Takata South Africa (Pty) Limited v The Competition Commission of South Africa and Others

Takata South Africa (Pty) Limited (Takata SA) was an erstwhile subsidiary of Takata Corporation (Takata Corp) based in Japan. Between March and June 2018, the Competition Commission filed 21 complaint referrals against Takata SA, Takata Corp and four other manufacturers and suppliers of Occupant Safety Systems (OSS) components (automotive passenger airbags, steering wheel airbags and seatbelts) to Original Equipment Manufacturers. The Commission alleged contraventions of section 4(1)(b) of the Competition Act 89 of 1998. Takata Corp excepted to each referral on jurisdictional grounds (as a peregrinus), while Takata SA excepted on grounds that each referral failed to disclose a cause of action and/or was vague and embarrassing. Following the decision in Forex, Takata Corp withdrew its exceptions, but Takata SA persisted. On 10 May 2021, the Tribunal directed Takata SA to file answering affidavits despite the exceptions. The 21 exceptions were heard jointly on 2 June 2022, and were all dismissed by the Tribunal on 8 December 2023 (some 18 months after the hearing). Takata SA then simultaneously appealed and sought review of the Tribunal's decision before the Competition Appeal Court.

• Whether the Competition Tribunal's decision dismissing Takata SA's exceptions is appealable
• Whether it is in the interests of justice to allow an appeal against an interlocutory decision of the Tribunal
• Whether the Tribunal's decision is reviewable under PAJA or the principle of legality
• Whether a party may simultaneously pursue both an appeal and a review on the same grounds
• Whether the referrals disclosed a cause of action against Takata SA

1. The appeal is dismissed. 2. The review is dismissed. 3. The appellant is directed to pay the costs of the appeal as well as the costs of the review, including the costs of two counsel, where employed.

Where an appeal and a review are simultaneously brought against the same decision, the complaint in each case must be different, failing which the party should be allowed to institute only the appeal or the review proceeding and must make an election to that end. A party cannot pursue a review on identical grounds to an appeal as this would constitute an abuse of process and circumvent the law on appealability of interlocutory orders. The interests of justice test for appealability (established in Lebashe) has not made the common law requirements of appealability (as set out in Zweni) redundant. An interlocutory decision of the Competition Tribunal that is not final, not definitive of parties' rights, and does not dispose of a substantial portion of the relief claimed is not appealable, particularly where no jurisdictional challenge is raised and allowing the appeal would cause further delay to already protracted proceedings.

The court expressed concern about the Competition Tribunal's 18-month delay in issuing its decision after the hearing, noting this was not the first instance of such lengthy delays. The court voiced particular concern that this delay added to already lengthy proceedings. The court also observed that in its experience, parties habitually appeal or seek to review decisions of the Competition Tribunal even where there is absolutely no merit in challenging the decision either on appeal or by way of review, and indicated that the present case was one such instance. The court provided an extensive exposition of the historical development and differences between appeals and reviews in South African law, tracing the evolution from the narrow review approach pre-Constitution (focusing only on decision-making process) through Johannesburg Stock Exchange and Hira (which introduced error of law as a review ground) to the current position under the Constitution and PAJA (which introduced reasonableness as a requirement for administrative decisions). The court clarified that the reasonableness test has expanded the scope of review but not created a new ground of review, and that the distinction between reviews and appeals remains intact even under the Constitution - a reviewing court must not usurp the functions of administrative agencies.

This case clarifies important procedural principles in South African competition law and administrative law: (1) It reaffirms that interlocutory decisions of the Competition Tribunal are generally not appealable unless jurisdiction is challenged or the interests of justice clearly warrant it. The interests of justice test from Lebashe has not made the common law requirements of appealability redundant. (2) It establishes that parties cannot simultaneously pursue both an appeal and a review on identical grounds - this constitutes an abuse of process. Where both processes are pursued simultaneously, the grounds must be different, otherwise the party must elect between the two processes. (3) It emphasizes that review cannot be used to circumvent the non-appealability of interlocutory orders. (4) The judgment highlights concerns about delays in Competition Tribunal proceedings and unnecessary appeals/reviews that lack merit. The case provides important guidance on the interaction between appeals and reviews in the competition law context and reinforces procedural discipline in challenging administrative decisions.