Goodyear South Africa (Pty) Ltd v Competition Commission

Ms Yasmin Carrim was a member of the Competition Tribunal serving on a panel hearing a complaint referred by the Competition Commission. The panel was in the process of hearing evidence when Ms Carrim resigned from her position as a Tribunal member. Continental Tyres (the third respondent) raised an inquiry about the composition of the panel following her resignation. The Chairperson of the Tribunal advised that although Ms Carrim had resigned, she was willing and able to complete the hearing. The Chairperson requested submissions from the parties on whether Ms Carrim remained eligible to participate in the proceedings after her resignation took effect. After receiving submissions from the Commission, Continental, and Goodyear, the Chairperson decided that the proceedings should continue before the original panel with Ms Carrim's continued participation. Goodyear appealed this decision.

• Whether a member of the Competition Tribunal remains eligible to participate in Tribunal proceedings after their resignation takes effect
• The correct interpretation of sections 29, 31, and 33 of the Competition Act 89 of 1989
• Whether section 33 of the Competition Act, which permits continuation of a Tribunal member whose 'term of office' has expired, applies only to expiry by effluxion of time or also to expiry by resignation
• Whether section 31(3) requires the Chairperson to reconstitute a panel when a member resigns, regardless of that member's ability to continue

1. The appeal is dismissed. 2. The appellant (Goodyear South Africa (Pty) Ltd) is ordered to pay the first respondent's (Competition Commission's) costs, including the costs of two counsel, where employed.

The reference to 'expiry of the term of office' in section 33 of the Competition Act 89 of 1989 is unqualified and encompasses all forms of termination of office contemplated in section 29, including resignation, not merely expiry by effluxion of the five-year term. A Tribunal member who has resigned remains eligible under section 33 to continue participating in proceedings that were ongoing at the time their resignation took effect, provided they are willing and able to do so. Section 31(3) is a procedural mechanism that is only triggered when a panel member is unable to complete proceedings; it does not operate as a disqualification provision that automatically removes a resigned member who remains able to participate. The interpretation must align with the legislative purpose in section 52(2)(a) of ensuring Tribunal proceedings are conducted expeditiously and in accordance with principles of natural justice.

The Court observed that section 33 is couched in permissive terms, meaning a Tribunal member's eligibility to continue participating in uncompleted proceedings will depend on various factors, including the reasons for termination of office. The Court noted that in cases of removal from office under section 29(5), it may not be legally tenable for a member to continue participating, and in such circumstances the member would obviously not be permitted to continue. The Court also noted that an alternative option generally available to the Minister (though not applicable in the present circumstances) is the appointment of a person as an acting part-time member under section 26(2)(b). The judgment emphasized that modern statutory interpretation follows a unified process considering text, context, and purpose, starting with the ordinary grammatical meaning and preferring sensible interpretations that support rather than undermine statutory purposes.

This case provides important clarification on the continuity of Competition Tribunal proceedings when members resign during ongoing hearings. It establishes that the Competition Act permits flexibility to ensure proceedings can continue expeditiously without unnecessary delays caused by reconstitution of panels, provided the resigning member is willing and able to complete the matter. The judgment demonstrates the application of modern principles of statutory interpretation, emphasizing a unified approach considering text, context, and purpose. It clarifies the interplay between sections 29, 31, and 33 of the Competition Act and confirms that 'expiry of term of office' is not limited to expiry by effluxion of time but encompasses all forms of termination contemplated in section 29. The decision promotes the efficient functioning of the Competition Tribunal and prevents potential manipulation through strategic objections to panel composition.