COMPETITION COMMISSION OF SOUTH AFRICA // X-MOOR TRANSPORT T/A CROSSMOOR TRANSPORT (PTY) LTD

The judgment

The court's own file

1 THE COMPETITION APPEAL COURT OF SOUTH AFRICA JUDGMENT Reportable Case no: 273/CAC/Aug25 In the matter between: THE COMPETITION COMMISSION Appellant and X-MOOR TRANSPORT (PTY) LTD T/A CROSSMOOR TRANSPORT Respondent Coram: Manoim JP, Davis and Dippenaar AJJA Heard 13 February 2026 Delivered 22 June 2026 Neutral citation: Competition Commission v X-Moor Transport (Pty) Ltd t/a Crossmoor Transport (273/CAC/Aug25) [2026] ZACAC 4 (22 June 2026) Summary: Competition law – Procedure – absolution from the instance – whether the Tribunal has the power to grant absolution from the instance in a prohibited practice case – Court held that the Tribunal does not have the power to grant absolution – The Tribunal is obliged to let a case run to finality. The Tribunal therefore erred in granting absolution – The Tribunal’s order granting absolution from 2 the instance is set aside – The matter is remitted to the Tribunal panel that heard the matter for the hearing to resume. 3 ORDER An appeal from: The decision of the Competition Tribunal: 1 The late filing of the Commission’s appeal is condoned. 2 The appeal is upheld. 3 The Tribunal’s order granting absolution from the instance is set aside. 4 The matter is remitted to the Tribunal panel that heard the matter for the hearing to resume. 5 The Tribunal member presiding or the Chairperson, must set the matter down for a pre-hearing conference, within 20 court days of the date of this judgment. 6 There is no order as to costs. JUDGMENT Manoim JP (Davis and Dippenaar AJJA concurring)

[1]This appeal concerns one central question of law that has a material bearing on how hearings are conducted by the Competition Tribunal (Tribunal) in terms of the Competition Act 89 of 1998 (the Act). The question is, does the Tribunal have the power to grant absolution from the instance in a prohibited practice case?

[2]In the present matter, the Tribunal answered that question affirmatively and granted absolution. The Competition Commission (the Commission) now appeals that decision. The Commission’s appeal raises the further question that if absolution is competent, whether it was correctly granted on the facts. Should either of these questions be resolved in favour of the Commission, the Commission requests that the case be remitted back to the Tribunal for a de novo hearing before a new panel.

[3]The case concerns whether the respondent firm, X-Moor Transport Pty (Ltd) which trades as Crossmoor, contravened sections 4(1)(b)(i) and (iii) of the Act in 4 relation to a tender issued by Pikitup SOC Ltd ( Pikitup), state owned company that provides waste management services to the City of Johannesburg. 1 Crossmoor opposed the appeal on both these grounds. It raised the further question that an order granting absolution is not appealable as it is of an interlocutory nature and does not fall within the ambit of s 37(1)(b) of the Act. But that argument is not correct. As the Supreme Court of Appeal (SCA) held in the Liberty Group Ltd case, following an earlier authority in Steytler v Fitgerald: 2 ‘The dictum from Steytler … makes it clear that it is established practise that a decision of absolution from the instance in a trial has the effect of a definitive sentence. Simply put, a decision on the sufficiency of evidence led in that suit, by way of an order of absolution from the instance, has a definitive effect and is susceptible to appeal.’

[4]Moreover, as the Commission argued, this appeal also raises a jurisdictional question as to whether the Tribunal has the power to grant absolution under the Act. If not, its decision was ultra vires. On both these grounds, the decision was susceptible to appeal.

[5]I turn now to the question of whether the Tribunal has the power to grant absolution. In two prior cases the Tribunal has been open to considering the question of granting absolution but has not considered the issues definitively since in both cases absolution was declined. 3

