Loungefoam (Pty) Limited and Others v Competition Commission of South Africa; Feltex Holdings (Pty) Limited v Competition Commission of South Africa

Following an investigation into the flexible polyurethane foam market, the Competition Commission referred complaints to the Competition Tribunal alleging horizontal restrictive practices. The first complaint alleged that Loungefoam, Vitafoam and/or Gommagomma fixed selling prices of foam and jointly fixed purchase prices of chemicals (the 'chemical cartel'), contrary to section 4(1)(b)(i) of the Competition Act 89 of 1998. The second complaint alleged market division between Feltex, on the one hand, and Loungefoam and Vitafoam, on the other, contrary to section 4(1)(b)(ii). During preparation for the Tribunal proceedings, the Commission sought to amend its founding affidavit to implicate Feltex in the chemical cartel and to introduce allegations of collusion between companies in the Steinhoff group and the KAP group. The Commission further sought to rely on section 4(5)(b) to attach liability for any administrative penalty to Steinhoff International Holdings Ltd and Steinhoff Africa Holdings (Pty) Ltd, and to join Steinhoff Africa as a party. The Tribunal granted the amendments and joinder. Feltex and the Steinhoff companies appealed and, in the alternative, brought review proceedings challenging the Tribunal’s decisions.

The Court held that the Tribunal’s decisions permitting the amendments were appealable. It upheld the appealability of the amendments extending the chemical cartel complaint to Feltex and attaching potential liability to Steinhoff International and Steinhoff Africa. The Court found that the section 4(5)(b) amendment stood on a different legal footing as it introduced a new and distinct claim, and that the Tribunal erred in treating it as merely consequential to other amendments.

This judgment is significant for clarifying when decisions of the Competition Tribunal, particularly procedural rulings such as amendments and joinder, are appealable to the Competition Appeal Court. It underscores the jurisdictional importance of proper complaint initiation under the Competition Act and affirms that affidavits in competition proceedings retain their full legal character as sworn statements. The case also provides important guidance on the limits of section 4(5)(b) and the circumstances in which liability may be extended within corporate groups.