Competition Commission of South Africa v Senwes Limited

The Competition Commission referred a complaint to the Competition Tribunal alleging that Senwes Limited, a dominant firm in certain agricultural markets, had engaged in anti-competitive conduct contrary to the Competition Act 89 of 1998. The Tribunal found that Senwes had contravened section 8(c) of the Act by engaging in an exclusionary act described as a ‘margin squeeze’, even though this specific theory of harm was not expressly pleaded in the Commission’s referral. Senwes successfully appealed to the Supreme Court of Appeal (SCA), which held that the Tribunal exceeded its powers by deciding a complaint not contained in the referral. The Competition Commission then sought leave to appeal to the Constitutional Court, contending that either the margin squeeze complaint was covered by the referral, or alternatively that the Tribunal was empowered under the Act to decide complaints that emerged during proceedings even if not expressly referred.

Leave to appeal was granted, the appeal was upheld, and the order of the Supreme Court of Appeal was set aside. The matter was remitted, with the effect that the Tribunal’s finding that Senwes contravened section 8(c) by engaging in a margin squeeze was restored.

This judgment is a leading authority on the scope of the Competition Tribunal’s adjudicative powers and the interpretation of referrals under the Competition Act. It affirms a purposive, flexible approach to competition enforcement and clarifies that the Tribunal is not confined to the exact legal labels used in a referral. The case strengthens the effectiveness of competition law enforcement and aligns administrative adjudication with constitutional principles without undermining the Act’s transformative objectives.