[6]In the present matter the Commission had initially contended before the Tribunal that absolution was not competent but then conceded that it was. Crossmoor argued that given this concession the Commission was not entitled to re-argue this point on appeal. But this is not correct. As this is a concession of law not fact, the Commission is entitled to re-argue this point on appeal. As Jafta J held in Cool Ideas 1186 CC v Hubbard: 1 It is not clear from the record whether Crossmoor is a company or a close corporation. The tender was made in the name of the close corporation but in his witness statement, Inderan Naicker, describes himself as the managing director of the second respondent which in the headnote is identified as a company. But for the purpose of this decision nothing turns on this distinction. 2 Liberty Group Ltd v K & D Marketing & Others (1290/18) [2020] ZASCA 41 para 14. 3 Competition Commission of South Africa v Afrion Property Services CC and Others (CR245Mar17) [2021] ZACT 79 (15 January 2021) and Competition Commission of South Africa v Thembekile Maritime Services (Pty) Ltd CR067May17/SA103Jun18. 5 ‘…a concession wrongly made by one of the parties is not binding on a court, if it relates to a point of law.’ 4 Moreover, the Tribunal could have raised the issue of jurisdiction mero motu. 5

[7]Absolution from the instance has its origins in civil litigation. It is premised on efficiency in litigation. Typicaly defendants apply for it when the plaintiff closes its case. Its purpose is to avoid burdening a defendant with prolonged litigation in matters where the plaintiff is unable to make out a prima facie case.

[8]As explained in the commentary by Erasmus: ‘In South African practice the decree of absolution from the instance fulfils a different function. It is an order, granted either at the end of the plaintiff’s case or at the end of the whole case, dismissing the plaintiff’s claim. Its effect is to leave the parties in the same position as if the case had never been brought, for a judgment of absolution from the instance does not amount to res judicata and the plaintiff is entitled to proceed afresh.’ 6

[9]There is nothing in the Act that expressly gives this power to the Tribunal. Nor is there an express authorisation in terms of the Tribunal’s Rules. The Tribunal appreciated this fact and instead found this competence by relying on Rule 55(1) of its Rules, which states: ‘If, in the course of proceedings, a person is uncertain as to the practice and procedure to be followed, the member of the Tribunal presiding over a matter – (a) may give directions on how to proceed; and (b) for that purpose, if a question arises as to the practice or procedure to be followed in cases not provided for by these Rules, the member may have regard to the High Court Rules.’

[10]The Tribunal explained this in the following way: ‘The Tribunal Rules do not make express provision for absolution from the instance. Tribunal Rule 55(1)(b) provides that if a question arises as to the practice or procedure to be followed in cases not provided for by the Tribunal's Rules, the chairperson may have regard to the Uniform Rules of the High Court. As appears from Thembekile, it is the practice of this Tribunal 4 Cool Ideas 1186 CC v Hubbard [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC) para 112 and Matatiele Municipality and Others v President of the RSA and Others [2006] ZACC 2; 2006 (5) SA 47 (CC); 2006 (5) BCLR 622 (CC). 5 Regiments Fund Managers (Pty) Ltd v Nel NO and Another [2023] ZAGPJHC 1420 para 10 & 11. 6 Erasmus, Superior Court Practice, second edition, D1- 529. 6 to permit applications for absolution. The Tribunal’s power to grant absolution from the instance stems from its inherent authority to manage its proceedings and ensure that parties are not unduly burdened by cases where the initiating party has failed to lay a foundational case. The Commission did not contend that the Tribunal did not have the power to grant absolution, but opposed the application on its merits.’

[11]Presumably, what the Tribunal did, although it did not say this expressly, was to have regard to Rule 39(6) of the High Court Rules. Rule 39(6) states: ‘At the close of the case for the plaintiff, the defendant may apply for absolution from the instance, in which event the defendant or one advocate on his behalf may address the court and the plaintiff or one advocate on his behalf may reply. The defendant or his advocate may thereupon reply on any matter arising out of the address of the plaintiff or his advocate.’

[12]If absolution was a purely a procedural rule, then there could be no objection to this approach. But is granting absolution merely procedural? The Tribunal clearly believed it was. In the final paragraph of its decision, the Tribunal offers words of comfort to the Commission saying: ‘Under the circumstances, we exercised our discretion in favour of granting absolution from the instance. This does not prevent the Commission from initiating fresh proceedings if it comes into possession of evidence which supports its allegations.’

[13]On appeal the Commission argued that absolution is not merely a procedural rule as its invocation effectively ends a complaint referral. I consider this argument more fully below.

