COMPETITION COMMISSION V PIONEER HI-BRED INTERNATIONAL INC AND OTHERS [2013] ZACC 50 (18 DECEMBER 2013)

Tuesday, January 14, 2014
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On 18 December 2013 the Constitutional Court (“CC”) handed down its decision in Competition Commission v Pioneer Hi-Bred International Inc and Others [2013] ZACC 50, which dealt with the scope and proper exercise of the Competition Appeal Court (“CAC”) and Competition Tribunal’s (“Tribunal”) powers to award costs against the Competition Commission (“Commission”) when it litigates in terms of its mandate under the Competition Act 89 of 1998 (“Act”). The CC held that in respect of Tribunal proceedings, neither the CAC nor the Tribunal is empowered to award costs against the Commission. In respect of appeal proceedings before the CAC, the CC held that the CAC is empowered to order costs against the Commission, however the ordinary course where costs follow the result is not applicable. Instead, the CAC should be guided in its exercise of discretion to award costs by the principle that “when the Commission is litigating in the course of fulfilling its statutory duties, it is undesirable for it to be inhibited by the bona fide fulfillment of its mandate by the threat of an adverse costs award.”1.

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