IN THE NATIONAL CONSUMER TRIBUNAL
HELD AT CENTURION
Case No: NCT/4454/2012/101(1)(P)CPA
NCT/4570/2012/101(1)(P)CPA

In the matter between:

MURRAY, CLOETE N.O.						              FIRST APPLICANT
KLEIN, NORMAN N.O.							         SECOND APPLICANT
EDWARDS, ELIZABETH MARGARET N.O                                                            THIRD APPLICANT
and  
THE NATIONAL CONSUMER COMMISSION 				          FIRST RESPONDENT
AUCTION ALLIANCE (PTY) LIMITED					     SECOND RESPONDENT
THE SOUTH AFRICAN INSITITUTE OF AUCTIONEERS			         THIRD RESPONDENT
SECHABA TRUST                                                                                            FOURTH RESPONDENT
and
In the matter between:

AUCTION ALLIANCE (PTY) LTD						            APPLICANT
and
THE NATIONAL CONSUMER COMMISSION 				          FIRST RESPONDENT
THE SOUTH AFRICAN INSITITUTE OF AUCTIONEERS			     SECOND RESPONDENT
SECHABA TRUST							         THIRD RESPONDENT

JUDGMENT AND REASONS
__________________________________________________________________________________
The Tribunal issued an order on 11 July 2012, cancelling or setting aside the compliance notice to which applications NCT/4454/2012/101(1)(P)CPA & NCT/4570/2012/101(1)(P)CPA relates and indicated that the reasons for this order will follow.  This judgment constitutes the reasons for the order.  

INTRODUCTION
1.	The Applicant under case number NCT/4570/2012/101(1)(P)CPA (hereinafter referred to as the “Auction Alliance review application”) is Auction Alliance a Limited Liability Company incorporated in South Africa ( hereinafter referred to as “Auction Alliance”).

2.	The Applicants under case number NCT/4454/2012/101(1)(P)CPA (hereinafter referred to as “the Liquidators’ review application”) are Murray, Cloete N.O., Klein, Norman N.O. and Edwards, Elizabeth Margaret N.O, the liquidators (hereinafter referred to as the “Liquidators”).of Quoin Rock Winery (Pty) Ltd (“Quoin Rock Winery”) 

3.	Auction Alliance and the Liquidators each brought an application in terms of section 101(1) of the Consumer Protection Act No. 68 of 2008 (“CPA”) to the Tribunal for the review of a compliance notice issued against the single compliance notice issued against them by the First Respondent, furthermore citing the South African Institute of Auctioneers and Sechaba Trust as “entities to whom the compliance notice applies”. 

4.	The First Respondent in both applications is the National Consumer Commission, a public entity established in terms of section 85 of the CPA (hereinafter referred to as the “Commission”).

5.	The Liquidators cited Auction Alliance as the second Respondent in the Liquidators’ review application.

6. 	Third and Fourth Respondents in the Liquidators’ review application and Second and Third Respondent in the Auction Alliance review application are the South African Institute of Auctioneers (SAIA) and Sechaba Trust. 

7. 	A joint hearing was held into the review applications on the compliance notice dated 4 April 2011 issued against the Applicants.  It appears to be common cause between the parties that despite the date of the compliance notice being 4 April 2011, it was in fact issued and should have been dated 4 April 2012 and not 4 April 2011. 

8.	The National Consumer Tribunal (“Tribunal”) has jurisdiction to hear this matter in terms of section 101(1) of the CPA. This section provides that a person issued with a compliance notice in terms of section 100 may apply to the Tribunal in the prescribed manner and form for its review. 

9.	This judgment follows on the hearing of this matter held on the 26 June 2012 at the offices of the Tribunal in Centurion. The judgment is based largely on written submissions by all parties as well as oral arguments, written heads of argument presented at the hearing and those heads of argument presented subsequent to the hearing.

