SC 10

Submission on Constitution Seventh Amendment Bill (B6-2011) and the Superior Courts Bill (B7-2011
to
The portfolio committee on Justice and Constitutional Development 

01 August 2011

1.	Introduction

1.	The Commission welcomes the opportunity to participate in the public hearings on the Superior Courts Bill and Constitution Seventh Amendment Bills (hereafter the ‘Bill’). The Competition Commission (“the Commission”) is an economy-wide regulator established in terms of section 19 of the Competition Act 89 of 1998 to:

•	to investigate restrictive horizontal and vertical practices, abuse of a dominant position in a market and evaluate mergers and exemption applications in the economy of South Africa. 
•	lodge appeals in the Competition Appeal Court, a specialist court, to review any decision by the Competition Tribunal of South Africa

2.	The Commission therefore has the overall objective of promoting and maintaining competition in the market thus, in terms of section 3 of the Competition Act, the Commission exercises jurisdiction on all economic activity within or having an effect within the Republic in all sectors of the economy, except where indicated. It is from this viewpoint that the Commission is commenting on the current versions of the Bills. 

3.	The Commission participates in the hearings to support the retention of specialist Courts and tribunals.   In a nutshell, the Bills propose to reconfigure judicial system by:

•	renaming the magistrates court to lower courts
•	creating a single High Court- with nine provincial divisions
•	clarify the jurisdiction of Supreme Courts of Appeal
•	confirm the Constitutional Court as the apex court and to expand its jurisdiction

2.	Competition regulation and institutional regime

4.	The Competition Act establishes three institutions, namely, the Commission, the Tribunal and the Competition Appeal Court.  The Commission investigates and prosecutes matters.  The Tribunal adjudicates decisions and recommendations of the Commission.  A party not satisfied with a finding of the Tribunal can appeal or review the decision to the Competition Appeal Court.
 
5.	There were sound policy reasons to establish the institutions under the Competition Act. First is to ensure expediency in settling and resolving competition issues for the benefit of consumers and respondent firms. To that end the procedure in the Tribunal was designed in a less formalistic and rules-based manner than the formal court system, subject to it complying with the principles of natural justice.  

6.	Competition law is concerned with the regulation of the behavior and interaction of firms in various markets in the economy to the ultimate benefit of consumers. The economy is dynamic and this requires expeditious decision making for the benefit of business and consumers.  It is for this reason that the Competition Act provided for the establishment of specialist institutions to facilitate speedy decision making while at the same time ensuring fair process with adequate checks and balance.

7.	Consistent with the principle of expediency the Competition Act has a dual appeal system in terms of section 62.  In terms of section 62(3)(a), the Competition Appeal Court has final jurisdiction in respect of prohibited practices (Chapter 2 of the Act), merger control (chapter 3 of the Act) and processes of the Competition tribunal (chapter 5).  In terms of section 62(4) read with section 62(2) and 63, the SCA has jurisdiction over any matter not within the exclusive or final jurisdiction of the CAC, namely any constitutional matter or any dispute about the jurisdiction of the Competition Commission, Competition Tribunal or Competition Appeal Court. 

8.	Various decisions of the Supreme Court of Appeal, under the doctrine that the SCA has inherent constitutional power to hear appeals from specialist courts or tribunal where special circumstances permit, have had the unintended  effect of side-stepping the original intention of the Legislature encased in section 62 of the Competition Act to make the CAC the court of final instance in respect of certain aspects of competition law. 

9.	In essence, upon special leave being granted by the CAC or SCA a party can lodge an appeal with the Supreme Court of Appeal in respect of competition matters.  This has added another layer in the appeal process for competition matters and contradict the underlying policy to ensure speedy resolution of competition matters.  Therefore a legislative dispensation which balances parties rights to appeal, the constitutional mandate of the SCA to hear appeals and the need to protect the integrity of specialist tribunals and appeal courts is required.

3.	Comments on the Constitution Amendment and Superior Courts Bills

3.1	Relationship between Supreme Courts of Appeal and specialist adjudication/appeal courts and Tribunals

10.	In principle the Competition Commission proposes that the dispensation with regard to appeals as contained in the Competition Act be retained.  That is the CAC should have final jurisdiction with regard to the determination of competition issues.  The SCA and the Constitutional Court should have jurisdiction in matters pertaining to the jurisdiction of the competition authorities and constitutional matters respectively.

11.	At this point we will confine ourselves to stating this general principle and will not analyse how the proposed Bills address this proposal.  If so requested the Commission is willing to provide legal formulation to give effect to this proposal in the proposed Bills.
3.2 Extension of the jurisdiction of the Constitutional Court 

12.	The Bills suggest that the Constitutional Court will hear appeals on constitutional and other matters.  The Commission understands this proposal to mean that the Constitutional Court in terms of the amended section 167 of the Constitution of the Republic of South Africa will hear both constitutional and non-constitutional matters in the interest of justice and if leave is granted by the Constitutional Court. The Commission therefore interprets this proposal to mean that competition issues might be heard by the Constitutional Court if it is in the interest of justice and the Supreme Court of Appeal will be regarded as an intermediate court of appeal.  
13.	The Commission supports the limitation of the right of appeal to the Constitutional Court to those matters where it is in the interest of justice to do so. Failure to limit this right of appeal will add another level of appeals and delay the finalization of cases and increase the costs of litigation

4.	Conclusion

14.	The Commission submission sought to clarify the relationship between the Competition Appeal Court and the Supreme Court of Appeal.  To that end, the following proposals and concerns were highlighted:

•	that the dual appeal structure contained in the Competition Act be retained: and
•	the Committee review the proposal to expand the jurisdiction of the Constitutional Court to hear non-constitution related matters as this might add a further step in the appeals process.