The Competition Tribunal has directed what information the Competition Commission need not disclose to companies accused of anti-competitive conduct.  The Commission cannot be forced to disclose its internal notes regarding its investigations or the final report on the investigation findings prepared for the Commission’s Executive Committee. 

The case involved a long-running complaint case against Telkom in which the Competition Commission alleged that Telkom had abused its dominance in the market for wholesale internet access between 2004 and 2009.  Telkom applied for access to certain internal reports and comments by the external economists and advisors of the Commission, the reports to the Commission’s Executive Committee, the opinions and advice by third parties and internal emails and opinions shared by the Commission’s investigation team.  This information is restricted in terms of section 14 of the Competition Act.  It confirmed the views expressed by the Competition Appeal Court in another judgment delivered late last year in which Computicket made a similar attempt in vain to gain access to the Commission’s internal but restricted documents. In the Computicket decision, the Appeal Court held that only evidence which is actually relied upon in the Commission’s decision needs to be provided, and then only to the extent that this information is not classified as restricted. It further held that internal documents of the kind sought by Computicket constituted The opinions of the Commission’s investigators and cannot be used as evidence during a hearing. 

In the Telkom case, the Tribunal ruled that the Commission did not have to disclose documents which contained communications between the Commission’s investigation team, their internal reports and the opinions, advice and recommendations of their internal officials or experts.  These documents contain the type of information and communication that is internal in nature and is used during the course of the Commission’s investigation in order to make informed decisions.  Protection is afforded by the Competition Act to this type of document because the Commission’s investigative team needs to have the freedom to express views and exchange opinions in an environment that affords them the opportunity to do so with openness and candour.  If the Commission were forced to divulge these documents, it would have a chilling effect on the flow of information during the Commission’s investigation and would impede the Commission’s proper functioning.

A similar challenge to the Commission’s approach to its internal documents is pending before the Tribunal in relation to its investigation of an alleged diesel cartel.  Other companies accused of contravening the Competition Act will no doubt be watching the outcome of the case closely.  Based on this latest judgment, it appears unlikely that companies will be granted access to the Commission’s internal documents.

By Jason van Dijk, director, Competition department, Norton Rose South Africa