10. 	Auction Alliance and the Liquidators based the review application on several procedural grounds including a claim that the compliance notice was improperly issued against a “wrong party”, that the compliance notice was not constitutional, lawful, reasonable, showed bias on the part of the Commission and did not comply with the audi alteram partem rule or the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

11. 	Due to the nature of the objections to the compliance notice the Tribunal decided to deal with the procedural aspects first. Accordingly, a Directive was issued, in terms of Rule 21(1) on 21 June 2012, by the Presiding Member, requiring the parties to address the Tribunal on the procedure followed by the Commission, prior to the issuing of the compliance notice. The Directive stated specifically that issues related to the substance of the compliance notice and the merits of the matter (including whether the Commission had correctly interpreted the law relating to auctions and whether the liquidators can be held responsible for the conduct of the auctioneer) will be dealt with once the Tribunal has made a ruling on the procedural aspects of the matter.

BACKGROUND

The following are common cause between the parties:

12.	On 19 July 2011 the North Gauteng Court placed Quoin Rock Winery into final liquidation on the application of the South African Revenue Services (SARS).

13.	On 24 October 2011 the Liquidators, made application to the Master of the High Court for the authorisation of the Liquidators to sell the assets of Quoin Rock Winery.

14.	On 10 December 2011, Auction Alliance held an auction to sell the assets of Quoin Rock Winery.

15.	Ms. Wendy Appelbaum, (Applebaum) (“the Complainant”) attended and participated in the auction.

16. 	Applebaum lodged a complaint with the Commission on 31 January 2012 regarding the manner in which Auction Alliance, more specifically Rael Levitt, (Levitt) CEO of Auction Alliance, conducted the auction.

17.	Upon receipt of Applebaum’s complaint the Commission commenced an investigation into the complaint which included issuing at least two summonses to Levitt and an oral request directed to the Liquidators to meet with the Commission.

18.	On 19 March 2012 the Liquidators, in particular Cloete Murray gave evidence at an inquiry conducted by the Commission during its investigation of the complaints by Applebaum against Auction Alliance and Levitt.

19. 	On 4 April 2012 the Commission issued a single compliance notice to Auction Alliance and the Liquidators, the South African Institute of Auctioneers and Sechaba Trust despite the fact that no complaint had been lodged with the Commission against the latter three and no investigation had been conducted into their conduct in relation to the Auction of 10 December 2011.
 
20. 	It is this compliance notice issued by the Commision on 4 April 2012 against Auction Alliance, the Liquidators, Sechana Trust and SAIA that is the subject of these review applications by Auction Alliance and the Liquidators.

ISSUE TO BE DECIDED BY THE TRIBUNAL

21. 	The critical issue which the Tribunal must decide on is whether the compliance notice was issued in accordance with the law and whether it complies with and is enforceable in law.

PRELIMINARY MATTERS
22. 	Certain preliminary matters were raised by the parties which were dealt with by the Tribunal before the hearing into the procedural aspects of the compliance notice proceeded.  The Tribunal dealt with these preliminary matters on an extemporaneous basis at the hearing and stated that more complete reasons would be given in the final judgment. These preliminary matters were the following:

a.	The application by the Commission and the Liquidators to have a draft consent order concluded between them made an order of the Tribunal;
b.	The submissions by the Commission that the Auction Alliance review application was not properly before the Tribunal; and
c.	The submissions by the Commission relating to the Tribunal’s directive dated 21 June 2012.

THE APPLICATION BY THE COMMISSION AND THE LIQUIDATORS TO HAVE A DRAFT CONSENT ORDER CONCLUDED BETWEEN THEM MADE AN ORDER OF THE TRIBUNAL

23.	At the commencement of the proceedings on 26 June 2012, the Commission and the Liquidators brought an application before the Tribunal to confirm a draft consent order, agreed upon between the Commission and the Liquidators, as an order of the Tribunal.  In terms of this draft consent order the Commission and the Liquidators agreed that all references to the Liquidators be removed from the compliance notice. 

24.	Auction Alliance objected to the draft consent order being made an order of the Tribunal because the practical effect of confirming such an agreement would have an absurd effect. Furthermore, Auction Alliance submitted that were the Tribunal to modify the compliance notice by removing all reference to the Liquidators in the compliance notice, the Tribunal would be functus officio in so far as the particular compliance notice was concerned.

