THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

REPORTABLE
Case no: 660/2011

In the matter between:

AGRI WIRE (PTY) LTD

First Appellant
AGRI WIRE UPINGTON (PTY) LTD

Second Appellant
and
THE COMMISSIONER OF THE
COMPETITION COMMISSION

First Respondent
MINISTER OF TRADE AND INDUSTRY
Second Respondent
CONSOLIDATED WIRE INDUSTRIES
(PTY) LTD

Third Respondent
CAPE GATE (PTY) LTD

Fourth Respondent
ALLENS MESHCO (PTY) LTD

Fifth Respondent
HENDOK (PTY) LTD

Sixth Respondent
WIRE FORCE (PTY) LTD

Seventh Respondent
AGRI WIRE NORTH (PTY) LTD

Eighth Respondent
CAPE WIRE (PTY) LTD

Ninth Respondent
FOREST WIRE (PTY) LTD

Tenth Respondent
INDEPENDENT GALVANISING (PTY) LTD   Eleventh Respondent
ASSOCIATED WIRE INDUSTRIES (PTY) LTD
t/a MESHRITE

Twelfth Respondent

THE COMPETITION TRIBUNAL
Thirteenth Respondent

Neutral citation: Agri Wire (Pty) Ltd v The Competition Commissioner
[2012] ZASCA 134 (660/2011)(27 September 2012)
Coram:
NUGENT, LEACH, TSHIQI, WALLIS et PILLAY JJA.
Heard:
30 AUGUST 2012
Delivered: 27 SEPTEMBER 2012

Summary: Cartel – reference to Competition Tribunal in terms of s 4(1)
of the Competition Act 89 of 1998 – reference arising from evidence
obtained by the Competition Commission under its corporate leniency
policy – application to set aside reference on the basis that the
Competition Act provides no lawful basis for the adoption of the
corporate leniency policy – claim that evidence obtained by means of the
corporate leniency policy obtained unlawfully – claim that this rendered
reference unlawful.

ORDER

On appeal from: North Gauteng High Court (Zondo J sitting as court of
first instance):
The appeal is dismissed with costs, such costs to include the costs of two
counsel where two counsel were employed.

JUDGMENT

WALLIS and PILLAY JJA (NUGENT, LEACH and TSHIQI JJA
concurring)
[1] Cartel conduct, where ostensible competitors collude to set prices,
or terms of trade, or divide markets, fix tenders or engage in similar
conduct, is one of the most difficult types of anti-competitive behaviour
to identify, prove and bring to an end. This is because a successful cartel
is conducted secretly and its continued success depends on its members
not breaking ranks to disclose their unlawful behaviour to the competition
authorities. In a number of jurisdictions, the response of the competition
authorities has been to introduce policies that offer either complete or
partial leniency to cartel participants, who break ranks and disclose the
existence and nature of the cartel, and provide evidence that enables the
authorities to pursue and break the cartel, by bringing it before the
appropriate tribunal.

[2] The Competition Commission (the Commission), which, in the
form of the Competition Commissioner, is the first respondent in this
appeal, has adopted such a policy. This is the Corporate Leniency Policy
(CLP) that is in issue in this appeal. The appellants, to whom we shall
refer as Agri Wire, challenge the legal basis of the CLP. They contend
that evidence obtained by the Commission from the third respondent,
Consolidated Wire Industries (Pty) Ltd (CWI), in terms of the policy was
unlawfully obtained. They say that this, in turn, tainted the Commission’s
referral of a complaint of alleged cartel behaviour in the wire and wire
related products sector of the South African market to the Competition
Tribunal in terms of s 51 of the Competition Act 89 of 1998 (the Act).
Agri Wire accordingly sought to review and set aside the referral,
together with certain ancillary relief, in proceedings before the North
Gauteng High Court, which dismissed the application, but granted leave
to appeal to this court.

The referral
[3] CWI is a member of a larger group of companies operating
generally in the steel industry. Its parent company was the subject of an
investigation by the Commission. A decision was taken at group level to
undertake an internal audit aimed at identifying all anti-competitive
conduct by the parent company or any other company in the group.
Pursuant to this audit CWI indicated that it had been involved in a cartel,
and identified the other members as being Agri Wire and the fourth to
twelfth respondents, none of which have played any part in this litigation.
CWI accordingly approached the Commission under the CLP and
disclosed the existence of the alleged cartel and the information it had
relating to the operation of the cartel. In consequence of that disclosure
the Commission granted it leniency on a conditional basis in terms of the

CLP, conducted an investigation and referred the allegations concerning
the cartel to the Competition Tribunal (the Tribunal).

