MBEKEZELI BENJAMIN: What challenges await new leader of Competition Appeal Court?

The Judicial Service Commission will interview Johannesburg judge Norman Manoim on Tuesday as the sole candidate for judge president of the Competition Appeal Court (CAC).

The interview is part of the JSC’s biannual sitting to recruit new judges for the superior courts. It is due to sit until October 11.

As a key institution among competition regulatory authorities, the Competition Appeal Court has a vital effect on local and foreign direct investment. Its decisions often signal SA’s viability as an investment destination.

As the sole candidate, Manoim is likely to be appointed to lead the court. However, it’s still worth asking: what challenges will Manoim face? What qualities does he bring to the role? Importantly, what interventions can he make in the short term? 

The court was established by the Competition Act of 1998 to hear appeals and reviews from the Competition Tribunal, the primary adjudicatory body for competition law cases. The Competition Commission refers to the tribunal for prosecution firms that engage in illegal practices such as cartels and abuses of dominance.

The tribunal also has the power to consider and clear all large mergers or takeovers that might have significant economic impact.

As a court of the law, the Competition Appeal Court gives important guidance on the regulatory framework of competition law. Through careful interpretation of the Competition Act and regulations, and the procedures and conduct of both the commission and the tribunal, this court gives certainty in the law, which is vital for business confidence.

The Ramaphosa administration has set competition law as its key economic policy lever. In 2019, Ramaphosa signed into law two amendments to the Competition Act, which , among other things, give the minister of trade, industry and competition a greater say in merger transactions, and significantly increases the penalties for prohibited practices. It now falls on the CAC to interpret the scope and impact of these amendments.

The CAC has structural and practical challenges. As a specialist court, it hears only a few cases a year (about 20). Competition law cases are among the most complex, mixing law and economics, and involve billions of rand and thousands of jobs.

Writing competition law judgments requires judges to have deep knowledge of the subject, but also business acumen and a fair knowledge of how the economy works.

The CAC’s duty is to develop coherent, credible competition law jurisprudence that is rooted in the SA constitution’s values and is also reputable internationally. The judge president as leader of the court has a crucial role to play here. The CAC was criticised recently for its departure from past jurisprudence in cartel cases, which US professor Bill Kovacic says weakens the commission’s enforcement powers.

Despite this, the CAC still ranks as one of SA’s best-performing courts, achieving a 100% case finalisation rate in 2020-2021.

Because of its relatively small caseload, it is not feasible for the CAC to have a full complement of full-time judges. So CAC judges are seconded from the high court. However, judges who have commercial law experience and can deal with large and complex cases are highly sought-after. High court leaders are reluctant to release them for duty at the CAC.

Judge Dennis Davis, the CAC’s founding judge president who led the court for 20 years until his retirement in 2020, recruited a steady stream of competition judges (many of them black women), but they are quickly promoted to higher appellate courts. Some suggest that to reduce the high attrition rate, CAC judges should be encouraged to serve for at least four years on the court.

As things stand, the CAC has only one permanent judge and no leader. The JSC needs to apply itself carefully in selecting a leader and the next crop of competition judges. Part of the JSC’s essential work this week is developing criteria for judicial appointments, a key weakness in its processes, for which it has faced harsh criticism.

If appointed, Manoim will have to hit the ground running in recruiting new judges who can deal with cases quickly. However, this will be no easy task. There are extremely few high court judges with competition law experience. Luckily, there are many with potential to perform at the CAC’s exacting standards in a relatively short time. There is also a pool of retired judges who could provide mentorship.

Manoim himself is well-known in competition law circles. As an attorney, he contributed to the drafting of the Competition Act. He later spent 20 years at the Competition Tribunal (with a decade as chairperson) before his appointment as a judge in June 2021.

A long-time visiting professor of competition law at Wits University, Manoim’s nomination for CAC judge president is endorsed by former competition commissioner Tembinkosi Bonakele, Competition Tribunal chair Mondo Mazwai and advocate Tembeka Ngcukaitobi SC, one of SA’s leading competition law practitioners.

He might be criticised for his relatively short stint as a judge (only 14 months), but this would be unfair in the light of his 20 years adjudicating at the tribunal.

The JSC has its work cut out in terms of appointing a new CAC leader who will usher in a new era for this vital economic institution. Failure to get this right may have serious implications for more than just the commissioners sitting in the interview.

Mbekezeli Benjamin is research and advocacy officer at Judges Matter, a project of the Democratic Governance and Rights Unit at the UCT Law Faculty.