Case Note: Complaint initiations and prescription provisions in the Competition Act – The Constitutional Court provides clarity in Competition Commission v Pickfords Removals

• Author: Ndlovu, P.N.
• DOI: https://doi.org/10.47348/JCCL/V7/i2a11
• Published date: 09 November 2022
• Date: 09 November 2022
• Citation: (2021) 7(2) JCCL&P 217
• Pages: 217-234

https://doi.org/10.47348/JCCL/V7/i2a11

217

COMPLAINT INITIATIONS AND

PRESCRIPTION PROVISIONS

IN THE COMPETITION ACT

– THE CONSTITUTIONAL

COURT PROVIDES CLARITY IN

COMPETITION COMMISSION v

PICKFORDS REMOVALS

PRECIOUS NONHLANHLA NDLOVU1

Senior Lecturer, Faculty of Law, University of the Western Cape

I INTRODUCTION

The Competition Commission is the investigator cum prosecutor of

choice regarding all alleged prohibited practices that fall within the

purview of the Competition Act 89 of 1998 (Competition Act). In s

49B(1)–(2), the Competition Act provides that a complaint may be

initiated by the Commissioner of the Competition Commission on its

own accord or upon receipt of a formal complaint (in the prescribed

format), or upon receipt of information (in any format) from any

person. Thereafter, s 49B(3)–(4) stipulates that the Commissioner must

instruct the commencement of investigations into the complaint

‘as quickly as practicable’. The Supreme Court of Appeal and the

Constitutional Court have clarified the jurisdictional requirements

and legal consequences of compliant initiations and complaint

referrals. For instance, the Commissioner can, upon obtaining

further information regarding alleged prohibited conduct, amend

the complaint initiation or even initiate another complaint and

fuller investigation (Woodlands Dairy (Pty) Ltd & another v Competition

Commission (2011) All SA 192 (SCA) para 36; Competition Commission

v Yara (South Africa) (Pty) (Ltd) & others SCA 2013 (6) SA para 21).

Further, the initiation of a complaint by the Commissioner involves

no more than the Commissioner directing the commencement of an

investigation and this decision to trigger an investigation may or may

not culminate in a referral to the Competition Tribunal (Competition

Commission v Yara (South Africa) (Pty) (Ltd) & others SCA 2013 (6)

1 LLB Cum Laude (UFH), LLM Cum Laude, LLD (UWC).

(2021) 7(2) JCCL&P 217

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(2021) 7(2) JOURNAL OF CORPORATE AND COMMERCIAL LAW & PRACTICE

https://doi.org/10.47348/JCCL/V7/i2a11

SA para 21). Furthermore, once a complaint has been referred to

the Competition Tribunal, the Tribunal can adopt an inquisitorial

approach in its hearings and as such, is not confined to hearing only

those matters raised in the referral (Competition Commission v Senwes

Ltd 2012 (7) BCLR 667 (CC) paras 51–57).

Per s 27(1)(a)–(d) of the Competition Act, an investigation

may culminate in a complaint being referred by the Competition

Commission to the Competition Tribunal for adjudication. At the

conclusion of the adjudication proceedings, s 58(1)(a) empowers

the Tribunal to make an ‘appropriate order’ which includes an

administrative penalty (Section 59 of the Competition Act). The

timing of referral depends on whether one is dealing with complaints

initiated by the Commissioner or complaints from members of the

public. In s 50(1), the Competition Act provides that complaints

initiated by the Commissioner may be referred to the Tribunal for

adjudication any time after initiation (emphasis added). But a firm

under investigation need not fear an indefinite period before a referral

is made since the Commissioner will institute the investigation as

‘quickly as practicable’ (Section 49B(3) of the Competition Act).

Further, such an indefinite investigation is impermissible because it

would be a violation of a firm’s rights, such as the right to privacy

(Peter Sutherland & Katherine Kemp Competition Law of South Africa

(2020) 11.6.5.1). An overly long investigation would also have a

negative impact on the firm’s business operations (Omnia Fertilizer

Limited v Commission & others 51/CAC/Jun05 para 13). When it

comes to complaints submitted by complainants (that is, any

member of the public), s 50(2)(a)–(b) provides that the complaint

must be made and referred to the Tribunal within one year after

the complaint was submitted, if the Commission’s investigations

have established that a prohibited practice was committed. Section

50(4)(a)–(b) envisages the possibility of an extension of the one-

year period by mutual agreement between the Commission and

the complainant, or upon application by the Commission to the

Tribunal for such an extension. Multiple extensions are also possible

(Omnia Fertiliser Limited v Competition Commission & others 51/CAC/

Jun05; Sappi Fine Papers (Pty) Ltd v Competition Commission 62/CR/

Nov02 paras 22–28; Competition Commission v Allen Mescho (Pty) Ltd

09/CR/Jan07 paras 7, 25, 27). Therefore, it is clear that the initiation

of a complaint is important because any extension, as well as the

subsequent investigations, referral and adjudication depend on the

complaint initiation itself. For example, in Woodlands Dairy (Pty) Ltd

v Competition Commission, the Supreme Court of Appeal held that

an investigation must not go beyond the ambit of the complaint

initiated or received by the Commission ( [2010] ZASCA 104 paras

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