THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case No: 20147/2014

In the matter between:

PREMIER FOODS (PTY) LTD
APPELLANT

and

NORMAN MANOIM NO                                            FIRST RESPONDENT

THE COMPETITION TRIBUNAL                       SECOND RESPONDENT

THE COMPETITION COMMISSION                    THIRD RESPONDENT

THE TRUSTEES FOR THE TIME BEING
OF THE CHILDREN’S RESOURCE
CENTRE TRUST                                                    FOURTH RESPONDENT

THE TRUSTEES FOR THE TIME BEING
OF THE BLACK SASH TRUST                                FIFTH RESPONDENT

CONGRESS OF SOUTH AFRICAN
TRADE UNIONS                                                         SIXTH RESPONDENT

NATIONAL CONSUMER FORUM                   SEVENTH RESPONDENT

TASNEEM BASSIER                                              EIGHTH RESPONDENT

BRIAN MPAHLELE                                                  NINTH RESPONDENT

TREVOR RONALD GEORGE BENJAMIN          TENTH RESPONDENT

NOMTHANDAZO MVANA                             ELEVENTH RESPONDENT

FARIED ALBERTU                                            TWELFTH RESPONDENT

Neutral citation: Premier Foods v Manoim NO (20147/2014) [2015] ZASCA
159 (4 November 2015)
Coram:
Maya ADP, Shongwe and Petse JJA and Gorven and
Baartman AJJA

Heard:

29 September 2015
Delivered:
4 November 2015

Summary: Competition Law – leniency under Corporate Leniency Policy –
appellant participated as a self-confessed member of a cartel in complaint
proceedings before the Competition Tribunal – order by the Tribunal finding
that the appellant was involved in a prohibited practice – appellant excluded
from the complaint referrals – whether such order competent – Tribunal having
no power to make any order against appellant – order relating to appellant a
nullity – no need to set aside order – the Tribunal or its Chairperson cannot
issue a certificate under s 65(6)(b) of the Competition Act since order on which
that certificate based a nullity.

ORDER

On appeal from Gauteng Provincial Division of the High Court, Pretoria
(Kollapen J sitting as court of first instance):

1 The appeal is upheld with costs, including those consequent on the
employment of two counsel.
2 The order of the court a quo dismissing the application with costs is set aside
and the following order substituted:
„1 Declaring that neither the first nor the second respondent can lawfully issue a
notice in terms of section 65(6)(b) of the Competition Act 89 of 1998, certifying
that the applicant‟s conduct has been found to be a prohibited practice under the
Act in Competition Tribunal of South Africa case numbers 15/CR/Feb07 and
50/CR/May08.
2 The second and third respondents are directed to pay the costs of the
Applicant.‟

JUDGMENT

Gorven AJA (Maya ADP, Shongwe and Petse JJA and Baartman AJA
concurring):

[1] Cartel activity is a form of practice prohibited by s 4(1)(b) of the
Competition Act.1 Self-interest dictates that the cartel members close ranks. For
this reason, the third respondent, the Competition Commission (the
Commission) has adopted a corporate leniency policy (CLP).2 This offers a:
„. . . self-confessing cartel member, who is first to approach the Commission, immunity for its
participation in cartel activity upon the cartel member fulfilling specific requirements and
conditions set out under the CLP.‟3
It is hoped by this to encourage cartel members to disclose cartel activity and
thus to contribute toward achieving the objects of the Act.4

[2] The appellant, Premier Foods (Pty) Ltd (Premier) had been granted
conditional immunity under the CLP. It gave evidence of the cartel activity in
complaints referred by the Commission to the second respondent, the
Competition Tribunal (the Tribunal). This appeal concerns an order granted by
the Tribunal in those proceedings declaring the conduct of Premier to be a
prohibited practice in respect of its involvement in cartel activity (the

1 Competition Act 89 of 1998. The Act makes use of italics, which have been retained in quotes from the Act.
Section 4(1)(b) reads as follows:
„(1) An agreement between, or concerted practice by, firms, or a decision by an association of firms, is
prohibited if it is between parties in a horizontal relationship and if –
. . .
(b)
it involves any of the following restrictive horizontal practices:
(i)
directly or indirectly fixing a purchase or selling price or any other trading condition;
(ii)
dividing markets by allocating customers, suppliers, territories, or specific types of goods or
services; or
(iii)
collusive tendering.‟
2 Corporate Leniency Policy, GN 628, GG 31064, 23 May 2008, as amended by GN 212, GG 35139, 16 March
2012. The adoption by the commission of the CLP was upheld as valid and lawful in Agri Wire (Pty) Ltd &
another v Commissioner of the Competition Commission & others [2012] ZASCA 134; 2013 (5) SA 484 (SCA)
para 22.
3 Paragraph 3.1 of the CLP, footnotes omitted.
4 The relevant details of the CLP will be discussed more fully later in this judgment.

declaration).5 Premier says that the Tribunal was not empowered to make the
declaration because the conduct of Premier was not included in the complaints
referred to the Tribunal. Premier submits that the declaration is therefore a
nullity. As a result, the argument goes, neither the Tribunal nor the first
respondent, the Chairperson of the Tribunal (the Chairperson), can lawfully
certify the declaration in terms of s 65(6)(b)(i) of the Act.

[3] The declaration came to be granted as follows. In December 2006, the
Commission received information of an alleged bread cartel operating in the
Western Cape (the first complaint).6 It initiated a complaint against Premier,
Tiger Food Brands (Pty) Ltd (Tiger) and Pioneer Foods (Pty) Ltd (Pioneer).
Premier applied for leniency under the CLP, disclosing that it and the other two
parties had been operating a cartel in the Western Cape by fixing selling prices
and other trading conditions.7 Premier went further and disclosed that it, Pioneer
and Foodcorp (Pty) Ltd (Foodcorp) had operated a bread cartel in other parts of
the country. This involved agreements to allocate territories.8 As a result of this
information, the Commission initiated a second complaint (the second
complaint).9 The Commission referred the two complaints to the Tribunal. Only
Tiger and Pioneer were cited as respondents in the first complaint and only
Pioneer and Foodcorp were cited as respondents in the second complaint. Relief
was sought only against the cited respondents.

