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Date of release: 13 April 2021
Tribunal releases reasons for striking out SAEF’s
allegations against Competition Commission of political interference
 
The Tribunal has released the reasons for its order granting the striking out of allegations of political interference made by the South African Energy Forum (“SAEF”) against the Competition Commission (“the Commission”).
 
The allegations were contained in SAEF’s application to intervene in the Tribunal’s large merger proceedings between Thabong Coal (Pty) Ltd and South32 SA Coal Holdings (Pty) Ltd (“the coal mining merger”).
 
The Commission’s striking out application was heard concurrently with the SAEF’s intervention application. SAEF, however, neither attended the virtual proceedings (nor sent a representative) nor applied for a postponement of the proceedings.
 
In its reasons for decision (available online at https://www.comptrib.co.za/case-detail/19358), the Tribunal concludes that SAEF did not provide any evidence of political interference in the Commission’s investigation of the coal mining merger. In addition, the Tribunal describes as “gratuitous and reckless” SAEF’s questions about Commission staff members whom they regard as “non-South Africans”. Below is a summary and excerpts of the Tribunal’s reasons:
 
No evidence of political interference
 
Following its investigation of the proposed coal mining merger, the Commission recommended to the Tribunal that the transaction be approved subject to a set of conditions.
 
In its intervention application, SAEF referred to a newspaper article to insinuate political interference at the Commission during the latter’s investigation of the proposed merger. In turn, the Commission applied to strike out certain allegations contained in SAEF’s intervention application. As mentioned above, SAEF was absent during the virtual proceedings relating to the Commission’s strike out application and its own intervention application.
 
In its reasons the Tribunal says, among other things, that SAEF had not substantiated its criticism of the Commission’s merger investigation and had not provided evidence to substantiate its allegations.
 
Xenophobic comments gratuitous and reckless
 
The Tribunal notes that SAEF demonstrated hostility towards two Commission employees who may be of foreign origin – and SAEF sees nothing wrong with being xenophobic and has neither expressed remorse about those comments nor tendered an apology:
 
“SAEF’s questions about people whom they regard as “Non- South Africans” have been made gratuitously and recklessly and amount to posturing. Those are also demeaning and hurtful and have the potential, if allowed to remain part of the record, to embolden others to behave in a similar manner in future matters which may be heard by the Tribunal and which may involve foreigners. The Tribunal will not permit this. Everyone in South Africa enjoys the constitutional rights to equality and human dignity and that includes … the employees of the Commission singled out for attack by SAEF.”
 
Adverse order for costs against SAEF
 
The Tribunal references Constitutional Court statements from its decision in Glenister and President of the Republic of South Africa and Others that “these assertions or conclusions are scandalous, vexatious, or irrelevant. Courts should not lightly allow vitriolic statements of this kind to form part of the record or as evidence. And courts should not be seen to be condoning this kind of inappropriate behaviour, embarked upon under the guide of robustness.”
 
The Tribunal concludes that this matter warrants an adverse costs order being made against SAEF:
 
We have carefully considered SAEF’s xenophobic statements, and the adverse comments made about the Commission. These have the potential to prejudice the Commission and undermine both its ability to perform its functions independently and without fear or favour and its public standing or image as a statutory body… The respondent is ordered to pay the costs of this application on an attorney and own client scale”.
 
Background and timeline
 
In its papers, SAEF described itself as an informal organisation which, according to it, is a gathering of activists that advocate for, among others, equitable involvement in energy and mining technologies.
 
It applied to the Tribunal to be an intervenor in the coal mining merger proceedings and confirmed its availability on 29 September 2020 for the hearing on 16 October 2020.
 
The SAEF subsequently emailed the Tribunal on 12 and 14 October 2020 indicating that it was no longer available to attend the virtual hearing set down for 16 October 2020 for the reason that it had received “confirmation for [another] meeting” on that day. SAEF however did not bring a formal postponement application and was not present during the virtual proceedings.
 
The Tribunal dismissed SAEF’s intervention application on 20 October 2020, after considering the application. The Tribunal’s intervention application reasons will be given in due course.
 
The Commission’s strike out application was heard concurrently with SAEF’s intervention application and the strike out application was subsequently granted.
 
The Tribunal approved the coal mining merger subject to conditions on 23 December 2020 following a virtual hearing. The Tribunal’s imposed conditions are available at https://www.comptrib.co.za/case-detail/9030 .
 
 
Issued by:

Gillian de Gouveia, Communications Officer
On behalf of the Competition Tribunal of South Africa
Cell: +27 (0) 82 410 1195
E-Mail: GillianD@comptrib.co.za
Twitter: @comptrib
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Our mailing address is:
ctsa@comptrib.co.za

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