Premier Foods (Pty) Ltd v Manoim NO and Others

Premier Foods (Pty) Ltd was a self-confessed participant in a bread cartel operating in various parts of South Africa, involving price-fixing and market allocation prohibited under s 4(1)(b) of the Competition Act 89 of 1998. Premier applied for and was granted conditional, and later final, immunity under the Competition Commission’s Corporate Leniency Policy (CLP) in return for full disclosure and cooperation. The Competition Commission referred two complaints to the Competition Tribunal arising from the cartel, but deliberately excluded Premier as a cited respondent and sought no relief against it because of its leniency status. Despite this, the Tribunal made an order declaring that Premier’s conduct constituted a prohibited practice. Third-party claimants who alleged harm from the cartel sought to rely on this declaration to obtain certificates under s 65(6)(b) of the Act in order to pursue civil damages claims against Premier. Premier challenged the competence of the Tribunal’s declaration insofar as it related to Premier, contending that the Tribunal lacked jurisdiction to make any order against a party not cited or referred, rendering the declaration a nullity.

The appeal was upheld with costs. The order of the High Court dismissing Premier’s application was set aside and replaced with an order declaring that neither the Chairperson nor the Competition Tribunal may lawfully issue a certificate under s 65(6)(b) of the Competition Act certifying that Premier’s conduct was found to be a prohibited practice in the relevant Tribunal cases. The Competition Commission and the Competition Tribunal were ordered to pay Premier’s costs.

This judgment clarifies the limits of the Competition Tribunal’s jurisdiction and confirms that it may only make findings and declarations in respect of firms and conduct properly referred to it by the Competition Commission. It underscores that leniency applicants excluded from a referral cannot be subjected to declarations of prohibited conduct by the Tribunal, even though they confessed to cartel activity. The case has important implications for follow-on civil damages claims and the operation of the Corporate Leniency Policy, as it restricts the ability of claimants to rely on Tribunal declarations against non-referred leniency applicants.