The Applicant (‘Standard Bank’) lodged an application to review and set aside the decision of the Respondent (‘the Commission’) to refer it to the Competition Tribunal (‘the Tribunal’), wherein the Commission alleged that Standard Bank, together with other banks, engaged in cartel conduct prohibited by s4(1)(b)(i) and (ii) of the Competition Act 89 of 1998 (‘the Act’). Standard Bank contended that that decision is invalid and unlawful in terms of s62(2)(b) of the Act. The Notice of Motion in the application for review, called for the Commission to file a full record of the decision to refer Standard Bank to the Tribunal (‘the Record’) within 15 days of receipt of the Notice of Motion. The Commission refused to file said Record and lodged a counter-application, contending that the Competition Appeal Court (‘CAC’) does not have jurisdiction to hear the review application; alternatively, that the review application be stayed pending the outcome of the appeal, to be heard by the CAC.
In April 2018, Standard Bank wrote to the Judge President, requesting directions in terms of Rule 34(2)(a) of the Rules for the Conduct of Proceedings in the Competition Appeal Court (‘the CAC Rules’), to direct the Commission to produce the Record in order to enable the review to proceed, to specify the date by which the Record must be produced, and to make such directions as it may deem fit.
JURISDICTION OF JUDGE PRESIDENT TO HEAR MATTER
S38(2A) of the Act lists a number of instances where the Judge President, or a judge of the CAC, designated by the Judge President, may sit alone. The Commission contended that a single judge has no power to direct the Commission to produce the Record, because s38(2A) restricts his or her powers to matters of “practise and procedure” to be followed, and only “procedural directions” may be issued in terms of that section. It also contended that the current matter is not a procedural issue but that the issue of the Record is disputed on substantive grounds, in that directions, as contemplated in s38(2A)(e), may only be competently granted if the CAC has the jurisdiction to hear the matter in the first place. The Commission accordingly argued that that jurisdictional point must be determined first before the issue of whether the Record should be dispatched can arise. This, it contended, can only be done by a full court.
In Standard Bank’s view s38(2A)(e) perfectly allows a single judge to direct the Commission to file the Record, as this is a procedural matter prescribed in Rule 53 of the Uniform Rules of Court (“High Court Rules”). The court stated that Rule 53 finds application, because of the provision in Rule 34 (2)(b) of the CAC Rules which states that: “…if a question arises as to the
practice or procedure to be followed in cases not provided for by these Rules or by a direction of the Judge President in terms of subrule (1), the judge may have regard to the High Court Rules or Rules of the Supreme Court of Appeal.”
PROCEDURAL OR SUBSTANTIVE
The court, in addressing the question of whether the dispatching of the Record is a procedural issue took the following into account: Rule 53 serves as a tool to ensure that any challenge to the proceedings sought to be reviewed is well considered and properly pleaded. Therefore, compliance with Rule 53 regarding time frames and providing a complete record is not just a procedural process, but a substantive requirement which serves to ensure that the substance of the decision is properly put to the fore at an early stage. The court referred to various judgments which recognised compliance with Rule 53 as being a procedural process.
The court therefore found that the dispatching of the Record is an issue within the contemplation of s38(2A)(e) of the Act.
The Commission also contended that it has the right to conduct an investigation without being constrained by interlocutory applications and to get the complaint heard and finalised by the Tribunal. According to the Commission, these rights take this matter outside the realm of procedural matters envisaged in s38(2A). The court disagreed with the Commission in that the review is a separate process to the process at the Tribunal, brought in terms of different provisions which attract different obligations. The process before the Tribunal and the intended appeal of the CAC decision to the Constitutional Court do not suspend the continuation of the review process as of normal course.
The court stated that the Record may be necessary to assess the jurisdictional point. It cannot be assumed that the Record will play no role in that exercise. Also, from a practical point of view the Commission’s approach may result in a three stage enquiry. First, the Court, without the benefit of the Record, would decide whether the matter is one falling under s62(2)(b); if it finds that it has jurisdiction to hear the matter, the Record would then be made available or may still be contested on other grounds, the applicants’ papers may be amended once the Record has come to the fore, thereafter the Court would hear the merits. To the extent that this path becomes unavoidable due to the nature of the case, that would be an issue that the Court would have to deal with at that stage. For the moment, though, this approach may result in the delays.
The Court found no legally cognisable reason as to why Standard Bank should be deprived of the Record. The fact that the matter was argued extensively in that case did not change the fact that the filing of the Record is a procedural issue. The substantial questions in this case had to do with the ‘content of the record’ (i.e. inclusion of the deliberations of the JSC as part of the record) rather than whether, as a matter of procedure, the applicant was or was not entitled to a record.
The court found no basis for permitting the Commission to withhold the Record from Standard Bank. The court ordered that the Respondent is directed to, within 15 days from the date of its Order, file with the Registrar of this Court, the complete record of its decision to refer the Applicant to the Competition Tribunal and that Respondent is ordered to pay the costs of the Applicant including the costs of two counsel to the extent employed.
The court clarified whether dispatching of the Record is a procedural in nature.
Written by Dewald Claassen and supervised by Charlotte Clarke , 23 July 2018