THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 195/20

In the matter between:
THE COMPETITION COMMISSION
OF SOUTH AFRICA                                                           APPELLANT
and
GROUP FIVE CONSTRUCTION LIMITED                  RESPONDENT

Neutral citation: The Competition Commission of South Africa v Group
Five Construction Limited (Case no 195/20) [2021]
ZASCA 37 (8 April 2021)
Coram:
NAVSA ADP and ZONDI and DAMBUZA JJA and ROGERS
and MABINDLA-BOQWANA AJJA
Heard:
5 March 2021
Delivered: This judgment was handed down electronically by circulation to
the parties’ legal representatives by email, publication on the Supreme Court
of Appeal website and release to SAFLII. The date and time for hand-down is
deemed to be 10h00 on 8 April 2021.

Summary: Competition Act 89 of 1998 – interpretation and application of
s 62 – whether the high court has jurisdiction to hear review application –
whether the Competition Tribunal has exclusive jurisdiction.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria
(Mngqibisa- Thusi J, sitting as a court of first instance):

The appeal is dismissed with costs including costs occasioned by the
employment of two counsel.

JUDGMENT

Mabindla-Boqwana AJA (Navsa ADP, Zondi and Dambuza JJA and
Rogers AJA concurring)

[1] This is an appeal against a decision of the Gauteng Division of the High
Court, Pretoria (the high court), in terms of which it dismissed an application
under rule 30 of the Uniform Rules1, brought by the appellant, the
Competition Commission (the Commission) established in terms of s 19 of
the Competition Act 89 of 1998 (the Act). In that application the Commission
challenged, inter alia, the high court’s jurisdiction to determine a review
application initiated by the respondent, Group Five Construction Ltd (Group
Five).

1 The relevant part of rule 30 reads as follows:
‘(1) A party to a cause in which an irregular step has been taken by any other party may apply to court to set
it aside’.

[2] In the review application before the high court Group Five sought the
following principal orders:
‘1. Declaring that the initiation of the complaint under CC case number 2009Feb279 in
terms of section 49B(1) of the Competition Act 89 of 1998, by the respondent, as well as
all steps taken by the respondent pursuant thereto, were and are unlawful and invalid;
2. Declaring that the respondent granted the applicant immunity from prosecution of a
contravention of the Competition Act 89 of 1998 in respect of the construction and
refurbishment of stadia for the 2010 FIFA World Cup;
3. Reviewing, setting aside and declaring invalid the respondent’s decisions:
3.1 to refer a complaint against the applicant to the Competition Tribunal in respect of the
construction and refurbishment of stadia for the 2010 FIFA World Cup; and/or
3.2 in that referral, to seek an administrative penalty against the applicant;
(collectively referred to as decisions)’

[3] The background leading to proceedings in the high court and
culminating in the present appeal are set out hereafter. On 10 February 2009,
the Commission initiated a complaint in terms of s 49B(1)2 of the Act against
various construction companies, including Group Five, into conduct relating
to the construction in South Africa of FIFA 2010 World Cup stadia. This
followed a research project that was conducted by the Commission in May
2008 prompted by an escalation in costs in the construction of the stadia. The
Commission decided to investigate possible collusive conduct between
various companies in contravention of s 4(1) of the Act.

[4] Section 4(1)(b) prohibits restrictive practices between firms in
horizontal relationships (competitors). Prohibited conduct involves (i) directly
or indirectly fixing a purchase or selling price or any other trading condition;

2 In terms of s 49B (1) ‘The Commissioner may initiate a complaint against an alleged prohibited practice’.

(ii) dividing markets by allocating customers, suppliers, territories, or specific
types of goods or services; or (iii) collusive tendering.

[5] Due to the secretive nature of cartels involved in collusive dealings of
the kind targeted by the Act, the Commission had devised a policy known as
the Corporate Leniency Policy (CLP), which is geared towards encouraging
those involved in cartels to disclose to the Commission prohibited practices
in order to combat offensive conduct.3 Those who approach the Commission
with the necessary information that would result in institution of proceedings
against a cartel will not be subjected to prosecution in relation to their
involvement in or with the alleged cartel.4 They are initially granted
conditional immunity, which is made final when conditions set out in the CLP
have been met.5 Immunity is granted in return for full disclosure and full co-
operation in pursuing the other cartel members before the Tribunal established
in terms of s 26 of the Act.6

