This court’s jurisdiction to hear the appeal Section 62 of the Act deals with appeals from the CAC. It specifies first matters in respect of which the Tribunal and CAC ‘share exclusive jurisdiction’ (s 62(1)). These include (subject to limited exceptions) the interpretation and application of restrictive horizontal practices (s 62(1)(a)). Section 62(2) then confers additional (non-exclusive) jurisdiction on the CAC over the question whether action or proposed action by the Commission or Tribunal is within their respective jurisdictions (s 62(2)(a)); any constitutional matter arising in terms of the Act (s 62(2)(b)); and the question whether a matter falls within the Tribunal’s or the CAC’s exclusive jurisdiction (s 62(2)(c)).
Section 62(3) is the critical provision. It provides that the jurisdiction of the CAC –
‘(a) is final over a matter within its exclusive jurisdiction in terms of subsection (1); and
(b) is neither exclusive nor final in respect of a matter within its jurisdiction in terms of subsection (2).’
Section 62(4) provides expressly that, subject to leave to appeal being obtained (s 63), an appeal from the CAC lies to this court or the Constitutional Court (the CC) ‘in respect of a matter within its jurisdiction’ in terms of s 62(2) – in other words, in respect of matters over which the CAC has non-exclusive jurisdiction, including constitutional questions.
As in the case of the relevant sections of the Labour Relations Act 66 of 1995,10 these provisions undoubtedly constitute a statutory endeavour to vest partial final appellate jurisdiction in the CAC. The effect of s 62(3) regarding appeals to the CC is uncontroversial, since it allows appeals on ‘any constitutional matter’, and under the Constitution the CC’s sole jurisdiction is in such matters.11 No impairment of constitutionally derived appellate power is thus apparent. More difficult is the Act’s seeming attempt to limit appeals to this court.
In National Union of Metalworkers v Fry’s Metals,12 which was argued before the same panel in the same week as the present application, we held that –
Any legislative endeavour to vest final appellate jurisdiction in an appeal court other than this court has to be judged in the light of the appellate structures created by the Constitution;
The Constitution provides not only that this court ‘may decide appeals in any matter’, but that it ‘is the highest court of appeal except in constitutional matters’ (s 168(3)): this provision superseded both the statutory and common law sources of this court’s jurisdiction, and there can be no reason to give it less than its full meaning in relation to both constitutional and non-constitutional matters;
The Constitution’s typology of final appellate courts is exhaustive: it does not envisage other final appeal courts with authority equivalent to that of this court and of the CC;
This court’s appellate powers do not derive from any particular statute, but from the Constitution itself;
The Constitution does not envisage that legislation can assign the jurisdiction of this court piecemeal or wholesale to other specialist tribunals with final appellate jurisdiction;
The legislature may create rights that are not appealable; but once appellate jurisdiction falls to be exercised, this court is empowered to exercise it finally (apart from the CC), since final appellate tribunals with authority similar to this court are not envisaged in the Constitution.
These conclusions govern the present matter. They lead to a similar outcome. The issue in NUMSA v Fry’s Metals was the appellate structures created by the Labour Relations Act 66 of 1995 (the LRA). The relevant provisions of the LRA are replete with admonitions that they are ‘subject to the Constitution’. This particular phraseology is not manifest in the Act. But its absence is of no significance. This is for two reasons. First, s 1(2)(a) of the Act provides expressly that the Act ‘must be interpreted –
‘in a manner that is consistent with the Constitution’.
That governs the entire Act and each of its provisions. Second, it is a principle of statutory interpretation – by now above debate or citation of authority – not only that all legislation must be interpreted in the light of the Constitution, but that ‘legitimate interpretive aids’ must, where possible, be employed to avoid a finding of unconstitutionality. Only if this is not possible should a statutory provision be found unconstitutional.13
In accordance with the Act’s own injunction, it must be interpreted consistently with the Constitution. In accordance with sound constitutional hermeneutics, its provisions should if possible be interpreted so as not to render them unconstitutional. This result is attained if the appellate structures the Act creates are read in conjunction with and in conformity with those the Constitution establishes. Those structures must, it follows, be read as adjunct to, and not exclusionary of, the Constitution’s appellate structures. No express provision in the Act prevents this, and constitutional principle requires it.