5 The order was granted in terms of s 58(1)(a)(v) of the Act which provides for an order „declaring conduct of a
firm to be a prohibited practice . . . for purposes of section 65‟. Section 65(6)(b)(i) requires a notice certifying
that the conduct in question „has been found to be a prohibited practice‟. Section 65(9)(a) refers to the date of „a
determination in respect of a matter that affects that person‟. The underlined words are my emphases. These
terms seem to me to be interchangeable. For the sake of consistency, I have used the word „declaration‟ for all
of these.
6 This was allocated case number 15/CR/Feb07.
7 In contravention of s 4(1)(b)(i) of the Act.
8 In contravention of s 4(1)(b)(ii) of the Act.
9 This was allocated case number 50/CR/May08.

[4] The two complaints were dealt with together by the Tribunal. The
founding affidavit to the referral arising from the first complaint explains why
Premier was not cited as a respondent or relief sought against it in the referrals:
„Although [Premier] was also the subject of the [Commission‟s] investigation, it has
not been joined as a respondent in these proceedings because it has been granted conditional
immunity from prosecution (in terms of the [Commission‟s] corporate leniency policy) as a
result of its co-operation with the [Commission] during its investigation and confession of its
role in the bread cartel activity involving the first and second respondents and [Premier] itself
in the Western Cape.‟10

[5] After hearing the referred complaints, the Tribunal granted the
declaration. This declares that Premier and the cited respondents had
contravened s 4(1)(b)(i) and (ii) of the Act in respect of the complaints. At the
time the declaration was made, both Tiger and Foodcorp had consented to
orders under s 49D of the Act, which included administrative penalties. This left
Pioneer as the remaining opposing respondent. A total administrative penalty of
some R195 million was imposed on Pioneer. Premier, as mentioned, had been
granted conditional immunity under the CLP. Premier was granted final
immunity from prosecution as a result of the evidence it gave.

[6] This appeal has arisen because the 4th to 12th respondents (the claimants),
who regard themselves as having been injured by the cartel activity, wish to sue
the four entities for the damages they say they have sustained as a result. They
may only institute action if they file with the Registrar or Clerk of the Court a
notice in terms of s 65(6)(b) of the Act from the Chairperson of the Tribunal.
Section 65(6) provides as follows:
„A person who has suffered loss or damage as a result of a prohibited practice –

10 There is a similar paragraph in the referral of the second complaint.

(a) may not commence an action in a civil court for the assessment of the amount or
awarding of damages if that person has been awarded damages in a consent order
confirmed in terms of section 49D(1); or
(b) if entitled to commence an action referred to in paragraph (a), when instituting
proceedings, must file with the Registrar or Clerk of the Court a notice from the
Chairperson of the Competition Tribunal, or the Judge President of the
Competition Appeal Court, in the prescribed form –
(i)
certifying that the conduct constituting the basis for the action has been
found to be a prohibited practice in terms of this Act;
(ii)
stating the date of the Tribunal or Competition Appeal Court finding;
and
(iii)
setting out the section of this Act in terms of which the Tribunal or the
Competition Appeal Court made its finding.‟
It is s 65(6)(b) which applies here. The crucial requirement is certification in
terms of s 65(6)(b)(i) that the conduct on which the action is based has been
found to be a prohibited practice in terms of the Act.

[7] The claimants obtained such notices in respect of Tiger and Pioneer. They
thereupon launched proceedings in the Western Cape Division of the High
Court11 to institute a class action against Premier, Tiger and Pioneer.12 This
application was dismissed. One of the three bases for dismissing it was that no
s 65(6)(b) notice had been filed in respect of Premier.13

[8] The claimants then applied to the Tribunal for a s 65(6)(b) notice in
respect of Premier. This was opposed. The Chairperson convened a pre-hearing

11 It was designated the Western Cape High Court, Cape Town at the time.
12 See The Trustees for the Time Being of the Children’s Resource Centre Trust & others v Pioneer Foods (Pty)
Ltd & others;  Mukaddam & others v Pioneer Foods (Pty) Ltd & others [2011] ZAWCHC 102.
13 Two appeals from this judgment were heard by this court. The first resulted in the matter being referred back
with leave given to supplement the papers to deal with the requirements for certification in class actions set out
by this court in that judgment. It was held that prior certification by a court is necessary for the institution of a
class action. See Children’s Resource Centre Trust & others v Pioneer Food (Pty) Ltd & others [2012] ZASCA
182; 2013 (2) SA 213 (SCA). The second held that the applicants had not made out a case for an „opt-in‟ class
action. See Mukaddam v Pioneer Foods (Pty) Ltd & others [2012] ZASCA 183; 2013 (2) SA 254 (SCA). The
Constitutional Court heard an appeal from the second of these. See Mukaddam v Pioneer Foods (Pty) Ltd &
others [2013] ZACC 23; 2013 (5) SA 89 (CC).

conference. He there expressed the view that, in his capacity as Chairperson, it
was he, rather than the Tribunal, who should issue the notice. He invited the
parties to submit heads of argument on the issue. This application is still
pending because Premier then approached the court below for the following
relief:
„Declaring that neither the First nor the Second respondent can lawfully issue a notice in
terms of section 65(6)(b) of the Competition Act 89 of 1998, certifying that the Applicant‟s
conduct has been found to be a prohibited practice under the Act in Competition Tribunal of
South Africa case numbers 15/CR/Feb07 and 50/CR/May08‟.14

[9] The application was dismissed with costs by Kollapen J in the Gauteng
Division of the High Court, Pretoria.15 He held that the declaration was
competent and, because an order in terms of s 58(1)(a)(v) had been granted, a
notice in terms of s 65(6)(b) could be issued in respect of Premier. Leave to
appeal was granted by this court after the court a quo refused an application for
leave to appeal against that decision. This is the appeal which is before us. Only
the Commission and the claimants oppose the appeal.