[6] Group Five alleges that it sought to take advantage of the Commission’s
CLP by providing information that would assist to uncover the prohibited
practices. It applied for immunity in respect of a cover price7 it had sought
from another firm; and in exchange for submitting a cover bid in respect of
the Greenpoint World cup stadium, among others. Group Five alleges that the

3 Clause 3 of the Corporate Leniency Policy (CLP) - GN 195 GG 25963 of 6 February 2004 and GN 31064
of 23 May 2008.
4 Clause 3.4 of the CLP. See also Agri Wire (Pty) Ltd and Another v Commissioner of the Competition
Commission and Others [2012] ZASCA 134; [2012] 4 All SA 365 (SCA); 2013 (5) SA 484 (SCA) paras 6-
10.
5 Clause 9 of the CLP.
6 See para 7 of Agri Wire.
7 Cover pricing entails submitting a tender price higher than the cover price (obtained from a competitor) so
as to increase the chances of the competitor winning the bid.

Commission gave it an unequivocal undertaking to grant it the immunity, but
later reneged on its earlier decision.

[7] On 12 November 2014, despite the alleged undertaking, the
Commission referred a complaint against Group Five and other construction
companies for contravening s 4(1)(b)(i) and (ii) of the Act to the Tribunal. The
allegations were that Group Five had engaged with other firms in pervasive,
anti-competitive conduct in the construction industry. It was alleged that the
members of the alleged cartel had agreed to: allocate between them projects
for the construction of the various stadia; submit cover prices and recover a
net profit of 17.5% per project. The Commission sought an administrative
penalty equal to 10% of Group Five’s total turnover, which is the maximum
penalty that could be imposed under ss 58(1)(a)(iii) and 59 of the Act.

[8] Against this background, Group Five, in its approach to the high court,
submitted that the decision by the Commission to refer the complaint to the
Tribunal was reviewable: firstly, because the complaint and the investigation
were not underpinned by a valid initiation; secondly, the referral and the
ordering of penalties were precluded by the Commission’s grant of immunity
to it; and thirdly, the referral was, in any event, oppressive, vexatious and
motivated by bad faith.

[9] In reaction to the review application, the Commission did not file an
answering affidavit. Instead, it lodged a rule 30 application, contending that
the high court lacked jurisdiction to adjudicate the matter as the dispute
between the parties fell within the exclusive jurisdiction of the Tribunal. It

further submitted that litigation between the parties was pending before the
Tribunal on the same cause of action and in respect of the same subject matter.

[10] The high court dismissed the Commission’s application on the basis
that the Commission ought to have raised its objections by way of a special
plea. It nevertheless proceeded to determine the merits of the rule 30
application. Relying on this Court’s decision in Agri Wire (Pty) Ltd and
Another v Commissioner of the Competition Commission and Others8 it
dismissed the jurisdictional challenge. Furthermore, it found the lis pendens
point to be without merit, as the issue before it was different to that which the
Tribunal had to determine. In this regard, it said: ‘The Tribunal is expected to
investigate the allegations made by the Commission against the alleged
unlawful conduct of Group Five in relation to the 2010 soccer World Cup.
Whereas this court was to determine the lawfulness of the Commission’s
initiation of a referral and its withdrawal of the immunity granted to Group
Five’. The appeal to this Court is with the leave of the high court.

[11]  At the hearing of the appeal, counsel for both parties agreed that this
Court need not concern itself with whether the rule 30 procedure was the
proper one to raise the jurisdictional issue, and that the appeal should be
decided on the question of whether the high court had jurisdiction to entertain
the review application.

[12] The Commission was adamant that s 62 of the Act, dealt with
hereunder, viewed contextually, was the irrefutable basis for its contention

8 Agri Wire (Pty) Ltd and Another v Commissioner of the Competition Commission and Others [2012]
ZASCA 134; [2012] 4 All SA 365 (SCA); 2013 (5) SA 484 (SCA).

that the review application fell within the exclusive jurisdiction of the
Tribunal and was not within the remit of the high court. Counsel for the
Commission submitted that the initiation and referral of a complaint as
provided in ss 49B and 509 of the Act which are part of Chapter 5 were
foundational, and that they were matters that were undoubtedly within the
exclusive jurisdiction of the Commission, the Tribunal and the Competition
Appeal Court (CAC).

