Competition Commission of South Africa v Yara South Africa (Pty) Ltd and Others

The Competition Commission received a complaint in December 2003 from Nutri-Flo CC and Nutri-Fertilizer CC alleging prohibited practices in the fertiliser market. Although the prescribed complaint form named SASOL Chemical Industries as the respondent, an accompanying affidavit alleged cartel conduct involving SASOL, Yara South Africa (formerly Kynoch Fertilizer) and Omnia Fertilizer. The Commission investigated and referred a complaint to the Competition Tribunal against all three firms. After SASOL settled with the Commission and admitted to collusive conduct, the Commission sought to amend its referral to include detailed allegations of collusion against Yara and Omnia, relying partly on information obtained from SASOL. Yara and Omnia opposed the amendment, arguing it fell outside the scope of the original Nutri-Flo complaint. The Tribunal granted the amendment and dismissed Omnia’s counter-application to set aside the referral. On appeal, the Competition Appeal Court (CAC) set aside the Tribunal’s decisions, holding that the original complaint was against SASOL only and could not be amended to introduce a new complaint or new respondents. The Commission then sought leave to appeal directly to the Constitutional Court, together with condonation for late filing.

The application for condonation and for leave to appeal directly to the Constitutional Court was dismissed.

The case underscores the strict approach of the Constitutional Court to procedural compliance, particularly in applications for leave to appeal and condonation. It confirms that disputes about the powers of the Competition Tribunal raise constitutional issues, but also illustrates that even matters of public importance in competition enforcement will not be entertained where delays are excessive and inadequately explained. The judgment reinforces standards of diligence and candour required from organs of state litigating before the Constitutional Court.