[4] In its referral to the Tribunal, the Commission cited Agri Wire and
the fourth to twelfth respondents. It claimed an order declaring that they
had contravened s 4(1)(b)(i), (ii) and (iii) of the Act; an order directing
them to refrain from engaging in the conduct constituting those alleged
contraventions and the imposition of an administrative penalty of ten per
cent of the annual turnover of each participant in the 2008 financial year.
CWI was also cited as a respondent but no relief was sought against it.
The Commission explained that this was because it had sought and been
granted conditional leniency in terms of what it described as the
‘Applicant’s corporate leniency policy’. In those circumstances it had
been cited ‘purely for the interest it may have in these proceedings’.

Agri Wire’s complaints
[5] In attacking the grant by the Commission of conditional leniency to
CWI, Agri Wire sought an order declaring that the grant was ‘not
authorised by any law and unlawful’. It also sought an order that the
evidence obtained from CWI pursuant to the grant of conditional
immunity was unlawfully obtained, and an order declaring that the
complaint referral to the Tribunal was unlawful and should be set aside.
In the founding affidavit it described the main issue as being:
‘… whether or not it was competent for the [Commission] to make promises of
conditional immunity to [CWI] to obtain evidence and, if it was not competent for it
to do so, whether such evidence is inadmissible in subsequent proceedings.’
The argument was developed on the basis that the Commission is a
creature of statute and has only those powers conferred upon it under the
Act. It was said that the Act does not permit the Commission to be

selective in deciding which participants in a cartel it investigates and
makes the subject of a reference to the Tribunal, nor does it authorise the
Commission to grant immunity from a referral and a possible adverse
adjudication, including the imposition of an administrative penalty, in
consideration for the furnishing of information under the CLP. If it refers
a complaint concerning participation in a cartel to the Tribunal, it is
obliged, so the argument went, to refer the complaint in respect of all
participants and to seek relief against all of them. The most that it can do
to ameliorate the position of a ‘whistleblower’ is to ask the Tribunal to
take its co-operation into account in assessing the amount of any
administrative penalty, as it is entitled to do under s 59(3)(f) of the Act.

The Corporate Leniency Policy (CLP)
[6] It is convenient at this stage, in order to understand the arguments
on behalf of Agri Wire, to deal briefly with the contents of the CLP. The
policy is embodied in a document that has been published for information
in the Government Gazette.1 It records that it is difficult to detect or prove
the existence of a cartel and that the CLP has been developed to
encourage participants to break ranks and disclose information that
enables the Commission to tackle cartel behaviour. This information is
furnished ‘in return for immunity from prosecution’, the latter being the
term used in the policy for a reference to the Tribunal and adjudication on
a complaint of cartel activity, in which an administrative penalty is
sought. Clause 3.1 says that the CLP outlines the process through which
‘the Commission will grant a self-confessing cartel member … immunity
for its participation in cartel activity’. That immunity is granted in return
for full disclosure and full co-operation in pursuing the other cartel
members before the Tribunal. For the avoidance of doubt, clause 4.2

1 GN 195 GG 25963 of 6 February 2004 and GN 628 GG 31064 of 23 May 2008.

states that immunity refers to immunity from prosecution before the
Tribunal in relation to the alleged cartel that is the subject of the
application for immunity.

[7] A conspicuous feature of the CLP is that, wherever it refers to
immunity being granted, it identifies the Commission as the party that
grants immunity. Thus, in clause 5.3 it says, in regard to cartel activity
outside South Africa, that immunity granted by another competition
authority would not ‘automatically qualify the applicant for immunity by
the Commission’. In clause 5.6 it is said that parties to cartels, who ‘come
clean’ after the initial disclosure, do not qualify for immunity but the
Commission will explore with them the possibility of them receiving a
reduced fine.2  Clause 6.4 warns those to whom ‘the Commission has
granted immunity’ that a grant of immunity does not prevent third parties
from seeking civil or criminal remedies against them. In dealing with the
immunity process, clause 9.1 states that at the initial stage ‘conditional
immunity is given to an applicant … to create a good atmosphere and
trust between the applicant and the Commission’. As conditional
immunity is granted prior to any reference to the Tribunal, only the
Commission can grant conditional immunity. Clause 9.1.1.2 is important.
It provides that:
‘Conditional immunity therefore precedes total immunity or no immunity. The
Commission will give the applicant total immunity after it has completed its
investigation and referred the matter to the Tribunal and once a final determination
has been made by the Tribunal or the Appeal Court, as the case may be, provided the
applicant has met the conditions and requirements set out in the CLP on a continuous
basis throughout the proceedings.’
Clause 9.1.1.3 warns that, at any stage until total immunity is granted, the
Commission reserves the right to revoke the grant of conditional

