Goodyear South Africa and The Competition Commission

The judgment

The court's own file

THE COMPETITION APPEAL COURT OF SOUTH AFRICA JUDGMENT Reportable Case no: 269/CAC/Mar25 In the review between: GOODYEAR SOUTH AFRICA (P TY) LTD Appellant and COMPETITION COMMISSION First Respondent APOLLO TYRES SOUTH AFRICA (PTY) LTD Second Respondent CONTINENTAL TYRE SOUTH AFRICA (PTY) LTD Third Respondent BRIDGESTONE SOUTH AFRICA (PTY) LTD Fourth Respondent SOUTH AFRICAN TYRE MANUFACTURERS CONFERENCE (PTY) LTD Fifth Respondent Coram: Nuku JA, Davis and Dippenaar AJJA Heard: 17 September 2025 Delivered: 2 October 2025 2 Summary: Competition law – lawfulness of a former member of the Competition Tribunal (Tribunal) continuing to participate in complaint referral proceedings after resignation, where she was previously a panel member – Interpretation of sections 29, 31, and 33 of the Competition Act 89 of 1989. ORDER On appeal from: The decision of the Chairperson of the Competition Tribunal: 1. The appeal is dismissed. 2. The appellant is ordered to pay the first respondent’s costs, including the costs of two counsel, where employed. JUDGMENT Nuku JA (Davis and Dippenaar AJA concurring)

[1]This appeal concerns the interpretation of certain provisions of Chapter 4, Part B of the Competition Act 89 of 1989 (the Competition Act). The aim is to determine whether a member of the Competition Tribunal (the Tribunal) remains eligible to participate in Tribunal proceedings after their resignation takes effect.

[2]The issue arose after Ms Yasmin Carrim (Ms Carrim) resigned from her position as a member of the Tribunal. At the time of her resignation, she was serving on a panel, appointed by the Chairperson of the Tribunal (the chairperson), to decide on a complaint referred by the Competition Commission (the Commission) to the Tribunal. The panel was in the process of hearing evidence when Ms Carrim’s resignation took effect.

[3]Ms Carrim’s resignation prompted an inquiry by the third respondent, Continental Tyres Proprietary Limited (Continental), regarding the composition of the panel after her resignation. The chairperson advised that ‘although Ms Carrim had resigned, she was 3 willing and factually able to complete the hearing’. The chairperson asked the parties to submit their arguments on Ms Carrim’s eligibility to participate in the proceedings after her resignation took effect.

[4]The three parties that made submissions were the Commission, Continental, and the appellant, Goodyear South Africa Proprietary Limited (Goodyear). After receiving the submissions, the chairperson decided that the proceedings should continue before the panel as originally constituted. In other words, Ms Carrim was to continue participating in the proceedings until they were finalised. This is the decision that is the subject of this appeal.

[5]A reading of paragraphs 15 and 16 of the chairperson’s ruling suggests that Continental and Goodyear had argued that the hearing should restart before a different panel, as outlined in section 31(3)(b) of the Competition Act. Their main point was that section 33 of the Competition Act does not give authority for Ms Carrim’s continued participation in the proceedings due to her resignation. They contended that her situation was different from that of Tribunal members whose terms expire due to the passage of time and who, under section 33 of the Competition Act, can continue acting until the completion of proceedings in which they are involved at the time their terms end. Goodyear maintained this argument in this appeal.

[6]Sections 31(3) provides: ‘(3) If, because of withdrawal from a hearing in terms of section 32, resignation, illness or death, a member of the panel is unable to complete the proceedings in a matter assigned to that panel, the Chairperson must— (a) direct that the hearing of that matter proceed before any remaining members of the panel subject to the requirements of subsection (2)(a); or (b) terminate the proceedings before that panel and constitute another panel, which may include any member of the original panel, and direct that panel to conduct a new hearing.’ And section 33 states that: 4 ‘If, on the expiry of the term of office of a member of the Competition Tribunal, that member is still considering a matter before the Tribunal, that member may continue to act as a member in respect of that matter only.’

[7]The submissions made by the Commission to the chairperson, which are essentially the same as in this appeal, stated that subsection (3) of section 31 of the Competition Act requires two jurisdictional requirements to be met before the chairperson is obliged to act as specified in that subsection. The first is that the panel member must be unable to complete the proceedings, and the second is that this inability must be caused by (a) withdrawal from a hearing under section 32, (b) resignation, (c) illness, or (d) death. The Commission argued that Ms Carrim is able to complete the proceedings despite her resignation, and therefore, the chairperson is not required to act under subsection (3)(a) or (b) of section 31.

