Procedural Formalities in terms of the Competition Act 89 of 1998 The Woodlands Omnia Debate : a critical review of the Supreme Court of Appeal's approach to complaint initiation and referral in Competition law enforcement

Abstract

The overarching purpose of this study is to utilise different factors, such as South Africa s controversial history and the development of competition law policy in light thereof, the effect of democracy and the Constitution on competition enforcement and the legislature s intention codified in the provisions of the Competition Act, in an attempt to explain the judiciary s recent approach to competition law enforcement by the Competition Commission and Competition Tribunal. South African competition law develops largely through case law and as such, the decisions of the Tribunal, coupled with their review by the Competition Appeal Court, the Supreme Court of Appeal and ultimately the Constitutional Court, will ultimately inform how competition law is regulated going forward. This means that tremendous value is being placed on these judgments and it is therefore of critical importance that the correct approaches are followed when they are being decided. Focussing on the initiation of complaints as the first step in the process of complaint proceedings, the relevant regulatory institutions and the nature and scope of their powers, as well as current procedures and laws involved in regulating complaint initiation and referral, an attempt is made shed some much needed light on recent, fairly controversial, jurisprudence by our courts pertaining to the enforcement of competition law in South Africa. The Woodlands and Omnia cases forms the basis of this enquiry, hence a closer look is taken at how these disputes came about and eventually found their way to the Supreme Court of Appeal (the SCA ). The focus in both instances is primarily on the initiating complaint, its referral to the Tribunal for adjudication, the appeal to the Competition Appeal Court (the CAC ) and the final appeal to the SCA. Proceeding from the premise that for the sake of effective competition law enforcement and uniform policy development a purposive interpretation to the nature and powers of the Commission and Tribunal is desirable, it is submitted that formal procedure still plays a vital role in achieving coherent results. The extent of formality required however, must be softened in order to achieve the Act s objectives of creating free and fair markets, consumer welfare and promoting greater ownership and employment to address the economic injustices of the past. Following the SCA s decision in Omnia, some in the legal fraternity has viewed the SCA s judgment as a relaxation of the referral rule which brings the rule in line with a more purposive interpretation of the provisions of the Act. Others have commented that the Omnia judgment appears to reflect a reversion by the SCA towards both the handling and interpretation of initiation and complaint proceedings in terms of section 49B of the Act. In light of the findings in the Senwes judgment however, an argument is made that the former, more cautious view is the more favourable.