Old Mutual Properties (Pty) Limited and Another v The Competition Tribunal and Others

The applicants sought to review and set aside two decisions taken by the Second Respondent (the Assigned Member) at a prehearing conference held on 24 June 2002. The first decision related to an order for discovery of a lease agreement concluded between the First Applicant and the Sixth Respondent on 14 November 2001. The second decision involved the refusal to set down certain points of law for separate hearing by the Tribunal and to adjourn proceedings pending resolution of those questions. The Fourth Respondent withdrew its complaint and the applicants withdrew their application against the Fourth Respondent. The applicants also gave notice that they would not pursue the review of the decision not to set down the third question of law for separate hearing. The Third Respondent raised a point in limine challenging the Competition Appeal Court's jurisdiction to review decisions of an Assigned Member, arguing that the Court's review powers under sections 37 and 61 of the Competition Act are limited to decisions of the Tribunal itself, not decisions of individual assigned members.

• Whether the Competition Appeal Court has jurisdiction to review decisions of an Assigned Member of the Competition Tribunal
• Whether the decisions of an Assigned Member constitute decisions of the Competition Tribunal for purposes of sections 37 and 61 of the Competition Act 89 of 1998
• What is the scope of the Competition Appeal Court's review and appeal jurisdiction under the Competition Act

The point in limine was upheld. The appeal was dismissed with costs including the costs of two counsel. Hussain JA and Jali JA concurred.

The Competition Appeal Court, being a creature of statute, derives its powers exclusively from the Competition Act 89 of 1998. Section 37(1) expressly limits the Court's jurisdiction to review or hear appeals against decisions of the Competition Tribunal. Under section 31 of the Act, only decisions made by the Chairperson or other person contemplated in section 31(5), or decisions of a majority of panel members, constitute decisions of the Tribunal. Decisions of Assigned Members made in the course of pretrial case management do not constitute decisions of the Tribunal and are therefore not subject to review or appeal by the Competition Appeal Court under section 37. The legislature's express limitation of appeals to final decisions and specified interim/interlocutory decisions indicates no intention to permit unlimited interlocutory reviews of assigned members' procedural decisions.

The Court noted that if a procedural decision of an Assigned Member is prejudicial to one or more parties, it could be remedied by the Tribunal in terms of rule 42 (read with sections 55 and 27(1)(d)), citing remarks by Jali J in Seagram Africa (Pty) Ltd v Stellenbosch Farmers' Winery Group Ltd 2001 2 SA 1129 (C). The Court distinguished the Anglo South Africa (Pty) Ltd case, observing that the review jurisdiction of the Competition Appeal Court was never raised or argued in that matter and the parties appeared to have assumed such jurisdiction existed. The Court noted that the matter was therefore open for consideration in the present case. The Court also observed that prehearing conferences need not follow formal rules of procedure, may be conducted by telephone or in person, and are not open to the public (rule 21(4)).

This case is significant in South African competition law as it definitively establishes the jurisdictional limits of the Competition Appeal Court. It clarifies that the Court's review and appeal powers are strictly limited by statute to decisions of the Competition Tribunal itself, not decisions of individual assigned members conducting pretrial proceedings. The judgment emphasizes the principle that statutory courts derive their powers solely from the enabling legislation and cannot exercise jurisdiction beyond what is expressly or impliedly granted. It establishes important boundaries between procedural case management decisions by assigned members and substantive tribunal decisions subject to review or appeal. The case reinforces the statutory scheme for managing interlocutory matters and prevents the proliferation of interlocutory appeals that could undermine the efficient functioning of the competition law system.