The South African constitutional court has rejected an application from the competition authorities related to allegations of anti-competitive activity by the American Natural Soda Ash Corporation (An…
The South African constitutional court has rejected an application from the competition authorities related to allegations of anti-competitive activity by the American Natural Soda Ash Corporation (Ansac). The constitutional court ruled that “it was not in the interests of justice to hear the matter at this stage”. The court is the fourth and highest to reject Ansac“s bid to prevent a competitor, Botswana Ash (Botash), from intervening in the case before the competition tribunal. In August 2006 the tribunal was the first to reject Ansac“s application to have Botash removed. Ansac made the application after discovering that a lawyer who had worked for the competition commission on the case, and had access to certain information, was now working for Botash“s law firm, Webber Wentzel Bowens (WWB). Ansac also requested that WWB be disqualified from acting for Botash. When the tribunal rejected this application, Ansac appealed to the competition appeal court, which upheld the tribunal“s decision and denied Ansac leave to appeal to the supreme court of appeal (SCA). Ansac petitioned the SCA. When this was dismissed, it appealed to the constitutional court on the grounds of unfair treatment. The constitutional court“s view that it was not in the interests of justice to hear the matter “at this stage” supports the initial position taken by the tribunal: that until evidence emerges that the WWB employee had used his position as a former commission employee to the disadvantage of Ansac, there was no case to answer. The original case against Ansac relates to a complaint brought by Botash to the commission in 1999, shortly after the competition body opened. Botash claimed that Ansac operated as a cartel and thus contravened the Competition Act. Ansac, the world“s largest exporter of soda ash, is a group of four large US soda ash companies. Under US legislation, US companies are allowed to form “associations” for purposes of exporting, but such an association is prohibited from operating on US territory, as it might be deemed a cartel, prohibited by US law. After investigating Botash“s complaint, the commission found in early 2000 that Ansac broke section 4 of the Competition Act and referred the matter to the tribunal for adjudication. However, in the past eight years there has not been a single hearing on the merits of the case thanks to Ansac“s lawyers delaying the matter by arguing, as far as the SCA, on whether the tribunal had jurisdiction over a US firm.