[10] It is as well to sketch the basic contours of the Act at this point. A
prohibited practice is defined to mean one prohibited in terms of Chapter 2.16
Cartel activity is dealt with in this chapter in s 4(1)(b). A „complainant‟ is
defined as „a person who has submitted a complaint in terms of section
49B(2)(b)‟.17 A „respondent‟ is defined as „a firm against whom a complaint of
a prohibited practice has been initiated in terms of this Act‟.18 The Act
establishes three specialist bodies: the Commission,19 the Tribunal20 and the
Competition Appeal Court (the CAC).21

14 Premier also sought costs.
15 It was known as the North Gauteng High Court, Pretoria, at the time.
16 Section 1 of the Act.
17 Ibid.
18 Ibid.
19 In terms of section 19.

[11] The Commission inter alia investigates complaints of alleged prohibited
practices which have been initiated.22 Once the complaint has been investigated,
the Commission is limited to three courses of action. If it is of the view that no
prohibited practice has been established, it must issue a certificate of non-
referral.23 Where it is of the view that a prohibited practice has been established,
it has two options. First, it can „agree on the terms of an appropriate order‟ with
the respondent to the complaint.24 Secondly, if it does not do so, it must refer
the complaint to the Tribunal.25 If the terms of an order are agreed, the Tribunal
may confirm the agreement as a consent order without hearing evidence.26 If
that order includes an award of damages to the complainant, the complainant
must consent to the damages.27 The consent order does not preclude a
complainant from applying for a declaration in terms of, inter alia,
s 58(1)(a)(v).28 If no damages were awarded in the consent order, a complainant
is not precluded from claiming damages.29

[12] Where a referral takes place, the Commission may refer all or only some
of the particulars of the complaint in terms of s 50(3).30 If it refers only some
particulars, it must then issue a certificate of non-referral in respect of those

20 In terms of section 26.
21 In terms of section 36.
22 Section 49B.
23 If this is done, the complainant is entitled in terms of s 51(1) to refer the complaint to the Tribunal, subject to
its procedural rules.
24 Section 49D(1).
25 Section 50(1) read with s 50(2)(a) and s 50(5).
26 Section 49D(1).
27 Section 49D(3).
28 Section 49D(4)(a).
29 Section 49D(4)(b).
30 Section 50(3) reads:
„(3) When the Competition Commission refers a complaint to the Competition Tribunal in terms of subsection
(2)(a), it –
(a)
may-
(i)
refer all the particulars of the complaint as submitted by the complainant;
(ii)
refer only some of the particulars of the complaint as submitted by the complainant; or
(iii)
add particulars to the complaint as submitted by the complainant; and
(b)
must issue a notice of non-referral as contemplated in subsection (2)(b) in respect of any particulars of
the complaint not referred to the Competition Tribunal.‟

which it does not refer.31 If it does not refer a complaint or issue such a
certificate within a year after the complaint was submitted, the Commission
must be regarded as having issued a notice of non-referral.32 The complainant
may thereupon refer the complaint, or that part of it which was not referred, to
the Tribunal.33

[13] On referral of the complaint, the Tribunal must conduct a hearing.34 This
encompasses „every matter referred to it in terms of this Act.‟ At the conclusion
of the hearing, the Tribunal must make an order and give written reasons.35 One
order it can make is set out in s 58(1)(a)(v) which reads:
„(1) In addition to its other powers in terms of this Act, the Competition Tribunal may –
(a)
make an appropriate order in relation to a prohibited practice, including –
. . .
(v)
declaring conduct of a firm to be a prohibited practice in terms of this Act, for
purposes of section 65;
. . . .‟
This is the order whose declaration to that effect must be certified in the notice
in terms of s 65(6)(b). Another order the Tribunal can grant is to impose an
administrative penalty in the circumstances set out in s 59.36

[14] The Tribunal and the CAC are the only bodies that can make an order
declaring that a firm has engaged in a prohibited practice. Unless they do so, no
such declaration can be made. This is clear from s 62(1)(a), which provides that
the Tribunal and CAC have exclusive jurisdiction in respect of the interpretation
and application of Chapter 2 of the Act. An order made by the Tribunal may be

31 As can be seen, s 50(3)(a)(iii) also allows the Tribunal to add particulars to a complaint.
32 Section 50(5). This time period can be extended by agreement with the complainant or by application to the
Tribunal in terms of s 50(4).
33 In terms of s 51(1).
34 Section 52(1).
35 Section 52(4).
36 For the sake of completeness, it is noted that it can also make other orders in terms of s 60 relating to mergers
which will not be dealt with here.

served, executed and enforced as if it were an order of the High Court.37
Section 65(2) ousts the jurisdiction of a civil court to consider whether conduct
prohibited by the Act has taken place and, if so, to make a declaration.38 A civil
court is obliged to apply the determination of these specialist bodies.39 Once a
declaration has been made by the Tribunal or CAC, it therefore renders res
judicata the issue of the wrongful conduct of the firm in question.
Section 65(9)(a) provides that a „person‟s right to bring a claim for damages
arising out of a prohibited practice comes into existence‟ on the date that the
Tribunal or CAC makes a declaration. Without a declaration, no right to claim
damages comes into existence. Once a declaration has been made, a s 65(6)(b)
notice can be obtained by a person wishing to claim damages. Such a notice „is
conclusive proof of its contents, and is binding on a civil court.‟40 Without that
notice, therefore, a claim for damages cannot be prosecuted.

[15] Having sketched an outline of the relevant aspects of the Act, it will be
helpful to briefly consider the provisions of the CLP. An applicant for immunity
such as Premier (a leniency applicant) must acknowledge culpability and fully
disclose all relevant facts. Immunity is conditional until the Tribunal has made a
final determination in relation to the reported cartel activity.41 Immunity 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.‟42
Footnote 4 to this clause explains that:

37 Section 64(1).
38 Defined as a High Court or Magistrates Court in s 1.
39 Section 65(2)(a). If no such order has been made at the time the court is approached, the court is obliged to
refer the issue of prohibited conduct to the Tribunal except in circumstances which do not apply here. See
s 65(2)(b).
40 Section 65(7).
41 Clause 3.1 read with clause 9.1.1.2 of the CLP.
42 Clause 3.3 of the CLP. Footnotes omitted.

