THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Reportable
CASE NO:  350/2001

THE COMMISSIONER OF THE COMPETITION
COMMISSION                                                                                  APPELLANT

AND

THE GENERAL COUNCIL OF THE
BAR SOUTH AFRICA                                                                   1ST RESPONDENT

THE SOCIETY OF ADVOCATES
(WITWATERSRAND LOCAL DIVISION)                                  2ND RESPONDENT

THE PRETORIA SOCIETY OF ADVOCATES                           3RD RESPONDENT

THE CAPE BAR                                                                            4TH RESPONDENT

THE SOCIETY OF ADVOCATES OF KWAZULU-NATAL     5TH RESPONDENT

THE SOCIETY OF ADVOCATES, FREE STATE                      6TH RESPONDENT

THE EASTERN CAPE SOCIETY OF ADVOCATES                 7TH RESPONDENT

SOCIETY OF ADVOCATES TRANSKEI                                   8TH RESPONDENT

BISHO SOCIETY OF ADVOCATES                                           9TH RESPONDENT

NORTH-WEST BAR ASSOCIATION                                        10TH RESPONDENT

NORTHERN CAPE SOCIETY OF ADVOCATES                      11TH RESPONDENT

CORAM:  HEFER AP, HOWIE, HARMS, SCOTT, MPATI JJA

SUMMARY:   Administrative Law – setting aside of administrative decision – remittal to
administrative authority – Competition Act 89 of 1998 - exemption

HEARD:                15 August 2002

DELIVERED:      6  September 2002

JUDGMENT
HEFER AP

HEFER AP:
[1] Each of the second to eleventh respondents is an association of advocates
practising in one of the  Divisions of the High Court. Representatives of these
associations constitute the first respondent, the  General Council of the Bar of South
Africa (the “GCB”). The GCB maintains a code of conduct which was intended to
regulate the professional conduct of the members of all the associations after
adoption by the latter. But, because every association has not adopted every rule in
the same form, each association still operates under its own rules.
[2] Suspecting towards the end of 1999 that some of their rules might offend
against s 4 of the Competition Act 89 of 1998, the respondents submitted a joint
application to the Competition Commission for exemption from the application of
Part A of  Chapter 2 of the Act.1   For reasons which will soon emerge they were
not  satisfied with the Commission’s decision sent to them about a year later and
they promptly brought review proceedings on notice of motion in  the Transvaal
High Court. In the answering affidavit it was conceded on behalf of the
Commission that the decision had to be set aside for lack of compliance with the
audi alteram partem principle.  This  left the question whether  the matter ought to
be remitted to the Commission as the main bone of contention.  Eventually Roos J

1 Sec  4(1)(b)(i) prohibited restrictive horizontal practices directly or indirectly  fixing
trade  conditions but, until it was deleted by Act 39 of 2000, s 3(1)(c) expressly provided that
the Act would not apply to the rules of professional associations to the extent that they were
exempted by the Commission under  Schedule 1.These  rules may still be exempted under
Schedule 1 despite the deletion of s 3(1)(c) but counsel were in agreement that the appeal has
to be decided in terms of the unamended version of the Act.

decided against a remittal and made an order  exempting some of the rules. 2 The
Commission’s appeal is against this  order. The  respondents, in turn, cross-appeal
against Roos J’s refusal to exempt some of the  rules.
[3] In support of the Court a quo’s judgment, the respondents contend that the
Commission had manifested such a lack of competence, candour, objectivity and
good faith that it would have been unfair to require them to submit to its jurisdiction
again.  I will first deal with the facts on which the contention is based and then
proceed to examine its validity.
[4] The Commission ‘s decision was conveyed to the respondents by way of a
letter dated 8 November 2000 and addressed to the chairman of the GCB. It read as
follows:

“Dear Adv Gauntlett,
APPLICATION  FOR AN EXEMPTION IN TERMS OF SCHEDULE 1 OF
THE COMPETITION ACT 1998.

2 The vast majority of the  rules had no bearing on competition. Roos J considered
only eight rules and exempted three of them.
I refer to your application for an exemption and attach hereto an Exemption
Certificate [Notice CC 10(2)] as well as the conditions on which the exemption is
granted ...

In accordance with the provisions of Schedule 1 of the Competition Act, 1998 a
notice regarding the exemption that has been granted will be published in the
Gazette on Friday 17 November 2000.
Yours Sincerely
for adv A Burger
Manager: Enforcement and Exemptions.”

