By Jannes van der Merwe and Jenna Carrazedo

Introduction

On 12 of November 2024, the Competition Tribunal (“the Tribunal”) granted an interim relief order in favour of  Lottoland South Africa (Pty) Ltd (“Lottoland”) against Google Ireland Limited (“Google”) and Google South Africa (Pty) Ltd (“Google SA”). The Tribunal, sitting with a full panel of three members, provided substantive reasons in favour of Lottoland for their complaint lodged in December 2022, regarding the contravention of the Competition Act 89 of 1998 (“the Act”) by Google SA against Lottoland in 2020. The matter before the Tribunal involved Lottoland obtaining an interim relief order against Google SA for a period of six months or until the finalisation of the complaint, whichever occurs first, ordering Google SA to restore Lottoland’s access to Google advertisements (“Google Ads”) after Google SA terminated Lottoland’s access to Google Ads claiming that Lottoland had breached Google SA’s internal policies.[1]

Google brought a review against the decision by the Tribunal, arguing that the Order provided by the Tribunal is irregular because of its failure to adhere to Section 31(2)(a) of the Act. Section 31(2)(a) of the Act requires that the Chairperson of the Tribunal ensure that that at least one member of the panel is a person who has legal training and experience. Google argued that because the Order by the Tribunal was not signed by Adv Tembeka Ngcukaitobi SC (“the Presiding Member”), the appointed member with such legal training and experience, the Order by the Tribunal is irregular.

Google’s legal representatives addressed a letter to the Chairperson of the Competition Tribunal advising that the Presiding Member did not sign the decision and that this contravenes section 31(2)(a) of the Act. Google requested that the decision be withdrawn due to the Competition Tribunal acting beyond the powers conferred onto it by the Act.

Despite Google’s contention that the Order should be withdrawn, both the Chairperson of the Tribunal, and Lottoland, responded to Google, stating that the proceedings have been concluded and that the Order is in accordance with the Act, referencing Section 31(4) and 31(6) of the Act. This stance adopted by Lottoland, as well as the Chairperson of the Tribunal, caused Google to launch their review to the Competition Appeal Court of South Africa (“the Appeal Court”).

Does an irregular decision amount to no decision?

Lottoland argued that the decision taken by the Tribunal was in fact a valid decision, as it was in compliance with Section 31 of the Act. However, Lottoland argued that, while maintaining that there is a valid decision taken, on Google’s own version the Appeal Court would not have jurisdiction to hear the review, as there would have been no decision taken by the Tribunal.

On this version, Lottoland contested whether the Appeal Court has jurisdiction to hear the review matter, stating that the decision itself is not in fact a decision of the Competition Tribunal, as it did not carry the Presiding Member’s express endorsement. In this regard, Lottoland argued that the requirements for the Appeal Court to exercise its review powers in terms of Section 37(1)(a) were not present, as it does not have the power to decide whether a decision is in fact a decision of the Competition Tribunal, or declare a decision invalid, which is not a decision. In support of its argument, Lottoland contended that Google should have pursued its remedies in terms of the Promotion of Administrative Justice Act, 3 of 2000, to set aside the decision of the Tribunal.

Google argued that the ‘decision’ taken by the Tribunal is ultra vires, as the Tribunal’s failure to have all three members of the panel contribute to the proceedings and exercising its functions in terms of Section 27 of the Act, led to the Tribunal’s failure to comply with Section 31(2)(a) of the Act. They further contended that Lottoland’s misinterpretation of their argument is wrong, as Google did not argue that the failure by the Presiding Member to contribute and sign the Order resulted in ‘no decision’ by the Tribunal, but that such ‘decision’ does not comply with Section 31(2)(a) of the Act. Google proffered the argument that the Appeal Court has the authority to review the decision made by the Tribunal in terms of Section 37(1) of the Act.

Accordingly, Google did not request the Appeal Court to determine whether a decision was taken, or whether such decision was unlawful, Google argued that the rendering of the decision is procedurally irregular as it did not comply with section 31(2)(a) of the Act. This is because the Presiding Member did not sign it, and that such a decision should be reviewed and set aside.

It was ultimately found that the Appeal Court has the jurisdiction to hear the review matter.

Procedural Irregularities

It is agreed that the interim relief matter was heard before a properly constituted panel and was properly assigned, however the review application seeks to investigate whether the Presiding Member’s failure to sign the Order caused an irregularity in the decision.

