Agri Wire (Pty) Ltd and Another v The Competition Commissioner and Others

The Competition Commission adopted a Corporate Leniency Policy (CLP) under which cartel participants who disclose cartel conduct and cooperate fully may receive conditional and eventual total immunity from prosecution before the Competition Tribunal. Consolidated Wire Industries (Pty) Ltd (CWI), after an internal audit, disclosed its participation in a wire products cartel involving Agri Wire and others, and applied for leniency under the CLP. The Commission granted CWI conditional immunity and referred the cartel complaint to the Competition Tribunal against Agri Wire and other firms, but not seeking relief against CWI. Agri Wire applied to the North Gauteng High Court to review and set aside the referral, contending that the CLP was unlawful, that the Commission lacked statutory authority to grant immunity or to selectively refer cartel participants, and that the evidence obtained from CWI was unlawfully obtained. The High Court dismissed the application, and Agri Wire appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel where so employed.

This case authoritatively confirmed the lawfulness of the Competition Commission’s Corporate Leniency Policy and its power to grant immunity to cartel whistleblowers. It strengthened cartel enforcement in South Africa by endorsing leniency as a legitimate and effective investigative tool, and clarified jurisdictional boundaries between the High Court and competition authorities.