The attached exemption certificate informed the respondents that:

“You applied to the Competition Commission on 7/4/2000 for an exemption from
Schedule 1 of the Competition Act.
After reviewing the information you provided, the Competition Commission
grants an exemption in terms of section 10(2)(b) of the Act for the rules of your
professional association. This exemption is subject to:

no conditions

the conditions listed on the attached sheet."

Despite these express statements that the application had been granted
conditionally, it could be gathered from the body of the sheet bearing the heading
“CONDITIONS ATTACHED TO THE EXEMPTION GRANTED IN TERMS OF
SCHEDULE 1 OF THE COMPETITION ACT 1998 TO THE GENERAL COUNCIL OF
THE BAR (GCB) OF SOUTH AFRICA AND ITS CONSTITUENT ASSOCIATIONS”
that the so-called Aconditions@ were not conditions at all,  but the Commission’s
refusal to exempt several important rules coupled with an expression of its
willingness to negotiate with the respondents for the exemption of some of the
others provided they were amended to the Commission’s satisfaction.
[5] At about the time of the receipt of these documents the respondents procured
from the Ministry for Justice and Constitutional Development a copy of a document
which had not been revealed to them by the Commission. It was addressed to an
official employed by the Commission under the heading “DRAFT RESPONSE TO
THE COMPETITION COMMISSION” and contained adverse comments on the
application for exemption. It was commonly known at the time that a so-called
policy unit operated within the Ministry and was in the process of preparing
legislation to regulate the entire legal profession. For various reasons the document
led the respondents to believe that the comments emanated from the policy unit and
did not reflect the views of the Minister.
[6] The respondents then proceeded to prepare and file their application to the
Court a quo for the review and setting aside of  the Commission’s decision. Apart

from relying on the fact that the “draft response” had not been revealed to them
before the decision was taken, they alleged that  the Minister (who had to be
consulted in terms of item 2(c) of Schedule 1 to the Act) had not been consulted;
that the Commission had wrongly considered the application for exemption under s
10 of the Act3; and that conditions had been attached to the exemption granted
which were not authorized in Schedule 1. On these grounds they claimed an order

“2.1. Declaring the conditions attached to the exemption granted to the applicants
by the first respondent in terms of Schedule 1 of the Competition Act (No 89 of
1998 -@The Act@) to be ultra vires and of no force and effect.
Alternatively to prayer 2.1:
2.2. Declaring that the rules of the applicants are exempted in terms of Schedule 1
of the Act and that the Act does not apply to the rules of the applicants in terms of
section 3(1)(c) of the Act.
Alternatively to prayer 2 above:
3. Reviewing and setting aside the decision of the first respondent ..”

[7] Upon receipt of the exemption certificate  the respondents called for the
Commission’s reasons but received no response. They procured an order directing
the Commission to furnish the reasons and eventually4 received a document
informing them that “these are a summary of reasons. The full reasons are reflected
in the report and will be reflected in the answering affidavit.” The “report” later
turned out to be a document prepared by Mr Wouter Meyer, a consultant engaged

3 Sec 10 dealt with exemptions generally whilst Schedule 1 dealt specifically with the
exemption of the rules of professional associations. The criteria laid down in s 10 differed
from those prescribed in Schedule 1.
4 After they had already filed the review application.

by the Commission. I will refer to it as the “Meyer report”.
[8] Nothing came of the undertaking to disclose the full reasons in the answering
affidavit. That document was deposed to by the Commissioner5 who claimed that
the application for exemption had been considered under Schedule 1 (and not in
terms of s 10)6 and had been refused as far as the  rules in dispute  are concerned.
He also alleged that the Minister had been properly consulted and that the Adraft
response@ had in fact been signed by the Minister  and contained his official
comments. Conceding, however, that the contents of the document had not been
revealed to the respondent and that the Commission’s decision was impugnable for
this reason, he requested the court to remit the application for exemption to the
Commission for reconsideration.
[9] Presumably as a result of the information in the answering affidavit and the
Meyer report (which the respondents did not have when they prepared their
application for review), there is no longer a  dispute about the status of the Adraft
response@ and the appeal was argued on the basis that it contains the Minister’s
official comments. In addition the respondents did not try to persuade us that the
Commission  had in fact considered and decided the application in terms of s 10, or
that the result in fact was that the application had been granted subject to

5 The Commission then consisted, so we were told,  of a Commissioner and one
Deputy Commissioner.
6 The reference to s 10 in the exemption certificate, he said, was an error.

