Ashram Investments (Private) Limited, Profeeds (Private) Limited, Produtrade (Private) Limited, Innscor Africa Limited v Competition and Tariff Commission

The first applicant (Ashram Investments), wholly owned by the fourth applicant (Innscor Africa Limited), acquired 49% of the issued share capital in the second applicant (Profeeds) and third applicant (Produtrade) in May 2015. In February 2019, Ashram notified the Competition and Tariff Commission of the merger. The Commission investigated the merger and in May 2020 issued a determination declaring it null and void as contrary to public interest, ordering divestiture and imposing a penalty on Innscor. The applicants appealed to the Administrative Court, which found in their favour, holding that the Commission had failed to give them an adequate opportunity to make representations. The Commission appealed to the Supreme Court, which set aside the Administrative Court's decision and reinstated the Commission's determination. The applicants then sought direct access to the Constitutional Court, alleging violations of their rights to a fair hearing (s 69(2)) and to acquire and hold property (s 71(2)) of the Constitution.

• Whether the applicants were granted direct access to the Constitutional Court under s 167(5) of the Constitution
• Whether the applicants' right to a fair hearing under s 69(2) of the Constitution was violated
• Whether the Competition and Tariff Commission complied with s 28(4) of the Competition Act requiring observation of natural justice
• Whether the Administrative Court erred in dealing with the merits after finding a procedural irregularity
• Whether the Supreme Court properly addressed the violation of procedural fairness in its judgment

The Constitutional Court granted the applicants leave to institute an application under s 85(1)(a) of the Constitution for a declaration that the Supreme Court's judgment in SC 91/24 violated their right to a fair hearing under s 69(2) of the Constitution. The application was to be filed within 10 days. No order as to costs.

1. Decisions of the Supreme Court on non-constitutional matters, while final under s 169 of the Constitution, are subject to review by the Constitutional Court where they violate fundamental rights. 2. Section 28(4) of the Competition Act requires the Competition and Tariff Commission to observe natural justice principles and give affected persons an adequate opportunity to make representations during investigations. 3. An adequate opportunity to make representations requires disclosure of the essential factual and legal basis for proposed adverse decisions; parties cannot be expected to respond meaningfully without knowing the case against them. 4. Where an administrative decision-maker fails to provide a fair hearing, all subsequent proceedings based on that decision are irregular and should be set aside. 5. The audi alteram partem principle requires that affected persons be "put in possession of such information as will render [their] right to make representations a real, and not an illusory one." 6. Under s 40 of the Competition Act, the Administrative Court's jurisdiction on appeal is limited to confirming, varying, reversing, setting aside or remitting decisions; it does not have power to rehear competition matters afresh unless specifically authorized by statute. 7. Where there are disputes of fact that cannot be resolved on the papers, and no evidence has been led, courts cannot make definitive findings on those disputed issues.

GARWE JCC observed that there is a need for legislative reform to amend the Administrative Court Act to enable the Court to hear appeals in the "wide sense" (i.e., by hearing evidence afresh) where necessary to correct irregularities in proceedings before tribunals or administrative authorities. The Judge noted that currently the Court has authority to hear appeals in the wide sense only where individual statutes specifically provide for this, as was the case in Watch Tower Bible & Tract Society v Drum Investments. The Court suggested that the Administrative Court Act itself should be amended to give the Court general power to intervene and hear evidence afresh where necessary, rather than confining such power to instances where individual statutes provide for it. The Court also noted that s 48 of the Competition Act (duty of confidentiality) does not prevent the Commission from disclosing the essence of its preliminary findings to affected parties; it merely requires protection of the identity of sources of information. The Court did not find it necessary to determine whether the applicants' rights under s 71(2) (right to acquire and hold property) were also violated, nor whether the Supreme Court failed to determine all issues raised before it.

This case is significant for establishing important principles regarding procedural fairness in administrative investigations and the reviewability of Supreme Court decisions on constitutional grounds. It clarifies that even where the Supreme Court is the final court of appeal on non-constitutional matters (s 169 of the Constitution), its decisions may be reviewed by the Constitutional Court where they result in violations of constitutional rights. The judgment reinforces the fundamental requirements of natural justice, particularly the audi alteram partem principle, in administrative proceedings. It emphasizes that affected parties must be given meaningful opportunities to respond, which requires disclosure of the essential factual and legal basis for proposed adverse decisions. The case also highlights limitations in the jurisdiction of the Administrative Court under s 40 of the Competition Act, which restricts the Court to confirming, varying, reversing or setting aside decisions rather than rehearing matters afresh (unless specifically authorized by statute). The Court suggested legislative reform to empower the Administrative Court to hear appeals in the "wide sense" where necessary to correct procedural irregularities. The judgment provides important guidance on competition law procedure and the interaction between administrative, constitutional and competition law principles in Zimbabwe.