Case number: 554/03



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JUDGES OF APPEAL

CONCUR:
MPATI DP

CONRADIE JA

COMRIE AJA

1 American Natural Soda Ash Corporation v Competition Commission 2003 (5) SA 633 (CAC) (Malan AJA, Davis JP and Jali JA concurring).

2 Sherman Act, 15 USC § 1: ‘Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10 000 000 if a corporation, or, if any other person, $350 000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.’ § 2 makes monopolizing trade a felony.

3 Section 3 of Act 39 of 2000 amended the Act by moving the italicised words, which had been in sub-para (a), to the end of the opening portion of the provision. When the proceedings commenced the Act was in its unamended form, but nothing turns on this and we give the post-2000 wording.

4 American Natural Soda Ash Corporation v Competition Commission 2003 (5) SA 633 (CAC); American Natural Soda Ash Corporation v Competition Commission 2003 (5) SA 655 (SCA).

5 Section 8 of the Act prohibits ‘abuse of dominance’, making it unlawful for a dominant firm (defined in s 7) to charge an excessive price to the detriment of customers, and related exclusionary acts.

6 In terms of s 21(1)(g) of the Act the Competition Commission may refer matters to the Competition Tribunal and appear before the Tribunal.

7 American Natural Soda Ash Corporation v Competition Commission 2003 (5) SA 633 (CAC).

8 American Natural Soda Ash Corporation v Competition Commission 2003 (5) SA 655 (SCA).

9 Supreme Court Act 59 of 1959 s 21(3)(c)(ii).

10 See the judgment of this court in National Union of Metalworkers of South Africa v Fry’s Metals (Pty) Ltd (case no 026/03, delivered on Tuesday 12 April 2005) paras 9-33.

11 Constitution s 167(3)(b): CC has jurisdiction ‘only’ in ‘constitutional matters, and issues connected with decisions on constitutional matters’.

12 Judgment of this court dated Tuesday 12 April 2005, paras 5-33.

13 See National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) paras 23-24 and particularly National Director of Public Prosecutions and another v Mohamed NO 2002 (4) SA 843 (CC) para 33.

14 2003 (5) SA 655 (SCA) para 16.

15 Judgment of 12 April 2005, paras 34-44.

16 Constitution s 173: ‘The Constitutional Court, the Supreme Court of Appeal and the high courts have the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice’.

17 They are set out in the Supreme Court Act 59 of 1959 and in the decisions of this court, including Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (A) 564H-565E.

18 2003 (5) SA 633 (CAC) paras 7-21.

19 Rennie NO v Gordon NO 1988 (1) SA 1 (A) 22F, per Corbett CJ, adopted in Bernstein v Bester 1996 (2) SA 751 (CC) para 105, per Ackermann J.

20 2003 (5) SA 633 (CAC) para 18.

21 2003 (5) SA 633 (CAC) paras 2-5.

22 We refer, since it makes no material difference, to the provisions of the Act as amended by Act 39 of 2000.

23 2003 (5) SA 633 (CAC) para 4.

24 Quoted in note 2 above.

25 Concise Oxford English Dictionary: ‘an association of manufacturers or suppliers formed to maintain high prices and restrict competition’.

Compare 91/301/EEC: Commission Decision of 19 December 1990, relating to a proceeding under Art 85(1) of the EEC Treaty (IV/33.016 – Ansac), Official JournalL 152, 15/06/1001 p 0054 – 0060.

26 2004 (4) SA 481 (SCA) para 3, per Nugent JA.



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