unauthorised conditions as alleged in the founding affidavit7. However, as will be
seen later, their contention is that the confusion about the nature of the decision and
the provision of the Act in terms of which it was taken, still has a bearing on the
question we have to decide.
[10] Because it figured prominently in the argument on both sides I intend to deal
at some length with the Meyer report but, in order to follow the reasoning, it is
appropriate to examine Schedule 1 to the Act first.
At the relevant time items 1 and 2 of Part A of the Schedule read as follows:
“1.
A professional association may apply in the prescribed manner to
the Competition Commission to have all or part of its rules
exempted from the provisions of Part A of Chapter 2 of this Act,
provided -
(a)
the rules do not contain any restriction that has
the effect of substantially preventing or lessening
competition in a market; or
(b)
if the rules do contain a restriction contemplated in
paragraph (a), that restriction, having regard to
internationally applied norms, is reasonably
required to maintain -
(i) professional standards; or
(ii) the ordinary function of the profession.

2.
Upon  receipt of an application in terms of item 1, the Competition
Commission may exempt the rules concerned after it has -
(a)
given notice of the application in the Gazette;
(b)
allowed interested parties 30 days from the date of that
notice to make representations concerning the application;

7The Meyer report demonstrates that this is not what had happened.

and
(c)
consulted the responsible Minister, or member of the
Executive Council.”

Read together, items 1(a) and (b) plainly required a two-stage enquiry: first
the Commission had to determine the category into which a particular application
for exemption fell. This  depended on whether the rule or rules in question
contained a restriction of the kind mentioned in item 1(a). If the enquiry produced a
positive result, ie  if the application was found to be of the (b) category, the
remaining question was whether, having regard to internationally applied norms,
the restriction was reasonably required to maintain professional standards or the
ordinary function of the profession8.
[11] In his report Mr Meyer  dealt in detail with competition matters like  the
market in which advocates practise their profession, the supply and demand sides of
the market and international and South African anti-trust experience relating to the
legal profession, and came to the conclusion that some of the respondents’ rules
contained  restrictions substantially preventing or lessening competition in the legal
services market. The enquiry should then have been whether, having regard to
internationally accepted norms,  the restrictions were reasonably required for the
maintenance of professional standards or the ordinary function of the profession.
But, although Mr Meyer repeatedly stated that the application had to be considered
and decided under Schedule 1, there is no indication in the  report that he ever

8  Internationally applied norms had to be taken into account but  were obviously not
definitive.

conducted the enquiry envisaged in item 1(b). He evaluated each rule separately by
describing, first,  the rule in question, then the respondents’ comments thereon, and
then the comments from the Minister, followed by the Commission’s own
comments and finding, with no mention whatsoever of the requirements of item
1(b). The point is illustrated by the way in which he dealt with the so-called referral
rule9. After quoting some of the Minister’s comments he proceeded to say (under
the heading “The Competition Commissioner’s comments”):
“The Commission is not swayed by the arguments put forward by the GCB in
support of this restriction. The point of view of the Minister responsible for the
profession that voluntary, non-collusive, specialization would be more
appropriate is supported. Moreover, it stands to reason that extra costs must be
incurred if a client has to proceed through an attorney. The Minister has in fact
pointed out that the practice does increase costs. It is noted that the GCB does not
concur.”

Not a single reason for refusing to exempt the referral rule was added.

9 The rule differs from association to association but is generally to the effect that,
with certain exceptions, an advocate may accept briefs from attorneys only.
This deficiency in the report becomes all the more apparent when one looks
at the way in which Mr Meyer dealt with international norms. Under the heading
“Grounds on which an application may be based” he said that the respondents’ rules

for the most part conform to those norms that are of international application in
jurisdictions where there is a divided profession. Elsewhere, however, (under the
heading “reasonably required, having regard to internationally applied norms”) he
said:
AThe applicants in an application for exemption under this Schedule would be
well able to show international precedent to support the restrictions in their rules
... However, the Commission is obliged to consider very carefully not only the
development in recent years regarding the professions in this country from a
competition law perspective, but also the anti-trust developments in other
countries in this regard. Thus,  the mere fact that professional associations in
other countries apply certain norms need not deter the Commission from taking a
wider perspective on the matter.@