Google argued that the Act empowers three members of the panel to deliberate a matter, acting jointly and their failure to do so results in the panel not acting in accordance with the Act. To this extent, it was argued that the Presiding Member’s failure to participate in the proceedings until the matter is finalised is detrimental, as the interpretation of the Act requires a member with legal training and experience to signal finality. This failure resulted in the two members issuing the decision, which was against the provisions of the Act, as the Tribunal making the decision is an authoritative body encompassed by three members, and the failure to adhere thereto renders their decision irregular.

Lottoland argued that the two-panel member’s decision is in accordance with Section 36(6) of the Act and constituted a lawful decision. Relying on the matter between JSC v Cape Bar[2], Lottoland contested that the authority supports the argument that the members of the panel did not have to act jointly when having regard to the statutory provisions, because when there is a decision made by two-members, this renders a majority decision made by the panel members. Lottoland adopted the approach that the Presiding Member’s failure to render a decision as being “exceedingly passive”, and that the two-member decision is sufficient.

However, the matter brought before the Tribunal was assigned to three members but when reasons for the decision were circulated, no comments were received from the Presiding Member, with no explanation. The Appeal Court answered this question by putting forth that the Presiding Member did not participate in the proceedings, therefore the panel did not act jointly with no explanation for his failure to participate. The Appeal Court held that the decision falls to be reviewed and set aside.

The Appeal Court also considered whether to remit the decision back to the Tribunal or substitute the Order. As confirmed in Glaxo Welcome (Pty) Ltd and Others v Terblanche N O and Others, [3] the Appeal Court can correct the decision of the Tribunal where the result is a foregone conclusion or when further delay would cause undue prejudice. The Appeal Court that there was not a foregone decision but there was delay that has prejudiced Lottoland that Google has not addressed. However, the Appeal Court expressed its concerns and difficulty in granting a substitution order when the skills and expertise of the Tribunal are for the purpose of making these decisions mindfully. Thus, the Appeal Court was not satisfied that a substitution order should be granted as such a solution would be impractical when considering the brief period left in which the interim order will still be in effect.

The decision of the Appeal Court reviewed and set aside the decision of the tribunal.

Implications of the Tribunal’s Decision

This matter again highlights the importance that correct procedure is followed as to avoid decisions from being set aside once handed down. The administrative error of the Tribunal has resulted in more questions than answers.

Lottoland’s complaint, lodged in December 2022, was set down for hearing on 19 July 2023, despite the procedural directives after the hearing, the Tribunal only provided its decision on 12 November 2024, approximately 16 months after the initial hearing. Despite this delay, the Tribunal and its Presiding Member failed to ensure that its Order was compliant with the Act. As a result, and while acknowledging Lottoland’s own failure to launch the interim relief proceedings earlier, Lottoland was prejudiced by severe delays and, according to the Tribunal’s now set aside decision, were being harmed in the market by Google SA’s conduct, restricting Lottoland from making use of Google Ads.

It is worth noting that no reason was given for the lack of the Presiding Member’s participation and signature, only that he failed to do so. The seemingly insignificant act of signing an Order to comply with formalities, alternatively, a member’s failure to contribute, carries substantial weight, this is seen in the setting aside of the decision all because the one panel member with legal training and experienced failed to sign it.

This, unfortunately, resulted in further resources being expended by both Lottoland, Google, the Tribunal, and the Appeal Court. Proper procedure should always be followed to benign topics from evolving into a long, lengthy and costly process.

This judgement sets precedent for the setting aside of a decision of what can be labelled as administrative errors due to an appointed Presiding Member’s lack of participation, leading to procedural irregularities. As the Appeal Court rightfully stated, the Act regulates and controls proceedings and the functions of the authoritative bodies exercising their duties. Failure to comply with the Act should not be disregarded as an exceedingly passive point to take, but a failure to extinguish your duties for which you were appointed in terms of the Act, which causes harm and prejudice to the litigating parties.

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[1] See https://africanantitrust.com/2025/01/29/betting-on-fair-play-competition-tribunal-orders-interim-relief-to-lottoland-in-google-ads-dispute/ by Matthew Freer, setting out the merits of the Interim Relief Order.

[2]Judicial Service Commission and Another v Cape Bar Council and Another (818/2011) [2012] ZASCA 115; 2012 (11) BCLR 1239 (SCA); 2013 (1) SA 170 (SCA); [2013] 1 All SA 40 (SCA) (14 September 2012)

[3] Glaxo Welcome (Pty) Ltd and Others v Terblanche N O and Others [2001-2002] CPLR 48 (CAC).