[13] The Commission’s alternative argument was that if this Court did not
accept its submissions on the exclusive jurisdiction point, then the Tribunal
should be found to have concurrent jurisdiction with the high court in terms
of s 62(2) of the Act. The Commission contended that the high court should
have declined to hear the matter and ought to have deferred to the Tribunal
for two reasons: firstly, because the Tribunal is a specialist structure designed
to resolve these kinds of matters and secondly, the dispute is already pending
before it. Thus, Group Five ought to have raised the issue of the validity of
the referral at the Tribunal. In this regard the Commission relied on a passage
in The Competition Commission of South Africa v Telkom SA Ltd and
Another10 where the court stated that ‘[w]here structures have been designed
for the effective and speedy resolution of particular disputes it is preferable to
use that system’.

9 In terms of section 50(1) of the Competition Act 89 of 1998 (the Act) ‘At any time after initiating a
complaint, the Competition Commission may refer the complaint to the Competition Tribunal’.
10 The Competition Commission of South Africa v Telkom SA Ltd and Another [2009] ZASCA 155; [2010] 2
All SA 433 (SCA) para 36.

[14] In opposition, Group Five’s contention, in short, was that the issues
raised in the review application are contemplated in s 62(2)(a) of the Act, in
respect of which the Tribunal has no jurisdiction.

[15] Section 62 of the Act provides:
‘(1) The Competition Tribunal and Competition Appeal Court share exclusive jurisdiction
in respect of the following matters —
(a) Interpretation and application of Chapters 2, 3 and 5, other than —
(i) a question or matter referred to in subsection (2); or
(ii) a review of a certificate issued by the Minister of Finance in terms of section 18(2); and
(b) the functions referred to in sections 21(1), 27(1) and 37, other than a question or matter
referred to in subsection (2).
(2) In addition to any other jurisdiction granted in this Act to the Competition Appeal
Court, the Court has jurisdiction over—
(a) the question whether an action taken or proposed to be taken by the Competition
Commission or the Competition Tribunal is within their respective jurisdictions in terms
of this Act;
(b) any constitutional matter arising in terms of this Act; and
(c) the question whether a matter falls within the exclusive jurisdiction granted under
subsection (1).
(3) The jurisdiction of the Competition Appeal Court—
(a) is final over a matter within its exclusive jurisdiction in terms of subsection (1); and
(b) is neither exclusive nor final in respect of a matter within its jurisdiction in terms of
subsection (2).
(4)  An appeal from a decision of the Competition Appeal Court in respect of a matter
within its jurisdiction in terms of subsection (2) lies to the Constitutional Court, subject
to section 63 and its respective rules.
(5) For greater certainty, the Competition Tribunal and the Competition Appeal Court have
no jurisdiction over the assessment of the amount, and awarding, of damages arising out
of a prohibited practice.’

[16]  Section 62(1) confers exclusive jurisdiction on the Tribunal and the
CAC in respect of matters dealing with the interpretation and application of
prohibited practices in Chapter 2, merger control in Chapter 3, and
investigation and adjudication procedures in Chapter 5 of the Act. Exclusive
jurisdiction is also assigned to the Tribunal and CAC in adjudicating on
matters dealing with the functions of the Commission, the Tribunal and the
CAC respectively referred, to in ss 21(1), 27(1) and s 37. In terms of s 27(1)(c)
the Tribunal ‘may hear appeals from, or review any decision of, the
Competition Commission that may in terms of this Act be referred to it’.

[17] Section 62(1) excludes matters referred to in s 62(2), in regard to which
the CAC has additional jurisdiction. It should be noted that in terms of
s 62(3)(b) the jurisdiction of the CAC ‘is neither exclusive nor final in respect
of a matter within its jurisdiction in terms of subsection (2)’. (My emphasis.)
This indicates that the jurisdiction of the high court is not excluded in respect
of matters listed under s 62(2), since in the ordinary course the high court
would have jurisdiction over matters of the kind specified in s 62(2) unless
such jurisdiction was specifically and expressly ousted in a constitutionally
compliant manner. The same cannot be said of the Tribunal, for two reasons:
firstly, because the provision expressly refers to the CAC as the court with the
specified additional jurisdiction and secondly, unlike the high court, the
Tribunal is not possessed of inherent powers to hear matters listed in s 62(2).
The CAC, on the other hand, is designated as a court with a status similar to
that of a high court.11

