The Competition Commission of South Africa v Group Five Construction Limited

The Competition Commission initiated a complaint in 2009 under s 49B(1) of the Competition Act 89 of 1998 against several construction companies, including Group Five Construction Ltd, for alleged collusive conduct in the construction of stadia for the 2010 FIFA World Cup. Group Five claimed that it had applied for and was granted immunity under the Commission’s Corporate Leniency Policy (CLP) in exchange for disclosing cartel conduct, but that the Commission later reneged on this undertaking. In 2014, the Commission nevertheless referred a complaint against Group Five to the Competition Tribunal and sought the maximum administrative penalty. Group Five then launched a review application in the Gauteng Division of the High Court challenging the lawfulness and validity of the initiation and referral of the complaint, as well as the withdrawal of immunity. The Commission responded with a rule 30 application, arguing that the High Court lacked jurisdiction because the matter fell within the exclusive jurisdiction of the Competition Tribunal and Competition Appeal Court. The High Court dismissed the Commission’s application, and the Commission appealed to the Supreme Court of Appeal.

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

This case clarifies the jurisdictional boundaries under section 62 of the Competition Act and confirms that High Courts retain jurisdiction to review the legality and vires of actions taken by the Competition Commission. It reinforces the principle that exclusive jurisdiction of specialist competition bodies does not extend to legality and constitutional challenges, thereby preserving judicial oversight over administrative action in competition law matters.