Omnia Fertilizer Ltd v The Competition Commission; In re: Competition Commission of South Africa v Sasol Chemical Industries (Pty) Ltd and Others

The Competition Commission applied to the Competition Tribunal to consolidate two complaint referrals alleging contraventions of the Competition Act 89 of 1998. One complaint was lodged by Nutri-Flo CC and Nutri-Fertilizer CC, implicating several respondents including Omnia Fertilizer Ltd, while the second was lodged by Profert (Pty) Ltd. Omnia opposed the consolidation. The Commission withdrew its consolidation application on the eve of the hearing. Omnia then sought a wasted costs order against the Commission. The Tribunal dismissed Omnia’s costs application, holding that it lacked jurisdiction to award costs against the Commission except in the limited circumstances set out in section 57 read with section 51(1) of the Act. Omnia appealed that decision to the Competition Appeal Court.

The appeal was dismissed. No order as to costs was made.

The case authoritatively confirms that the Competition Tribunal lacks jurisdiction to award costs against the Competition Commission in complaint proceedings initiated by the Commission. It clarifies the interpretation of section 57 of the Competition Act and reinforces the principle that Tribunal Rules cannot enlarge statutory powers. The judgment also affirms the prosecutorial character of the Commission and the policy rationale for shielding it from adverse costs orders.