Sibanye Gold Limited v Competition Commission of South Africa (020453) [2015] ZACT 141 (17 April 2015)

Sibanye Gold Limited v Competition Commission of South Africa (020453) [2015] ZACT 141 (17 April 2015)

The Tribunal found that the Competition Commission was not empowered to issue a Notice of Apparent Breach under Rule 39 unless an actual breach of merger conditions had occurred. The wording of Rule 39 requires a breach to have taken place, not merely to be imminent. The Commission's proactive approach was commended, but its issuance of the Notice was premature, as no retrenchments had yet occurred. The Tribunal held that the Commission cannot use Rule 39 to prevent or pre-empt a breach, and that employees retain the right to seek relief from the Labour Court. The legality principle constrained the Tribunal to set aside the Notice, as the Commission acted outside its powers. The Tribunal...

Citation
[2015] ZACT 141
Parties
Applicant: Sibanye Gold Limited; Respondent: Competition Commission of South Africa
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
17 April 2015
Case Number
020453
Procedural Posture
Review Application / Order and Reasons for Decision
Outcome
The Notice of Apparent Breach issued by the Competition Commission is reviewed and set aside. No order as to costs.
Judges
Anton Roskam, Mondo Mazwai, Prof Fiona Tregenna
Legal Topics
Merger Conditions, Review of Administrative Action, Retrenchment, Notice of Apparent Breach
Competition Law Civil Procedure Merger Conditions Review of Administrative Action Retrenchment Notice of Apparent Breach

Case Brief

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Parties

Sibanye Gold Limited

Applicant

Competition Commission of South Africa

Respondent

Procedural Posture

Review Application / Order and Reasons for Decision

Legal Issues

  1. 1 Whether the Competition Commission was entitled to issue a Notice of Apparent Breach before an actual breach of merger conditions occurred.
  2. 2 Whether the applicant had substantially complied with its obligations under the conditional merger approval.
  3. 3 Whether the Notice of Apparent Breach usurped the powers of labour authorities.

Ratio Decidendi

The Tribunal found that the Competition Commission was not empowered to issue a Notice of Apparent Breach under Rule 39 unless an actual breach of merger conditions had occurred. The wording of Rule 39 requires a breach to have taken place, not merely to be imminent. The Commission's proactive approach was commended, but its issuance of the Notice was premature, as no retrenchments had yet occurred. The Tribunal held that the Commission cannot use Rule 39 to prevent or pre-empt a breach, and that employees retain the right to seek relief from the Labour Court. The legality principle constrained the Tribunal to set aside the Notice, as the Commission acted outside its powers. The Tribunal...

Court Disposition

The Notice of Apparent Breach issued by the Competition Commission is reviewed and set aside. No order as to costs.

Orders

  • The Notice of Apparent Breach issued by the Competition Commission is reviewed and set aside.
  • No order as to costs.