Pretoria Portland Cement Co Ltd and Another v Competition Commission and Others

• Jurisdiction: South Africa
• Judge: Nienaber JA, Howie JA, Schutz JA, Zulman JA and Nugent JA
• Judgment Date: 31 May 2002
• Docket Number: 64/2001
• Hearing Date: 07 May 2002
• Counsel: M S M Brassey SC (with him D N Unterhalter SC and J Wilson) for the appellants. J J Gauntlett SC (with him P M Mtshaulana) for the respondents.
• Court: Supreme Court of Appeal

Schutz JA:

[1] This appeal is concerned with the validity of a search and seizure operation conducted in terms of a warrant issued under s 46 of B the Competition Act 89 of 1998 (the Act) on 3 and 4 August 2000. The search was conducted by the Competition Commission (the Commission) established in terms of the Act. The premises searched were those of the first appellant, Pretoria Portland Cement Co Ltd (PPC), and the C second appellant, Slagment (Pty) Ltd (Slagment). PPC is a major producer of cement. Slagment processes blast furnace slag which is used as an 'extender' in some cements. It was owned in equal shares by PPC and two other cement producers, known as Alpha and Lafarge. PPC managed and controlled it. D

[2] Four Court orders were made by four different Judges, sitting in the Transvaal Provincial Division. The first was granted ex parte and in camera by Spoelstra J on 2 August 2000 under case No 9803/2000. He directed that warrants be issued against PPC and Slagment in terms of s 46, mentioned above, and that the proceedings not be made public 'until the execution of the E order'. The order did not include a return day (as perhaps it should have done) nor did it make express provision for opposition by the appellants. On the same day Spoelstra J signed a s 46 warrant authorising the Commission to enter, inspect, search and make enquiries at the appellants' premises. Attached to the warrant was a list of the F classes of documents which might be sought. The order was signed by the Registrar and in signing the warrant Spoelstra J described himself as a Judge sitting in Chambers. The search commenced on 3 August and proceeded on 4 August.

[3] That evening the second order was granted by Bertelsmann J under case No 19803/2000. It was signed by the Registrar. Bertelsmann J G ordered that '(p)ending the determination of final relief' to set aside the warrants and have returned what had been seized, the Commission was to place all seized materials in the hands of the Registrar for safe keeping and was to be restrained from having access to or reading them. An interdict restraining further execution of the H warrant was also granted. This order had been obtained on the strength of oral evidence. Accordingly, the appellants were required to file their notice of motion and founding affidavit within a week. This was done on 11 August. Dates for the filing of an answer and a reply were also stipulated and the matter was postponed sine die. I Although the Commission had been given notice of the urgent application before Bertelsmann J, it did not appear to oppose the relief sought. In fact it consented to the relief being granted.

[4] The third order was made by Roux J on 24 August 2000 under case J

Schutz JA

No 19803/2000. [*] It arose out of an allegation in the founding affidavit of the appellants that they had been advised, A as a matter of law, that Spoelstra J, whose original order was under attack, had to be cited as a respondent. Accordingly he was so cited, even though no relief was sought against him. As s 25(1) of the Supreme Court Act 59 of 1959 states that no summons (which includes a notice of motion) in a civil action may be issued against a Judge out B of a Court without the consent of that Court, leave was sought from Roux J to give such consent. He refused to do so, stating that whereas the appellants had elected to rely on a review 'or a quasi-review', Spoelstra J as a matter of law acted as a Judge and not in an administrative capacity and, since a Judge's decisions are not subject to review, he could not be subjected to review. Hence there was no C basis for his joinder.

[5] Accordingly the appellants proceeded to the stage of the fourth order without Spoelstra J in effect having been cited as a respondent. The application which had been launched on 11 August 2000 came before Daniels J. He made his order on 20 September 2000 under case No 19803/2000. It is his decision, adverse to D the appellants, that is before us. Leave to appeal to this Court was granted by him. He also ordered that pending the appeal the holding order made by Bertelsmann J was to stand. The substance of Daniels J's judgment was that the appellants' claims for the 'setting aside' of the warrants, for the return of materials seized, for an interdict E forbidding disclosure of any information obtained and for the punishment for contempt of the Commission and various persons involved in the search at PPC's premises on 3 August (that is the first to fifth respondents) were all dismissed.

