School of Law (ETDs)

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    Condonation of non-compliance under section 67(1) of the competition act 89 of 1998
    (University of the Witwatersrand, Johannesburg, 2023) Humphreys, Russell
    The Competition Commission has long sought to extend its powers to investigate and refer complaints to the Competition Tribunal for prosecution. Prior to the decision of the Constitutional Court in the case of the Competition Commission of South Africa v Pickfords Removals SA (Pty) Limited 2021 (3) SA 1 (CC) (the ‘Pickfords’ case), the power of the Commission to initiate investigations and therefore refer matters to the Competition Tribunal was limited by section 67(1) of the Act. Those accused of breaching the Competition Act 89 of 1998 have, in their defence, relied on the limitations of section 49B of the Competition Act - the procedure for initiating a complaint and section 67(1) which provides for a time limitation on initiating/referring a complaint to the Competition Tribunal. The Constitutional Court in the Pickfords case considered whether in light of section 34 of the Constitution, section 67(1) of the Competition Act should be interpreted as an absolute bar (a prescriptive provision) or procedural time bar (capable of condonation). Section 67(1) was, however, amended in 2018 to limit the referral of a compliant to the Tribunal to no more than three years after the practice ceased. This paper considers the statutory limitations on the Commission to initiate and refer complaints to the Competition Tribunal in terms of sections 49B, 50, 67(1) and section 58(1)(c)(ii) and to examine how these limitations have been by interpreted by our courts
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    Procedural fairness and the principle of legality in south african administrative law
    (University of the Witwatersrand, Johannesburg, 2023-10) Khwidzhili, Ndaedzo Mahatm
    The principle of legality is an aspect of the rule of law which was intended only to review non- administrative action. It has been the subject of much development, and has now been developed into a gateway to review that closely resembles the PAJA. The introduction of rationality as an element of legality appears to have been the main protagonist in this development. The courts have, on a number of occasions, grappled with the question whether procedural fairness is a requirement under the principle of legality. Despite procedural fairness having been said to be a fundamental requirement of the rule of law, in Masetlha, the Constitutional Court held that procedural fairness is not a requirement under the principle of legality. Subsequent to that, in Albutt, the Constitutional Court found that rationality encompassed considerations of procedural fairness, and therefore that procedural fairness was in fact a requirement under the principle of legality. This caused an apparent tension between Masetlha and Albutt, which manifested in conflicting case law in relation to the requirement of procedural fairness under the principle of legality. However, the position has now been crystallized by the Constitutional Court, which found that there was no tension between Masetlha and Albutt but rather, that Masetlha was a case of procedural fairness and Albutt one of procedural rationality. This distinction reaffirmed the position in Masetlha that procedural fairness is not a requirement under the principle of legality, and also introduced a new orthodoxy of procedural rationality under the principle of legality. This Research Report illustrates how this distinction is based on a narrow interpretation of procedural fairness (in the form of audi alteram partem) which makes the new orthodoxy untenable. It argues that on a proper interpretation of audi alteram partem, procedural fairness may be a requirement under the principle of legality to the extent that it enhances rationality in decision-making (as was the case in Albutt). Furthermore, in contrast to the position in Masetlha, the Constitutional Court in Motau suggested that procedural fairness itself may be a requirement under the principle of legality. It would seem that procedural fairness may indeed be a requirement under the principle of legality
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    The bread cartel: can the conduct of firms in contravention of the competition act be recognised as a violation of human rights?