The apparent attempt to vest exclusive jurisdiction in the CAC in respect of the interpretation and application of chapters 2, 3 and 5 of the Act can and must thus be read so as to be consistent with the Constitution, and the finality conferred on the CAC by s 62(3)(c) is thus subordinate to the appellate powers the Constitution confers on this court. It follows that this court has jurisdiction to consider the substance of the application for leave to appeal.
This conclusion does not involve a finding of unconstitutionality, but derives from an application of the Constitution’s provisions to the appellate structure created by the Act, and from following the Act’s own injunction as to its interpretation.
The test for leave to appeal
The Act’s provision dealing with leave to appeal, s 63, covers only the right to appeal from the CAC in terms of s 62(4). In other words, the statute’s leave to appeal mechanism deals only with appeals from matters where the CAC exercises its non-exclusive powers. Section 63 does not deal with the right to appeal to this court conferred by the Constitution, in conjunction with which, as we have held, the Act’s own appellate structures must be interpreted.
In Ansac (1), the applicants claimed that the Act’s provisions conferring exclusive final jurisdiction on the CAC were unconstitutional, and thus that they were entitled to note an appeal directly to this court without seeking leave from the CAC. This court refused the order. The basis for doing so was that ‘even if the applicants’ attack on the constitutionality of the attempted jurisdictional ouster succeeds, the need for leave to appeal will remain and will extend, on the excision of the wording complained of, to all appeals from the Competition Appeal Court’.14
It was not argued that, nor did the court consider whether, the Act’s appellate provisions should be interpreted consistently with the Constitution in a manner that avoided the need for any excision on the ground of unconstitutionality. Our present finding that the provisions can be so read thus raises a question that was not before the court in Ansac (1), namely what procedure should govern an appeal to this court on a matter that the Act’s express leave to appeal provision does not cover.
In NUMSA v Fry’s Metals15 we held that –
this court’s inherent constitutional power to protect and regulate its own process16 empowers it to require applicants for leave to appeal from a specialist appellate tribunal to demonstrate, in addition to a reasonable prospect of success, that there are ‘special circumstances’ indicating that a further appeal should lie;
the benefit of institutional expertise, and the imperative of expedition, strongly indicate that the path to this court from a specialist tribunal should not be untrammelled;
leave to appeal is necessary to protect the process of this court against abuse by appeals that have no merit, and it is in the interests of justice that the requirement of special leave be imposed, for if appeals were allowed without trammel, the expeditious resolution of disputes would be unconscionably delayed, and the justified objects of the statute impeded.
For the reasons set out in NUMSA, we come to the same conclusions here. Leave to appeal from this court is required before an appeal may be prosecuted from the CAC on the matters set out in s 62(1), and special circumstances must exist before this court will grant leave.
As we observed in NUMSA (para 43), the procedures for applying for leave to appeal, and the factors relevant to obtaining special leave, are well-established.17 The criterion for the grant of special leave to appeal is not merely that there is a reasonable prospect that the decision of the CAC will be reversed – but that the applicants can establish ‘some additional factor or criterion’. One is where the matter, though depending mainly on factual issues, is of very great importance to the parties or of great public importance. In applying this criterion, this court must be satisfied, notwithstanding that there has already been an appeal to a specialist tribunal, and that the public interest demands that disputes about competition issues be resolved speedily, that the matter is objectively of such importance to the parties or the public that special leave should be granted.
We emphasise once more that the fact that applicants have already had a full appeal before the CAC will normally weigh heavily against the grant of leave. And the demands of expedition add further weight to that.