[14]The Tribunal did not confine its discretion to grant absolution to Rule 55(1) of its Rules. It also noted that it had an ‘…inherent authority to manage its proceedings’. But even that power is subject to limitations. This was made clear by the Constitutional Court in Competition Commission of South Africa v Pioneer Hi-Bred International Inc and Others, where the Court held that: ‘As a creature of statute, the Tribunal’s power to regulate its proceedings is circumscribed by the Act. It has no inherent powers to control its own process comparable to those of an ordinary 7 High Court, the Supreme Court of Appeal or this Court as contained in section 173 of the Constitution.’ 7

[15]Faced with these difficulties counsel for Crossmoor advanced a novel argument, which had not been made before the Tribunal, that neither depended on Rule 55(1) or arguing for an inherent power. Rather, she argued, the Tribunal’s competence resides in sections 27(1)(a) and 27(1)(d) of the Act, read with section 62. Section 27(1)(a) gives the Tribunal the power to ‘…adjudicate on any conduct prohibited in terms of Chapter 2’. She argued that consideration of an application for absolution falls squarely within what is contemplated by ‘adjudication’.

[16]Moreover, she argued, section 27(1)(d), gives the Tribunal the power to make any ruling ‘…incidental to the performance of its functions in terms of the Act’. Since in terms of section 62, the Tribunal has the jurisdiction over the interpretation and application of Chapter 2 of the Act, the power to grant absolution is incidental to the performance of this function.

[17]Counsel for Crossmoor also argued that her interpretation was aligned with the purposes of the Act. For instance, section 52(2) of the Act states that the Tribunal must conduct its hearings as ‘expeditiously as possible’. Burdening a respondent with having to go onto its defence when faced with a meritless complaint referral, would run counter to the Act’s exhortation to proceed expeditiously.

[18]While counsel for Crossmoor is correct that considering an application for absolution is consistent with what one notionally considers adjudication to encompass, section 27(1)(a) goes further than this. It states that the purpose of the adjudication is to ‘ … determine whether prohibited conduct has occurred, and, if so, to impose any remedy provided for in this Act’.

[19]This means that the process of adjudication has a purpose. That purpose is to determine whether prohibited conduct has ‘occurred’. If it has occurred, it must then 7 Competition Commission of South Africa v Pioneer Hi-Bred International Inc and Others [2013] ZACC 50; 2014 (2) SA 480 (CC); 2014 (3) BCLR 251 (CC) para 38. 8 impose a remedy. This clearly indicates that what adjudication means in 27(1)(a) is to adjudicate to finality.

[20]Conversely, the adjudication of an application for absolution does not entail an enquiry if the prohibited practice has occurred. 8 It is only a determination if the complainant has made out a prima face case. That is something different from determining to finality. This is because if absolution is granted the complainant can in theory revive the case. If it is refused, the case continues and hence there is no finality.

[21]But this interpretation goes further than the mere parsing of the language used in section 27(1)(a). There are other strong indications in the mechanisms of the Act that the Tribunal is required to come to a final decision on a complaint referral which distinguishes the consequences of its adjudicative role from that of a civil court.

[22]The Act gives a person who has suffered loss as a result of a prohibited practice the right to sue for damages. However, that right can only be exercised after the Chairperson of the Tribunal (or the Judge President of the Court as the case maybe) has certified that the conduct constitutes a prohibitive practice. Certification, it follows, could only come about after a case has been finally concluded. 9

[23]The same principal applies to criminal prosecutions of persons whose firms have been found to have contravened section 4(1)(b) of the Act, the so-called hard- core cartels provision. Such a prosecution of the individual is only competent if the Tribunal or Court has made a finding that the relevant firm has engaged in a prohibited practice in terms of section 4(1)(b) of the Act. 10

[24]This means that two related proceedings – civil damages and criminal prosecutions – can only be founded upon a prior finding by the relevant competition authority that a prohibited practice has occurred. Again, this supports the interpretation that the function of the Tribunal as ‘court of first instance’ of the system is to continue its proceedings until finality. 8 See for instance what was stated in Erasmus quoted earlier in these reasons. 9 Section 65(6)(b). 10 Section 73A(3). 9

[25]It must be borne in mind, as was explained by the Supreme Court of Appeal in American Natural Soda Ash Corporation and another v Competition Commission and Others (ANSAC), that complaint proceedings are not private proceedings but are there to vindicate a public interest. 11 This distinguishes the Commission’s complaint prosecution function from that of a private litigant that litigates in its own interest; hence why absolution is appropriate to the latter but not the former.

