Competition Commission v Beefcor Proprietary Limited and Another

In September 2017, the Competition Commission referred a complaint to the Competition Tribunal against Beefcor and Cape Fruit, alleging they engaged in prohibited conduct under section 4(1)(b) of the Competition Act 89 of 1998 by agreeing not to compete in the market for processing wet peels and citrus peel pulp. The matter was set down for hearing from 2-4 July 2018. Less than a week before the hearing, the Commission approached Cape Fruit seeking postponement to explore settlement. Cape Fruit agreed only if the Commission withdrew the matter before the Tribunal. The Commission filed a notice of withdrawal on 29 June 2018, and the Tribunal removed the matter from the roll. Settlement negotiations did not materialize as the respondents were unwilling to negotiate beyond costs. In October 2018, the Commission filed an application for reinstatement. The respondents opposed, arguing section 67(2) of the Act precluded a second referral and that the rules did not empower the Tribunal to reinstate withdrawn matters. The Tribunal held the withdrawal did not amount to "completed proceedings" under section 67(2) but refused reinstatement on the basis that the Commission had not made out a proper case, as it would be unfair and prejudicial to the respondents. The Commission appealed to the Competition Appeal Court, which found that the withdrawal constituted completed proceedings, thus precluding reinstatement or re-referral.

• What is the proper interpretation of 'completed proceedings' in section 67(2) of the Competition Act 89 of 1998?
• Does the withdrawal of a complaint before the Competition Tribunal constitute 'completed proceedings' under section 67(2)?
• Does the Competition Tribunal have the power (express or implied) to reinstate a withdrawn complaint?
• Did the Competition Tribunal exercise its discretion judicially when refusing reinstatement?
• Does section 39(2) of the Constitution require courts to prefer an interpretation of section 67(2) that promotes the right of access to the Tribunal under section 34 of the Constitution?

1. Leave to appeal is granted. 2. The appeal is upheld. 3. The order granted by the Competition Appeal Court is set aside. 4. There is no order as to costs. The effect is that the Tribunal's original order refusing reinstatement (on discretionary grounds) is revived.

1. "Completed proceedings" in section 67(2) of the Competition Act means finalised proceedings in which the Competition Tribunal has disposed of issues relating to the merits of the complaint with some element of finality and a decision on substantive issues. 2. A withdrawal of a complaint by the Competition Commission without any determination by the Tribunal on the merits does not constitute "completed proceedings" under section 67(2). 3. Section 39(2) of the Constitution obliges courts, when interpreting legislation that implicates rights in the Bill of Rights, to prefer a meaning that promotes those rights where the provision is capable of more than one meaning. 4. The Competition Tribunal has an implied power to reinstate withdrawn complaints, as this power is necessary to enable the Tribunal to exercise its expressly conferred powers under sections 27(1) and 52(1) of the Competition Act to adjudicate complaints and conduct hearings. The principle from Masetlha applies: the power to do that which is expressly authorised includes the power to do that which is necessary to give effect to the power expressly given.

The Court observed that the Competition Appeal Court invoked section 39(2) of the Constitution but it was unclear from its judgment whether its preferred interpretation actually advanced the objects of the Bill of Rights. Reference was made to administrative law fairness without explaining how this was promoted by the chosen interpretation, resulting in an improper application of section 39(2). The Court noted that the purpose of section 67(2) is to protect firms from harassment in the form of repeat referrals arising from the same conduct and to immunise firms from vexatious complaints, but this protection is restricted to completed proceedings only. The Court emphasized that even where criminal proceedings result in acquittal under section 106(4) of the Criminal Procedure Act, double jeopardy is not automatically triggered - the accused must prove they were in jeopardy of conviction in the first proceedings, demonstrating the need for finality. The Court also noted what was unusual about the Competition Appeal Court's order: the Commission had not appealed the Tribunal's interpretation of section 67(2), but only challenged the exercise of discretion in refusing reinstatement, yet the Competition Appeal Court decided the matter on interpretation grounds alone.

This judgment is significant for South African competition law and constitutional interpretation. It establishes that section 67(2) of the Competition Act must be interpreted in light of section 39(2) of the Constitution to promote the right of access to tribunals under section 34. The judgment clarifies that "completed proceedings" requires substantive determination by the Tribunal, not merely procedural steps like withdrawal. This protects access to justice while preventing abuse through vexatious repeat referrals. The judgment also affirms the doctrine of implied powers in administrative and statutory bodies - powers necessary to exercise express powers are deemed to be granted. It demonstrates the application of constitutional interpretation principles to competition law, ensuring that legislation is read consistently with the Bill of Rights. The decision has practical implications for the Competition Commission's ability to reinstate withdrawn complaints and clarifies the scope of protection afforded to firms under section 67(2).