2 This can only be a reference to s 59(3)(f) of the Act.

immunity for lack of co-operation and pursue a prosecution before the
Tribunal. That signals quite clearly that a party that has been afforded
conditional immunity, is not before the Tribunal for the purposes of the
latter making a determination against it, including the imposition of an
administrative penalty. It will only be referred to the Tribunal for the
purpose of an adverse determination and the imposition of an
administrative penalty if the Commission revokes its conditional
immunity.

[8] Quite extraordinarily, in the face of these explicit provisions, both
the Commission and CWI sought to argue that under the CLP all that the
Commission undertook to do was not to seek relief against CWI in the
referral proceedings before the Tribunal. It was submitted that in the end
result, after taking account of the Commission’s stance, the Tribunal
would take the final decision whether to grant relief against CWI.
Reference was made to clause 3.3 of the CLP, which reads:
‘Immunity in this context means that the Commission would not subject the
successful applicant to adjudication before the Tribunal for its involvement in the
cartel activity, which is part of the application under consideration. Furthermore the
Commission would not propose to have any fines imposed to that successful
applicant.’
Although this appears to leave the grant of immunity in the hands of the
Commission, we were referred to a footnote explaining (in extremely fine
print) that:
‘Adjudication means a referral of a contravention of chapter 2 to the Tribunal by the
Commission with a view to getting a prescribed fine imposed on the wrongdoer.
Prosecution has a similar import to adjudication herein.’
It was argued that this footnote clarified that the Commission was only
promising not to seek an adjudication involving the imposition of
administrative penalties against the person receiving conditional

immunity, but that this did not preclude the Tribunal from imposing such
a penalty.

[9] There is no merit in this argument. It flies in the face of the
provisions of the CLP that state expressly that it is the Commission that
grants immunity. Nowhere does it suggest that the entitlement to total
immunity is dependent on the Tribunal, acting within its own unfettered
discretion, not imposing a penalty on the applicant for immunity. The
distinction drawn between conditional immunity and total immunity
makes no sense if the Tribunal is entitled to ignore the Commission’s
grant of conditional immunity and impose administrative penalties upon
the party to whom such immunity had been granted. On the suggested
construction the following absurd situation could arise. Conditional
immunity has been granted and the recipient has co-operated fully in the
investigation and the Tribunal proceedings, thereby qualifying for total
immunity under clause 9.1.1.2. Nonetheless it is compelled to pay
administrative penalties imposed by the Tribunal. What meaning is to be
given to the concept of total immunity in that situation? It would be small
comfort to the recipient to know that it had received total immunity if it
had nonetheless been ordered to pay ten per cent of its annual turnover
during the years of the cartel’s existence as an administrative penalty. We
venture to suggest that the CLP would be far less effective, if not entirely
useless, if it contained a disclaimer to the effect that the Commission
would not seek an order against the party seeking leniency, but that the
Tribunal would be free to impose such administrative penalty as the Act
permitted against them. Hard-headed businessmen, contemplating baring
their souls to the competition authorities, will generally want a more
secure undertaking of a tangible benefit, before furnishing the co-
operation that the Commission seeks from them.

[10] The case must therefore be approached on the basis of Agri Wire’s
contention, namely, that the Commission has granted CWI conditional
immunity under the CLP and that it is not pursuing CWI before the
Tribunal. As explained in the Commissioner’s affidavit, CWI has been
joined in the light of the Commission’s view, on the correctness of which
we express no opinion, that such joinder is necessary to preserve the right
of third parties to bring civil proceedings against it if they see fit to do so.
That argument is based on a construction of ss 65 and 67 of the Act, but it
is unnecessary for the purposes of this case to deal with it.