[26]Section 67 of the Act deals with two issues that also indirectly impact on the question we are considering. Section 67(1), sometimes referred to as the prescription section, provides that a complaint that has ceased three years prior to it being initiated, may not be referred to the Tribunal. In the present matter the practice would have ceased in October 2012 when the tenders were submitted. The Tribunal heard the matter in June 2025 - thus nearly thirteen years after the practice had ceased. Yet the Tribunal stated that its granting of absolution: ‘… does not prevent the Commission from initiating fresh proceedings if it comes into possession of evidence that supports its allegations.’

[27]If the Commission were to institute fresh proceedings, it would have to overcome the time-bar issue created by section 67(1). Although the Constitutional Court held in Pickfords that this provision is a procedural time bar capable of condonation, good cause must still be shown. 12 On the facts of this case, the Commission would be unlikely to obtain condonation. That said, legal conclusions cannot be based on the history of a single case.

[28]But in most cases by the time a matter has gone to trial before the Tribunal, the three-year period will have expired. This is because of the way the system works. The genesis of a case is a complaint. Whether it receives a complaint or initiates its own, 11 American Natural Soda Ash Corporation and Another v Competition Commission of South Africa 2005 (6) SA 158 (SCA); [2005] 3 All SA 1 (SCA); 2005 (9) BCLR 862 (SCA). The learned judges in discussing intervention rights made the following observation about the public character of Tribunal orders at paragraph 33: ‘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’. (My emphasis.) 12 Competition Commission of South Africa v Pickfords Removals SA (Pty) Limited [2020] ZACC 14; 2020 (10) BCLR 1204 (CC); 2021 (3) SA 1 (CC) para 54. 10 the Commission must first investigate. 13 It does not have the luxury like a private litigant to issue summons at any moment; it must comply with its statutory obligations and investigate a case before it is referred. This requires it to conclude that it has a prima facie case to refer. The Commission also makes the point that once it refers a case its powers of investigation end.

[29]Then follows the Tribunal process, which is typically lengthy. Before the trial stage begins the Tribunal frequently must determine several preliminary issues, inter alia discovery applications and exceptions. The Tribunal’s gesture of comfort to the Commission in this case that it can reinstate a complaint will seldom be realised, while paradoxically it will encourage respondents to game the system by engaging in delaying tactics if the prescription clock is ticking against the Commission.

[30]One must of course interpret the Act holistically if there are some sections which might suggest a contrary interpretation. Thus, and although this point was not argued before us, I accept that the other subsection in section 67, sub-section 67(2), says a complaint may not be referred to the Tribunal against any firm that has been a respondent in ‘… completed proceedings before the Tribunal under the same or another section of this Act relating substantially to the same conduct’.

[31]Does this mean that proceedings before the Tribunal might be ‘incomplete’ for some reason, one being that absolution was granted? This of course is a possible interpretation. But more likely this provision was intended to deal with double jeopardy where a person might be charged under different sections of the Act for what might amount to the same conduct. I do not therefore consider that this suggests that absolution is part of the Act. This would require a strained meaning given to this sub- section that does not harmonise with the other provisions I have referred to.

[32]But there is also another fundamental distinction between the function of the Tribunal and that of a civil court as the Commission points out in its Notice of Appeal. The Tribunal is vested with the power to conduct its proceedings inquisitorially. Section 52(2)(b) which deals with hearings says the Tribunal ‘… may conduct its hearings 13 Section 49(B)3. 11 informally or in an inquisitorial manner’. Civil courts by contrast are adversarial and if a judicial officer departs from the adversarial model to jump into the ring, they get criticised for doing so. 14

[33]The express power given to the Tribunal to act in ‘an inquisitorial manner’ is not congruent with the notion of absolution. This is because a respondents’ right to seek absolution could always be negated by the Tribunal’s decision at the end of either the Commission or the respondent’s case by electing to call a witness neither side wanted to call or neglected to call. Contrast that with the civil system. As the authors of Herbstein and Van Winsen observe: ‘[i]n civil cases the court has no authority to call witnesses without the consent of both parties’. 15

[34]In an adversarial system the adjudicator decides between two competing private rights. There, the grant of absolution only has private consequences. But under the Act the balance is between a public right to have a determination made as to whether prohibited conduct has occurred, versus the private right of a respondent to the expeditious outcome to a complaint. In such a system the public right to finality must prevail over the private right to expedition. The grant of absolution is not consonant with such a proceeding.