11  Section 36(1) of the Act.

[18] It is not difficult to discern why exclusive jurisdiction would be granted
to the CAC and the Tribunal in relation to interpretation and application of
matters in Chapters 2, 3 and 5. These are matters related to the investigation,
control and evaluation of alleged restrictive practices, the abuse of dominant
positions and mergers. They involve matters of a specialist nature, which
require technical expertise, and which lie at the complex intersection between
law and economics. The Act has been very careful in assigning these functions
to the institutions best equipped to deal with them.12

[19] Referring to the exclusive jurisdiction of the Labour Court and the
Labour Appeal Court, the Constitutional Court, in the recent decision of
Baloyi v Public Protector and Others,13 had this to say:
‘The reason for this delineation is that the Labour Court and the Labour Appeal Court were
“designed as specialist courts that would be steeped in workplace issues and be best able
to deal with complaints relating to labour practices and collective bargaining”. While
accepting that section 157(1) does not confer exclusive jurisdiction on the Labour Court in
every employment-related matter, this Court, in Chirwa, made it clear that the Labour
Court and other specialist tribunals created under the LRA are uniquely qualified to handle
labour-related disputes.’ (Footnotes omitted.)

[20] As to concurrent jurisdiction it made the following observations:
‘The concurrent jurisdiction afforded to the Labour Court and the High Court in terms of
section 77(3) of the Employment Act and section 157(2) of the LRA adds to, rather than
diminishes, their jurisdiction. In doing so, it affords litigants an additional right to approach
either court where a dispute falls within the ambit of those sections.’14

12 See Competition Commission of South Africa v Media 24 (Pty) Limited [2019] ZACC 26; 2019 (9) BCLR
1049 (CC); 2019 (5) SA 598 (CC), where the Constitutional Court, inter alia, stated at para 136: ‘. . . The
adjudicative institutions under the Competition Act are expert bodies and due recognition must be given to
this . . . ’.
13 Baloyi v Public Protector and Others [2020] ZACC 27; 2021 (2) BCLR 101 (CC) para 30.
14 Ibid fn 11.

[21] The question in this case is whether the issues raised by Group Five are
those in respect of which the Tribunal and the CAC have exclusive
jurisdiction, or, whether they are within the contemplation of s 62(2). The
grounds for review raised by Group Five, as already mentioned in para 8,
relate to the validity and lawfulness of the initiation and subsequent referral
to the Tribunal. Simply put, they are questions of vires or of legality,
quintessentially issues within the jurisdiction of our Superior Courts.

[22] In Agri Wire, this Court dealt with a similar challenge to jurisdiction,
which was also raised there by the Commission. Agri Wire had launched a
review application for the setting aside of conditional immunity granted to
another firm, Consolidated Wire Industries (Pty) Ltd (CWI), in terms of the
CLP, on the basis that it was unlawfully obtained. The Commission contended
that s 27(1)(c) conferred a general power on the Tribunal to review any
decision of the Commission taken in terms of the Act that fell within its
jurisdiction. The Court dismissed that argument on the basis that the Act
limited the decisions that can be reviewed by the Tribunal. It referred to
provisions of the Act which provide for the Commission to take decisions.15
The Commission has not relied on that provision in this case, but instead on s
62(1)(a). It is thus not necessary to discuss it any further.

15 See paras 13- 15 of Agri Wire.  At para 13, the court, inter alia, said that the language of s 27(1)(c) ‘refers
to appeals against and reviews of decisions by the Competition Commission. In determining the scope of this
provision it is best to start with those provisions of the Act that, in terms, provide for the Commission to take
decisions. These are s 10(2), under which the Commission grants exemptions; s 13(5)(b) dealing with the
approval or prohibition of small mergers; s 14(1)(b) dealing with the approval or prohibition of intermediate
mergers; and s 15 dealing with the revocation of merger approval’.

