Simelane NO and Others v Seven-Eleven Corporation SA (Pty) Ltd and Another (480/01) [2002] ZASCA 141; [2001-2002] CPLR 13 (SCA) ; [2003] 1 All SA 82 (SCA); 2003 (3) SA 64 (SCA) (26 November 2002)

Simelane NO and Others v Seven-Eleven Corporation SA (Pty) Ltd and Another (480/01) [2002] ZASCA 141; [2001-2002] CPLR 13 (SCA) ; [2003] 1 All SA 82 (SCA); 2003 (3) SA 64 (SCA) (26 November 2002)

The Supreme Court of Appeal held that the Competition Commission's referral of complaints to the Tribunal is an investigative act, not a determinative administrative decision affecting Seven-Eleven's rights. Accordingly, it is not subject to review except in cases of ill-faith, oppression, or vexation, none of which were established. The Commission was not required to observe the audi alteram partem rule at the investigative stage, having provided Seven-Eleven with the 'gist' of the case and an opportunity to be heard, which Seven-Eleven declined to fully utilize. Allegations of bias, malice, or ulterior motive were unfounded, as the Commission's pursuit of a test case on 'relational...

Citation
[2002] ZASCA 141
Parties
Appellant: Menzi Simelane NO; Appellant: Ahmore Burger NO; Appellant: Zoleka Ntsaluba NO; Appellant: Willem Pretorius NO; Respondent: Seven-Eleven Corporation SA (Pty) Ltd; Respondent: Seven-Eleven Africa (Pty) Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 November 2002
Case Number
480/01
Procedural Posture
Civil Appeal / Appeal From High Court Review Judgment
Outcome
Appeal allowed; High Court order set aside; application dismissed with costs, including costs of two counsel.
Judges
Schutz, Hefer, Harms, Scott, Brand
Legal Topics
Competition Act, Administrative Review, Audi Alteram Partem, Investigative Vs Adjudicative Function, Referral of Complaints, Bias and Ulterior Motive
Competition Law Administrative Law Competition Act Administrative Review Audi Alteram Partem Investigative Vs Adjudicative Function Referral of Complaints Bias and Ulterior Motive

Case Brief

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Parties

Menzi Simelane NO

Appellant

Ahmore Burger NO

Appellant

Zoleka Ntsaluba NO

Appellant

Willem Pretorius NO

Appellant

Seven-Eleven Corporation SA (Pty) Ltd

Respondent

Seven-Eleven Africa (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Review Judgment

Legal Issues

  1. 1 Whether the Competition Commission's referral of complaints to the Competition Tribunal constitutes an administrative decision subject to review.
  2. 2 Whether the Commission was required to observe the audi alteram partem rule at the investigative stage.
  3. 3 Whether the Commission's referral was based on proper investigation or constituted a 'hotch-potch' of complaints.

Ratio Decidendi

The Supreme Court of Appeal held that the Competition Commission's referral of complaints to the Tribunal is an investigative act, not a determinative administrative decision affecting Seven-Eleven's rights. Accordingly, it is not subject to review except in cases of ill-faith, oppression, or vexation, none of which were established. The Commission was not required to observe the audi alteram partem rule at the investigative stage, having provided Seven-Eleven with the 'gist' of the case and an opportunity to be heard, which Seven-Eleven declined to fully utilize. Allegations of bias, malice, or ulterior motive were unfounded, as the Commission's pursuit of a test case on 'relational...

Court Disposition

Appeal allowed; High Court order set aside; application dismissed with costs, including costs of two counsel.

Orders

  • The application is dismissed with costs including the costs of two counsel.