The Constitutional Court has dismissed an application by Agri
Wire for leave to appeal a decision by the Supreme Court of Appeal
(SCA), in terms of which it was found that the Commission's
corporate leniency policy is not unlawful.
In dismissing Agri Wire's application for leave to appeal, the
Constitutional Court has in effect upheld the decision by the SCA
that the Commission's corporate leniency policy (CLP) is a
useful tool in the fight against anti-competitive behaviour.
Agri Wire contended before the North Gauteng High Court that the
CLP gives power to the Commission that is not sanctioned by the
Competition Act. It furthermore argued that any evidence obtained
by the Commission through its investigation into alleged cartel
behaviour by Agri Wire, Consolidated Wire Industries and others
should as a result be inadmissible.
The case was dismissed by both the North Gauteng High Court and
the SCA, which held that the Commission is obliged to investigate
all anti-competitive behaviour identified in the Act; and that the
CLP is a useful tool in this process. The courts agreed that, in
terms of the CLP, the Commission could determine whether to refer a
complaint against a participant of a revealed cartel to the
Tribunal. This practice was declared to be consistent with the
Act's objectives and the Commission's obligations to
uncover conduct in terms of the Act.
The Constitutional Court held that Agri Wire's application
should be dismissed with costs as there are no prospects of
success.
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