„Adjudication means a referral of a contravention of chapter 2 to the Tribunal by the
Commission with a view of getting a prescribed fine imposed on the wrongdoer. Prosecution
has a similar import to adjudication herein.‟

[16] In the context of this matter, accordingly, all that is offered to a leniency
applicant is immunity from the application of the provisions of s 59. The CLP
expressly provides that leniency applicants do not enjoy immunity in civil
actions.43 No immunity is therefore offered from a declaration because this is
what gives rise to the right to claim damages. It is clear that, unless a
declaration can be made concerning a leniency applicant, the provisions of
clauses 5.9 and 6.4 are rendered nugatory.

[17] Premier submits that the crisp issue for decision is whether the Tribunal
had the power to grant an order under s 58(1)(a)(v) declaring Premier‟s conduct
to be a prohibited practice. In the first place, it submits that the Tribunal had no
such power. Secondly, it says that the effect of this is that the declaration is a
nullity and does not need to be set aside. There is therefore, the argument goes,
no order containing a determination capable of certification. I shall deal with
these submissions in turn.

[18] Did the Tribunal have the power to grant the order? The Tribunal is a
creature of statute. It has only those powers given to it by the Act and must
exercise its functions in accordance with the Act.44 The Commission
investigates, refers and prosecutes complaints. The Tribunal determines those
complaints which have been referred to it. Its power to determine a complaint

43 Clause 5.9 of the CLP, as underscored by clause 6.4 of the CLP, which provides that „[n]othing in the CLP
shall limit the rights of any person who has been injured by cartel activity in respect of which the Commission
has granted immunity under the CLP to seek civil or criminal remedies‟. (footnotes omitted)
44 Section 26(1)(d).

only arises on referral in terms of the Act, generally by the Commission.45 Put
another way, the referral by the Commission is „a jurisdictional fact for the
exercise of the Tribunal‟s powers in respect of prohibited practices.‟46 In
Competition Commission of South Africa v Senwes Ltd,47 the Constitutional
Court held:
„The question whether the complaint that was found to have been established by the
Tribunal adequately canvassed that which was referred to it must be determined with
reference to the terms of the referral.‟48
The Tribunal is only empowered to make a declaration on matters falling within
terms of a referral. The Commission submits that the question „is whether a
complaint against a particular party is properly referred to and before the
Tribunal when that party is not formally cited as a respondent.‟ For reasons
which will become apparent, my view is that the question goes beyond the issue
of citation.

[19] When the Commission refers a complaint to the Tribunal in terms of
s 50(2)(a), it is entitled to refer only some of the particulars of a complaint. This
is clear from s 50(3). If this is done, the Tribunal‟s power is limited to those
particulars referred to it by the Commission. In Agri Wire (Pty) Ltd & another v
Commissioner of the Competition Commission & others,49 this court upheld the
right of the Commission to exclude one or more cartel members from a referral
to the Tribunal. That decision is not challenged by the Commission or the
claimants. In that matter, the following was said:
„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

45 As indicated, complainants may also refer complaints in certain circumstances under s 51(1) but this does not
apply to the present matter.
46 Per Harms DP in Woodlands Dairy (Pty) Ltd & another v Competition Commission [2010] ZASCA 104;
2010 (6) SA 108 (SCA) para 12.
47 Competition Commission of South Africa v Senwes Ltd [2012] ZACC 6; 2012 (7) BCLR 667 (CC) para 36.
48 In the majority judgment by Jafta J. The minority judgment did not comment on this approach, but applied it
when it held that the matter should be referred back to the Tribunal for it to rule on the ambit of the referral.
49Agri Wire (Pty) Ltd & another v Commissioner of the Competition Commission & others [2012] ZASCA 134;
2013 (5) SA 484 (SCA).

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.‟50

[20] In Agri Wire, the party referred to as CWI had been given conditional
immunity under the CLP. It was cited as a respondent in the complaint referral
but no relief was sought against it. Agri Wire and nine others were cited as
respondents against whom relief was sought. As is clear, this court arrived at the
conclusion that CWI could properly be excluded from the referral by
interpreting „particulars of the complaint‟ in s 50(3) to include the parties
alleged to be involved in the cartel activity.

[21] In support of its contention that the Tribunal was empowered to make the
declaration, the Commission relies on Senwes. It makes the following
submissions:
„The Court found that, as a question of fact, the Commission had indeed failed to
specify the particular complaint against the parties in the referral.‟
and
„But, the Court held that the Tribunal nevertheless had jurisdiction to determine the
matter. The Tribunal determined a complaint not originally referred but which was brought to
its attention during the course of deciding a referral.‟
These submissions do not reflect the finding in Senwes. The issue in Senwes
was whether the complaint on which the Tribunal ruled was covered by the
referral. This court held that the conduct fell outside of the ambit of the

50 Paragraph 24.

referral51 but the majority in the Constitutional Court held that it was included.
In this regard, Jafta J said:52
„It was this same complaint which the Tribunal found to have been established in
evidence. As it appears below, the error made by the Tribunal was to call it a margin squeeze.
In my respectful view, the Supreme Court of Appeal erred when it held that the Tribunal
considered a complaint which was not covered by the referral.‟53
The enquiry, therefore, is whether the complaint ruled upon in any one matter
fell within the ambit of the referral.54 This is a fact based enquiry.

[22] In the present matter, in the light of Agri Wire, the issue is whether the
particulars of the complaint relating to Premier‟s conduct fell within the ambit
of the referrals. The Commission and the claimants accept that Premier was not
cited as a respondent in the complaint referrals. They further accept that no
relief was sought against Premier in the referrals. They say, however, that the
particulars of the complaint relating to Premier nevertheless fell within the
ambit of the referrals.