[11] We thus arrive at the central issue in this case, namely, whether the
CLP is lawful and whether the Act permits the Commission to refer a
complaint to the Tribunal in respect of cartel behaviour, without citing
and seeking relief against all the members of the cartel. However, before
dealing with that question it is necessary to divert to deal with a challenge
raised by both the Commission and CWI to the jurisdiction of the high
court, and hence this court on appeal from it, to deal with and determine
these issues. That challenge was upheld in the court below but on a basis
that ultimately was not pursued in this appeal. It must be dealt with at this
stage because any question of jurisdiction is logically anterior to a
consideration of the merits.3

Jurisdiction
[12] In the Commissioner’s affidavit the objection to the jurisdiction of
the high court was based on s 27(1)(c) of the Act. This section provides
that the Competition Tribunal may:

3 Makhanya v University of Zululand 2010 (1) SA 62 (SCA) para 29.

‘hear appeals from, or review any decision of, the Competition Commission that may
in terms of this Act be referred to it.’
In its heads of argument the Commission contended that this section
conferred on the Tribunal a general power to review any decision of the
Commission taken in terms of the Act that falls within its jurisdiction.
The weakness of that argument is illustrated by the facts of this case. Agri
Wire wishes to review and set aside the referral to the Tribunal. There is
no need for the Act to confer on the Tribunal the power to review a
decision to refer a matter to it. If the referral is improper for any reason,
the Tribunal can dismiss it on that ground. If it is thought desirable to do
that at an early stage of the proceedings, before substantial costs are
incurred, the Tribunal can adjudicate the point before it holds a hearing
into the merits. That is consistent with the powers given to the Tribunal
by s 55(1) of the Act to adopt a procedure that it deems appropriate with
due regard to the circumstances of the case. This places ‘an emphasis on
speed, informality and a non-technical approach to its task’.4
Accordingly, had Agri Wire approached the Tribunal to determine
whether the referral to it was lawful, the Tribunal could have determined
that question in the exercise of its functions in dealing with referrals
under Part D of Chapter 5 of the Act. There was no need for it to have
resort to s 27(1)(c) for that purpose.

[13] The Commission’s purpose in invoking s 27(1)(c) was not to
identify the source of the Tribunal’s power to deal with Agri Wire’s
complaints, but to advance an argument that the high court’s jurisdiction
is excluded. In our view that is not the effect of the section. Its language
refers to appeals against and reviews of decisions by the Competition

4 Competition Commission of South Africa v Senwes Ltd  [2012] ZACC 6; 2012 (7) BCLR 667 (CC) at
para 69.

Commission. In determining the scope of this provision it is best to start
with those provisions of the Act that, in terms, provide for the
Commission to take decisions. These are s 10(2), under which the
Commission grants exemptions; s 13(5)(b) dealing with the approval or
prohibition of small mergers; s 14(1)(b) dealing with the approval or
prohibition of intermediate mergers; and s 15 dealing with the revocation
of merger approval.5 In the absence of a provision such as s 27(1)(c) any
challenge to these decisions would have to be brought before the high
court and not the Tribunal or the Competition Appeal Court. That is an
unsatisfactory situation as it departs from the hierarchy of decision-
making under the Act and removes matters that are appropriate for
decision by those bodies from their purview. To make those decisions
subject to appeal to, or review by, the Tribunal is therefore consistent
with the general scheme of the Act.

[14] It was suggested by CWI that, in referring to decisions ‘that may in
terms of this Act be referred to it’, s 27(1)(c) is referring to decisions that
must be referred to the Tribunal in terms of the Act. But, as it pointed out,
there are no such decisions. This led CWI to proffer a construction of the
section that ignores these words. However, that is not a permissible
approach to statutory interpretation, save in rare and extreme situations.
There is no need for it in this instance. Whilst the section is clumsily
worded, if one accepts that it is referring to decisions that the Act
provides must be taken by the Commission, the reference to decisions
that may in terms of the Act ‘be referred to it’ is a reference to those
decisions, which are referred to the Commission for it to make in terms of
the Act. In other words the ‘it’ in the section is the Commission not the

5 No other decisions in this sense were identified by counsel in response to questions from the Bench. If
there are other decisions of the Commission under the Act of a similar type, that does not affect the
matter.

Tribunal.6 That is consistent with the powers of the Commission as set
out in ss 21(1)(d) and (e) of the Act.

