American Natural Soda Ash Corporation and Another v Competition Commission of South Africa and Others

American Natural Soda Ash Corporation (ANSAC), a United States export cartel for soda ash producers, together with its South African distributor, imported soda ash into South Africa. Botswana Ash (Pty) Ltd and its distributor lodged a complaint with the Competition Commission alleging that ANSAC’s membership agreement constituted a prohibited restrictive horizontal practice under s 4(1)(b) of the Competition Act 89 of 1998. The Competition Tribunal made interlocutory rulings rejecting ANSAC’s challenges to the territorial application of the Act, the standing of the complainant, and ruled that efficiency evidence was inadmissible in relation to s 4(1)(b). These rulings were upheld by the Competition Appeal Court. ANSAC sought leave to appeal to the Supreme Court of Appeal.

Leave to appeal was granted in part. The matter was remitted to the Competition Commission/Tribunal to determine the proper interpretation of s 4(1)(b) and thereafter to decide what evidence, if any, is admissible to establish whether the agreement falls within the statutory prohibition.

The case is significant for clarifying the constitutional position of the Supreme Court of Appeal as the highest court of appeal in non-constitutional matters, notwithstanding specialist appellate bodies. It also affirms the wide territorial reach of the Competition Act, the broad standing of complainants in competition proceedings, and provides guidance on the proper sequencing of statutory interpretation and evidentiary rulings in cartel cases.