A recent appeal decision will have implications for the leniency applicants under the Competition Commission’s corporate leniency policy, and the way in which the Commission deals with these applications.

Subsequent to a complaint referral against AMSA, Highveld, Cape Gate, Trident, MacSteel, Robor, Pro-Roof and Kulungile for an alleged contravention of the Competition Act, a dispute arose about whether the Commission was obliged to disclose the leniency application filed by Scaw South Africa. The Commission refused to hand these documents over on the basis that they were confidential because of litigation privilege and contained restricted information under the Commission’s rules. Scaw had claimed these documents were confidential in terms of section 45 of the Act.

AMSA and Cape Gate brought separate applications to have these documents produced by the Commission.

In South African law, in order to claim confidentiality because of litigation privilege over a document, the document must have been obtained or brought into existence for the purpose of a litigant’s submissions to its legal advisor for legal advice and the litigation must be pending or contemplated as likely at the time. The court ruled that the inquiry into whether litigation privilege attaches to the leniency application depends on the facts. In this case, the Commission had waived its litigation privilege by referring to the leniency application in the referral to the Tribunal. The court found that this amounted to an implied waiver of its litigation privilege. However, the contents of the leniency application were confidential in terms of the confidentiality claim unless the Tribunal rules otherwise. It is therefore up to AMSA and Cape Gate to bring another application to the Tribunal for access to the confidential information contained in the leniency application.  

The importance of this judgment is two-fold. Firstly, any reference to the leniency application in the referral documents by the Commission could result in the litigation privilege over the document being lost.

Secondly, companies need to be aware that any confidentiality claims filed in relation to a leniency application may be tested in the Tribunal, if the litigation privilege is waived by the Commission. The Tribunal has taken a conservative approach to what constitutes “confidential information” in terms of the Competition Act. Only confidential information which is “trade, business or industrial information that belongs to a firm, has a particular economic value, and is not generally available or known by others” will be safe from disclosure. Companies therefore need to ensure that they describe precisely the nature of the information which they claim is confidential.

This decision may affect a number of referrals which are currently before the Tribunal in which the Commission has made reference to leniency applications.  Applicants for leniency should be careful to secure appropriate undertakings from the Commission to ensure their private and valuable trade, business or industrial information does not become subject to disclosure. 


Written by Candice Upfold, Associate at Norton Rose Fulbright South Africa