[23] In support of this contention, the claimants submit that Premier was a
respondent as defined in the Act because it formed part of the complaint
initiation. They, and the Commission, submit that Premier‟s conduct formed
part of the referral because Premier participated as a party to whom conditional
immunity had been granted on the basis of its admitted involvement in the cartel
activity. Of the seven witnesses called, five were employees of Premier. All
gave evidence of the cartel activity which included Premier. The only reason the
commission sought no relief against Premier in the referrals was because

51 Senwes Ltd v Competition Commission of South Africa [2011] ZASCA 99 para 46.
52 Paragraph 39. Mogoeng CJ, Moseneke DCJ, Nkabinde, Skweyiya, Van der Westhuizen, Yacoob JJ and
Zondo AJ concurred in the judgment of Jafta J.
53 Froneman J, in whose judgment Cameron J concurred, held that the referral was open to more than one
reasonable interpretation and should be referred back to the Tribunal for a ruling on its ambit.
54 This remains the case when the Commission acts in terms of s 50(3)(a)(iii) and adds particulars to a complaint
as submitted by the complainant.

conditional immunity had been extended to Premier. The Commission summed
up by saying:
„The boundaries of the Tribunal‟s powers are therefore not determined by whether or not the
leniency applicant was formally cited in the referral. They are determined by the fact of the
leniency applicant‟s participation in the hearing, the material facts set out in the referral
affidavit and the evidence adduced by and about it.‟

[24] None of this means that Premier‟s conduct fell within the ambit of the
referrals. Although it was a respondent as defined in the Act, this also does not
mean that it was included in the referrals. That must be determined by
construing the ambit of the referrals themselves. In Agri Wire, CWI participated
on the same basis as did Premier in the present one except that it was also cited
as a respondent in the referral. It was a party to whom conditional immunity had
been extended on the basis of its admitted involvement in cartel activities. It
gave evidence of its involvement in the cartel activities and that of the other
respondents at the enquiry. But, because no relief was sought against it, this
court held that its particulars had not been included in the referral for the
following reasons:
„Clause 9.1.1.3 [of the CLP] warns that, at any stage until total immunity is granted, the
Commission reserves the right to revoke the grant of conditional 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.‟

[25] The judgment in Agri Wire thus distinguishes between a determination
and the imposition of an administrative penalty. When it refers to a
determination, it does not refer to one for the purpose of imposing an
administrative penalty alone. It includes such a determination but makes it clear

that this is not the only determination from which the referral excluded CWI.
What is then meant by other types of determination? The only places where the
Act refers to a determination in this context is in s 65(2)(a) and s 65(9). The
former relates to a determination concerning conduct that is prohibited in the
Act. The latter relates to a determination for the purposes of a claim for
damages arising from a prohibited practice. Both of these therefore relate to
what I have referred to as a declaration, which is an order in terms of
s 58(1)(a)(v) of the Act. This means, accordingly, that CWI was before the
Tribunal as a cited respondent, but had been excluded from the referral „for the
purposes of‟ seeking any relief at all against it, whether by way of an order in
terms of s 58(1)(a)(v) or the imposition of an administrative penalty under s 59.

[26] In the present matter, as is accepted by the Commission and the
claimants, the Commission neither cited Premier as a respondent nor did it seek
any relief, including a declaration, against it. The referrals were covered by
Form CT1(1) as was required by the rules.55 The forms were headed „The
Competition Commission seeks an order granting the following relief‟ with the
explanation below „(Concise statement of the order or relief sought:)‟. In the
second referral, the Commission wrote in that space: „SEE THE ATTACHED
AFFIDAVIT OF AVISHKAR KALICHARAN‟. The affidavit in question
concluded with a prayer for the relief sought by the Commission. This
comprised orders against only the cited respondents, Pioneer and Foodcorp, in
terms of s 58(1)(a)(v), that they desist from such conduct and that an
administrative penalty be imposed on them. In the first referral, the relief was
set out in the covering form as well as in the prayer to the affidavit. It sought
identical relief to that in the second referral, but also only against the cited
respondents, Pioneer and Tiger. As I have already noted, the Commission itself

55 Competition Tribunal Rules, GG 22025, 1 February 2001 (Note: the Notice Number was omitted in the
publication of these Rules.)

said that it had deliberately not cited Premier as a respondent. Premier‟s
position in the present matter thus corresponds to that of C in the example given
in Agri Wire.56 Unlike in Senwes, the Commission consciously exercised its
right to exclude certain particulars, namely the involvement of Premier in the
cartel activity, from the referrals. There was thus only a partial referral of the
complaints to the Tribunal as is allowed by s 50(3)(a)(ii).

[27] The Commission says that s 58(1)(a)(v) distinguishes between a „firm‟
and a „party‟. Accordingly, it submits that the firm against whom such an order
is made need not be a party. Because Premier participated in the proceedings on
the basis of its admitted involvement in the cartel activity, an order could be
made against it. It says that no prejudice to Premier ensued. But this ignores the
approach in Agri Wire and Senwes, both of which require the subject matter of
the order to fall within the ambit of the complaint referral, failing which the
Tribunal has no power to make a declaration. As I have indicated, my view is
that Premier‟s conduct is not covered by the referrals. The Tribunal thus had no
power to make the declaration. The issue of prejudice does not arise since the
Tribunal was not empowered.

[28] The decision not to cite Premier as a respondent in the referrals provides
an additional basis why the Tribunal was not empowered to make the
declaration. In this regard, Premier differs from the position of CWI, which was
cited as a respondent in Agri Wire. This point is illustrated in a different context
by National Union of Metalworkers of South Africa v Intervalve (Pty) Ltd &
others.57 In that matter, a single party was referred to a Bargaining Council in a
dispute over unfair dismissals. When conciliation did not result from the
referral, the dispute was referred to the Labour Court, also with only one party

56 See paragraph 19 above.
57 National Union of Metalworkers of South Africa v Intervalve (Pty) Ltd & others [2014] ZACC 35; 2015 (2)
BCLR 182 (CC).

being cited. However, the Union then sought to join two other parties in the
Labour Court.  The difficulty was that, in terms of the Labour Relations Act 66
of 1995, if there has been no referral to conciliation, the Labour Court has no
jurisdiction over such a dispute. The Labour Court nevertheless allowed the
joinder.

