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Portfolio Committee on Justice and Constitutional Development Deputy Commissioner

Submission on the Constitution Seventh Amendment Bill (B6-2011 ) and the Superior Courts Bill (B7-2011). Portfolio Committee on Justice and Constitutional Development Deputy Commissioner Tembinkosi Bonakele 03 August 2011. The Commission’s mandate.

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Portfolio Committee on Justice and Constitutional Development Deputy Commissioner

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  1. Submission on the Constitution Seventh Amendment Bill (B6-2011) and the Superior Courts Bill (B7-2011) Portfolio Committee on Justice and Constitutional Development Deputy Commissioner Tembinkosi Bonakele 03 August 2011

  2. The Commission’s mandate To promote and maintain competition in order to achieve: • Economic efficiency & development • Consumer choice & competitive prices • Employment • Equitable participation by SMEs in the economy • Participation in world markets • Greater spread of ownership

  3. Key Instruments • Merger Control – prevent concentration • Enforcement – investigation and prosecution of anti-competitive behaviour (price fixing, abuse of dominance)

  4. Courts and Institutions

  5. What the legislator intended • The need for speedy finalisation of competition cases recognised in the Competition Act. • Specialist Tribunal and Court with specialist skills. • In terms of section 62(3)(a), CAC court of final instance in respect of prohibited practices (Chapter 2 of the Act), merger control (chapter 3 of the Act) and processes of the Competition tribunal (chapter 5) – (i.e. all competition law matters). • SCA jurisdiction retained for constitutional & jurisdiction disputes.

  6. The Unintended Consequences • Various SCA decisions, under the doctrine that the SCA has inherent constitutional power to hear appeals from specialist courts or tribunal where special circumstances permit, have had the unintended effect of side-stepping the original intention of the Legislature. • Upon special leave being granted by the CAC or SCA a party can lodge an appeal with the SCA in respect of competition matters. • This has added another layer in the appeal process for competition matters and contradict the underlying policy to ensure speedy resolution of competition matters.

  7. Unintended Consequences • Highly litigious system – disadvantage to SMMEs, consumers and enforcement institutions. • Cases prevented from being heard on the merits. • Cases taking very long to be finalised – often damage caused cannot be reversed.

  8. Support for Bill • Bills resolve legal lacuna re specialist courts. • Allows for speedy resolution of cases while not taking away the right of appeal – eliminates the SCA step in the system. • Allows specialist court with specialist skills to develop jurisprudence while still subject to the jurisdiction of the Constitutional Court. • Commission will provide detailed drafting comments if necessary.

  9. Thank you! Tel: +27 (0)12 394 3278 Fax: +27 (0)12 394 4278 Email: TembinkosiB@compcom.co.za

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