One would have expected that, when he came to evaluate a particular rule, Mr
Meyer would state, in the context of the maintenance of standards and the ordinary
function of the profession,  the reasons why he found the relevant international
norms inappropriate in this country. He did nothing of the kind.
The  “wider perspective@ which he urged the Commission to adopt was
elucidated by a later remark. After stating  that
“[i]t must be emphasized that the Commission retains the discretion to either
grant or refuse an exemption. Without limiting the scope of the application and its
evaluation, the following factors inter alia could be taken into account ...”

he listed eight factors which, he said, the Commission was entitled to take into
account. Several of these are highly questionable but I will only deal with the one
described as “Government policy as formulated by the Minister of Justice and
Constitutional Development.” What is important about this part of the report, is the

way in which Mr Meyer handled the Minister’s comments. As mentioned earlier,
his modus operandi in evaluating each rule was  to contrast the respondents’
contention with that of the Minister. Invariably he came down on the latter’s side.
The report abounds with lengthy quotations from the Minister’s comments but what
does not appear from the report is an  appreciation of the fact that at that very time
the Minister was set upon a radical transformation of the entire legal profession. In
this regard Mr Meyer said:
“The Minister of Justice has pointed out that his Department is in the process of drafting
a Legal Practice Bill, which will regulate the practice of law in accordance with section
22 of the Constitution of the Republic of South Africa. The premise underlying this
legislation is that regulation of a profession is justified only in so far as it is necessary to
protect the public interest. The Bill does not perpetuate the statutory recognition of the
distinction between advocates and attorneys ... In order to deal with the effect of the De
Freitas and Van der Spuy decisions, the Bill also provides that ANo legal practitioner shall
be barred from taking instructions directly from a member of the public, provided that he
or she complies with the provisions of the Act ...” (Emphasis added.)10

It appears from this passage and other parts of the Minister’s commentary
that he commented on the respondents’ rules in the wider context of the general
transformation of the profession and that he did so from the point of view of the
public interest, and  not by enquiring into the need of any rule for the maintenance
of standards or the ordinary function of the profession. This, and  the fact that the
Commission’s allotted task under item 1(b) of Schedule was quite different,  Mr

10 In Society of Advocates of Natal v De Freitas and Another 1997 (4) SA 1134 (N)
and General Council of the Bar of South Africa v Van der Spuy 1999 (1) SA 577(T) the Full
Courts in Kwazulu-Natal and Gauteng held the referral rule to be in accordance with the
common law of South Africa.

Meyer failed to address. The result was that much was said about the social impact
of the rules but nothing concerning the question whether they were reasonably
necessary  for the prescribed purpose.
[12] For the simple reason that it has adopted the report as the essence  of its
reasons these flaws in the Meyer report must also affect the proceedings of the
Commission.   Thus the statement in the answering affidavit   that the Commission
had applied the test contemplated in Schedule 1 has  been shown to be wrong. Like
the Minister and like Mr Meyer it, understandably, concerned itself with  the
protection of those who use the services of advocates  and with the promotion of the
public interest, 11 but failed to enquire whether those objectives were not best served
by the respondents’ rules. There can be no doubt that,  by blandly accepting the
Minister’s comments, the Commission became embroiled in the wider debate about
the transformation of the legal profession and lost sight of the real question it had
to resolve under item 1(b).
[13] It was submitted on the respondents’ behalf that the Meyer report and the
answering affidavit reveal that the Commission lacked understanding of its
functions and that this, coupled with other features of the case (like the fact that the
Commission did not reveal the Minister’s commentary to them, the way in which
the Commission treated the judgments in De Freitas and Van der Spuy12 and the

11 The Commissioner said eg:
[The Commission’s] concern is to promote the interests of those who use the services offered by
“advocates, to maintain and if possible enhance the standards that the profession currently sets, and to
protect and promote the interests of the public at large.”
12 In the answering affidavit the Commissioner brushed both judgments aside by saying that
the cases had not been decided “with reference to any aspect of competition law” and that ‘it is

confusion surrounding the nature of the Commission’s decision and the provision of
the Act in terms of which it was taken)  provided sufficient reason to the Court a
quo to decline a remittal to the Commission.
[14] It is not necessary to deal at length with  a reviewing court’s power to
substitute its own decision for that of an administrative authority.13   Suffice it to
say that the remark in  Johannesburg City Council v Administrator, Transvaal and
Another 14 that “the court is slow to assume a discretion which has by statute been
entrusted to another tribunal or functionary” does not tell the whole story. For, in
order to give full effect to the right which everyone has to lawful, reasonable and
procedurally  fair administrative action, considerations of fairness also enter the
picture. There will accordingly be no remittal to the administrative authority in
cases where such a step will operate procedurally unfairly to both parties. As
Holmes AJA observed in Livestock and Meat Industries Control Board v Garda15
“ ... the Court has a discretion, to be exercised judicially upon a consideration of
the facts of each case, and ... although the matter will be sent back if there is no
reason for not doing so, in essence it is a question of fairness to both sides.”16

