29 Section 3(1).

30 Standard Bank Investment Corporation Ltd v Competition Commission and Others; Liberty life Association of Africa Ltd v Competition

Commission and Others [2000] ZASCA 20; 2000 (2) SA 797 (SCA) para 9. On the meaning of ‘effect’ see American Natural Soda Ash Corporation and Another v Competition Commission and Others 2005 (6) SA 158 (SCA) paras 224 - 29. The two exceptions in s 3(1)(a) and (b) are not relevant for the purposes of this appeal.

31 Section 3(1)(d). ‘Public regulation’ means ‘any national, provincial or local government legislation or subordinate legislation, or any license, tariff, directive or similar authorisation issued by a regulatory authority or pursuant to any statutory authority’ (s 1(1)).

32 See also the discussion in paras 33-5 below.

33 Philip Sutherland and Katherine Kemp Competition Law in South Africa loose leaf ed October 2008 para 4.8 at 4-44 to 4-49.

34 Its insertion by s 2(b) of Act 39 of 2000 is the legislative response to the decision in Standard Bank Investment Corporation Ltd v Competition Commission and Others; Liberty Life Association of Africa Ltd v Competition Commission and Others [2000] ZASCA 20; 2000 (2) SA 797 (SCA). See Wellington Ngwepe ‘Serving Two Masters: Concurrent Jurisdiction between the Competition Commission and the Independent Communications Authority of South Africa’ (2003) 120 SALJ 242; Sutherland and Kemp para 4.8 at 4-44 ff for the history of the section and cf Richard Whish Competition Law (2009) 6ed 435 ff for a discussion of similar issues in the UK.

35 Sir William Wade Administrative Law (2004) 9ed by Sir William Wade and Christopher Forsyth remarked at 251: ‘In this area “jurisdiction” is a hard-worked word. Commonly it is used in its broadest sense, meaning simply ‘power’. In some contexts it will bear the narrower sense of ‘power to decide’ or ‘power to determine’, but there will be no technical difference. In fact, except in the special case of error on the face of the record, the principle here at work is basically that of ultra vires, which is synonymous with “outside jurisdiction” or “in excess of power”.’ In Graaff-Reinet Municipality v Van Ryneveld’s Pass Irrigation Board 1950 (2) SA 420 (A) at 424 defines ‘jurisdiction’ as the ‘power or competence of a Court to hear and determine an issue between parties’. See Ewing McDonald & Co Ltd v M & M Products Co 1991 (1) SA 252 (A) 256 G.

36 See Ngwepe 247 and paras 31-2 below.

37 Sutherland and Kemp 4-46 and cf Standard Bank Investment Corporation Ltd v Competition Commission and Others; Liberty Life Association of Africa Ltd v Competition Commission and Others [2000] ZASCA 20; 2000 (2) SA 797 (SCA) para 9.

38 Section 52(3). The Maintenance and Promotion of Competition Act 96 of 1979 was repealed by the Competition Act but, in terms of 83(1) and Schedule 3 paragraph 4(a), any reference in any other statute to the Maintenance and Promotion of Competition Act, 1979 must be regarded as a reference to the Competition Act. See also s 12(1) of the Interpretation Act 33 of 1957.

39 See s 7 as well as s 1 for the definition of ‘market power’.

40 See Sutherland and Kemp paras 7.4 ff at 7-8 ff but see para 7.10.1 at 7-40(7) ff.

41 See Mittal Steel South Africa Ltd; MacSteel International BV; MacSteel Holdings (Pty) Ltd v Harmony Gold Mining Company Ltd; Durban Roodepoort Deep Ltd 29/05/2009 (70/CAC/Apr07).

42 Section 1 defines an ‘essential facility’ as ‘an infrastructure or resource that cannot reasonably be duplicated, and without access to which competitors cannot reasonably provide goods or services to their customers.’

43 Sutherland and Kemp para 7.10 at 7-40(7) ff.

44 Sutherland and Kemp para 7.11 at 7-45 ff.

45 On this requirement see Sasol Oil (Pty) Ltd v Nationwide Poles CC [2006] 1 CPLR 37 (CAC) at 51.

46 Section 2.

47 Section 3 of the Independent Communications Authority Act 13 of 2000.

48 Compare ss 100 to 102 Telecommunications Act with Chapter 7 of the Competition Act.

49 Section 43(3) and (4) Telecommunications Act.

52 See para 6 above.

53 Para 2.5 (a) – (c). See also para 13.4.3 (a) and (c).

54 See s 44(2) and further eg ss 41(2)(a), 2>41(2)(a), and s 41(7).

55 See para 2.2 of its licence and s 36B(1)(c)(iii).

56 "> 56 New Modderfontein Gold Mining Co v Transvaal Provincial Administration 1919 AD 397 401; R v Gwantshu 1931 EDL 29 31; Sasol Synthetic Fuels (Pty) Ltd and Others v Lambert and Others 2002 (2) SA 21 (SCA) para 17 and Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) 603 B-E.

