Competition Commission v Loungefoam (Pty) Ltd and Others (CCT 90/11) [2012] ZACC 15; 2012 (9) BCLR 907 (CC) (26 June 2012)

Competition Commission v Loungefoam (Pty) Ltd and Others (CCT 90/11) [2012] ZACC 15; 2012 (9) BCLR 907 (CC) (26 June 2012)

The majority held that section 63(2) of the Competition Act either bars direct appeals to the Constitutional Court without first seeking leave from the Competition Appeal Court, or, alternatively, requires compelling circumstances in the interests of justice to justify direct access. The Commission failed to comply with either interpretation: it did not seek leave from the Competition Appeal Court, and it did not demonstrate compelling circumstances justifying direct access. The application was therefore dismissed. The minority, relying on the judgment in Competition Commission v Yara, found no statutory bar to direct access and would have granted condonation and leave to appeal, except...

Citation
[2012] ZACC 15
Parties
Applicant: Competition Commission; Respondent: Loungefoam (Pty) Ltd; Respondent: Gommagomma (Pty) Ltd; Respondent: Vitafoam (Pty) Ltd; Respondent: Steinhoff Africa Holdings (Pty) Ltd; Respondent: Steinhoff International Holdings (Pty) Ltd; Respondent: Feltex Holdings (Pty) Ltd; Respondent: KAP International Holdings (Pty) Ltd
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
26 June 2012
Case Number
CCT 90/11
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Directly to the Constitutional Court From the Competition Appeal Court
Outcome
Application for leave to appeal dismissed with costs, including costs of two counsel.
Judges
Maya AJ, Mogoeng CJ, Froneman J, Jafta J, Khampepe J, Nkabinde J, Skweyiya J, van der Westhuizen J, Zondo AJ, Yacoob ADCJ, Cameron J
Legal Topics
Leave to Appeal, Jurisdiction of Competition Appeal Court, Direct Access to Constitutional Court, Statutory Interpretation, Public Interest in Competition Enforcement
Competition Law Constitutional Law Civil Procedure Leave to Appeal Jurisdiction of Competition Appeal Court Direct Access to Constitutional Court Statutory Interpretation Public Interest in Competition Enforcement

Case Brief

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Parties

Competition Commission

Applicant

Loungefoam (Pty) Ltd

Respondent

Gommagomma (Pty) Ltd

Respondent

Vitafoam (Pty) Ltd

Respondent

Steinhoff Africa Holdings (Pty) Ltd

Respondent

Steinhoff International Holdings (Pty) Ltd

Respondent

Feltex Holdings (Pty) Ltd

Respondent

KAP International Holdings (Pty) Ltd

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Directly to the Constitutional Court From the Competition Appeal Court

Legal Issues

  1. 1 Whether section 63(2) of the Competition Act bars direct appeals to the Constitutional Court without leave from the Competition Appeal Court.
  2. 2 Whether the interests of justice justify granting direct access to the Constitutional Court in this matter.
  3. 3 Whether the Competition Commission's delay in launching the application should be condoned.

Ratio Decidendi

The majority held that section 63(2) of the Competition Act either bars direct appeals to the Constitutional Court without first seeking leave from the Competition Appeal Court, or, alternatively, requires compelling circumstances in the interests of justice to justify direct access. The Commission failed to comply with either interpretation: it did not seek leave from the Competition Appeal Court, and it did not demonstrate compelling circumstances justifying direct access. The application was therefore dismissed. The minority, relying on the judgment in Competition Commission v Yara, found no statutory bar to direct access and would have granted condonation and leave to appeal, except...

Court Disposition

Application for leave to appeal dismissed with costs, including costs of two counsel.

Orders

  • The application for leave to appeal is dismissed with costs, including the costs of two counsel.