[23] As regards s 62 this court held:
‘Whilst there would be no difficulty in recognising an exclusive jurisdiction vested in the
Tribunal and the Competition Appeal Court if s 27(1)(c) is confined to the situations
referred to in paragraph 13, supra, it becomes problematic when it is extended to a
challenge to the validity of a referral, because that is a question whether the referral is an
action within the jurisdiction of the Commission. Unlawful actions are not within its
jurisdiction and an unlawful referral would accordingly not be within its jurisdiction. But,
whether an act by the Commission is within its jurisdiction is a matter within s 62(2)(a) of
the Act and is therefore not within the exclusive jurisdiction conferred by s 62(1)(b) of the
Act.16
Those considerations led counsel for the Commission to abandon the argument based on
s 27(1)(c) in favour of one based on s 62(1)(a) of the Act. However, that argument
foundered on two points. The first was that the section confers exclusive jurisdiction only
in respect of matters arising under Chapters 2, 3 and 5 of the Act. Agri Wire’s objections
were advanced on the basis that the Commission’s powers are set out in Chapter 4 of the
Act and, properly construed, those provisions do not permit the Commission to adopt the
CLP in its present form. The second was that in any event the challenge was one under
s 62(2)(a) of the Act where there is no exclusive jurisdiction.’17 (Emphasis added.)

[24] A question whether the referral by the Commission is valid or unlawful,
or whether the Commission acted beyond the scope of the Act and accordingly
ultra vires the powers conferred on it, is a jurisdictional question which falls
within the purview of s 62(2)(a) as stated in Agri Wire. The legality of a public
body’s conduct is also a constitutional matter (s 62(2)(b)). The Constitutional
Court has repeatedly said so in relation to the Biowatch18 principle. It stated

16 See para 17 of Agri Wire.
17 See para 18 of Agri Wire.
18 Biowatch Trust v Registrar Genetic Resources and Others [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009
(10) BCLR 1014 (CC) para 56.

the following in Justice Alliance of South Africa v Minister for Safety and
Security and Others:19
‘The Minister contends that because there was no challenge to the constitutional validity
of any of the provisions of the Act, no constitutional issue in the Biowatch sense was raised.
That is not, without more, a proper basis for finding that no constitutional issue was raised.
The attack on the validity of the guidelines as being ultra vires section 137 of the Act is
based on the principle of legality. Legality is decidedly a constitutional issue. The
interpretation of the provisions of the Act in order to decide whether the guidelines fell
within their ambit is also a constitutional issue because statutory interpretation must be
done in accordance with the dictates of the Constitution. In addition it is clear that the
original order forcing the Minister for Police to promulgate guidelines was founded on his
failure to comply with the provisions of the Constitution.’ (My emphasis.)

[25] Also in Harrielall v University of KwaZulu-Natal the Constitutional
Court stated the following:20
‘The constitutional issues raised by the case are two-fold.  First, a review of administrative
action under PAJA constitutes a constitutional issue.  This is so because PAJA was passed
specifically to give effect to administrative justice rights guaranteed by section 33 of the
Constitution.  Moreover, when the University determined the application for admission, it
exercised a public power.
According to jurisprudence of this Court, the review of the exercise of public power is now
controlled by the Constitution and legislation enacted to give effect to it. It is not
controversial that a review of administrative action amounts to a constitutional issue . . .
.’

19 Justice Alliance of South Africa v Minister for Safety and Security and Others [2013] ZACC 12; 2013 (7)
BCLR 785 (CC) para 10.
20 Harrielall v University of KwaZulu-Natal [2017] ZACC 38 paras 17 and 18. See also Johnnic Holdings
Limited and Another v Competition Tribunal and Others in re: Mercanto (Pty) Ltd v Johnnic Holdings Ltd
[2008] ZACAC 2 para 35.2.

[26] For this kind of review the Tribunal’s jurisdiction is not mentioned in
s 62(2). Only the CAC is, and its powers are not exclusive either. The
jurisdiction of the high court is not excluded under that section in terms of s
62(3)(b). Accordingly, this means that the Commission’s alternative argument
in relation to concurrent jurisdiction must also fail. In any event, Telkom is no
authority for the proposition advanced by counsel for the Commission,
regarding concurrent jurisdiction. That case dealt with concurrent jurisdiction
between the Commission and another regulatory body, ICASA. In that case
Telkom had instituted review proceedings in the high court to set aside the
Commission’s decision to refer a complaint to the Tribunal in terms of s 8 of
the Act. It argued that the issue initiated and referred to the Commission and
the Tribunal fell outside the powers of the competition authorities but was a
matter for ICASA to deal with. The Tribunal was held to be an appropriate
forum to determine whether the provisions in Chapter 2 of the Act were
contravened.