[15] I do not accept a submission for the respondents to the effect that the Court a

arguable that, if the [Commission] ... should decide that [the referral]  rule is not required for the
maintenance of professional standards for the functioning of the profession, then the common law will
be required to bend in order to acknowledge this.”

13  Act 3 of 2000 did not apply at the time and in any event takes the matter no further.
14 1969(2) SA 72 (T) at 76D-E.
15 1961 (1) SA 342 (A) at 349G.
16 See also Erf One Six Seven Orchards CC v Greater Johannesburg Metropolitan
Council (Johannesburg Administration) and Another 1999 (1) SA 104 (SCA) at 109F-G.

quo was in as good  a position as the Commission to  grant or refuse exemption and
that, for this reason alone, the matter was rightly not remitted. Admittedly,  Baxter17
lists a case where the court is in as good a position to make the decision as the
administrator among those in which it will be justified in correcting the decision by
substituting its own. However, the author also says:18
“The mere fact that a court considers itself as qualified to take the decision as the
administrator does not of itself justify usurping that administrator’s powers ..;
sometimes, however, fairness to the applicant may demand that the court should
take such a view.”
This, in my view, states the position accurately. All that can be said is that
considerations of  fairness may in a given case  require the court to make the
decision itself provided it is able to do so.  I can find nothing that militates against
this view in Jansen JA’s judgment  in Theron en Andere v Ring van Wellington van
die NG Sendingkerk in Suid-Afrika en Andere19 (referred to by Baxter and relied
upon by the respondents).  In any event, as will presently be seen, I am not
convinced of a court’s ability to  decide the question on the material before it  in the
present case.
[16] Roos J regarded the Commission’s failure to reveal the Minister’s
unfavourable comments to the respondents and to allow them an opportunity to
respond as an indication of bias. I do not agree. A reasonable apprehension of bias

17 Administrative Law 682-684
18 At 684
19 1976 (2) SA 1 (A).

on the part of an administrator is, of course, an established ground for refusing a
remittal.20 However, the present is but one of many cases in which an administrative
body has failed to observe a principle which lawyers regard as elementary and it
will be a sad day if, whenever this occurs, the body can be accused or suspected of
bias. It is unfortunately one of the facts of life that administrative bodies perform
their functions with varying degrees of competence. Sometimes, depending mostly
on the expertise of their members and staff, they meticulously observe the
requirements of natural justice; but often they do not, not because they are biased,
but because they are not skilled in administrative law or inexperienced and know no
better, or because a particular requirement of natural justice is simply overlooked.
Thus the mere  fact that audi alteram partem was not observed does not by itself
justify an inference of bias.
[17] But what is indeed a cause of concern  is the fact that the Commission has
hitherto  not demonstrated a proper understanding of its functions under item 1(b),
which is the only realistic inference to be drawn from  its failure to apply the
requirements of the item properly. Moreover, the Commissioner could not be
brought to realize that the Commission had erred in this respect. He  seems to think
that the Commission’s only sin thus far has been to deny the respondents an
opportunity of responding to the Minister’s comments and that all that is required
now, is to allow them that opportunity and then to reconsider the application afresh.
Unless there is  a change of heart on his part  the prospects of the matter  receiving

20 Cf President of the Republic of South Africa and Others v South African Rugby
Football Union and Others 1999 (4) SA 147 (CC) paras [35] - [38].

proper treatment if it were to be remitted are not good.
[18] On the other hand, I have grave doubt about the ability of the Court a quo
(and of this Court, for that matter) to decide the application for exemption in respect
of all the rules of the respondents on the papers.  It is all very well to say (as the
respondents’ counsel said in their written heads of argument) that the GCB’s
professional standards and the functioning of the profession fall squarely within the
purview, knowledge and competence of a court, and that the expertise and
experience of a court to understand what is required to maintain legal professional
standards and institutional integrity are indeed greater than that of the Commission.
I agree that a judge’s knowledge and experience of the profession do indeed qualify
him or her to form and express views on the practical necessity of at least some of
the rules.  In De Freitas,21 for example, Thirion J said that the referral rule
“reflects an existing practice of long standing and on the strength of which Court
procedure has been arranged and on the strength of which the Legislature has
made  a distinction between the positions of advocate and attorney. This is in
itself good reason for sustaining it. The rule is one that is justifiable in the
interests of the legal profession and of the public. It is not unreasonable. It should
be retained.”

