Case number: 554/03

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The territorial application of the Act

  1. Section 3(1) of the Act provides that it applies (subject only to collective bargaining-related exceptions) ‘to all economic activity within, or having an effect within, the Republic’. Ansac’s argument was, and is, that the ‘effect’ the statute contemplates must be an adverse effect, whose nature must be established before it can be said that the Act applies. Because neither the Commission nor Botash in its intervention alleged that the Ansac agreement has negative or deleterious effects within the Republic, Ansac urged that the complaint be dismissed. The Tribunal rejected this contention. The CAC gave it comprehensive consideration, but also rejected it.18

  2. Before us, Ansac did not dispute that the statutory phrase ‘an effect’ was wide and unqualified. But it persisted in the contention that s 3(1), when placed in its proper context and purposively interpreted, had to be read as bringing only anti-competitive activity within its purview. If, therefore, Ansac urged, the Tribunal examined the Ansac membership agreement in the context of evidence relating to its competitive gains and found that its effect was pro-competitive, it should decline entirely to assume statutory jurisdiction over Ansac’s activities since this would best promote the Act’s objectives.

  3. The argument flies in the face of the plain meaning of the statute’s wording. ‘Effect’ is not only neutral, but extremely wide. Standing without qualification, it necessarily embraces both the benign and the malign. It is hard to avoid the conclusion that this is deliberate. The Act’s language elsewhere is pregnant with words and concepts that convey the negative effects of what it sets out to prohibit. The absence of any such terminology in the application provision must be accorded its proper significance.

  4. Ansac’s argument moreover requires that words be added to s 3(1) when there is no discernible justification for doing so. Well-known canons of statutory interpretation inhibit the court’s power to do this. Words cannot by implication be read into a statute unless the implication is necessary in the sense that without it effect cannot be given to the enactment as it stands.19 Not only is there no evident justification for the super-addition Ansac’s argument requires, but the statute can be given fully coherent effect without it.

  5. Ansac’s contention moreover has the anomalous consequence that, if it were adopted, the Tribunal and the Commission would have no jurisdiction to conduct any of their activities until they had established that the economic activity at issue had a negative or deleterious effect within the Republic. A long contestation about the statute’s applicability would ensue before the Act’s institutions could assume jurisdiction. That, manifestly, is to approach the structure and operation of the Act, and the functioning of its institutions, from the wrong end.

  6. The correct approach – which the wide and unqualified wording of s 3(1) requires – is that all effects are captured, but that the statute enjoins only those that are adverse. We agree with the CAC, for the reasons fully set out in its judgment, that the ‘effect’ the Act contemplates must be such that it falls within the regulatory framework created by the statute, whether anti-competitive or not. This inquiry, as Malan AJA pointed out –

‘does not involve a consideration of the positive or negative effects on competition in the regulating country, but merely whether there are sufficient jurisdictional links between the conduct and the consequences. … The question is … one relating to the ambit of the legislation: the Act in the matter under consideration, its regulatory “net”, concerns not only anti-competitive conduct but also conduct the import of which still has to be determined.’20

Ansac’s contention must for these reasons be rejected.

The intervenor’s legal standing

  1. The CAC found that even though Botash did not allege that it had suffered individual harm because of the performance of the Ansac agreement, it had the standing necessary to seek an order against Botash interdicting the continued performance of that agreement. The CAC’s conclusion was based on a careful analysis of the Act’s provisions.21 The CAC gave particular weight to the Act’s complaint procedure,22 which provides that, in addition to the Competition Commissioner, ‘any person’ may submit a complaint against an alleged prohibited practice to the Commission (s 49B(2)(b)), whereupon the Commissioner ‘must direct an inspector to investigate the complaint as quickly as practicable’ (s 49B(3)). The CAC also gave weight to the fact that a complainant may apply to the Tribunal for interim relief (s 49C).

  2. The CAC took further into account in deciding that Botash had standing that the statute casts the right to participate in hearings of the Tribunal widely. The complainant has this right not only if it referred ‘the complaint’ to the Tribunal (s 53(a)(ii)(aa)), but also if in the opinion of the presiding member of the Tribunal the complainant’s interest is not adequately represented by another participant (s 53(a)(ii)(bb)).

  3. It is true, as Ansac pointed out on appeal, that s 53 specifically sets out the participation rights of the complainant, and that one of the factors the statute requires the Tribunal to consider in granting interim relief is ‘the need to prevent serious or irreparable harm’.

  4. It does not follow from these facets of the statute, however, that an intervening party must (as Ansac urged us to find) show the ordinary common law prerequisites for obtaining relief. As the CAC rightly pointed out, the orders the Tribunal can make in response to the referral of a complainant are ‘of a limited kind to be made in the public interest’. From this the CAC inferred that a complainant need not show that it has suffered particular damage.23

  5. We agree with the CAC’s conclusion. Ansac’s argument seeks to conclude from the limited express rights the Act confers on a participant in a hearing that the Act requires an intervenor to comply with the strict common law requisites for interdictory relief; but this is to overlook the significance of the fact that a broad ambit of participatory rights is created in the first place. Ansac likewise underscores that an applicant, to obtain interdictory relief under the Act, must place on the scale the risk to it of ‘serious or irreparable damage’; but ignores the fact that obtaining such relief may not be an intervenor’s sole interest in the proceedings.

  6. We see no reason to circumscribe narrowly the right to intervene in proceedings under the Act. We therefore conclude that the absence of a claim of particular damage on the part of Botash is no bar to its title to claim relief as an intervenor.

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