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

American Natural Soda Corporation (ANSAC), a US exporter of soda ash, and its local distributor CHC Global sought to appeal a judgment of the Competition Appeal Court. The Competition Appeal Court had dismissed their appeal against a Competition Tribunal decision delivered on 30 November 2001 dealing with three issues: (1) jurisdiction under s 3(1) of the Competition Act 89 of 1998; (2) whether price-fixing agreements are per se unlawful under s 4(1)(b); and (3) whether Botswana Ash and Chemserve had locus standi to seek an interdict against ANSAC despite not alleging they were adversely affected. The applicants sought to appeal directly to the Supreme Court of Appeal without first seeking leave from the Competition Appeal Court. They challenged the constitutionality of s 62(3)(a) which purported to give the Competition Appeal Court final jurisdiction over interpretation and application of Chapters 2, 3 and 5 of the Act.

• Whether the applicants are entitled to appeal directly to the Supreme Court of Appeal from the Competition Appeal Court without first seeking leave
• Whether s 62(3)(a) of the Competition Act 89 of 1998 is constitutional in purporting to oust the Supreme Court of Appeal's jurisdiction
• Whether s 62(3)(a) conflicts with s 168(3) of the Constitution which confers jurisdiction to determine appeals in any matter on the Supreme Court of Appeal
• Whether leave to appeal is required from the Competition Appeal Court before approaching the Supreme Court of Appeal
• Whether decisions on locus standi and section 4(1)(b) issues are appealable

The application was dismissed with costs, including costs for two counsel in the case of the second and third respondents.

The binding legal principle established is that even if provisions purporting to give the Competition Appeal Court final and exclusive jurisdiction (thereby ousting the Supreme Court of Appeal's jurisdiction) are unconstitutional, the statutory requirement for leave to appeal from the Competition Appeal Court (contained in s 62(4) read with s 63(2) of the Competition Act 89 of 1998) remains valid and must be complied with before approaching the Supreme Court of Appeal. Litigants must first seek leave to appeal from the Competition Appeal Court, and only if such leave is refused may they approach the Supreme Court of Appeal for leave. The requirement for leave to appeal is a constitutional procedural prerequisite that is severable from unconstitutional jurisdictional ouster provisions.

The Court observed, without deciding definitively, that s 62(3)(a) of the Competition Act may be unconstitutional insofar as it purports to oust the Supreme Court of Appeal's jurisdiction conferred by s 168(3) of the Constitution. The Court also noted that decisions on locus standi points are appealable (referring to Harms JA's statement in Kwanonqubela), and that decisions on the s 4(1)(b) efficiency defence issue would have a final and definitive effect on the main case, making them appealable rather than merely interlocutory. The Court distinguished the facts from Chevron Engineering where no statutory leave requirement existed, implicitly suggesting that in that case the different statutory framework justified direct appeal without leave.

This case is significant for establishing the proper procedure for appealing from the Competition Appeal Court to the Supreme Court of Appeal under the Competition Act 89 of 1998 as amended. It clarifies that leave to appeal is a constitutional prerequisite that survives even if jurisdictional ouster provisions are found to be unconstitutional. The judgment affirms the principle from Besserglik that statutory requirements for leave to appeal are generally constitutionally valid. It provides important guidance on the interaction between statutory appeal procedures and constitutional provisions regarding appellate jurisdiction. The case also confirms that decisions on locus standi and substantive legal issues that will have final and definitive effects on the main proceedings are appealable, distinguishing procedural exceptions from substantive appealable decisions.