[29] An appeal to the Labour Appeal Court to set aside the joinder succeeded.
The Constitutional Court agreed with the Labour Appeal Court. It held that
joinder was not permissible because those two parties had not been referred to
the Bargaining Council. This meant that the Labour Court had no jurisdiction in
relation to them. This was so even though all three parties had notice of the
conciliation proceedings. In so finding, the majority judgment of Cameron J
said:
„Formal service puts the recipient on notice that it is liable to the consequences of
enmeshment in the ensuing legal process. This demands the directness of an arrow. One
cannot receive notice of liability to legal process through oblique or informal acquaintance
with it.‟58
He concluded:
„So the purpose of the statutory provision – to tell those on the line that the impending
legal process might make them liable to adverse consequences – was not fulfilled. That the
three companies‟ shared HR services, and the companies‟ attorney, knew about the referral
against Steinmüller did not mean that they knew, or should have concluded, that the dispute
against Intervalve and BHR had also been referred for conciliation. On the contrary, the
referral against Steinmüller alone told them the opposite. Intervalve and BHR were left out.
The ensuing legal process did not encompass them.‟59

[30] Premier knew that the other members of the cartel had been cited as
respondents and that relief was sought against them. This does not mean that it
should have anticipated that relief would be sought against it since the referral

58 Paragraph 53.
59 Paragraph 58.

told it the opposite. In the words of Cameron J, it was not notified that it was
„liable to the consequences of enmeshment in the ensuing legal process.‟ The
submission that, because Premier was involved as a leniency applicant in which
it clearly admitted its culpability, a finding could be made against it, attempts to
invoke precisely that „liability to legal process through oblique or informal
acquaintance‟ which was rejected by the Constitutional Court. Citation as a
party is necessary so that that person can invoke all the rights of a party against
whom relief is sought.

[31] The position of Premier is not dissimilar to that of a witness under s 204
of the Criminal Procedure Act 51 of 1977 where immunity from prosecution
can be granted if the witness fulfils certain criteria. If the witness does not do
so, the court has no jurisdiction to convict the witness because the witness was
not an accused before the court. A court would have jurisdiction to do so only if
the witness was subsequently charged before it and was thus accorded all of the
rights of an accused person.60

[32] In all the circumstances, therefore, I hold the view that the Tribunal
lacked the power to make the declaration. This brings into focus the second
issue as to the consequence of that lack of power.

[33] What, then, is the effect of the lack of power of the Tribunal to make the
declaration? In this regard, Kollapen J in the court a quo held that „for as long as
the finding of the Tribunal remains unchallenged, then the issue of the
certificate as proof of such finding is not only permissible but also in my view

60 By this rough analogy, I do not seek to suggest that the power of the Tribunal to determine the terms of the
referral should be narrowly or restrictively construed. See note 6 of the minority judgment in Competition
Commission of South Africa v Senwes Ltd [2012] ZACC 6; 2012 (7) BCLR 667 (CC), where it was said that
such an approach would be more appropriate to the investigative powers of the Commission than to those of the
Tribunal. See also Woodlands Dairy (Pty) Ltd & another v Competition Commission [2010] ZASCA 104;
2010 (6) SA 108 (SCA) para 10.

peremptory.‟61 The Commission and the claimants support this approach.
Premier submits, however, that, because the Tribunal did not have the power to
make the declaration, it is a nullity. It is therefore not necessary to set it aside.
The notice in terms of s 65(6)(b) accordingly cannot be issued because it would
amount to certifying a nullity.

[34] In support of this submission, Premier relies on a line of authorities
stretching back over one hundred years. These were reaffirmed by this court in
The Master of the High Court (North Gauteng High Court, Pretoria) v Motala
NO & others,62 which said:
„As long ago as 1883 Connor CJ stated in Willis v Cauvin 4 NLR 97 at 98 – 99:
“The general rule seems to be that a judgment, without jurisdiction in the Judge pronouncing
it, is ineffectual and null. . .”
Willis v Cauvin was cited with approval in Lewis & Marks v Middel 1904 TS 291; and Sliom
v Wallach's Printing & Publishing Co, Ltd 1925 TPD 650. In the former, Mason J (with
whom Innes CJ and Bristowe J concurred) held at 303:
“It was maintained that the only remedy was to appeal against the decision of the Land
Commission; but we think that the authorities are quite clear that where legal proceedings are
initiated against a party, and he is not cited to appear, they are null and void; and upon proof
of invalidity the decision may be disregarded, in the same way as a decision given without
jurisdiction, without the necessity of a formal order setting it aside (Voet, 2, 4, 14; and 66; 49,
8, 1, and 3; Groenewegen, ad Cod. 2; 41; 7, 54; Willis v Cauvin, 4 N.L.R. 98; Rex v
Stockwell, [1903] T.S. 177; Barnett & Co. v Burmester & Co., [1903] T.H. 30).”‟
These authorities confirm two bases for nullity: lack of jurisdiction to make an
order and non-citation of a person against whom an order is granted. This
further underscores the approach mentioned above in NUMSA v Intervalve that
citation is a necessary prelude to an order granted against an entity.

61 Premier Foods (Pty) Ltd v Manoim NO & others [2013] ZAGPPHC 236 para 45.
62 The Master of the High Court (North Gauteng High Court, Pretoria) v Motala NO & others [2011] ZASCA
238; 2012 (3) SA 325 (SCA) para 12.

[35] In Lewis & Marks v Middel,63 the plaintiffs sued for cancellation of a
diagram of the defendant‟s farm insofar as it encroached on that of the
plaintiffs‟ farm. The diagram of the plaintiffs‟ farm had been confirmed in 1870
and, in 1882, the defendant lodged a protest against that diagram which came
before the Land Commission. The Land Commission awarded the disputed
ground to the defendant who had his farm surveyed in accordance with the
award. This diagram was confirmed and, although the report of the Land
Commission was published, no appeal was noted against it. The court upheld
the plaintiffs‟ challenge to the defendant‟s diagram on the basis that, because
the plaintiffs had not been given notice of the sitting of the Land Commission,
the proceedings before it were null and void.

[36] In a footnote to MEC for Health, Eastern Cape & another v Kirland
Investments (Pty) Ltd t/a Eye & Lazer Institute,64 the Constitutional Court
approved this approach:
„In The Master of the High Court (North Gauteng High Court, Pretoria) v Motala NO and
Others 2012 (3) SA 325 (SCA) the Supreme Court of Appeal, reaffirming a line of cases
more than a century old, held that judicial decisions issued without jurisdiction or without the
citation of a necessary party are nullities that a later court may refuse to enforce (without the
need for a formal setting-aside by a court of equal standing). This seems paradoxical but is
not. The court, as the fount of legality, has the means itself to assert the dividing line between
what is lawful and not lawful. For the court itself to disclaim a preceding court order that is a
nullity therefore does not risk disorder or self-help.‟65

[37] In attempting to address this, the Commission relies on the following
passage in Kirland:
„[98] The outcome does not change if we consider the approval from the perspective
of whether the decision-maker acted within her jurisdiction in granting approval.

