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Constitutional court dismisses appeal against YARA SA and Omnia Fertilizer Limited



The Constitutional Court this week dismissed a direct appeal by the Competition Commission against a decision of the Competition Appeal Court in a ten-year long alleged cartel complaint against fertilizer producers YARA SA and Omnia Fertilizer Limited. Costs were awarded to Omnia and YARA SA.

The Competition Appeal Court had in March 2011 ruled in favour of Omnia in an appeal against a Competition Tribunal decision which allowed the Commission to amend its complaint referral against Omnia and YARA. The Competition Commission applied for leave to appeal to the Supreme Court of Appeal, and more than four months later applied for leave to appeal directly to the Constitutional Court. The case was heard in November 2011.

The Constitutional Court dismissed the Commission’s application but did not rule on the scope of the Commission’s powers to amend its complaint referrals. The Court ruled that the Commission’s application should be refused because it was in the interests of justice for the Constitutional Court to have the views of the lower courts in determining complex competition law issues.

Rod Humphris, MD Omnia Group, commented:

“Omnia has consistently maintained that the Commission is not entitled to amend its complaint referral and is pleased with the outcome. This reaffirms the accepted principles regarding due process and the well-established rules and procedures governing the Courts.”

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For more information contact Omnia Group: 011 709 8850

Celeste Appollis, Chief Legal Officer

Issued by Brunswick: 011 502 7300

Taryn Wulfsohn 083 273 1301

Notes to editors

The long running (10 year) investigation by South Africa’s Competition Commission relates to a complaint filed by Nutri-Flo, a small blender and distributor of fertiliser, and subsequently referred by the Commission to the Tribunal in May 2005 in respect of alleged collusion on the part of Sasol, Omnia and Yara in nitrogenous fertiliser products.

Omnia and Yara challenged the investigation and the CAC found that the referral against the two firms was invalid as the complainant didn’t intend to complain against the alleged anti-competitive behaviour.

Omnia and Yara successfully opposed the amendment on the ground that it was outside the ambit of the complaint originally initiated, which was in respect of Sasol's abuses of dominance only, and not a complaint regarding collusion involving Omnia and Yara.