Omnia Fertilizer Limited v Competition Commission and Others; Sasol Chemical Industries Limited v Competition Commission and Others

NutriFlow CC lodged a complaint with the Competition Commission in November 2002 alleging that Sasol Chemical Industries Limited had contravened the Competition Act 89 of 1998. After investigation, the Commission issued a certificate of non-referral in October 2003 due to insufficient evidence. NutriFlow did not pursue a direct referral to the Competition Tribunal. Instead, it lodged a second complaint in November 2003, expanding the allegations, adding new factual material (including excessive pricing, price discrimination, and collusion), and citing additional respondents, including Omnia Fertilizer Limited and Kynoch Fertilizer (Pty) Ltd. The Commission investigated the second complaint and, after obtaining two agreed extensions of time from the complainant under s 50(4)(a) of the Act, referred the matter to the Competition Tribunal in May 2005. Sasol and Omnia applied to the Competition Appeal Court to review and set aside the referral, arguing that it was made out of time, that multiple extensions were impermissible, that the referral was unconstitutional and oppressive, and that the Commission was functus officio because the second complaint was substantially the same as the first.

Both review applications were dismissed with costs, including the costs of two counsel.

This judgment clarifies the interpretation of section 50 of the Competition Act, confirming that multiple agreed extensions of the complaint referral period are permissible. It also affirms the Competition Commission’s authority to reconsider and pursue complaints where new facts emerge, limiting the application of the functus officio doctrine in competition law. The decision strengthens the Commission’s investigative and prosecutorial role and provides guidance on when successive complaints are permissible under the Act.