25.	After hearing argument, the Tribunal ruled on the matter and refused the application, on the basis that:
a.	The Liquidators are not “respondents” as envisaged in section 74(1) of the CPA but applicants having launched a review application against the compliance notice issued by the Commission. Respondent in this context of section 74, on the plain reading of the Act, refers to a person or association of persons investigated.

b.	It was common cause in this matter that there had been no investigation against the Liquidators. As a result – 

i.	A compliance notice could therefore never have been issued against the Liquidators. Section 71(1) provides that “After concluding an investigation (emphasis added) into a complaint, the Commission may…(c)(i) propose a draft consent order in terms of section 74 …(iv) issue a compliance notice in terms of section 100.” 

ii.	The Commission and the Liquidators could furthermore never have entered into a consent order on terms of section 74 of the CPA.  Section 74(1) provides that “If a matter has been investigated by the Commission, and the Commission and the Respondent agree to the proposed terms of an appropriate order, the Tribunal or a Court may confirm that agreement as a consent order.’ 

c.	The Commission and the Liquidators incorrectly characterised the settlement reached between the Commission and the Liquidators as a consent order. 

d.	Substantively the application before the Tribunal was not an application for a consent order but rather an application for the modification of the compliance notice as part of a settlement agreement between the Commission and one of the sets of parties to a single compliance notice, the modification being the removal of the reference to the Liquidators in the compliance notice.

e.	This being the case the question then arises whether the Tribunal can in the circumstances assent to this settlement agreement between the Commission and the Liquidators. 

f.	Section 101 (2) of the CPA states that “.... the Tribunal may confirm, modify or cancel a compliance notice”. On a plain reading of the Act this means that the Tribunal may make only one of the three decisions once only in relation to the one (single) compliance notice.  This in the view of the Tribunal means that, once the Tribunal has modified the compliance notice it would be functus officio and would then not be empowered to make any other decision in relation to the same compliance notice in relation to the other party (Auction Alliance) thereto.  

g.	 Consequently the Tribunal was of the view that it could not modify a compliance notice in respect of one party to it as requested and then, after hearing representations by another party, issue a further order relating to the same compliance notice.

h.	The Tribunal accordingly decided that it was premature to decide this issue at this particular stage of the hearing and that it would consider representations from all the parties and then issue its order, whether confirmation, amendment or cancellation of the compliance notice issued against Auction Alliance and the Liquidators in terms of section 101(2) of the CPA.

AUCTION ALLIANCE REVIEW APPLICATION NOT PROPERLY BEFORE THE TRIBUNAL 

26.	After the Tribunal’s ruling for the matter to proceed, the Commission raised certain points in limine namely that the matter involving Auction Alliance was not properly set down and challenging the basis for the joint hearing of the two review applications.

27.	The Commission submitted that neither the notice of set down nor the notice of complete filing in relation to Auction Alliance was properly served on the Commission (by the Tribunal) because the set down of the matters preceded the Commission’s answering papers resulting in the set down being premature.

28.	The Commission contended that notices had to be “served” on the parties i.e. by way of delivery or registered mail in terms of the Tribunal Rules of Proceedings before the Tribunal. 

29.	The Tribunal dismissed this point in limine on the following basis:	

a.	Having regard to the documents before the Tribunal, the Tribunal was satisfied that all the parties were aware of the fact that both matters would be heard together and in fact agreed to that. Specific reference in this regard is made to the affidavit deposed to by the Commission’s Director of Legal Services, Mr Oatlhotse Crisp Thupayatlase. Page 306 of the record (the Commission’s answering affidavit) reads that “The Respondent does not have a problem with the matter being heard as a matter of urgency provided both matters are heard together at the same time.”  Throughout their submissions the 

Liquidators have stressed the urgency of the matter because they have been unable to dispose of the assets of Quoin Rock Winery, whilst the compliance notice stood.

b.	In addition the Commission originally filed one set of heads of argument which dealt with both matters. These heads of argument were filed before the Commission briefed Counsel in this matter.

