Coca Cola Beverages South Africa (Pty) Ltd v Competition Commission of South Africa and Others

Coca Cola Beverages South Africa (CCBSA) lodged a complaint with the Competition Commission in 2018 alleging excessive pricing of sugar in contravention of section 8(a) of the Competition Act 89 of 1998 by sugar millers and industry associations. In July 2021, the Commission decided not to refer the complaint, citing lack of dominance and absence of supra-competitive pricing. Instead of self-referring the complaint to the Competition Tribunal under section 51, CCBSA launched a review before the Tribunal in terms of section 27(1)(c) of the Act, seeking to set aside the non-referral decision and related relief. While the review was pending, the Constitutional Court in Competition Commission v Group Five clarified that the Tribunal lacks jurisdiction to hear PAJA or legality reviews of Commission decisions. Accepting that the Tribunal lacked jurisdiction, CCBSA applied to the Competition Appeal Court (CAC) to transfer the pending Tribunal review to the CAC rather than starting proceedings afresh. Several respondents opposed the transfer.

The application for transfer from the Competition Tribunal to the Competition Appeal Court was dismissed, with CCBSA ordered to pay the costs of the opposing respondents on a party and party basis, scale C, including the costs of two counsel where employed.

This case clarifies that the Competition Appeal Court has no inherent or implied power to transfer matters from the Competition Tribunal to itself absent statutory authority. It confirms the narrow scope of section 173 of the Constitution in procedural matters and underscores the strict separation between statutory reviews under the Competition Act and PAJA or legality reviews. The decision provides important guidance for competition law litigants on forum selection following the Constitutional Court’s decision in Group Five and reinforces procedural certainty in competition enforcement.