[15] On this approach the procedural provisions of rule 42 of the rules
of the Tribunal are irrelevant in order to give meaning to s 27(1)(c).
However, it is necessary to say that the approach of the high court, that it
is permissible to look to the rules in order to ascertain the scope of
s 27(1)(c), is not correct. Whilst, for definition purposes, ‘the Act’ is
defined as including the rules made under the Act, that cannot mean that
the Tribunal can, by promulgating rules, confer a jurisdiction on itself
that is not to be found in the Act itself. It is appropriate to recall that a
definition section is always to be read in context and applies unless that
context otherwise indicates.7 The jurisdiction of the various statutory
bodies set up under the Act is defined in the Act. It is not for them to
determine their own jurisdiction by way of the rules under which they
perform their statutory functions. That would be entirely inconsistent with
the rule of law and the principle of legality that underpins our
Constitution.

[16] In any event it was insufficient for the Commission’s purpose for
s 27(1)(c) to confer appellate and review jurisdiction on the Tribunal. It
was also necessary for it to show that any such jurisdiction was exclusive.
It sought to do this by relying on s 62 of the Act, which provides that;
‘(1)
The Competition Tribunal and the Competition Appeal Court share exclusive
jurisdiction in respect of the following matters:

6 There is a dictum in Competition Commission of South Africa v Telkom SA Ltd & another [2010] 2
All SA 433 (SCA) para 38 that may suggest a wider meaning of s 27(1)(c), but the point was not
argued in that case and it was unnecessary for the actual decision. Similarly the two cases in the
Competition Appeal Court to which counsel referred us in support of the argument about the Tribunal’s
review jurisdiction (AC Whitcher (Pty) Ltd v The Competition Commission of SA & another [2009] 2
CPLR 291 (CAC) paras 16-17 and Africa Media Entertainment Ltd v Lewis NO & others [2008] 1
CPLR 1 (CAC)) do not support the argument.
7 Town Council of Springs v Moosa & another 1929 AD 401 at 416-417.

(a) Interpretation and application of Chapters 2, 3 and 5, other than –
(i)
a question or matter referred to in subsection (2); or
(ii)
…
(b) the functions referred to in section 21(1), 27(1) and 37, other than a question
or matter referred to in subsection(2).
(2)
In addition to any other jurisdiction granted in this Act to the Competition
Appeal Court, the Court has jurisdiction over –
(a) the question whether an action taken or proposed to be taken by the
Competition Commission or the Competition Tribunal is within their respective
jurisdictions in terms of this Act…’
Section 62(3)(b) provides that the jurisdiction of the Competition Appeal
Court in respect of matters set out in s 62(2) of the Act ‘is neither
exclusive nor final’.

[17] Whilst there would be no difficulty in recognising an exclusive
jurisdiction vested in the Tribunal and the Competition Appeal Court if
s 27(1)(c) is confined to the situations referred to in paragraph 13, supra,
it becomes problematic when it is extended to a challenge to the validity
of a referral, because that is a question whether the referral is an action
within the jurisdiction of the Commission. Unlawful actions are not
within its jurisdiction and an unlawful referral would accordingly not be
within its jurisdiction. But, whether an act by the Commission is within
its jurisdiction is a matter within s 62(2)(a) of the Act and is therefore not
within the exclusive jurisdiction conferred by s 62(1)(b) of the Act.

[18] Those considerations led counsel for the Commission to abandon the
argument based on s 27(1)(c) in favour of one based on s 62(1)(a) of the
Act. However that argument foundered on two points. The first was that
the section confers exclusive jurisdiction only in respect of matters
arising under Chapters 2, 3 and 5 of the Act. Agri Wire’s objections were

advanced on the basis that the Commission’s powers are set out in
Chapter 4 of the Act and, properly construed, those provisions do not
permit the Commission to adopt the CLP in its present form. The second
was that in any event the challenge was one under s 62(2)(a) of the Act
where there is no exclusive jurisdiction.

