Competition Commission of South Africa v ArcelorMittal South Africa Limited and Others

The Competition Commission investigated alleged cartel conduct in the steel industry under the Competition Act 89 of 1998. During the investigation, Scaw South Africa (Pty) Ltd applied for and was granted conditional immunity under the Commission’s Corporate Leniency Policy and submitted a marker application and a detailed leniency application, together with supporting documents. Relying on information obtained from Scaw and its own investigation, the Commission referred a complaint to the Competition Tribunal against ArcelorMittal South Africa Limited (AMSA) and Cape Gate (Pty) Ltd, alleging price-fixing and market division. AMSA and Cape Gate sought access to the leniency application and, in AMSA’s case, the Commission’s investigation record, contending they were necessary to prepare responses. The Commission refused disclosure, claiming litigation privilege and that the documents constituted restricted or confidential information under its rules. The Tribunal largely refused disclosure; the Competition Appeal Court declined to decide the privilege issues and remitted confidentiality questions to the Tribunal. The matter came before the Supreme Court of Appeal to resolve the stalemate.

The appeal by the Competition Commission was dismissed and the cross-appeals by AMSA and Cape Gate were upheld. The order of the Competition Appeal Court was replaced. The Commission was ordered to disclose specified documents to AMSA, to provide the leniency application and marker application to AMSA and the leniency application to Cape Gate subject to determination of Scaw’s confidentiality claim by the Tribunal, and to provide AMSA with the Commission’s investigation record subject to claims of privilege or restricted information. The Commission was ordered to pay AMSA’s and Cape Gate’s costs; no costs order was made regarding Scaw.

This judgment is a leading South African authority on litigation privilege, particularly in the context of competition law and corporate leniency programmes. It clarifies that the purpose of a document for privilege purposes is assessed with reference to the party who procured it, not its author. The case balances the effectiveness of the Corporate Leniency Policy with procedural fairness to accused firms and provides guidance on disclosure, waiver of privilege, and access to the Competition Commission’s record.