Coca Cola Beverages South Africa (Pty) Ltd v The Competition Commission of South Africa and Others

In 2018, CCBSA (the applicant) complained to the Competition Commission (first respondent) that sugar millers (second to fourth respondents) and industry associations were charging excessive prices in contravention of section 8(a) of the Competition Act 89 of 1998. On 29 July 2021, the Commission decided not to refer the complaint, finding that the respondents lacked dominance and that economic indicators showed no supra-competitive profits. On 15 October 2021, CCBSA launched a review of the Commission's non-referral decision before the Competition Tribunal under section 27(1)(c) of the Act, expressly stating it was not a PAJA review. The miller respondents raised a jurisdictional objection. Before the matter could be heard, the Constitutional Court handed down its judgment in Group Five (October 2022), holding that the Tribunal lacks jurisdiction to hear PAJA or legality reviews. CCBSA then applied to this Court (the Competition Appeal Court) for an order transferring the application from the Tribunal to the CAC to avoid instituting proceedings de novo.

• Whether the Competition Appeal Court has the power to transfer a matter from the Competition Tribunal to itself
• Whether section 173 of the Constitution confers on the CAC an inherent power to effect such a transfer
• Whether a statutory review under section 27(1)(c) of the Competition Act can be transformed into a legality or PAJA review by way of transfer
• Whether there is a lacuna in the law requiring a transfer mechanism

The application for transfer was dismissed. CCBSA was ordered to pay the costs of the opposing respondents on a party-and-party basis, scale C, including the costs of two counsel where so employed.

The Competition Appeal Court does not have the power to transfer a matter from the Competition Tribunal to itself because: (1) no such power exists in the Competition Act or the Rules of the CAC or Tribunal; (2) section 173 of the Constitution does not create an unbounded power to create new procedures but only permits courts to protect and regulate their own process where there is a lacuna; (3) there is no lacuna because the applicant can institute review proceedings de novo before the CAC; (4) transfer powers require express statutory authorization, as demonstrated by section 27(1) of the Superior Courts Act; and (5) a statutory review under section 27(1)(c) of the Competition Act cannot be transformed into a legality or PAJA review by transfer - the legal basis and species of a review application is determined at institution and cannot change by transferring forums.

The Court noted that while it assumed for purposes of the application that CCBSA reasonably believed before Group Five that the Tribunal was the correct forum, this did not affect the outcome. The Court also declined to pronounce on other objections raised by the respondents relating to the merits of the review itself, as those issues were not before it. The Court rejected the argument that costs should be reserved for the eventual review application, finding that the opposing respondents had clearly signalled from the outset that the review was in the wrong forum and that transfer was not competent. However, the Court also rejected the submission that punitive costs were warranted. The Court noted that CCBSA's reliance on section 34 of the Constitution (right of access to courts) was correctly abandoned, as CCBSA still had a remedy by approaching the CAC de novo, so there was no infringement of constitutional rights.

This judgment clarifies the scope and limits of the Competition Appeal Court's powers in the post-Group Five era. It confirms that: (1) Courts cannot use section 173 of the Constitution to create transfer mechanisms not provided by statute; (2) Transfer powers require express statutory authorization and cannot be implied from inherent jurisdiction; (3) The CAC cannot transfer cases from the Tribunal to itself, even where the Tribunal lacks jurisdiction; (4) A review application cannot change its legal character (from statutory review to legality/PAJA review) by transfer; (5) Litigants who bring cases in the wrong forum after Group Five must institute proceedings de novo rather than seeking transfer. The judgment reinforces procedural formality and legal certainty in competition law proceedings, requiring litigants to choose the correct forum and type of review from the outset.