Competition Commission of South Africa v Telkom SA Limited

Complaints were lodged with the Competition Commission between 2002 and 2003 by value-added network service (VANS) providers and their associations against Telkom SA Ltd, alleging abuses of dominance under ss 8 and 9 of the Competition Act 89 of 1998. The complaints concerned Telkom’s alleged refusal to provide or lease telecommunications facilities, imposition of restrictive contractual conditions, excessive and discriminatory pricing, and refusal to peer with competitors. After investigation, including reliance on an expert report by the Link Centre, the Commission referred the complaint to the Competition Tribunal in February 2004. Telkom did not answer before the Tribunal but instead applied to the High Court to review and set aside the Commission’s decision and referral, alleging lack of jurisdiction, bias, non-compliance with a memorandum of agreement between the Commission and ICASA, and that the referral was time-barred. The High Court upheld the review on grounds of bias and lateness. The Commission appealed to the Supreme Court of Appeal, and Telkom cross-appealed seeking declaratory relief that the Commission and Tribunal lacked jurisdiction.

The appeal by the Competition Commission was upheld with costs; Telkom’s cross-appeal was dismissed with costs. The High Court’s order setting aside the complaint referral was replaced with an order dismissing Telkom’s application.

The case is a leading authority on the nature of the Competition Commission’s referral function, confirming it as investigative rather than administrative and thus generally not reviewable under PAJA. It clarifies the application of the principle of legality to competition enforcement, the threshold for alleging bias against regulators, and the operation of concurrent jurisdiction between the Competition Commission and sector regulators such as ICASA.