[19] The argument that the high court’s jurisdiction was excluded in
favour of an exclusive jurisdiction conferred on the Tribunal under the
Act was therefore incorrect. Counsel then submitted that nonetheless the
high court should defer to the Tribunal and allow the challenge to be dealt
with by that body. For this they relied upon two passages in the judgment
of this court in Competition Commission of South Africa v Telkom SA Ltd
& another.8 The first, in which it was observed that the legislature had
established the competition authorities as the primary regulator in
competition matters, is disposed of quite easily. The court there dealt with
the concurrent jurisdiction of different regulatory agencies and not with
concurrent jurisdiction between the Tribunal and the high court. The
second merely indicates that, where the legislature has created specialist
structures to resolve particular disputes effectively and speedily, it is best
to use those structures. The court went on to hold, on the facts of that
case, that the court before which the review proceedings were brought
should have exercised its discretion to decline to grant relief by way of
review and left the issues in the case to be dealt with by the Tribunal in
the course of the referral. That is a different matter from the court
declining to exercise the jurisdiction with which it is vested by law. Save
in admiralty matters, our law does not recognise the doctrine of forum

8 Competition Commission of South Africa v Telkom SA Ltd & another, supra, paras 27 and 36.

non conveniens, and our courts are not entitled to decline to hear cases
properly brought before them in the exercise of their jurisdiction.9

[20] For those reasons the challenge to the high court’s jurisdiction was
misconceived and should have been rejected. We turn therefore to deal
with the merits of Agri Wire’s case.

Authority to issue the CLP
[21] In the high court the argument was accepted that, in providing for
conditional immunity to whistleblowers, the CLP does no more than
embody an undertaking by the Commission that it will not seek an order
from the Tribunal imposing an administrative penalty on the party
afforded immunity. The court held that notwithstanding the grant of such
immunity the Tribunal was not precluded from making such an order.
This was erroneous for the reasons set out in paras 6 to 9, supra. The
question is whether the Act vested the power in the Commission to
formulate the CLP in terms that involved it in granting first conditional,
and then final, immunity to whistleblowers in cartel cases?

[22] Although this was the central issue in the case, and in the heads of
argument it was said that the Act did not empower the Commission to
adopt the CLP, there was no real debate that, apart from one argument,
the Act does, in general terms empower the Commission to adopt a CLP
in these terms. In our view there can be no doubt that this is so. The
purpose of the Act, as set out in s 2 thereof, is to promote competition in
South Africa. To that end the Commission is empowered to promote

9 Makhanya v University of Zululand, supra, paras 33 and 34; Longman Distillers Ltd v Drop Inn
Group of Liquor Supermarkets (Pty) Ltd 1990 (2) SA 906 (A) at 914E-G; Standard Credit Corporation
Ltd v Bester & others 1987 (1) SA 812 (T) at 815E-F and 819D-E; Marth NO v Collier & others
[1996] 3 All SA 506 (C) at 508e-f.

market transparency (s 21(1)(a)) and to investigate and evaluate alleged
contraventions of Chapter 2 of the Act, under which cartels fall
(s 21(1)(c)). Breaking up cartels serves to promote market transparency,
as cartel behaviour is the antithesis of transparency in the market place.
Investigating contraventions of the Act must entitle the Commission to
put in place measures that will enable it to perform this function. That is
the whole purpose of the CLP. Accordingly, and subject only to the
argument that follows, the Commission was empowered under the Act to
adopt and implement the CLP by giving conditional and total immunity
to parties who make disclosure and provide evidence that enables it to
pursue cartels and bring them to an end.

[23] Agri Wire contended that, whilst the adoption of the CLP may
have been permissible in general terms, it was impermissible for it to
provide that immunity would be granted by the Commission. That
according to it is the prerogative of the Tribunal when exercising its
powers in determining an appropriate penalty under s 59 of the Act. It
relied for this argument on two propositions. First it said that when the
Commission refers a complaint to the Tribunal under s 51 of the Act it is
obliged to refer the entire complaint and that means, in the context of
cartel behaviour, that it is obliged to refer all members of the cartel to the
Tribunal for the latter to adjudicate upon their conduct and determine
what order should be made and what penalty imposed. It complained that
otherwise the playing fields were not level and the party that obtained
leniency would be unfairly advantaged. Second it said that the provisions
of s 59(3)(f) require the Tribunal to take into account the degree to which
a participant in a cartel has co-operated with the Commission and the
Tribunal and that this indicates that it is the Tribunal, and not the

Commission, that must determine whether any immunity should be
granted.

