Allens Meshco (Pty) Ltd and Others v Competition Commission and Others

The Competition Commission initiated and referred a complaint alleging cartel conduct (price-fixing, market division and collusive tendering) in contravention of s 4(1)(b) of the Competition Act 89 of 1998 against a number of wire manufacturers and distributors, including the appellants (collectively referred to as AMG) and Cape Gate, for conduct alleged to have occurred between 2001 and 2008. The Commission had granted conditional leniency to Consolidated Wire Industries (CWI) under its Corporate Leniency Policy. AMG unsuccessfully challenged the lawfulness of that grant of immunity in earlier review proceedings. AMG then instituted a second review in the North Gauteng High Court seeking to review the Commission’s refusal to grant it leniency as a ‘second through the door’ applicant. While that second review was pending and judgment reserved, the Competition Tribunal refused AMG’s application to stay the cartel hearing pending the outcome of the review. AMG appealed the refusal of the stay to the Competition Appeal Court. Mondi Ltd and Sappi Southern Africa Ltd sought to intervene, prompted by the Commission’s request that the Court lay down general guidelines governing reviews of Commission decisions.

The appeal was struck from the roll for lack of jurisdiction. The applications by Mondi Ltd and Sappi Southern Africa Ltd to intervene were dismissed. All parties were ordered to bear their own costs.

The decision affirms and applies established South African principles on appealability within the competition law context, confirming that refusals of stays or postponements by the Competition Tribunal are not appealable to the Competition Appeal Court. It reinforces the distinction between final and interlocutory decisions under the Competition Act and emphasises that jurisdiction cannot be conferred by consent. The judgment also underscores judicial restraint, rejecting attempts to obtain broad, abstract guidelines on administrative review outside the resolution of a live dispute.