63 Lewis & Marks v Middel 1904 TS 291.
64 MEC for Health, Eastern Cape & another v Kirland Investments (Pty) Ltd t/a Eye & Lazer Institute [2014]
ZACC 6; 2014 (3) SA 481 (CC) at 512, note 78.
65 Per the majority judgment of Cameron JA.

Jurisdictional facts refer broadly to preconditions or conditions precedent that must exist
before the exercise of power, and the procedures to be followed when exercising that
power. It is true that we sometimes refer to lawfulness requirements as “jurisdictional facts”.
But that derives from terminology used in a very different, and now defunct, context (namely
where all errors, if they were to be capable of being reviewed at all, had to be construed as
affecting the functionary's “jurisdiction”). In our post-constitutional administrative law, there
is no need to find that an administrator lacks jurisdiction whenever she fails to comply with
the preconditions for lawfully exercising her powers. She acts, but she acts wrongly, and her
decision is capable of being set aside by proper process of law.
[99] So the absence of a jurisdictional fact does not make the action a nullity. It means only
that the action is reviewable, usually on the grounds of lawfulness (but sometimes also on the
grounds of reasonableness). Our courts have consistently treated the absence of a
jurisdictional fact as a reason to set the action aside, rather than as rendering the action non-
existent from the outset. The absence of jurisdictional facts did not entitle Mr Boya to
withdraw the approval, but only to approach a court to set it aside.‟66
On the strength of this, the Commission says that, even if it is found that the
Tribunal lacked power, the declaration must be set aside before Premier can
succeed. This also accords with a long line of authority concerning the effect of
invalid administrative action. In such a case, the administrative decision cannot
be ignored because it exists in fact and has legal consequences until set aside.67

[38] As I see it, the dictum relied upon by the Commission in no way detracts
from the approach in Motala and the line of authorities there referred to.
Premier has not simply ignored the declaration. Nor is it contending that the
Chairperson or Tribunal should do so. It may convincingly be argued that the
declaration could not be ignored by the Chairperson or the Tribunal because
neither of these is a court of law and this would amount to self-help. This may
well be correct but it is not necessary to deal with that issue.

66 Paragraphs 98 and 99, references omitted.
67 Oudekraal Estates (Pty) Ltd v City of Cape Town & others [2004] ZASCA 48; 2004 (6) SA 222 (SCA) para
26.

[39] The reason for this is that the footnote in Kirland says that the right of a
court to ignore as a nullity other court orders does not amount to self-help. The
court a quo was thus in a different position to the Chairperson and the Tribunal.
It was requested to declare that the order against Premier could not lawfully be
certified. It must be borne in mind that, in the present matter, the declaration
had the force and effect of a High Court order.68 If the court a quo disclaimed
the declaration, which is a nullity, it „therefore does not risk disorder or self-
help‟.69 This is because, „as the fount of legality, [the court a quo had] the
means itself to assert the dividing line between what is lawful and not lawful.‟70
On this basis, the court a quo was surely entitled to regard the declaration as a
nullity and grant the relief sought by Premier. In my view, it was not necessary
to first set the declaration aside.

[40] The Commission further submits that a notice under s 65(6)(b) has only
three requirements. These are a finding as to conduct, a date of the finding, and
a section of the Act which was transgressed. It submits that Premier seeks, in its
approach, to read in a fourth requirement - that of the need to be cited as a
respondent in a referral to the Tribunal. The argument goes that this is not
permissible because the meaning of the section does not lead „to some
absurdity, inconsistency, hardship or anomaly which . . . the Legislature could
not have intended‟.71

[41] In the first place, it seems to me that there is, in effect, only one
requirement for the issue of a notice, but three aspects which must be dealt with
in it. The single requirement is an order in terms of s 58(1)(a)(v) which declares

68 Section 64(1) of the Act.
69 Kirland above at 512, note 78.
70 Ibid.
71 Bhyat v Commissioner for Immigration 1932 AD 125 at 129, cited with approval in Poswa v Member of the
Executive Council for Economic Affairs, Environment and Tourism, Eastern Cape [2001] ZASCA 31; 2001 (3)
SA 582 (SCA) para 10.

conduct of the party concerned to be a prohibited practice in terms of the Act.
The other two matters give details of when such order was granted and the
section of the chapter which was found to have been contravened. Be that as it
may, the submission misconceives the approach of Premier. It is not that it
seeks to read in a fourth requirement. Its argument is that the declaration is a
nullity. There is therefore nothing capable of certification.

[42] The Commission and the claimants submit that the approach of Premier
to the interpretation of s 58(1)(a)(v) and s 65(6)(b) results in the claimants being
non-suited because they are unable to procure a certificate concerning Premier‟s
self-confessed conduct. They submit that, in line with s 39(2) of the
Constitution, an interpretation of these sections which least limits the right of
access of the claimants to court should be favoured. The approach set out in
Cool Ideas 1186 CC v Hubbard & another,72 should be followed:
„A fundamental tenet of statutory interpretation is that the words in a statute must be given
their ordinary grammatical meaning, unless to do so would result in an absurdity. There are
three important interrelated riders to this general principle, namely:
(a) that statutory provisions should always be interpreted purposively;
(b) the relevant statutory provision must be properly contextualised; and
(c) all statutes must be construed consistently with the Constitution, that is, where reasonably
possible, legislative provisions ought to be interpreted to preserve their constitutional
validity. This proviso to the general principle is closely related to the purposive approach
referred to in (a).‟73

[43] This approach to interpretation cannot be faulted. But the enquiry in the
present matter does not have to do with the interpretation of s 58(1)(a)(v) or
s 65(6)(b) or, ultimately, with the question of access to the courts. It has to do

72 Cool Ideas 1186 CC v Hubbard & another [2014] ZACC 16; 2014 (4) SA 474 (CC) para 28.  The judgment
quoted from is that of Majiedt AJ, in whose judgment four other justices concurred. The other two judgments
did not question the approach to interpretation enunciated in this dictum but differed on other matters.
73 References omitted.

with whether the declaration was a nullity and, accordingly, whether there was
anything which could be certified in terms of s 65(6)(b).

