American Natural Soda Ash Corporation and CHC Global (Pty) Ltd v Botswana Ash (Pty) Ltd, Chemserve Technical Products (Pty) Ltd, Webber Wentzel Bowens and The Competition Commission of South Africa

The applicants sought leave to appeal against a judgment of the Competition Appeal Court (CAC) of 5 January 2007. The CAC had dismissed an appeal against the Competition Tribunal's decision refusing to disqualify Botswana Ash (the first respondent) from participating as an intervener in complaint proceedings before the Tribunal, and to disqualify Webber Wentzel Bowens (the third respondent) from representing the first respondent. The disqualification application was based on allegations that Mr Dingley, who had been employed by the Competition Commission (fourth respondent) and was present at confidential settlement discussions with the applicants, had subsequently moved to work for the third respondent (the law firm representing the first respondent). The applicants argued this constituted "side-switching" and a breach of confidence that warranted disqualification.

• Whether the test for granting special leave to appeal to the Supreme Court of Appeal was satisfied in the circumstances
• Whether the so-called 'side-switching' argument had merit where a person moved from the Competition Commission to a law firm representing an intervener in the same proceedings
• Whether the applicants had established a breach of confidence sufficient to justify the disqualification relief sought
• Whether confidential settlement discussions automatically warranted disqualification where a participant in those discussions later joined an adverse party's legal team
• Whether the matter was of 'very great importance to the parties or of great public importance' to justify special leave

The application for leave to appeal to the Supreme Court of Appeal was dismissed with costs, including costs of two counsel.

Special leave to appeal to the Supreme Court of Appeal in competition matters requires not merely a reasonable prospect of success but an additional factor showing the matter is of very great importance to the parties or of great public importance. This stringent test reflects the Competition Act's objective that the Competition Appeal Court should be the final forum, and the public interest in speedy resolution of competition disputes. The fact that parties have already had a full appeal before the CAC weighs heavily against granting special leave. In disqualification applications based on breach of confidence, applicants must establish with specific evidence what confidential information was obtained, that it remains confidential and relevant, and that there is a real prospect of exploitation to their detriment. Broad assertions of confidentiality attending settlement discussions, without specific evidence of what confidential information is at risk, are insufficient to justify the drastic relief of disqualification, particularly where the alleged recipient denies possession of confidential information and demonstrates that relevant information has become public or is no longer relevant.

Davis JP observed that almost any case is of importance to the parties concerned, as litigation by its nature involves disputes about which parties feel strongly. Therefore, the test for special leave cannot simply be satisfied by showing importance to the parties - the dispute must be of such import as to be distinct from considerations that would normally apply in matters of leave to appeal. The Court also commented favorably on US jurisprudence (Armstrong v McAlpin) regarding the proliferation of disqualification motions used for purely tactical reasons such as delaying trial, and noted that harm from an erroneous denial of a disqualification motion is usually not irreparable. The Court observed that to weaken the notion of special leave would hollow it of content such that almost all cases prosecuted in the Tribunal and appealed to the CAC would be heard in the Supreme Court of Appeal and possibly the Constitutional Court, which would never be in the interests of competition jurisprudence or the economy which depends on speedy and expeditious resolution.

This case is significant in South African competition law for establishing strict limits on access to the Supreme Court of Appeal in competition matters, reinforcing the policy that the Competition Appeal Court should generally be the final forum for competition disputes (save for constitutional matters). It clarifies the stringent test for special leave to appeal in competition cases, emphasizing that the Competition Act's objectives include speedy and expeditious resolution of disputes. The judgment also provides guidance on side-switching and breach of confidence claims in the competition law context, requiring specific evidence of actual confidential information rather than broad assertions. It demonstrates the application of the Plascon-Evans rule in disqualification applications and reinforces that interlocutory disqualification disputes are generally not of such importance to warrant further appeal beyond the CAC. The case serves as an important precedent for discouraging tactical use of disqualification motions to delay competition proceedings.