[24] Counsel was unable to point to anything in the Act itself, beyond
the general words providing that the Commission refers a complaint to
the Tribunal, to support this argument. He submitted that a complaint
involving a cartel must necessarily involve all the members of the cartel.
Otherwise, so he submitted, the complaint would not have been referred
as required by the Act. There is no merit in these submissions. A
complaint is initiated under s 49B, either by the Commissioner or by a
third party. The complaint is then investigated. If, at the conclusion of the
investigation, the Commissioner decides to refer the complaint to the
Tribunal, the Act specifically provides that the Commissioner may refer
all or some of the particulars of the complaint and may add particulars to
the complaint submitted by the complainant. One of the central
particulars in respect of cartel conduct is the identity of the members of
the cartel. If the complaint is that A and B and C have engaged in cartel
behaviour the Commissioner may decide to refer only A and B. In that
way the Commissioner exercises the express statutory power to exclude
certain particulars, namely C, from the referral. Equally, when the
Commissioner decides to add D as a participant in the cartel, that is in
accordance with the express provisions of the statute.

[25] That is also a sensible construction of the Act. It is easy to envisage
situations in which it will be impossible, say because one of the
participants has been liquidated, or merged into another entity, to refer all
the participants to the Tribunal. It is also easy to conceive of situations
where it would be undesirable to do so, as for example where a small
participant might go into liquidation if a penalty was imposed upon it or

where the costs of pursuing a particular participant were out of proportion
to the advantages to be gained from doing so.

[26] As to s 59(3), the fact that the Tribunal can take a party’s co-
operation into account in determining an administrative penalty does not
have as a corollary that the Commission may not grant immunity.
Accordingly the challenges to the CLP; the grant of conditional immunity
to CWI; the admissibility of the evidence obtained from CWI by way of
the grant of conditional immunity and the validity of the referral were all
without merit. The application was correctly dismissed, albeit for reasons
other than those of the court below, and the appeal must likewise be
dismissed.

[27] The appeal is dismissed with costs, such costs to include the costs
of two counsel, where two counsel were employed.

M J D WALLIS
JUDGE OF APPEAL

R PILLAY
JUDGE OF APPEAL

Appearances

For appellant:
S J du Plessis SC (with him Kevin Hopkins)
Instructed by:
Roestoff and Kruse, Menlo Park, Pretoria
Symington & De Kok, Bloemfontein

For first and second
respondent:

Gilbert Marcus SC (with him Isabel Goodman)

State Attorney, Pretoria and Bloemfontein.

For third respondent:
Wim Trengove SC (with him J Wilson and
M M le Roux)

Instructed by:
Nortons Incorporated, Johannesburg
McIntyre & Van der Post, Bloemfontein.

Supreme Court of Appeal of South Africa

MEDIA SUMMARY– JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:   The Registrar, Supreme Court of Appeal

Date:  27 September 2012

Status:  Immediate

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

Agri Wire (Pty) Ltd v The Competition Commissioner

The SCA delivered judgment today in a case involving the validity
of the Competition Commission’s Corporate Leniency Policy. The policy
is a key element in the Commission’s fight against cartel behaviour. It
was challenged in the context of a referral to the Competition Tribunal of
an alleged cartel in the wire products industry. Consolidated Wire
Industries (Pty) Ltd had reported to the Commission the existence of an
alleged cartel in that industry and ought, and obtained, conditional
immunity under the policy. Agri Wire, one of the parties to the alleged
cartel, challenged the reference to the Tribunal on the grounds that the
policy in its present form, which permits the Commission to grant
immunity is not sanctioned by the Competition Act. It accordingly
contended that the evidence obtained from Consolidated Wire had been
unlawfully obtained and that the referral to the Tribunal was accordingly
irregular and should be set aside.
The SCA first rejected a challenge to its jurisdiction by the
Commission, which contended that exclusive powers of appeal and
review had been vested in the Tribunal. It also rejected the Commission’s
argument that the Corporate Leniency Policy did not vest the power to

grant immunity in the Commission, but in the Tribunal. This argument
was contrary to the terms of the policy.
The court considered the contention that the policy was unlawful
and rejected it. It held that one of the functions of the Commission is to
promote transparency in markets and that the investigation and
termination of cartels enhances transparency. In addition the Commission
is obliged to investigate all anti-competitive behaviour identified in the
Competition Act and the Corporate Leniency Policy is a useful tool in
this process. Accordingly the grant of conditional immunity to
Consolidated Wire was lawful as was the referral to the Tribunal. The
appeal  was accordingly dismissed.