[44] It is not clear that the claimants are non-suited as is their contention. This
aspect was not canvassed in the papers and cannot be decided here. If, however,
the claimants are non-suited, it is not the interpretation of the sections of the Act
and CLP in this matter or the conduct of Premier which leads to this situation. It
is the decision of the Commission not to include Premier in the referrals, or any
referral, for the purposes of seeking an order in terms of s 58(1)(a)(v) of the
Act.

[45] Agri Wire says 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.‟74 As I have
said earlier, the reference to a „determination‟ must needs cover an order in
terms of s 58(1)(a)(v) of the Act. I see no reason in principle why a leniency
applicant cannot be referred for this purpose. Such an order is, after all,
necessary for the prosecution of a damages claim and the CLP expressly states
that immunity will not affect the right of persons to bring such a claim. It may
be, therefore, that the above dictum goes too far but that need not be decided
here.

[46] Having said this, that issue did not arise in Agri Wire since the referral
there was construed as excluding the grant of any relief against CWI. The issue
of a limited referral was clearly not fully canvassed or dealt with in that matter.
Nor, for the same reason, does the issue arise here. I raise it only as an
indication that Agri Wire does not necessarily offend against the right of persons
such as the claimants to pursue a civil claim. The issue whether a firm which

74 Paragraph 7.

has been granted conditional immunity may be referred to the Tribunal for the
purpose of a finding and can, thus, be subject to an order under s 58(1)(a)(v),
must therefore stand over until it arises squarely.

[47] To sum up, the following is the position. Based on the fact that the
conduct of Premier was not part of the referral to the Tribunal, the Tribunal had
no power to grant any order against it. In addition, Premier was not cited as a
respondent. The declaration is accordingly a nullity. Premier was not obliged to
have the order containing the declaration set aside. Being a nullity, it is
competent for a court to find that there is simply no declaration to certify. This
in turn means that, in this matter, no notice in terms of s 65(6)(b) should be
issued. As is clear from what I have said above, however, it was necessary for
Premier to approach a court. Premier, the Commission, the Tribunal and the
Chairperson were not entitled to simply ignore the declaration.

[48]  I therefore respectfully differ from the court a quo that the finding made
against Premier in the declaration was capable of certification. It should have
granted, the order sought by Premier. The appeal must accordingly succeed.

[49] The following order is made:
1 The appeal is upheld with costs, including those consequent on the
employment of two counsel.
2 The order of the court a quo dismissing the application with costs is set aside
and the following order substituted:
„1 Declaring that neither the first nor the second respondent can lawfully issue a
notice in terms of section 65(6)(b) of the Competition Act 89 of 1998, certifying
that the applicant‟s conduct has been found to be a prohibited practice under the
Act in Competition Tribunal of South Africa case numbers 15/CR/Feb07 and
50/CR/May08.

2 The second and third respondents are directed to pay the costs of the
Applicant.‟

________________________
T R Gorven
Acting Judge of Appeal

Appearances

For the Appellant:
D Unterhalter SC (with him M Du Plessis and
L Kelly)

Instructed by:

Nortons Inc., Sandton

McIntyre & Van der Post, Bloemfontein

For the 3rd Respondent:
G J Marcus SC (with him C Steinberg)
Instructed by:
Cheadle
Tomson
&
Haysom
Inc.,
Johannesburg
Webbers Attorneys, Bloemfontein

For the 4th to 12th Respondents:
M M Le Roux

Instructed by:
Abrahams Kiewitz Attorneys, Cape Town

Honey Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

04 November 2015

STATUS

Immediate

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

PREMIER FOODS V MANOIM NO (20147/2014) [2015] ZASCA 159
(4 November 2015)

The SCA today upheld with costs an appeal concerning an order granted
by the Competition Tribunal in a matter related to a bread cartel. The
Competition Commission had granted conditional immunity to Premier
Foods under its corporate leniency policy. This gives immunity against
the imposition of an administrative penalty by the tribunal. It expressly
does not affect the rights of persons to bring actions for damages against
a person to whom immunity had been extended.
When the commission referred the complaint relating to cartel activity to
the tribunal, it expressly excluded Premier from the complaint, neither
citing it as a respondent nor seeking relief of any sort relating to it. The

only relief sought was against the respondents cited in the complaint
referral. Despite this, the tribunal granted an order in terms of
s 58(1)(a)(v) of the Competition Act 89 of 1998, finding that Premier’s
conduct had amounted to a prohibited practice under the Act.
Such an order is a necessary prelude to the issue of a notice in terms of
s 65(6)(b) of the Act, which is itself a necessary prelude to the
prosecution of a claim for damages arising from a prohibited practice.
Certain persons wished to institute such a claim, and, having obtained
such notices in respect of the cited respondents, who had also been found
to have engaged in a prohibited practice, applied for such a notice in
respect of Premier.
Premier approached the Gauteng Provincial Division of the High Court,
Pretoria, for an order declaring that no such notice could be issued on the
basis that, because Premier had been excluded from the referral to the
tribunal, the tribunal had no power to have granted the order against
Premier and that the order was thus a nullity. As a result, there was no
finding against Premier to certify. The court a quo dismissed the
application with costs.
On appeal it was held that the tribunal has only those powers accorded to
it by the Act. In the present context, those powers arise in respect of a
complaint referred to it by the commission. In determining whether the
tribunal has power to make an order, it is necessary to determine the
ambit of the referral. The commission is entitled to exclude an entity
involved in a cartel from a referral and, if this is done, the tribunal has no
power to make any order under s 58(1)(a)(v) relating to it. This court held
that, on the facts, the tribunal had had no power to make the order relating
to Premier. It further held that the order was a nullity and that the court a
quo ought to have granted the application. The dismissal of the
application was set aside and the order sought by Premier was granted.