South Africa: SCA Jurisdiction Ousted In Competition Matters

The Constitution 17th Amendment Bill (the "Bill") was adopted by the National Assembly on Tuesday 20 November 2012, by 276 votes to 25.  Before the Bill comes into operation it must still be referred to the President of South Africa for assent and then published in the Government Gazette.

The amendments to the Constitution of the Republic of South Africa, No. 108 of 1996 (the "Constitution") contained in the Bill are far reaching and will likely have a significant effect on the entire legal system in South Africa.

There are also specific amendments to the appellate regime in competition and labour matters.  In this regard, the Bill removes the jurisdiction of the Supreme Court of Appeal (the "SCA") to hear reviews and appeals from the Competition Appeal Court (the "CAC") and the Labour Appeal Court (the "LAC").

In terms of the current wording of section 168 of the Constitution, the SCA is the apex court in relation to competition and labour appeals.  The Bill has removed such authority, effectively rendering the CAC as the court of final instance in all competition matters.  The same applies to the LAC in the labour context.  The amended section 168 will read as follows, "The Supreme Court of Appeal may decide appeals in any matter arising from the High Court of South Africa or a court of status similar to the High Court of South Africa, except in respect of labour or competition matters to such extent as may be determined by an Act of Parliament".

In addition, the Bill makes significant amendments to the jurisdiction of the Constitutional Court (the "CC"). Currently, section 167 of the Constitution limits the jurisdiction of the CC to matters of a constitutional nature. The Bill significantly expands the authority of the CC as the amendment provides that the CC may hear an appeal in "any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court".

In our view, therefore :

•  The SCA will no longer have jurisdiction to hear appeals from the CAC; BUT
• An appeal from the CAC will often lie to the CC as, in most competition law matters, issues of "general public importance" arise.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.