Competition Commission v Pioneer Hi-Bred International Inc and Others

The Competition Commission was the applicant in merger proceedings involving Pioneer Hi-Bred International Inc and Pannar Seed (Pty) Ltd. The Competition Tribunal decided the merger matter, after which an appeal was brought before the Competition Appeal Court (CAC). The CAC delivered a judgment on 28 May 2012 dealing with the merits and made an adverse costs order against the Competition Commission. The merits of the merger dispute were thereafter finalised, leaving only the question of costs. The Commission then applied to the CAC for leave to appeal to the Constitutional Court, limited to the correctness and permissibility of the costs order made against it, both in respect of the Tribunal proceedings and the appeal proceedings before the CAC.

Leave to appeal to the Constitutional Court was granted against the costs order made by the Competition Appeal Court in its judgment of 28 May 2012. The costs of the leave to appeal application were ordered to be costs in the appeal.

The case is significant because it raises important questions about the role of the Competition Commission in merger proceedings and the extent to which it may be exposed to adverse costs orders. It highlights uncertainty in South African competition law and procedure regarding costs liability of regulatory authorities and clarifies that such questions may have constitutional implications warranting consideration by the Constitutional Court.