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

The Competition Commission initiated a complaint on 14 July 2009 and referred it to the Competition Tribunal on 7 September 2009, alleging that ten entities collectively referred to as AMG (Allens Meshco and others) and Cape Gate participated in price-fixing, market division and collusive tendering in the manufacture and distribution of wire and wire-related products during 2001-2008, in violation of s 4(1)(b) of the Competition Act. Consolidated Wire Industries (CWI) was granted conditional immunity under the Commission's Corporate Leniency Policy on 28 August 2008, being 'first through the door', while AMG was notified it was second in line. AMG launched two review applications in the North Gauteng High Court: the first review (May 2010) sought to set aside the grant of immunity to CWI and declare inadmissible evidence obtained from CWI. The Tribunal granted a stay of the referral proceedings on 28 March 2011. The first review was dismissed by the High Court (July 2011), Supreme Court of Appeal (September 2012) and Constitutional Court (November 2012). The second review (May 2013) sought to set aside the Commission's refusal to grant AMG leniency. Despite agreement for the referral hearing to commence on 22 January 2015, AMG applied for a stay on 13 January 2015 pending judgment in the second review. The Tribunal dismissed the stay application on 22 January 2015. AMG filed a notice of appeal on 23 January 2015, and by agreement the referral hearing was postponed pending an expedited appeal to the Competition Appeal Court.

• Whether a decision by the Competition Tribunal refusing a stay of proceedings is appealable to the Competition Appeal Court under s 37(1)(b) of the Competition Act 89 of 1998
• Whether such a decision constitutes a 'final decision' under s 37(1)(b)(i) or an appealable 'interim or interlocutory decision' under s 37(1)(b)(ii)
• Whether the Competition Appeal Court has jurisdiction to hear an appeal from a refusal of a postponement or stay
• Whether it is appropriate for the Court to lay down general guidelines regarding the reviewability of Competition Commission decisions in the absence of a live dispute on that issue

The appeal was struck from the roll for want of jurisdiction. The applications by Mondi Limited and Sappi Ltd to intervene were dismissed. All parties, including the intervening parties, were ordered to bear their own costs.

A decision by the Competition Tribunal refusing a stay or postponement of proceedings is not appealable to the Competition Appeal Court under s 37(1)(b) of the Competition Act 89 of 1998. Such a decision is neither a 'final decision' under s 37(1)(b)(i) nor an appealable 'interim or interlocutory decision' under s 37(1)(b)(ii), as it: (a) is susceptible to alteration by the Tribunal itself; (b) is not definitive of the parties' rights; and (c) does not dispose of any substantial portion of the relief claimed in the main proceedings. The Competition Appeal Court lacks jurisdiction to entertain such appeals. Where a stay is wrongly refused, the aggrieved party's remedy is to raise the matter as a ground of appeal if it loses on the merits. Courts should not lay down general guidelines or issue advisory opinions on matters not directly in dispute between the parties properly before the court, as this would exceed the judicial function and amount to legislative activity.

The Court observed that it was remarkable to be asked to entertain an appeal when the Tribunal's reasons for refusing the stay were not available, though the Court noted this was not necessarily a criticism of the Tribunal given the need for a prompt decision. The Court suggested it might have been better for the Tribunal to give brief ex tempore reasons. The Court criticized both the Commission and the Tribunal for allowing the referral hearing to be postponed pending the appeal, noting that once the stay was refused, the hearing should have commenced immediately or by the next day at the latest. The parties should not have agreed to postpone pending an urgent appeal. The Court expressed concern that more than five and a half years had elapsed since the referral without the hearing on the merits commencing, noting that 'cartel cases are difficult enough without adding failing memory to the challenges.' The Court noted that intervention applications by parties not involved in the litigation are misconceived even where a court's legal findings might affect other pending litigation, as this could otherwise justify intervention by hundreds of potential litigants in any appeal raising a relevant point of law.

This case is significant for establishing important jurisdictional limits on appeals to the Competition Appeal Court. It clarifies that decisions refusing postponements or stays of proceedings before the Competition Tribunal are not appealable under s 37(1)(b) of the Competition Act 89 of 1998, being interim or interlocutory decisions that lack the attributes of finality. The judgment reinforces that such procedural decisions can only be challenged as grounds of appeal if a party later appeals an adverse decision on the merits. The case also demonstrates the limits of the judicial function, refusing to issue general guidelines or advisory opinions on matters not directly in issue between the parties. It serves as a cautionary tale about inappropriate delays in competition proceedings, noting that more than five and a half years had elapsed between referral and the scheduled hearing. The decision has implications for competition law practitioners regarding the proper forum and timing for challenging procedural decisions in competition litigation.