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Johannesburg - The Constitutional Court will deliver judgment on Wednesday on the Competition Commission's application for leave to appeal a cost order made against it.
The cost order was awarded against the commission by the Competition Appeal Court. This was after the commission prohibited a proposed merger between two parties in terms of the Competition Act.
The merging parties then asked the Competition Tribunal to reconsider the commission's decision. The tribunal prohibited the merger on similar grounds to those of the commission and made no cost order.
This decision was appealed in the Competition Appeal Court, which set aside the tribunal's order and approved the merger subject to certain conditions.
It ordered the commission to pay the merging parties' costs in both the tribunal and the appeal court.
The commission's application to appeal the whole judgment and order in the Supreme Court of Appeal was dismissed.
The Competition Appeal Court granted leave to appeal to the Constitutional Court against the costs order only.
In the Constitutional Court, the commission argued that the Competition Appeal Court had no power to order costs against it. It could only award costs in relation to proceedings in that court.
The merging parties did not oppose the commission's appeal.
Representatives of the Johannesburg Bar Council made submissions as friends of the court.
The representatives submitted that while a state functionary should not generally have costs orders issued against it when litigating while performing its duty, the Competition Appeal Court had broad discretion to make appropriate costs orders against it.
