Competition Commission v Pioneer Hi-bred International Inc and Others (113/CAC/Nov11) [2013] ZACAC 1; [2013] 2 CPLR 389 (CAC) (12 April 2013)
The court found that there is uncertainty regarding its power to grant costs orders against the applicant for costs incurred before the Tribunal in merger proceedings. It also determined that the applicant did not act as an amicus but as an opposing party, and therefore the court may have discretion to award costs...
Source-derived case information.
- Citation
- [2013] ZACAC 1
- Parties
- Applicant: Competition Commission; Respondent: Pioneer Hi-bred International Inc; Respondent: Pannar Seed (Pty) Limited; Respondent: African Centre for Biosafety
- Court
- Competition Appeal Court
- Jurisdiction
- South Africa
- Case Number
- 113/CAC/Nov11
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal to the Constitutional Court Against a Costs Order
- Outcome
- Leave to appeal to the Constitutional Court against the costs order is granted. Costs of this application are to be costs in the appeal.
- Judges
- Davis, Mailula, Swain
- Legal Topics
- Costs Orders in Merger Proceedings, Discretion in Award of Costs, Role of Competition Commission in Mergers
Source-derived case record
Summary, issues, holding and outcome
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Parties
Competition Commission
Applicant
Pioneer Hi-bred International Inc
Respondent
Pannar Seed (Pty) Limited
Respondent
African Centre for Biosafety
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Constitutional Court Against a Costs Order
Legal Issues
- 1 Whether this Court has the power to grant a costs order against the applicant for costs incurred before the Tribunal in merger proceedings.
- 2 Whether this Court is empowered to grant a costs order adverse to the applicant in the appeal proceedings itself.
Ratio Decidendi
The court found that there is uncertainty regarding its power to grant costs orders against the applicant for costs incurred before the Tribunal in merger proceedings. It also determined that the applicant did not act as an amicus but as an opposing party, and therefore the court may have discretion to award costs in appeal proceedings. Given the Constitutional Court's request for this court's views and the practical need to resolve both issues together, leave to appeal was granted to the Constitutional Court on the costs order made by this court.
Court Disposition
Leave to appeal to the Constitutional Court against the costs order is granted. Costs of this application are to be costs in the appeal.
Orders
- The applicant is granted leave to appeal to the Constitutional Court, subject to the rules of that Court, against the costs order of this Court in its judgment under case number 113/CAC/Nov11 dated 28 May 2012.
- The costs of this application shall be costs in the appeal.
Full Case Text
Judgment text and source record
31 paragraphs
113/CAC/Nov11 JUDGMENT
1
IN THE COMPETITION APPEAL COURT OF SOUTH AFRICA
CASE NUMBER: 113/CAC/Nov11
DATE: 12 APRIL 2013
In the matter between:
THE COMPETITION COMMISSION ..................................................................Applicant
and
PIONEER HI-BRED INTERNATIONAL INC ............................................1st Respondent
PANNAR SEED (PTY) LIMITED .............................................................2nd Respondent
AFRICAN CENTRE FOR BIOSAFETY ...................................................3rd Respondent
J U D G M E N T
(Application for Leave to Appeal)
DAVIS, JP:
This is an application for leave to appeal to the Constitutional Court against a costs order made by this court in his judgment of 28 May 2012. The merits of this case have effectively been disposed of and the only issue which remains for determination, is whether the costs order, which was made by this court, should be subject to appeal to the Constitutional Court.
For the sake of clarity, two questions now arise: (1) whether this Court has the power to grant a costs order in circumstances where the applicant, in merger proceedings, recommends a particular course of action which is overturned or confirmed by the Tribunal and is then made subject to an appeal to this Court. In such a case, the question arises as to whether this Court, assuming it overturns the determination of the Tribunal, is empowered to grant an adverse order against the applicant for costs incurred before the Tribunal; (2) whether this Court is empowered to grant a costs order adverse to the applicant in the appeal proceedings itself.
Regarding the first question, this is an issue that should be determined by the Constitutional Court. There is uncertainty insofar
as this question is concerned. Whether this court is empowered, to make a costs order in circumstances where the applicant vigorously
opposes an appeal which has been brought by merging parties, may prove a more problematic question. I may find it difficult to accept that this Court does not have a discretion to grant a costs order insofar as appeal proceedings are concerned.
Mr Wilson, who appeared on behalf of the applicant characterises the role of the applicant in merger cases, as an amicus. I have significant doubt as to whether this description is correct. Granted merger proceedings should take the form of an inquiry. This Court’s guidance to the Tribunal notwithstanding, the procedure before the Tribunal has developed in a similar fashion to that of a trial. Take this case. In effect a ‘full blown’ trial took place. The applicant then vigorously opposed
the appeal, fought tooth and nail to ensure that the merger should be prevented. It then sought leave to the Supreme Court of Appeal on the merits of the matter. Manifestly, it did not comport itself as an amicus. It acted as the opposing party. For these reasons, I find it difficult to conclude, that this Court may never have the discretion to conclude that costs follow the result of the appeal.
I mention these considerations, because of the Constitutional Court’s request that the views of this Court be canvassed prior to it making a determination as to whether the Constitutional Court is prepared to accept an appeal. However, given that this court is of a mind to grant leave to appeal regarding its power to grant costs in the Tribunal proceedings, it would be sensible and practical to permit the entire issue; that is both the costs order at the Tribunal proceedings and at the appellate proceedings, to be canvassed fully by the Constitutional Court.
For these reasons, therefore, the following order is made:
The applicant is granted leave to appeal to the Constitutional Court, subject to the rules of that Court against the costs order of this Court in its judgment, under case number 113/CAC/Nov11, dated 28 May 2012. The costs of this application shall be costs in the appeal.
I agree:
______________
MAILULA, AJA
SWAIN, AJA
It is so ordered:
DAVIS, JP
/bw /...