[6] The non-joinder of Spoelstra J, having come about in the way I have described, then becomes the subject of a point in F limine taken by the Commission. The point in brief is that in issuing the warrant Spoelstra J was acting, not as a Judge, in the sense of a Court, but in an administrative capacity, that both the substance and the form of the appellants' application was a review, that joinder of the decision-maker had not been effected as is required G by law and accordingly that the application was fatally defective. Before dealing with this point it is necessary to set out some relevant parts of the Act, as it was before amendment by the Competition Second Amendment Act 39 of 2000 in December 2000, both for purposes of the point in limine as also for some of the subsequent questions which arise. H

The Act

[7] Section 45 empowers the Commissioner (the head of the Competition Commission - the second respondent in this case, Mr Menzi Simelane) to direct an investigation of a complaint initiated by itself or received from an outsider. Persons questioned by an inspector I conducting the investigation must answer questions truthfully and to the best of

Schutz JA

their ability but do not have to incriminate themselves. Section 45(4) deals with the issuance of a summons in these terms: A

'(1) At any time during an investigation, the Commissioner may summon any person who is believed to be able to furnish any information on the subject of the investigation, or to have possession or control of any book, document or other object that has a bearing on that subject -

(a)

to appear before the Commissioner or a person authorised by the Commissioner, to be interrogated at a time and place B specified in the summons; or

(b)

to deliver or produce to the Commissioner, or a person authorised by the Commissioner, any book, document or other object referred to in para (a) at a time and place specified in the summons.'

[8] Section 46, aforementioned, deals with the authority to enter and search under warrant. It requires quotation in full: C

'46(1) A Judge of the High Court, a regional magistrate or a magistrate may issue a warrant to enter and search any premises that are within the jurisdiction of that Judge or magistrate, if, from information on oath or affirmation, there are reasonable grounds to believe that -

(a)

a prohibited practice has taken place, is D taking place or is likely to take place on or in those premises; or

(b)

that anything connected with an investigation into that prohibited practice is in the possession of or under the control of, a person who is on or in those premises.

(2) A warrant to enter and search may be issued at any time and must specifically - E

(a)

identify the premises that may be entered and searched; and

(b)

authorise an inspector or a police officer to enter and search the premises and to do anything listed in s 48.

(3) A warrant to enter and search is valid until one of the following events occurs:

(a)

the warrant is executed; F

(b)

the warrant is cancelled by the person who issued it or, in that person's absence, by a person with similar authority;

(c)

the purpose for issuing it has lapsed; or

(d)

the expiry of one month after the date it was issued.

(4) A warrant to enter and search may be executed only during the day, unless the Judge, regional magistrate, or magistrate who issued it authorises that it may be executed at night at a time that is G reasonable in the circumstances.

(5) A person authorised by warrant issued in terms of ss (2) may enter and search premises named in that warrant.

(6) Immediately before commencing with the execution of a warrant, a person executing that warrant must -

(a)

if the owner, or person in control, of the premises to be searched is present - H

(i)

provide identification to that person and explain to that person the authority by which the warrant is being executed; and

(ii)

hand a copy of the warrant to that person or to the person named in it; or

(b)

if none of those persons is present, affix a copy of the warrant to the premises in a prominent and visible place.' I

[9] Section 47 provides for entry and search of certain premises even without a warrant, if the person in control consents, or if the inspector has reasonable grounds for believing that a warrant would be granted under s 46, if sought, but that the delay in obtaining it would defeat the object of the entry and search. J

Schutz JA

[10] Section 48 deals with powers of entry and search. It provides: A

'48(1) A person who is authorised under s 46 or 47 to enter and search premises may -

(a)

enter upon or into those premises;

(b)

search those premises;

(c)

search any person on those premises if there are reasonable grounds for believing that the person has personal possession of an article or document that has a bearing on the B investigation;

(d)

examine any article or document that is on or in those premises that has a bearing on the investigation;

(e)

request information about any article or document from the owner of, or person in control of, the premises or from any person...