Foskor (Pty) Ltd v Competition Commission and Others (CO037Aug10/VAR240Feb16) [2019] ZACT 85 (18 December 2019)

Parties

Procedural Posture

Variation Application / Application for Variation of Consent Order; Preliminary Jurisdictional Ruling

Legal Issues

1. 1 Whether the Competition Tribunal has the power to vary or amend a consent order granted under section 49D on grounds of changed circumstances or hardship.
2. 2 Whether the Tribunal's powers under section 27(1)(d) extend to varying consent orders beyond the grounds listed in section 66(b).
3. 3 Whether the new consent agreement between the Commission and Foskor can be considered and confirmed by the Tribunal.

Ratio Decidendi

The Tribunal held that its powers under section 27(1)(d) of the Competition Act, when interpreted in accordance with the Constitution and relevant foreign law, include the authority to vary or amend a consent order on grounds of changed circumstances or hardship. The Tribunal rejected a narrow reading that would confine variations to ambiguity, error, or omission under section 66(b), finding that such an approach would undermine its regulatory mandate and deny access to justice. The Tribunal emphasized that consent orders in competition law serve public interests and may require adaptation to dynamic market conditions. The Tribunal concluded that the Commission's application for...

Court Disposition

The Tribunal granted the Commission's application to consider the new consent agreement for variation of the 2011 consent order under section 27(1)(d).

Orders

• The Commission's application for confirmation of the new consent agreement seeking to vary the 2011 consent order can be considered by the Tribunal in terms of section 27(1)(d) read with section 1(2) and 1(3).
• The Commission may proceed to set its application down for a hearing on the merits by arrangement with the Registrar.