[8]It is not necessary to outline the reasons provided by the chairperson for her decision, as the parties are in agreement that Ms Carrim’s ability to continue participating in the proceedings before the Tribunal is a matter of statutory interpretation.

[9]Only Goodyear and the Commission participated in this appeal. According to Goodyear, the provisions relevant to determining Ms. Carrim’s eligibility to continue participating in the proceedings are sections 26, 29, 31, and 33 of the Competition Act. For ease of reference, we will reproduce the relevant parts of sections 26 and 29.

[10]Section 26(2)(a) and (b) provide: ‘(2)(a) The Competition Tribunal consists of a Chairperson and not less than three, but not more than 14, other women or men appointed by the President, on a full or part-time basis, on the recommendation of the Minister, from among persons nominated by the Minister either on the Minister’s initiative or in response to a public call for nominations, and any other person appointed in an acting capacity in terms of paragraph (b). (b) The Minister, after consultation with the Chairperson of the Competition Tribunal, may appoint one or more persons who meet the requirements of section 28, as acting parttime members of the Competition Tribunal for such a period as the Minister may determine.’ 5 And sections 29(1) and (2) provide: ‘(1) Subject to subsection (2), the Chairperson and each other member of the Competition Tribunal serves for a term of five years. (2) The President may reappoint a member of the Competition Tribunal at the expiry of that member’s term of office, but no person may be appointed to the office of the Chairperson of the Tribunal for more than two consecutive terms.’

[11]The starting point, it was argued by Goodyear, is section 33. It claimed that reference to the expiry of the term of office in section 33 relates to the term outlined in subsections (1) and (2) of section 29, which is the renewable five-year term. It was also argued that the expiry of a term of office due to resignation is not covered by section 33. This is because section 33 does not mention resignation, and if the legislature had intended to include expiry of a term of office due to resignation, it would have stated so.

[12]To expand on the previous point, it was argued that the above interpretation of section 33 does not undermine the purpose of the Competition Act because the chairperson has the authority, under section 31(3), to either direct that the hearing continues before the remaining two panel members or to reconstitute the panel and restart the hearing if necessary. Another option that is generally available to the Minister, although not in the current situation, is the appointment of a person as an acting part- time member according to section 26(2)(b).

[13]It was further argued that the above interpretation of section 33 aligns with the text, is reasonable, and avoids an impermissible resort to a purposive interpretation in situations where such interpretation is not reasonably possible based on the wording used in the Competition Act. 1

[14]Lastly, the Commission was criticised for trying to interpret section 31(3) as allowing a Tribunal member who has resigned to continue participating in Tribunal 1 Minister of Police and Others v Fidelity Security Services (Pty) Ltd [2022] ZACC 16; 2023 (3) BCLR 270 (CC). 6 proceedings after their resignation takes effect. This, it was argued, does not align with the words that the legislature explicitly chose when drafting the provision.

[15]The Commission, in its view, considers sections 31 and 52 to be relevant. The argument regarding section 31 was that the second jurisdictional requirement, which is the inability to complete the proceedings, involves a factual inquiry. In this case, that factual inquiry leads to the conclusion that Ms Carrim is able to complete the proceedings, and therefore, the matter ends there.

[16]Section 52 was invoked to stress that the requirement in subsection (2)(a), which mandates that Tribunal proceedings be conducted expeditiously and in accordance with the principles of natural justice, would be undermined by the interpretation of section 33 proposed by Goodyear. This is because of the delay that would result if the proceedings were to start afresh before a reconstituted panel.

[17]We will refer to all these provisions relied upon by the parties when deciding whether Ms Carrim is eligible to continue participating in the Tribunal proceedings. Before examining these provisions, it is important to briefly outline the principles of statutory interpretation that are currently relevant. As pointed out by the Commission, statutory interpretation is a unified process that involves considering the text, context, and purpose of a statutory provision, starting with the ordinary grammatical meaning of words or phrases, preferring a sensible interpretation over an insensible one that would undermine the purpose of the provision or the statute as a whole. 2 2 See Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) para 18; Betterbridge (Pty) Ltd v Masilo and Others 2015 (2) SA 369 (GP) para 8 and Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others [2021] ZASCA 99; [2021] 3 All SA 647 (SCA) para 25. 7

[18]A good starting point is to consider section 33. In my view, this provision can have more than one interpretation. One of these interpretations, if chosen, might be decisive in this appeal.

