Frequently Asked Questions (FAQ)
Who enforces the Competition Act?
Three institutions are responsible for the application of the Competition Act, namely the Competition Commission, the Tribunal and the Competition Appeal Court.
What is the role of the Tribunal?
The Tribunal is in effect a court of first instance in all competition matters and adjudicates on and provides remedies in respect of large mergers, interim relief applications and complaints relating to prohibited practices. Examples of prohibited practice cases would be those involving cartels or abuse of dominance. It also acts as an appeal body in matters over which the Commission has decision-making authority such as intermediate mergers and exemptions.
It may impose remedies such as prohibiting a merger, imposing interim relief, levy administrative penalties and order divestitures etc.
Decisions of the Tribunal can be appealed to the Competition Appeal Court, a special division of the High Court.
Who works for the Tribunal?
The Tribunal consists of 11 members, five members who are appointed as permanent members and six appointed as part-time members. Some members are lawyers and others economists. Members are appointed by the President for a term of five years. There are a Chairperson and deputy chairperson.Supporting staff is appointed by the Chairperson and acts as the secretariat of the Tribunal.
What is the difference between the Tribunal and Competition Commission?
The Competition Commission is the investigative and prosecutorial authority that investigates complaints regarding anti-competitive conduct which it can refer to the Tribunal for hearing. In this regard it acts as the “prosecutor” before the Tribunal “the court”. The Commission can adjudicate on small and intermediate mergers but in the case of large mergers it can only make a recommendation to the Tribunal, after investigating the merger. The Tribunal can either approve, conditionally approve or prohibit the large merger. The Commission’s decisions in small and intermediate mergers can be taken on review to the Tribunal.
What rules govern the Tribunal proceedings?
The governing rules are the Competition Tribunal Rules.
FILING OF CASES
Can I bring a case to the Tribunal?
The Commission or any private party can file a complaint with the Tribunal. However, in the case of a private party, it can only file a complaint with the Tribunal after the Competition Commission has investigated the complaint and decided to issue a notice of non-referral. Note that if the private party elects to self-refer the complaint it could be held liable for costs should it lose the case at the Tribunal.
Is there a fee attached to filing a case with the Tribunal?
Yes a filing fee of R100.00 must accompany a complaint referral or an interim relief application.
Do I need a lawyer to represent me?
The Tribunal proceedings are quite informal and private parties can represent themselves, should they wish. However, since the law is complex, it is strongly advisable to have legal representation.
How do I file a complaint referral?
Upon non-referral by the Commission, and within 20 business days, a private party/complainant can self-refer a complaint to the Tribunal.
When a private party files a complaint with the Tribunal the complainant must complete a Form CT1(2), with affidavit and supporting documents. It must be filed with the Tribunal to get a date stamp and a case number after which it must be served on all the respondents and the Commission. Please refer to Rules 14 – 24 of the Competition Tribunal Rules.
A filing fee of R100.00 will be required.
How do I apply for interim relief?
Only after lodging a complaint with the Commission, can a party bring an application for interim relief to the Tribunal. The application must be filed with the Tribunal on a Form CT6, with an affidavit and supporting documents. The Tribunal will date stamp the application and give it a case number after which it must be served on all Respondents and the Commission. Please refer to Rules 26-28 of the Competition Tribunal Rules.
A filing fee of R100.00 will be required.
Can I ask the Tribunal to review a decision of the Commission to prohibit/conditionally approve my small/intermediate merger?
Yes any party to a merger may, within 10 business days after the Commission issued its decision, on written notice and in the prescribed form (Form CT4), request the Tribunal to consider the conditions or the prohibition of the merger. Please refer to Rules 32-34 of the Competition Tribunal Rules.
Where can I find information on the status of a case?
For any information regarding ongoing cases kindly contact the Registrar or Case Manager assigned to the case.
Will my confidential business information remain confidential?
Any confidential information that is brought before the Tribunal must be indicated as such on a Form CC7. Confidential information is never released to the public unless the party who filed it consents to it. Please refer to the Tribunal Practice Note on Confidential Information in Reasons.
Can I intervene in a case before the Tribunal?
Any person who has a material interest in a matter may apply to intervene in the Tribunal proceedings by filing a notice of motion in Form CT6 which must include a concise statement of the nature of the person’s interest in the proceedings. After the Tribunal has date stamped the application and given it a case number the applicant must serve the application to intervene on all parties in the proceedings. Please refer to Rule 46 of the Competition Tribunal Rules.
Who will hear my case?
The Chairperson will assign a case to a panel composed of three members of the Tribunal. At least one member on the panel must have legal training and experience. The Chairperson will designate one member of the panel to preside over the panel’s proceedings.
What is the format of a hearing?
The Tribunal tries to hold its hearings less formally than would a court. Merger hearings would be a good example of this. However sometimes formality is needed in cases particularly in prohibited practice cases and here hearings more closely resemble those of a court with examination and cross examination of witnesses and legal argument. All hearings, except pre-hearings, are transcribed.
What is a pre-hearing?
The purpose of a pre-hearing is essentially to deal with the time-table and any procedural considerations related to a case. Pre-hearings are normally conducted by one member only. Please refer to Rules 21-22 of the Competition Tribunal Rules.
How long does the process take?
Cases before the Tribunal often raise complicated competition issues and may involve a significant number of parties so it may be difficult to know at the outset how long a particular case will last. However the Tribunal does seek to manage the time-table and aims, to complete “straightforward” cases as soon as possible.
In terms of the Tribunal Rules large, small and intermediate mergers must be set down for hearing or pre-hearing within 10 business days of the Commission filing its recommendation, in the case of large mergers, or in the case of small and intermediate mergers after the filing date. Within 10 business days of completing the hearing the Tribunal must either approve, with our without conditions, or prohibit the merger. Within 20 business days of its decision the Tribunal must issue written Reasons for its decision.
Complaint referrals and procedural matters will be set down for pre-hearing and hearing as soon as pleadings have closed. These matters can run from one day or for years depending on the litigation process followed by parties.
Where does the Tribunal hear cases?
All Tribunal hearings are held at Block C, the dti Campus, 77 Meintjies Street, Sunnyside, Pretoria.
Who can attend the Tribunal’s hearings?
Any person can attend a hearing. In the event of confidential information being presented during the hearing, the Presiding member on the Panel will announce that the hearing will go into camera and the public will be requested to leave the Hearing room. The Tribunal tries to keep in camera sessions as short as possible. Public will be called back to the hearing as soon as the confidential session ends.
Are the transcripts of hearings publically available?
Please contact the Registrar for copies of hearing transcripts.
How can I obtain copies of the Tribunal’s Reasons or Competition Appeal Court judgments?
Public versions of all the Tribunal’s Reasons for decisions in cases including the judgments of the Competition Appeal Court are available on the Tribunal website.
What can I do if I do not agree with the Tribunal’s decision?
All decisions of the Tribunal can be appealed to the Competition Appeal Court, a special division of the High Court, which sits in Cape Town.
Do I have to pay costs if the Tribunal decides against me?
Should the Tribunal award costs to the winner, the loser will have to pay the costs as ordered.
Does the Tribunal keep the money when I have to pay an administrative penalty?
In terms of section 59(4) of the Act all fines imposed by the Tribunal must be paid to the Commission which in turn pays the fines into the National Revenue Fund.
Examples of different applications properly filed with the Tribunal: