Judges lash ‘egregious’ Competition Tribunal

If you’re looking for an indictment of how South Africa’s competition regime has wedged the country’s corporate sector in molasses, look no further than a damning decision this week – more than six years in the making. 

On Monday, the Competition Appeal Court handed down a ruling in a case dating back to before Covid, involving Cape Gate, a producer of long steel products based in the industrial heartland of Vanderbijlpark in Gauteng.

In 2009, the Competition Commission first took action against Cape Gate, along with ArcelorMittal South Africa, Columbus Stainless, and Scaw, accusing them of creating a “buyers’ cartel” to fix the price of scrap metal between 1998 and 2008. 

ArcelorMittal and Columbus admitted liability and settled with the commission, while Scaw, being the whistleblower, got leniency. Cape Gate, however, opted to fight the case.

Finally, in 2019, the Competition Tribunal heard the case against Cape Gate, with the commission asking for an order declaring that it had committed a “prohibited practice”. The hearing took place as scheduled, and then … nothing.

Each request by Cape Gate’s lawyers for a clue as to when the ruling would emerge was met with some excuse. The ruling was “being finalised”; it was “with the panel members”; it was due any day.

Six years ticked by, and it was only in August 2025 that the tribunal released its decision, finding against Cape Gate. The company, rightly, appealed to the Competition Appeal Court to overturn it, citing, among other reasons, the ludicrous delay.

The appeal court has now set aside the tribunal’s decision, ordering it to “reconsider” this case under a new panel.

But the real sting in this case is that the majority of the appeal court judges, Mokgere Masipa and James Lekhuleni, excoriated the tribunal’s behaviour in a way that raises serious questions about its competence and ethics. Parks Tau, the minister of trade, industry and competition, should be clearing his diary to fix this.

The ruling accuses members of the tribunal not just of lying, but of acting unlawfully in a way that is “offensive to the constitution”.

“The delay of the tribunal in giving judgment is so egregious that it cannot be deprecated strongly enough. It is incontestable that the delay of six years amounts to a serious dereliction of duty warranting censure,” they said. “The tribunal members who delayed the ruling for over six years undermine the dignity and effectiveness of the tribunal as an institution.”

The extraordinary delays, the absence of a coherent explanation and inconsistencies in the tribunal’s explanations “are not isolated defects; they are systemic and interrelated”, the judges said.

Accusations of deception

Now, the Competition Act is clear that hearings must be conducted “as expeditiously as possible”. The tribunal tried to argue that this applied only to the hearing itself, not to the decision, but the judges weren’t buying it.

This imperative for a quick resolution “extends to the entire adjudicative function of the tribunal, including the making, finalisation and delivery of its decision”.

But what makes this story so much worse for the tribunal is the accusations of deception that emerge in the ruling.

While Mondo Mazwai, the tribunal’s chair, claimed the delay was due to Covid and “a shortage of personnel”, the panel members said this was rather because there were “settlement” discussions taking place between Cape Gate and the commission.

There were never any such talks, however. The appeal ruling describes this explanation as false, since the tribunal panel was never told of any settlement talks. 

“The excuse raised by the [panellists] … is false and contradicts the explanation they proffer in their respective explanatory affidavits. Significantly, this excuse is not borne out by the evidence,” the judges said.

The accusation that the panel members “acted either in reckless or deliberate disregard of the truth” was serious, yet neither they nor Mazwai engaged with it.

Given all of this, setting aside the decision serves an important constitutional purpose: “It reinforces the obligation of administrative bodies to act diligently, rationally and fairly, and signals that failures in the administration of justice will have consequences.”

Mired in molasses

Oren Kaplan, chair of Cape Gate, tells Currency that he “feels vindicated” by the ruling. 

“We await the tribunal’s reconsideration and trust that the matter will not be heard again,” he says. “We have grave concerns [over whether] a fair or relevant hearing can take place after all this time.”

Kaplan says he shares the concern that the competition authorities have mired South African businesses in molasses.

He says that while Cape Gate supports a competitive and fair marketplace, “the steel business in South Africa is tough enough without what we regard as damaging, costly and time-consuming investigations which are not timeously resolved”.

In response, Mazwai tells Currency that the tribunal “respects” the appeal court decision, and will re-enrol the case before a new panel.

“We take its concerns regarding the delay in issuing the decision seriously. The delay, while regrettable, arose in a context that included institutional capacity constraints, which placed pressure on the tribunal’s ability to finalise complex matters timeously.”

Nonetheless, this judgment is an alarming rebuke of the tribunal, which should act as a wake-up call for Tau to take a hard look at its leadership, management and capacity.

One competition lawyer tells Currency that this is “a bright red flare that the tribunal needs new members now”, indicating that restoring its capacity to decide cases is “essential” for the business sector.

This is not, of course, the first sign that the competition authorities have fallen short of their mandate to improve efficiency and equity in the economy. But it is the clearest illustration yet of the systemic blockages – and possible ethical infractions – that should worry everyone in Tau’s ministry in Sunnyside, Pretoria.

This, after all, is the state body meant to be the final word on takeovers and abuse of dominance cases; it shouldn’t be the one responsible for abuse. 

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_{Top image: Trade, industry and competition minister Parks Tau. Picture: Gallo Images/Sharon Seretlo.}