[27]  In conclusion, the issues raised on review by Group Five are not of a
specialist nature which s 62(1) exclusively reserves for the CAC and the
Tribunal. They do not pertain to the interpretation of issues in Chapters 2, 3
and 5 of the Act which are pending before the Tribunal. Instead, they relate to
questions of legality concerning the validity and lawfulness of the initiation
and the referral of the complaint. Notably, the Commission’s powers are set
out in Chapter 4, which is not mentioned among the Chapters in s 62(1)(a). In
the circumstances, the high court was correct in its finding that the challenge
of jurisdiction had no merit.

[28]  For these reasons, the appeal is dismissed with costs, including costs
occasioned by the employment of two counsel.

__________________________
N P MABINDLA-BOQWANA
ACTING JUDGE OF APPEAL

Appearances
For the appellant:     V Notshe SC (with him K K Maputla)
Instructed by:           Bopape Inc, Hatfield
Maponya Inc, Bloemfontein

For the respondent:  A R Bhana SC (with him A Gotz SC)
Instructed by:           Allen & Overy, Johannesburg
Lovius Block, Bloemfontein
SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal
DATE

8 April 2021
STATUS

Immediate

The Competition Commission of South Africa v Group Five Construction Limited (Case
no 195/20) [2021] ZASCA 37 (8 April 2021)
_________________________________________________________________________
Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

Today the Supreme Court of Appeal (the SCA) upheld the order of the Gauteng Division of the High
Court, Pretoria (high court) by dismissing the appeal brought by the Competition Commission
(Commission) of South Africa against Group Five Limited (Group Five).

The issue before the SCA concerned the interpretation and application of s 62 of the Competition Act
89 of 1998 (the Act). On 10 February 2009, the Commission initiated a complaint in terms of s 49B(1)
of the Act against various construction companies, including Group Five, into conduct relating to the
construction in South Africa of FIFA 2010 World Cup stadia. The Commission decided to investigate
possible collusive conduct between various companies in contravention of s 4(1) of the Act. Group Five
allegedly sought to take advantage of the Commission’s Corporate Leniency Policy (CLP) by providing
information that would assist to uncover the prohibited practices. It applied for immunity in respect of a
cover price it had sought from another firm; and in exchange for submitting a cover bid in respect of the
Greenpoint World Cup Stadium, among others. Group Five alleged that the Commission gave it an
unequivocal undertaking to grant it immunity, but later reneged on its earlier decision. On 12 November
2014, despite the alleged undertaking, the Commission referred a complaint against Group Five and
other construction companies for contravening ss 4(1)(b)(i) and 4(1)(b)(ii) of the Act to the Competition
Tribunal (Tribunal) and sought a 10% administrative penalty against Group Five.

Group Five brought an application in the high court seeking to review and set aside the initiation and
the referral of the complaint to the Tribunal on the basis that the complaint and the investigation were
not underpinned by a valid initiation; secondly, the referral and the ordering of penalties was precluded
by the Commission’s grant of immunity to it; and thirdly, the referral was, in any event, oppressive,
vexatious and motivated by bad faith. In response, the Commission filed a rule 30 application
challenging the jurisdiction of the high court on the matter. The high court dismissed the Commission’s
challenge.

On appeal, the SCA found that s 62(1) of the Act conferred exclusive jurisdiction on the Tribunal and
the Competition Appeal Court (CAC) in respect of specialist matters dealing with the interpretation and
application of prohibited practices in Chapter 2, merger control in Chapter 3, and investigation and
adjudication procedures in Chapter 5 of the Act. Exclusive jurisdiction was also conferred on
adjudication of matters in ss 21(1), 27(1) and s 37 pertaining to the functions of the Commission, the
Tribunal and the CAC. Section 62(1) excluded matters listed in s 62(2), in respect of which the CAC
had additional jurisdiction. The SCA held further that as indicated in 62(3) of the Act, the CAC’s
jurisdiction was neither exclusive nor final in respect of a matter in s 62(2). This indicated that the
jurisdiction of the high court was not excluded in respect of matters listed under s 62(2).

The SCA concluded that the issues of the validity and lawfulness of the initiation and subsequent referral
to the Tribunal were questions of vires or of legality, quintessentially issues within the jurisdiction of the
Superior Courts. The CAC has concurrent jurisdiction with the high court to hear these matters, and
such matters fell outside the jurisdiction of the Tribunal.