Goodyear South Africa (Pty) Ltd v Competition Commission

Goodyear South Africa and four other tyre manufacturers were alleged by the Competition Commission to have contravened section 4(1)(b)(i) of the Competition Act 89 of 1998 by participating in a cartel to fix tyre prices from 1999 to 2007. Goodyear denied the allegations and claimed price increases were made unilaterally in response to raw material costs. At a pre-hearing conference on 14 December 2021, three days before the scheduled trial, Goodyear filed an economist's expert report and sought to call the expert witness, arguing its factual witnesses could not recall events from fifteen years prior. The presiding member of the Competition Tribunal issued a directive excluding the expert report. Goodyear appealed this directive, arguing it was not competent for a single member to make such a ruling and that it infringed on its fair hearing rights.

• Whether a directive from a pre-hearing conference excluding expert evidence is a 'final decision' appealable under section 37(1)(b)(i) of the Competition Act
• Whether a single member of the Competition Tribunal has the power under section 31(5) of the Act to make a final ruling excluding expert evidence
• What constitutes an order of an 'interlocutory nature' that may be determined by a single member under section 31(5)
• What constitutes a 'final decision' for purposes of appealability under the Competition Act
• Whether the exclusion of expert evidence infringes on an accused party's fair hearing rights

The appeal was upheld. Paragraph 6 of the directive issued on 15 December 2021 (excluding Goodyear's expert report) was set aside. Each party was ordered to bear its own costs.

A directive from a pre-hearing conference that excludes evidence in final terms, with no indication it will be reconsidered at a later stage, is a final decision in effect and therefore: (1) appealable under section 37(1)(b)(i) of the Competition Act, and (2) beyond the power of a single member sitting alone to make, as it is not an order of an interlocutory nature contemplated in section 31(5). The test for finality focuses on the effect and substance of the order rather than its form or appellation. An order that is intended to have immediate effect and will not be reconsidered on the same facts in the main proceedings is generally final in effect, even if labeled as interim.

The Court made no finding on whether Goodyear's expert evidence was actually necessary for its defense or whether exclusion would cause irreparable harm, as the Court had not seen the expert report or heard any testimony in the case. The Court noted that while the Commission was entitled to oppose the appeal on important interpretive grounds, Goodyear's delay in bringing a timeous application to lead expert evidence contributed to the procedural difficulties, which influenced the costs order. The Court also observed that following the 2018/2019 amendment to section 31(5), the list of matters that can be decided by a single member is not exhaustive (the word 'including' having been inserted), but all such matters must still be of an interlocutory nature. The Court noted that it was unnecessary to determine whether a specific direction from the Chairperson was required beyond appointing a member to preside at the pre-hearing, as the key issue was whether the order was interlocutory in nature.

This case is significant for establishing important principles about the Competition Tribunal's procedural powers and appellate jurisdiction under the Competition Act. It clarifies that: (1) the test for finality of decisions for appeal purposes follows the modern approach in Metlika and SCAW focusing on effect and interests of justice rather than strict adherence to the Zweni test; (2) single members at pre-hearing conferences are limited to making orders of an interlocutory nature under section 31(5), and cannot make final rulings that definitively exclude evidence; (3) the form and language of written directives, rather than oral observations during hearings, determine their final or interim character; and (4) even though section 31(5)'s list of matters a single member may decide is not exhaustive following the 2018 amendment, all such decisions must still be interlocutory in nature. The case is also important for protecting parties' procedural rights in competition proceedings by ensuring substantive evidentiary rulings receive proper consideration by a full tribunal panel.