ArcelorMittal South Africa Limited and Another v Competition Commission and Others

The Competition Commission initiated a complaint against various steel producers and merchants alleging cartel conduct in contravention of s 4(1)(b) of the Competition Act 89 of 1998. Scaw South Africa applied for and was granted conditional leniency under the Commission’s Corporate Leniency Policy (CLP). Following the Commission’s referral of a complaint to the Competition Tribunal, ArcelorMittal South Africa Ltd (AMSA) and Cape Gate (Pty) Ltd sought access to documents in the Commission’s possession, including Scaw’s marker and leniency applications and related documents, relying on Competition Commission Rules, High Court Rule 35(12), and PAJA. The Commission refused disclosure, claiming the documents were restricted information under CC Rule 14(1)(e) read with s 37(1)(b) of PAIA. The Tribunal dismissed the applications, and AMSA and Cape Gate appealed (and AMSA also sought review) to the Competition Appeal Court.

The appeal was upheld. The Tribunal’s refusal to order disclosure was set aside, and the Commission was directed to provide access to the documents that were referred to in the referral affidavit, including the Scaw leniency application, subject only to legitimate claims of confidentiality properly established.

The case is significant for clarifying the limits of confidentiality and restricted information in Competition Commission proceedings, particularly in relation to corporate leniency applications. It affirms the procedural rights of respondents in cartel cases to access documents referred to in referral affidavits, and emphasises that PAIA-based refusals of access require strict proof of prejudice. The judgment balances the effectiveness of the CLP with fairness and transparency in competition enforcement.