It’s the small things that trip you up

In an application for leave to appeal to the Supreme Court of Appeal, (Mondi Limited and another v the Competition Commission and another; Case No 47050/13), which recently came before the Gauteng division of the High Court, in Pretoria, Mondi had originally sought to compel the Competition Commission to provide it with documents constituting part of the record of the decision to initiate a complaint of abuse of dominance against it. Mondi had alleged that the Competition Commission had initiated a complaint against it without first having a reasonable suspicion of a prohibited practice having been committed by Mondi. If the Competition Commission could not show grounds on which such a suspicion could be founded, its decision to initiate a complaint would be unlawful.

One of the grounds of objection to disclosure of the information on which the Competition Commission relied when deciding to initiate the complaint against Mondi was that the documents in question had been claimed as confidential when the informants provided the information to the Competition Commission.

The court originally adopted a strict approach in applying the sections of the Competition Act which set out how information is to be claimed as confidential. In dismissing the application for leave to appeal against the original decision in April this year, the court reaffirmed its earlier finding that the protection from disclosure under the relevant sections only kicks in if the confidentiality claim complies with the formal procedures determined by the Competition Act.

According to the court, before information claimed as confidential receives the significant protection of the Competition Act against disclosure, the claim of confidentiality must be supported by a written statement explaining why the information is confidential and the claim must be made in the prescribed form. Anything short of this would not be subject to protection from disclosure – even in circumstances where the Commission set out the basis for the confidentiality in its court papers, but failed to aver formal compliance or attach the necessary form.

The matter in question dealt with important issues, including the proper exercise of public power. However, a significant factor in the court’s decision to allow Mondi access to the documents in question turned on something as mundane as complying with the prescribed form of a confidentiality claim. Sometimes the devil truly is in the detail.

Written by Albert Aukema and Bheki Nhlapho