Commission vs Yara and Omnia: did the supreme court get it right?

The decision is the latest in a long line of cases dealing with process and procedure in getting a case from complaint, through investigation and to referral. Like those before it, this decision will no doubt garner controversy for a long time to come.

The nub of the dispute was whether the commission was entitled to make a referral that ostensibly went beyond the intended scope of the original complaint. In this case, Nutriflo submitted a broadly worded complaint alleging that Sasol had abused its dominance and requesting the commission to investigate that. Its complaint also included allegations of collusion between Sasol, Omnia and Yara but Nutriflo did not ask the commission to prosecute that.

In addressing the complaint, the commission also investigated the collusion, and on the strength of information uncovered, referred that aspect along with the abuse charges. Omnia and Yara objected to this on the basis that the commission was bound to stick within the four corners of the original complaint.

Referral was invalid

The CAC found that the referral was invalid as Nutriflo had not intended for the complaint to be laid against Yara and Omnia and that the referred conduct went beyond that disclosed in the complaint as submitted to the commission. Although it is open to the commission to initiate its own, broader complaint and to validly refer that, the commission did not purport to have done that and this rendered the point justiciable.

So while the debate initially turned on whether the commission's referral off the back of Nutriflo's complaint was valid, the SCA side-stepped the entire issue by simply noting that as the act provides for no formalities for a commission initiated complaint, this could be done informally and tacitly, so that "all the commission has to do is decide to initiate a new complaint". In the present case, the SCA inferred that, "By deciding to investigate the additional complaints and by subsequently referring them to the tribunal, the commission in effect tacitly initiated the complaints not covered in the original Nutriflo complaint."

With respect, the SCA may not be altogether correct in its interpretation of the act. While correctly noting that no formalities are required to initiate a complaint, the SCA failed to observe that the 'commissioner' is the one who initiates complaints, not the 'commission'. The commissioner must also direct an inspector to investigate the complaint.

Greater cause for debate in the future

Accordingly, it should not be sufficient for the decision to initiate to be inferred from the mere fact of investigation - rather there should be evidence that the commissioner applied his mind to available information, indicated a decision to initiate, and then directed an inspector to investigate the specific complaint (and the inspector knew she was investigating pursuant to that directive). This sequence of events is a far cry from the conveniently open-ended procedure contended for by the SCA.

Although the SCA has neatly taken the debate away from vexed task of assessing the scope of original complaint, in doing so it may have inadvertently introduced greater cause for debate in the future. A complaint initiation and its timing is the fons et origio for many of the consequences of enforcement - having this hinge on proof of a tacit decision is unsatisfactory and may introduce a considerable burden of proof on the commission if the evidence of that is not incontrovertible. A respondent will put the commission to the proof thereof and unless the commission has in place a paper-trail of some sort, it may be difficult to show that this has happened.

Ultimately, despite the apparent carte blanche granted by the SCA, the commission should take care to make sure it has clear, documented evidence of the commissioner's decision to initiate an investigation, lest reliance on tacit initiation create grounds for even more argument than to date.