Anglo South Africa (Pty) Ltd and Others v The Industrial Development Corporation of South Africa Ltd and Others

On 20 June 2002, two merger notifications were filed with the Competition Commission: (1) the proposed acquisition by first applicant of controlling interest in second applicant; and (2) the proposed acquisition by third applicant of controlling interest in fourth applicant. The Competition Commission recommended unconditional approval on 6 September 2002. At three prehearing conferences (19 September, 8 October, and 15 October 2002), the second respondent, acting as a single member of the Competition Tribunal, made several rulings: (1) permitting first respondent (IDC) to intervene; (2) defining the scope of first respondent's intervention; (3) granting first respondent access to confidential documents; and (4) appointing an expert economist (seventh respondent) to assess the merger. The applicants brought an appeal and review application to set aside these rulings, arguing that a single member of the Tribunal lacked the power to make such determinations.

• Whether a single member of the Competition Tribunal has the power to make rulings on intervention applications under section 53(1)(c)(v) of the Competition Act 1998
• Whether Rule 46(2) of the Competition Tribunal Rules can confer powers on a single member not expressly or impliedly granted by the Competition Act
• Whether the decision to appoint an expert with an unacceptably wide brief was valid
• Whether the court should itself make a determination on the intervention application or remit the matter to the Competition Tribunal
• Whether natural justice principles were violated by failing to give applicants notice of the expert appointment

1. The decisions made by second respondent on 20 September 2002 (intervention), 9 October 2002 (expert appointment), and 18 October 2002 (scope and confidential information) are set aside. 2. First respondent's intervention application shall be heard by a panel appointed under section 31 of the Act, to be selected with a view to urgent hearing and not to include second respondent. 3. The chairperson of the Tribunal is requested to ensure the application is heard urgently. 4. No order as to costs.

A single member of the Competition Tribunal does not have the power under the Competition Act 1998 to make rulings on intervention applications, define scope of intervention, grant access to confidential information, or appoint experts. Such powers can only be exercised by a panel of three members appointed in terms of section 31(1) of the Act. The Tribunal's Rules cannot confer powers on individual members that are not expressly or by necessary implication provided for in the enabling Act. Where an administrative rule purports to grant powers not contemplated by the statute, such rule is ultra vires and decisions made pursuant to it are invalid. An expert appointed by a tribunal cannot be given a brief that effectively requires the expert to make determinations that the Act mandates the tribunal itself to make, as this would constitute an impermissible abdication of the tribunal's statutory decision-making function.

The Court noted that the determination of who should be admitted as a participant in merger proceedings must be made with reference to the Competition Act as a whole, including its purposes outlined in section 2, such as ensuring small and medium enterprises have equitable opportunity to participate in the economy (section 2(e)) and promoting greater spread of ownership, particularly to historically disadvantaged persons (section 2(f)). While a reviewing court will ordinarily remit matters to the tribunal whose decision has been set aside, it may itself correct the decision where: (1) the result is a foregone conclusion; (2) further delay would cause undue prejudice that cannot be addressed by appropriate orders; or (3) the tribunal has exhibited bias or gross incompetence that would make it unfair to expose a party to the same jurisdiction. The Court observed that issues of delay and prejudice can often be addressed through appropriately drafted orders for expeditious determination.

This case is significant in South African competition law as it clarifies the procedural requirements and limitations on the powers of the Competition Tribunal. It establishes that the Tribunal's Rules cannot confer powers on individual members that are not expressly or impliedly granted by the Competition Act itself. The judgment reinforces the principle that administrative tribunals must operate within their statutory mandate and cannot delegate or exercise powers beyond those conferred by enabling legislation. It also emphasizes the importance of natural justice principles in competition proceedings, including the right to be heard before decisions affecting parties' interests are made. The case demonstrates the court's approach to reviewing administrative decisions while respecting the tribunal's primary jurisdiction, remitting matters where outcomes are not foregone conclusions and the tribunal has the requisite expertise.