56 New Modderfontein Gold Mining Co v Transvaal Provincial Administration 1919 AD 397 401; R v Gwantshu 1931 EDL 29 31; Sasol Synthetic Fuels (Pty) Ltd and Others v Lambert and Others 2002 (2) SA 21 (SCA) para 17 and Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) 603 B-E.

57 See Seagram Africa (Pty) Ltd v Stellenbosch Farmers’ Winery Group Ltd and Others 2001 (2) SA 1129 (C) 1141 ff; Sutherland and Kemp Chapter 11.

58 Cf the remarks of Van der Westhuizen J in Gcaba v Minister for Safety and Security and Others CCT 64/08 [2009] ZACC 26 (7 October 2009) para 56

59 Cf the remarks on the Competition Appeal Court referring a matter back to the Tribunal in Mittal Steel South Africa Ltd; MacSteel International BV; MacSteel Holdings (Pty) Ltd v Harmony Gold Mining Company Ltd; Durban Roodepoort Deep Ltd 29/05/2009 (70/CAC/Apr07) para 75; Anglo South Africa Capital (Pty) Ltd v Industrial Development Corporation of South Africa Ltd (Intervening) 24/CAC/Oct02 5-6 and see Erf 167 Orchards CC v The Greater Johannesburg Metropolitan Council 1999(1) SA 104 (SCA) paras 21 and 22.

60 Sections 26(1)(d); 27.

61 "> 61 Section 28(2)(b).

61 Section 28(2)(b).

62 Section 31.

63 "> 63 Cf American Natural Soda Ash Corporation v Botswana Ash (Pty) Ltd [2001-2] CPLR 430 (CT) 442.

63 Cf American Natural Soda Ash Corporation v Botswana Ash (Pty) Ltd [2001-2] CPLR 430 (CT) 442.

64 See ss 54-5.

65 "> 65 Section 52(2)(b).

65 Section 52(2)(b).

66 "> 66 Sutherland and Kemp 11-24, para 11.4.6.1.

66 Sutherland and Kemp 11-24, para 11.4.6.1.

67 The remedies are referred to in inter alia ss 59, 60 and 61.

68 Section 52(2).

69 "> 69 Section 62 of the Competition Act provides for the Tribunal and the Competition Appeal Court to share exclusive jurisdiction in respect of the interpretation and application of Chapters 2, 3 and 5 as well as the functions referred to in ss 21(1), 27(1) and 37. In addition to its appeal jurisdiction, jurisdiction concerning ‘the question whether an action taken or proposed by the Competition Commission or the Competition Tribunal is within their respective jurisdictions in terms of this Act’ (see s 62(2)(a) is vested in the Competition Appeal Court (s 62(2)(a)). The jurisdiction of the Competition Appeal Court in this respect is original and as a court of first instance (Sappi Fine Paper (Pty) Ltd v Competition Commission of South Africa and Another [2003] 2 CPLR 272 (CAC); (23/CAC/Sep02) para 4). The jurisdiction of the Competition Appeal Court is not final in this respect (s 62(3)(b)) and an appeal lies to the Supreme Court of Appeal or the Constitutional Court (s 62(4)).

69 Section 62 of the Competition Act provides for the Tribunal and the Competition Appeal Court to share exclusive jurisdiction in respect of the interpretation and application of Chapters 2, 3 and 5 as well as the functions referred to in ss 21(1), 27(1) and 37. In addition to its appeal jurisdiction, jurisdiction concerning ‘the question whether an action taken or proposed by the Competition Commission or the Competition Tribunal is within their respective jurisdictions in terms of this Act’ (see s 62(2)(a) is vested in the Competition Appeal Court (s 62(2)(a)). The jurisdiction of the Competition Appeal Court in this respect is original and as a court of first instance (Sappi Fine Paper (Pty) Ltd v Competition Commission of South Africa and Another [2003] 2 CPLR 272 (CAC); (23/CAC/Sep02) para 4). The jurisdiction of the Competition Appeal Court is not final in this respect (s 62(3)(b)) and an appeal lies to the Supreme Court of Appeal or the Constitutional Court (s 62(4)).

70 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others [2004] 3 All SA 1; 2004 (6) SA 222 (SCA) para 36.