| Case summary: |
The Competition Tribunal dismissed an action brought by AEC Electronics against the Department of Minerals and Energy (DME) on the grounds that it has no jurisdiction to hear the matter.
AEC Electronics (“AECE”) brought its complaint to the Competition Tribunal after its complaint had been non—referred by the Competition Commission (‘Commission’). AECE is a company engaged in the industry of supplying electronic equipment to the mining industry. It supplies inter alia cap lamps, shot exploders and blasting systems. These are all products for which safety standards are crucial. The DME is an organ of state which was established to oversee inter alia, the mining industry in the Republic. The DME’s unit relevant in this matter is the Mine Health and Safety Unit. The mining industry is regulated, inter alia, by the Mine Health and Safety Act, No 29 of 1996 and the Mines and Works Act, No 27 of 1956 and the Occupational Health and Safety Act, No. 85 of 1993.
AECE alleges that the DME’s approval is required for it to sell its products to the industry and that such approval has not been forthcoming or in one case was given only temporarily, whilst approval has been given to rivals who have been able to enter the market. AECE attacks the basis on which the DME makes these decisions alleging that the decision making is inter alia, ‘autocratic’ and ‘bizarre’. Additionally, the DME is accused of supplying information in a biased manner, constantly changing the ‘goal posts’ and not responding to correspondence for months at a time.
As its relief, AECE asks the Tribunal to:
• Investigate why the DME is approving other suppliers’ equipment and not AECE’s.
• It also requested that approvals to other suppliers be revoked until such time that AECE equipment is also approved
The Tribunal says, “We neither have the competence to instruct a state functionary exercising a public power to act in a particular manner or to desist from acting in a particular manner. As such they are not susceptible to our jurisdiction and the proper course would have been to proceed with an administrative law case to the High Court to review the DME. The complaints about the DME relate to the manner in which it has exercised its discretion as a regulator - bias, arbitrariness etc., all of which are typically the matters considered in High Court administrative reviews. The business of the Competition Act is the wrongful exercise of market power a matter over which the Tribunal has jurisdiction. The business of administrative law is the wrongful exercise of public power a matter over which the Tribunal has no jurisdiction.”
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