ArcelorMittal South Africa Limited and Another v Competition Commission and Others

The Competition Commission initiated complaint referral proceedings against ArcelorMittal South Africa Limited (first appellant) and Cape Gate (Pty) Limited (second appellant), along with other parties, alleging contraventions of section 4(1)(b) of the Competition Act 89 of 1998 by engaging in price fixing, information sharing, and market division regarding long steel and flat steel products. On 21 July 2008, SCAW South Africa (Pty) Limited applied for leniency under the Commission's Corporate Leniency Policy (CLP) for price fixing and market allocation. The Commission's complaint referral was based on information from SCAW's leniency application and its own investigations. First appellant requested access to documents in the Commission's possession, invoking CC Rules 14 and 15 and High Court Rules 35(12) and (14). Second appellant specifically sought SCAW's leniency application documents. The Competition Tribunal granted limited access but dismissed the bulk of the applications for access, holding that the documents were restricted information under CC Rule 14(1)(e) read with section 37(1)(b) of the Promotion of Access to Information Act (PAIA). Both appellants appealed this decision to the Competition Appeal Court.

• Whether documents forming part of a leniency application are restricted from disclosure under CC Rule 14(1)(e) read with section 37(1)(b) of PAIA
• Whether a party is entitled to documents referred to in an opponent's affidavit under High Court Rule 35(12)
• Whether litigation privilege applies to leniency application documents submitted by a third party
• Whether the confidentiality provisions in sections 44 and 45 of the Competition Act override the disclosure requirements of High Court Rule 35(12)
• What procedure must be followed to gain access to documents claimed as confidential under sections 44 and 45 of the Competition Act

1. The order of the Competition Tribunal of 3 September 2010 (CT Case No: 61/CR/Sep06) was set aside. 2. The information claimed to be confidential by SCAW as set out in Form CC 7 dated 9 July 2008 was remitted to the Competition Tribunal for a determination as to whether the information is confidential, and if so, to consider making any appropriate order concerning access to that confidential information. 3. First and second appellants were ordered jointly and severally to pay the costs of SCAW, including the costs of two counsel.

1. CC Rule 14(1)(e) must be read to apply only to documents not falling within the categories specified in CC Rule 14(1)(a)-(d). Where a document falls within one of these categories (such as a leniency application under Rule 14(1)(c)(ii)), Rule 14(1)(e) does not apply, and the restriction is limited to claims of confidentiality. 2. Once the Commission refers to documents in its complaint referral affidavit, parties are entitled under High Court Rule 35(12) to have those documents produced for inspection and copying. This entitlement arises as soon as reference is made to the document and does not wait until close of pleadings. 3. Where documents are claimed as confidential under sections 44 and 45 of the Competition Act, the specific statutory procedure must be followed: parties seeking access must apply to the Tribunal under section 45(1), and until such determination is made, the Commission must continue to treat the information as confidential. 4. The confidentiality regime under sections 44 and 45 of the Competition Act takes precedence over general disclosure rules, requiring parties to follow the prescribed statutory procedure for accessing confidential information.

The Court expressed persuasive views (without making a definitive finding) that litigation privilege may not extend to leniency application documents. The Court noted that communications with third parties are privileged only if made for the specific purpose of pending or contemplated litigation, and that when SCAW submitted its leniency application on 9 July 2008, there was no litigation pending or anticipated against SCAW itself. The leniency application was prepared to secure leniency under the CLP, not for the purpose of submission to a legal adviser or for litigation preparation. The Court also observed policy considerations regarding leniency programs, noting concerns that premature disclosure might deter future leniency applications, but ultimately found these concerns did not override the statutory confidentiality regime and proper disclosure procedures.

This case is significant in South African competition law as it clarifies the interplay between disclosure obligations under High Court Rules, restrictions on access to information under the Competition Commission's rules and PAIA, litigation privilege, and the confidentiality regime under sections 44 and 45 of the Competition Act. It establishes important principles regarding access to leniency application documents in cartel cases, balancing the need for fair disclosure to respondents against the protection of confidential information provided by leniency applicants. The judgment clarifies that CC Rule 14(1)(e) does not create a second layer of restriction beyond the specific categories set out in the Competition Act, and that the proper procedure for accessing documents claimed as confidential is through an application under section 45(1) of the Act. It also provides guidance on the scope of litigation privilege in the context of third-party communications made for purposes other than litigation preparation.