[35]For all these reasons a textual, contextual, and purposive interpretation, as required by the triad recognised in Natal Joint Municipal Pension Fund v Endumeni Municipality and later cases, clearly points to the Tribunal not having the power to grant absolution. 16 The Tribunal is obliged to let a case run to finality. The Tribunal therefore erred in granting absolution. On this ground alone the appeal must succeed. 14 See for instance City of Johannesburg Metropolitan Council v Ngobeni (314/11) [2012] ZASCA 55 (30 March 2012), where the SCA quoted with approval from an English case, which in turn quoted an earlier remark by Lord Greene which makes the point eloquently. If a judge, said Lord Greene, should himself conduct the examination of witnesses: ‘ … he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict’. 15 See Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa, Fifth edition, page 899 and cases cited in footnote 88. 16 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA). 12

[36]It is not necessary then for this Court to decide whether the decision to grant absolution was made correctly. But it is relevant for us to consider the facts briefly for the purpose of the remedy. The Commission argues for remittal as a remedy. I would agree that given our finding this is correct. But the Commission goes further and argues that the matter should be remitted to a new panel. Presumably, although it does not say so, this would mean the matter running again de novo.

[37]For this reason, I must briefly delve into the facts to examine whether there was anything about the finding made by the Tribunal, albeit under the wrong test, which would suggest that the matter could not be remitted to the same panel to complete the case. Facts of the case

[38]Briefly the facts are these. Pikitup, the refuse division of the City of Johannesburg, issued a tender for waste management services in 2012. Four firms tendered. The Commission alleges that each of the firms was involved in collusive tendering. However, the case that is before us concerns only two of those firms, Crossmoor and another firm, Casalinga Investments, which trades under the name Waste Rite. 17

[39]The basis for the Commission’s case against the two latter firms was the way in which they had completed the tender documents. As part of the tender requirement the firms had to itemise their fixed and variable costs over a three-year period. Crossmoor and Waste Rite provided identical prices for nine line-items of fixed costs, to the nearest cent. Although their variable costs were not identical, they were close in range. Pikitup lodged a complaint with the Commission. After an investigation, the Commission referred a complaint against both firms to the Tribunal. The Commission alleges that this conduct contravened sections 4(1)(b)(i) and (iii) of the Act. 17 The other two firms were also alleged to have colluded but with each other, not with Crossmoor and Waste Rite. The Commission alleged two set of bilateral collusive agreements. 13

[40]Although only the fixed costs were identical the Commission alleges that the collusion also involved an agreement to fix the variable costs and the hourly rate. Beyond this no more is stated about the agreement in the referral.

[41]Unsurprisingly given the sparse nature of the referral, the answering affidavits of both respondents were equally unforthcoming. Casalinga, which was still opposing the case at that stage filed an answering affidavit where its deponent, Ms Lillian Naicker, the managing member of Waste Rite, complained that the Commission did not provide any detail as to the nature of the agreement and who from the respective firms was party to it. Beyond noting that she and the managing member of Crossmoor, who are respectively sister and brother, have an acrimonious relationship, she claimed no knowledge of any agreement. Since the tender documents were not attached to the referral, she alleged she could not comment on the prices.

[42]Crossmoor took a different approach. In its answering affidavit, Ms Naicker’s brother, Mr Inderen Naicker, the chief executive of Crossmoor, conceded that the fixed costs were identical. However, he goes on to enclose working documents from one of his employees to make the case that Crossmoor’s bid was the fruit of its own work. He said he was unable to explain how the fixed costs came to be identical. Instead, he suggests that someone from Waste Rite may have copied Crossmoor’s bid.

[43]Waste Rite settled with the Commission before the hearing commenced. As part of the settlement Waste Rite had agreed to co-operate with the Commission in its case against Crossmoor. The hearing then was limited to the question of whether Crossmoor was liable. The Commission only led one witness: Christa Venter, the chief operations officer of Pikitup. Her evidence was confined to explaining why it was improbable that both firms could have submitted tenders containing identical fixed costs over a three-year period. The Commission then closed its case and counsel for Crossmoor applied for absolution.

