The Competition Commission v Computicket (Pty) Ltd

The Competition Commission received five complaints against Computicket (Pty) Ltd concerning exclusivity clauses in contracts with theatre owners, festival event organisers and others in the entertainment industry for ticket distribution services. Following investigations, the Commission determined that prohibited exclusionary and anti-competitive conduct had occurred and referred the complaints to the Competition Tribunal in terms of s 50(2)(a) of the Competition Act 89 of 1998. After pleadings had closed and discovery was completed but before evidence was led, Computicket brought a review application to set aside the Commission's decision to refer the complaints on grounds that the Commission failed to act reasonably, objectively and in good faith. Before the Tribunal could hear the review application, Computicket launched an interlocutory application seeking production of the record upon which the referral decision was based. The Tribunal refused the relief. On appeal, the Competition Appeal Court (CAC) granted the order directing production of documents. The Commission applied for leave to appeal to the Supreme Court of Appeal (SCA), which was refused by the CAC. The Commission then applied directly to the SCA for leave to appeal.

• Whether the Supreme Court of Appeal has jurisdiction to hear appeals from the Competition Appeal Court in light of the 17th Constitution Amendment Act 2012 which amended s 168(3) of the Constitution
• Whether the matter falls within the appellate jurisdiction of the SCA as contemplated in s 62(2) of the Competition Act 89 of 1998
• What constitutes a 'constitutional matter' in s 62(2)(b) of the Competition Act
• Whether s 63(2) of the Competition Act reserves appellate jurisdiction in constitutional matters exclusively for the Constitutional Court
• Whether an applicant for review of a referral decision must establish a prima facie case before being entitled to production of the record
• Whether a review of the Commission's referral decision should only be entertained in exceptional circumstances as it interrupts an ongoing process

The application for leave to appeal was dismissed with costs, including the costs of two counsel.

Following the 17th Constitution Amendment Act 2012, the Supreme Court of Appeal's jurisdiction in competition matters is confined to matters falling within s 62(2) of the Competition Act 89 of 1998, and no longer derives from s 168(3) of the Constitution. An interlocutory application for discovery of documents relating to a reviewable referral decision does not constitute: (a) a question concerning jurisdiction under s 62(2)(a) as its outcome cannot affect the Tribunal's jurisdiction; or (b) a 'constitutional matter' under s 62(2)(b) - while discovery rights ultimately derive from the constitutional right to a fair hearing in s 34, affording 'constitutional matter' such a wide meaning would render the exclusive jurisdiction of the Competition Appeal Court illusory. Section 63(2) of the Competition Act reserves appeals on constitutional matters exclusively for the jurisdiction of the Constitutional Court. On the merits: an applicant seeking review of a Competition Commission referral decision is entitled to production of the record without first establishing a prima facie case, and the referral decision is a discrete reviewable decision, not part of an ongoing process requiring exceptional circumstances for mid-stream review.

The court expressed agreement (obiter) with Froneman J's observation in National Union of Public Service and Allied Workers obo Mani v National Lottery Board 2014 (3) SA 544 (CC) that as a result of the 17th Constitution Amendment Act, the right of appeal against a judgment of the Labour Appeal Court to the Supreme Court of Appeal no longer exists. Brand JA noted that while Froneman J was dealing with s 183 of the Labour Relations Act (which has different wording to s 62 of the Competition Act), the same principle applies. The court also made obiter observations on the merits of the appeal (having found it lacked jurisdiction), finding the proposed appeal devoid of merit. It criticized the Commission's argument that Computicket had to make out a prima facie case before obtaining the record as a 'non sequitur' that would create an unjustifiable two-stage enquiry. The court also rejected the analogy to mid-stream reviews in trial proceedings, noting that the referral decision is not part of an ongoing process but a discrete reviewable decision that must be challenged within a reasonable time.

This case is significant for establishing the limits of the Supreme Court of Appeal's jurisdiction in competition matters following the 17th Constitution Amendment Act 2012. It clarifies that: (1) The SCA's jurisdiction in competition matters is now confined to matters contemplated in s 62(2) of the Competition Act and no longer derives from s 168(3) of the Constitution; (2) 'Constitutional matter' in s 62(2)(b) must be given a narrower meaning than all matters ultimately traceable to the Constitution, otherwise the exclusive jurisdiction of the Competition Appeal Court would be illusory; (3) Section 63(2) of the Competition Act reserves appeals on constitutional matters exclusively for the Constitutional Court; (4) The case also confirms important principles regarding administrative review of Competition Commission decisions - that the referral decision is a discrete reviewable decision (based on legality), not part of an ongoing process, and that applicants are entitled to the record without first establishing a prima facie case for review. The judgment demonstrates how constitutional amendments can fundamentally alter the court hierarchy and appellate pathways in specialized areas of law.