Pioneer Pannar

The judgment

The court's own file

1 1 3 / C A C / N o v 1 1 JUDGMENT /bw /... 1 IN THE COMPETITION APPEAL COURT OF SOUTH AFRICA CASE NUMBER : 113/CAC/Nov11 DATE: 12 APRIL 2013 5 In the matter between: THE COMPETITION COMMISSION Applicant and PIONEER HI-BRED INTERNATIONAL INC 1 s t Respondent PANNAR SEED (PTY) LIMITED 2 n d Respondent 10 AFRICAN CENTRE FOR BIOSAFETY 3 rd Respondent J U D G M E N T (Application for Leave to Appeal) 15 DAVIS, JP: This is an application for leave to appeal to the Constitutional Court against a costs order made by this court in his judgment 20 of 28 May 2012. The merits of this case have effectively been disposed of and the only issue which remains for determination, is whether the costs order, which was made by this court, should be subject to appeal to the Con stitutional Court. 25 1 1 3 / C A C / N o v 1 1 JUDGMENT /bw /... 2 For the sake of clarity, two questions now arise: (1) whether this Court has the power to grant a costs order in circumstances where the applicant, in merger proceedings, recommends a particular c ourse of action which is overturned 5 or confirmed by the Tribunal and is then made subject to an appeal to this Court. In such a case, the question arises as to whether this Court, assuming it overturns the determination of the Tribunal, is empowered to grant an adverse order against the applicant for costs incurred before the Tribunal ; (2) 10 whether this Court is empowered to grant a costs order adverse to the applicant in the appeal proceedings itself. Regarding the first question, this is an issue that should be determined by the Constitutional Court. There is uncertainty 15 insofar as this question is concerned. Whether this court is empowered, to make a costs order in circumstances where the applicant vigorously opposes an appeal which has been brought by merging parties, may prove a more problematic question. I may find it difficult to accept that this Court does 20 not have a discretion to grant a costs order insofar as appeal proceedings are concerned. Mr Wilson, who appeared on behalf of the applicant characterises the role of the applicant in merger cases, as an 25 1 1 3 / C A C / N o v 1 1 JUDGMENT /bw /... 3 amicus. I have significant doubt as to whether this description is correct. Granted merger proceedings should take the form of an inquiry. This Court’s guidance to the Tribunal notwithstanding, the procedure before the Tribunal ha s developed in a similar fashion to that of a trial. Take this case. 5 In effect a ‘full blown’ trial took place. The applicant then vigorously opposed the appeal, fought tooth and nail to ensure that the merger should be prevented. It then sought leave to the Supreme Court of Appeal on the merits of the matter. Manifestly, it did not comport itself as an amicus. It acted as 10 the opposing party. For these reasons , I find it difficult to conclude, that this Court may never have the discretion to conclude that costs follow the result of the appeal. I mention these considerations, because of the Constitutional 15 Court’s request that the views of this Court be canvassed prior to it making a determination as to whether the Constitutional Court is prepared to accept an appeal. However, given that this court is of a mind to grant leave to appeal regarding its power to grant costs in the Tribunal proceedi ngs, it would be 20 sensible and practical to permit the entire issue; that is both the costs order at the Tribuna l proceedings and at the appellate proceedings, to be canvassed fully by the Constitutional Court. 25 1 1 3 / C A C / N o v 1 1 JUDGMENT /bw /... 4 For these reasons, therefore, the following order is made: The applicant is granted leave to appeal to the Constitutional Court, subject to the rules of that Court against the costs order of this Court in its 5 judgment, under case number 113/CAC/Nov11, dated 28 May 2012. The costs of this application shall be costs in the appeal. I agree: 10 ______________ MAILULA, AJA I agree: 15 ______________ SWAIN, AJA It is so ordered: ______________ 20 DAVIS, JP