[44]The nub of the argument was that the Commission had failed to prove an agreement between the two firms. So how had the remarkable coincidence in fixed costs come about? Here, in the record there was at least an explanation provided not by Crossmoor but an erstwhile employee of Waste Rite. In a witness statement that is 14 signed, but not deposed to, a Mr De Lange, who was then employed as an administrator at Waste Rite, provided an explanation for the pricing coincidence. He said that a week prior to the date on which the tenders had to be submitted he ‘bumped into’ a Mr Perumal, an employee of Crossmoor. They both went together to Jetline, a printing shop in Wynberg, to make copies of their respective tenders as both had been instructed to do so by their respective employers. Mr Perumal offered to buy them both lunch from the nearby KFC and whilst he was out, Mr De Lange noticed that Mr Perumal had left his documents behind. Mr De Lange peaked at them, noticed the tender for Pikitup, and copied out the pages with the prices. He says he did this furtively and that Mr Perumal did not know he (De Lange) had done this. Mr De Lange then prepared the documents for Ms Naicker who to his surprise after perusing them made no changes and hence they were submitted.

[45]In its reasons the Tribunal discusses whether a prima facie case had been made out. The Tribunal concluded it had not because there was no evidence of an agreement. While the Commission had led evidence of the identical fixed costs, it had relied on an inference to support the conclusion that this must have come about because of an agreement. Absent any direct evidence on this point, the only other evidence in the record was the explanation offered in the witness statement of Mr De Lange. The Tribunal described this as a unilateral act of theft by the one firm. It further found that the Commission elected not to call Waste Rite witnesses, who were under a settlement agreement obligation to cooperate. There was thus, it concluded, no prima facie evidence of an agreement.

[46]Given that the Tribunal was analysing the evidence on the assumption that absolution was a competent remedy there is nothing to fault its reasoning. The Tribunal did not make any credibility findings in relation to the evidence of the only viva voce witness, Ms Venter. Indeed, her version is uncontentious.

[47]The Tribunal was criticised because it failed to consider contradictions between the versions of Ms Lilian Naicker and Mr De Lange as to who was responsible for preparing the Waste Rite submission. Here, the Commission relies on its interview with Ms Naicker during its investigation. Whether there is such a contradiction is not 15 something I need to take a view on. The Tribunal noted, that although the Commission had settled with Waste Rite, it did not call Ms Naicker to testify.

[48]I am thus of the view that the matter should still be remitted to the same panel that heard the matter thus far. There is nothing to suggest that if other facts are brought to its attention the panel will not consider the evidence fairly and with an open mind. To have the matter start before a new panel would be unfairly prejudicial to the respondent.

[49]The matter is thus remitted to the same panel to resume the hearing at the point it was prior to the application for absolution.

[50]I have also included as part of our order that the Tribunal call a case management meeting within 20 court days of the date of this order so the orderly and expeditious resumption of the hearing can be managed. Condonation

[51]The Commission filed its appeal late but has sought condonation. The appeal was filed 16 days late as the Commission was seeking advice as to whether to appeal. Crossmoor has not opposed the condonation application. Both the delay and the reasons for it are acceptable so condonation is granted. Costs

[52]Although the Commission has been largely successful in this matter the main point involved an important point of procedure in the Tribunal, which had not been decided definitively before this case. The arguments advanced by both parties have helped this court in its deliberations on a point of law that will clarify the Tribunals’ obligations in future cases. Applying the Biowatch Trust v Registrar Genetic Resources and Others principle, a fair outcome is that each party pay its own costs. 18 18 Biowatch Trust v Registrar Genetic Resources and Others [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014 (CC). 16 Order

[53]As a result, the following order is granted: 1 The late filing of the Commission’s appeal is condoned. 2 The appeal is upheld. 3 The Tribunal’s order granting absolution from the instance is set aside. 4 The matter is remitted to the Tribunal panel that heard the matter for the hearing to resume. 5 The Tribunal member presiding or the Chairperson, must set the matter down for a pre-hearing conference, within 20 court days of the date of this judgment. 6 There is no order as to costs. _____________ N Manoim Judge President Competition Appeal Court of South Africa 17 Appearances Counsel for the Appellant: K Monareng & T Vukeya Instructed by: Maenetja Attorneys, Pretoria. Counsel for the Respondent: R Blumenthal Instructed by: Witz Inc, Rosebank.