    (University of the Witwatersrand, Johannesburg, 2022) Motshidisi , Vilakazi
    Section 4 of the South African Competition Act, 89 of 1998 (‘the Competition Act’) prohibits horizontal restrictive practices in the form of price-fixing, market allocation, and collusive tendering. According to Maphwanya, cartels are among the most egregious forms of competition harm globally. Entities that form cartels frequently weigh the benefits of joining a cartel against the risks of being investigated by competition authorities (Maphwanya, 2017). The Pioneer Foods decision handed down by the Competition Tribunal (‘the Tribunal’) in 2009 charts a complaint lodged in 2006 against various bread manufacturers for allegedly engaging in cartel behaviour; in that these manufacturers engaged in a cartel which had the outcome of fixing the price of bread and dividing markets between themselves. Following the Competition Commission’s investigation and a determination that the bread manufacturers had indeed participated in the cartel, the Tribunal penalised the cartel members by imposing various administrative penalties. The conduct of the bread manufacturers occurred in a South African context, where bread is considered a staple food for many South Africans living in poverty. In light of the aforementioned decision, it is to be considered whether the coordinated conduct of firms seeking to raise prices to maximise on profits at the expense of ordinary and penurious South Africans should be considered a human rights violation. The impact of section 27(1) (b) of the Constitution of the Republic of South Africa, 1996 (‘the Constitution’), which states that everyone has the right to access to food, will be considered explicitly in this report. Furthermore, the obligations of firms found to have violated the provisions of section 4 of the Competition Act are examined in light of whether private persons have constitutional obligations to provide access to food in accordance with section 27(1) (b) of the Constitution. To this end, reference will be made to the provisions of sections 8(2) and 39(2) of the Constitution
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    The evolution of the test for rationality under the legality principle in South African administrative law
    (University of the Witwatersrand, Johannesburg, 2022) Bekker, Chrisna Jooste; Hoexter, C.
    The principle of legality was confirmed early in South Africa’s constitutional era as a product of the rule of law and the minimum standard to which the exercise of public power must be held to account. It has become an indispensable tool and ‘safety net’ to review administrative decisions where the action which it reviews does not constitute administrative action as it is defined in the Promotion of Administrative Justice Act, 2000. Rationality has emerged as the test applied in such reviews of whether the means applied to reach a decision are rationally related to the ends (the decision). Rationality has however come to comprise elements such as procedural fairness and -rationality that are not always consistently defined or applied by the courts. This variability and unpredictability lead to uncertainty in administrative law review which has the effect of causing the ‘safety net’ to stretch too far – by undermining the rule of law, the principle of legality itself and constitutional democracy
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    The protection of personal information act: a critique through the lens of libertarian legal theory
    (University of the Witwatersrand, Johannesburg, 2022-10-31) Meyer, Jonathan Alan; Zitzke, Emile
    This paper offers a critical analysis of the Protection of Personal Information Act 4 of 2013 (POPIA) and its impact on freedom of trade, occupation and profession (freedom of trade) as found under s 22 of the Bill of Rights in the Constitution of the Republic of South Africa, 1996 (the Constitution) from a libertarian legal theory perspective. Owing to a lacuna in South African law, the provisions of POPIA that seem to impede free trade will probably not result in an unconstitutional infringementof the section 22 right. Those provisions in POPIA that restrict free trade may nevertheless be critiqued from the perspective of libertarian legal theory. More specifically, libertarian legal theory’s rejection of over-regulation. In this research report, the ultimate finding is that the cardinal issue with POPIA is that, paradoxically, and despite POPIA’s proclamation to promote a free-flow of information in balancing such purpose with the Constitutional right to privacy found under s 14 of the Constitution, POPIA serves to limit, over- restrictively, the free flow of information between businesses and business, and businesses and natural persons. The research report conducts a cursory analysis of the right of freedom of trade and investigates certain important provisions of POPIA through a libertarian-legal lens. There are three weaknesses in POPIA that are identified in this research report. Firstly, POPIA has a negative impact on trade because both natural and juristic persons receive data protection in terms of th e Act, whereas in jurisdictions where the GDPR operates, only natural persons receive such protection. It will be shown how this aspect of POPIA is potentially overly onerous on businesses. Secondly, the security requirements under POPIA are not only unreasonably onerous on, and expensive for, companies, to implement, but they are cumbersome, contradictory and vague. It will be shown how this could negatively affect free trade. Thirdly, POPIA’s sections dealing with civil liability are too far- reaching in their consequences of business, while also providing for defences to responsible parties which are prejudicial to data subjects. This amounts to an over- regulation, which is antithetical to libertarian legal theory