Competition Commission v Loungefoam (Pty) Ltd and Others

The Competition Commission initiated and investigated complaints of anti-competitive conduct in the flexible polyurethane foam industry, including price fixing and market division, involving Loungefoam, Vitafoam, Feltex, and entities within the Steinhoff and Kap corporate groups. After referring the complaint to the Competition Tribunal, the Commission sought to amend its referral to add new allegations, expand liability, and join Steinhoff Africa as a respondent. The Tribunal granted the amendments and joinder. On appeal, the Competition Appeal Court overturned the Tribunal’s decision, holding that the Commission had not properly initiated complaints against certain parties and that the amendments were impermissible. The Commission then sought leave to appeal directly to the Constitutional Court against the CAC’s judgment.

Leave to appeal directly to the Constitutional Court was refused, and the application for condonation was dismissed.

The case underscores the importance of complying with the appellate structure established by the Competition Act and affirms that even where constitutional issues are raised, direct access to the Constitutional Court will not be granted unless it is in the interests of justice. It reinforces procedural discipline in competition litigation and clarifies the Constitutional Court’s supervisory role within the specialised competition law hierarchy.