The Commissioner of the Competition Commission v General Council of the Bar of South Africa and Others

The respondents are the General Council of the Bar of South Africa (GCB) and various regional societies of advocates. The GCB maintains a code of conduct regulating advocates’ professional rules. Suspecting that some of these rules might contravene s 4 of the Competition Act 89 of 1998 (restrictive horizontal practices), the respondents jointly applied to the Competition Commission in 1999/2000 for an exemption under Schedule 1 of the Act. The Commission issued a decision purporting to grant an exemption subject to ‘conditions’, which in substance amounted to a refusal to exempt certain rules and an invitation to negotiate amendments. The Commission failed to disclose to the respondents adverse comments made by the Minister of Justice (which it had consulted as required by Schedule 1) and did not afford the respondents an opportunity to respond. On review in the Transvaal High Court, the Commission conceded that its decision was procedurally unfair for failure to comply with the audi alteram partem principle. The High Court set aside the Commission’s decision and, instead of remitting the matter, itself exempted some of the rules. The Commissioner appealed against the refusal to remit, and the respondents cross-appealed against the refusal to exempt additional rules.

The appeal by the Commissioner was upheld. The High Court’s order substituting its own exemption decision was set aside, and the matter was remitted to the Competition Commission for reconsideration in accordance with the correct interpretation of Schedule 1 and after affording the respondents a procedurally fair hearing. The respondents’ cross-appeal was dismissed.

The case is a leading authority on the limits of judicial substitution in administrative-law reviews in South Africa. It clarifies that even where an administrative body has acted incompetently or misunderstood its mandate, substitution is exceptional and depends on fairness and institutional competence. The judgment also provides important guidance on how the Competition Commission must approach exemption applications by professional associations under Schedule 1 of the Competition Act, distinguishing that enquiry from broader public-interest or transformation debates.