21 Supra at 1171B-C.
But, in the context of the Competition Act,  this type of reasoning cannot be taken
too far and cannot in all cases provide the final answer in an enquiry under item

1(b).  In  the normal course it is for the Commission to judge the reasonableness of
the need for the restriction under consideration; and, in doing so, it may take
account of a range of economic and social factors. In effect it has to weigh the
benefits derived from the restriction against the harm it may cause, not only to
members of the profession, but to others as well. If a court of law were to assume
the task, factors may well have to be considered which are no longer within the
ambit of its experience and expertise; and in that case exemption cannot be granted
unless the available evidence justifies such a step.
In saying this I have not lost sight of the respondents’ submission that the
enquiry under item 1(b) is not a competition debate. The premise on which the
submission is based is that “in [the enquiry under item 1(b)] the effect of the
professional rule upon competition is a given”. This is so, but it does not follow that
the effect of the rule upon competition becomes irrelevant to the enquiry into the
question whether it is reasonably required for the maintenance of professional
standards or the ordinary function of the profession. On the contrary, as I have
shown, a balancing exercise is required to determine whether its benefits outweigh
its anti-competition effect. This does not mean, however, that the court must shirk
its responsibility where it is indeed in a position to do such an exercise.
[19]  In the present case Roos J exempted the referral rule and two others from the

application of the Act.22 I have no doubt that his decision relating to the referral rule
was correct. The judgment in De Freitas was confirmed on appeal23 and the effect
of the judgment of this Court is that our law recognizes a divided profession
coupled with a referral system. This is the law of the land and the Commission was
not entitled to “bend” it24 by refusing exemption.  After all, the power to develop
the common law vests in the courts – not in the Commission – and any attempt by
the latter to do so would be  ultra vires .  It was not contended for the Commission
that the common law in this regard should be developed by this Court as envisaged
in s 39 (2) of the Constitution and no case for development of that kind was made
out on the papers.  The law must be applied as it stands.

But the same cannot be said of the other two rules which Roos J exempted.
Both of them plainly serve a measure of good but I know too little of their economic
and other effects to be able to say that either of them is reasonably required to

22 The first of these precludes members of the Associations from accepting briefs with
non-members. The other one in effect precludes them from accepting briefs on a contingency
basis without the consent of the Bar Council.
23 In a judgment reported in 2001(3) SA 750 (SCA).

maintain professional standards or the ordinary function of the profession. In my
judgment Roos J erred in exempting them. The same reasoning applies to the rules
which he refused to exempt and now form the subject of the cross-appeal. I cannot
say that Roos J erred in refusing to exempt them.

24 As suggested by the Commissioner.
[20] The result is that the appeal will have to be upheld in part and that the cross-
appeal will have to be dismissed. The question of costs remains.  First, there are the
costs of the appeal. It is quite clear  that the main dispute between the parties is the
exemption of the referral rule and in this regard the respondents have been
successful. I have considered granting them all the costs of the appeal but have
come to the conclusion that it will be fairer to order each party to pay its own costs,
including the costs of the cross-appeal. The respondents are however entitled to all
their costs in the Court a quo.

[21] I make the following order:
(1)
The appeal is upheld in part. Each party is directed to pay its own costs.
(2)
The cross-appeal is dismissed. Each party is to pay its own costs relating
thereto.

(3)
The order of the Court a quo is set aside and replaced with the following
order:

“(a) The first respondent’s decision in the applicants’ application for

exemption is set aside.

(b)
The rules of the applicants prohibiting their members, subject

to certain exceptions, from accepting briefs from persons other

than an attorneys are exempted from the application of Part A of

Chapter 2 of the Competition Act 89 of 1998.

(c)
Subject to paragraph (b) hereof the applicants’ application for

exemption is remitted to the first respondent for reconsideration.
(d)
The first respondent is ordered to pay the applicants’  costs
including the costs of two counsel.”

Concur

_________
Howie JA
Harms JA

JJF HEFER
Scott JA

Acting President
Mpati JA