[19]One way to interpret section 33, as Goodyear argues, is that the reference to the expiration of a term of office relates to the term of office mentioned in subsections (1) and (2) of section 29 (the Goodyear interpretation). The alternative interpretation is to see the reference to the expiry of the term of office in section 33 as unqualified (the unqualified interpretation).

[20]The Goodyear interpretation, however, overlooks the other subsections of section 29, all of which also address the term of office of a Tribunal member. Indeed, the header to section 29 is ‘term of office of members of the Competition Tribunal’. As subsection 3 makes clear, a Tribunal member’s term ends when his or her resignation becomes effective. Subsection 4 similarly pertains to the resignation of the chairperson. Finally, subsection 5 discusses the termination of Tribunal members’ terms in cases of removal from office.

[21]Once all the other subsections of section 29 are considered, it becomes clear that there is more than one way for a Tribunal member’s term of office to end. To single out the expiry of the term of office referenced in subsections 1 and 2 when interpreting section 33 in circumstances where section 33 does not explicitly make that distinction would, in my view, require the reading in and addition of the words ‘due to the effluxion of time’, after the words ‘expiry of the term of office’ in section 33. This would certainly contradict the basis of section 29, which covers the period of a term of office and includes resignation.

[22]It may be argued that the unqualified interpretation could lead to an absurd result, whereby a Tribunal member who has been removed from office under subsection 5 may continue to participate in a hearing they were involved in before their removal. The simple answer to that is that section 33 is couched in permissive terms, and a Tribunal 8 member’s eligibility to continue participating in uncompleted proceedings will depend, among other things, on the reasons for the termination of office.

[23]A Tribunal member may continue participating in ongoing proceedings beyond their term of office if it is legally tenable. If it is not legally tenable to do so, the Tribunal member may obviously not continue to participate.

[24]The above aligns with the provisions of section 31(3) in cases where the term ends due to resignation. The involved member may continue participating in ongoing proceedings, and only if they are unable to do so would the chairperson invoke the provisions of section 31(3). This interpretation provides a consistent reading of sections 29, 31, and 33. It also supports the expressed intent of the legislature, as outlined in section 52(2)(a), to ensure Tribunal proceedings are conducted expeditiously.

[25]The unqualified interpretation directly considers the words used in the Competition Act without requiring any qualifications. It aligns with the context found in section 29 concerning the term of office for Tribunal members. It supports an important purpose of the Competition Act as outlined in section 52(2)(a), which aims to ensure the prompt conduct of Tribunal proceedings.

[26]The secondary issue with Goodyear’s approach is that it views section 31(3) as a provision that identifies persons disqualified from participating in Tribunal proceedings. That approach overlooks the remaining subsections of section 31. On a straightforward reading of section 31, it is clear that it pertains to the assignment of cases to panels in a way that meets the requirements of the Competition Act. The section specifies: (a) the number of persons required to form a panel; (b) the requirement that one of those persons must have legal training and experience; (c) the rule that no more than one member of the panel can be a person appointed under section 23(2)(b); (d) the designation of one of the panel members to preside; (e) the procedures if a panel member cannot complete a hearing due to specified circumstances; (f) the necessity 9 that the decision be in writing and include reasons; and (g) any other matters that the chairperson or a Tribunal member sitting alone may handle.

[27]When section 31(3) is considered in its proper context, it becomes clear that its purpose is to authorise the chairperson to address situations where a panel member is unable to complete Tribunal proceedings. If a member is able to do so, there is no need for the chairperson to exercise the powers granted under section 31(3) of the Competition Act.

[28]Based on the conclusions above regarding the interpretation of the relevant provisions of the Competition Act, it is clear that Ms Carrim is eligible to continue participating in Tribunal proceedings. Her continued participation is authorised under section 33 of the Competition Act. The appeal must therefore fail.

[29]Both parties agreed that costs should follow the result and that such costs should include costs occasioned by the employment of two counsel. A cost order to that effect shall accordingly be made. Order

[30]As a result, the following order is granted: 1. The appeal is dismissed. 2. The appellant is ordered to pay the first respondent’s costs, including the costs of two counsel, where employed. ________________________ L G Nuku Judge of Appeal Competition Appeal Court of South Africa 10 Appearances For the appellant: A Gotz, SC and N Lewis Instructed by: Judin Combrinck Inc, Johannesburg For the first respondent: D Berger, SC and A Cachalia Instructed by: Diale Mogashoa Attorneys, Pretoria For the second to fifth respondents: No appearance