c.	In any event, in view of the fact that only a single compliance notice was issued against both parties and that Auction Alliance was cited as a Respondent in the Liquidator’s review application, the Tribunal was of the view that in dealing with the Liquidators’ review application, it was also necessary to hear submissions from Auction Alliance.  Section 102 of the CPA, provides that the Tribunal may confirm, modify or cancel a compliance notice after considering any representations by the Applicant and “any other relevant information” (our emphasis).

d.	Therefore even if only dealing with the Liquidators, the Tribunal was of the view that information provided by Auction Alliance in this matter constitutes “other relevant information”. 

e.	Auction Alliance being a party on the compliance notice had a direct interest in the outcome of the Liquidator’s review application.

f.	Finally the Tribunal was of the view that it made no sense to deal only with the Liquidators because if the compliance notice was defective and had to be modified or cancelled this had implications for Auction Alliance which therefore had a right to be heard in this matter.

g.	In so far as the Tribunal Rules pertaining to notices of set down and complete filing are concerned, the Rules do not require that the notice of set down issued by the Tribunal be “served” on the parties. The rule on set down simply refers to the issuance of a notice of set-down to the parties.  The term “service” does not appear in conjunction with notices of set down nor complete filing in the Rules and therefore the requirements of “service’ is not applicable.

h.	Despite the fact that the Tribunal was satisfied that, based on all the relevant documentation, all the parties were well aware that the two matters have been set down for hearing on 26 June 2012, the Tribunal noted the Commission’s Counsel’s submissions of his difficulty to proceed having been briefed very late in the day. As a result the Tribunal allowed the Commission’s Counsel an opportunity to file supplementary heads of argument by 2 July 2012.  Auction Alliance and the Liquidators were afforded until 9 July 2012 to respond to the supplementary heads of argument should they wish to do so.

THE TRIBUNAL’S DIRECTIVE
30.	The Tribunal issued a directive to the parties prior to the hearing requesting them to address the Tribunal on specific matters at the hearing. The Commission took issue with this Directive issued by the Tribunal. It submitted that the Tribunal, when it issued the Directive, did not clearly identify the “procedural matters” it intended to determine first and separately. 

31.	The Commission submitted that the Tribunal, in terms of the provisions of Rule 17(6), is only empowered to deal with points of law separately.  It submitted further that the power to further separate issues is not afforded to the Tribunal in terms of the Tribunal’s rules, unless so directed after agreement by the parties at a pre-hearing conference (see Rule 17(5)). No pre-hearing conference was held, which the Commission contended, should have been held. It is the Commission’s submission that there is no provision in the Tribunal’s rules, similar to Rule 33(4) of the Uniform Rules of Court, empowering a Court to mero motu determine certain issues separately if it can be conveniently proceeded with at the same time.. 

32.	It was accordingly submitted by the Commission that the Tribunal is not empowered to consider procedural issues first and separately.  In the result, any ruling or judgment premised purely on a first and separate determination of procedural issues will constitute such a ruling or judgment reviewable and / or appealable.
 
33.	These submissions were considered by the Tribunal. The Tribunal determined that it is empowered to issue directives to the parties relating to the conduct of the hearing and in the terms as was done in this matter. 

a.	The Tribunal considered section 142 of the National Credit Act, 2005 (in terms of which the Tribunal was established) which mandates the Tribunal to act in a manner which is expeditious and informal and Rule 21(1) of the Rules of the Tribunal which permits the Presiding Member, at a hearing, to determine procedures to be followed at that hearing. In order to expedite the finalisation of the matter the Presiding Member issued the Directive, prior to the hearing of the matter on 26 June 2012, to afford all parties a timeous opportunity to address the Tribunal on the procedural aspects of the compliance notice first thereby not surprising parties on the day of the hearing with such a request.

b.	Rule 17(3) allows the Presiding Member to confer with the parties to a matter prior to a hearing.  In this instance, the Presiding Member elected to advise the parties prior to the hearing in relation to the process that would be followed at the hearing.  

c.	In this particular matter the parties (in particular the Liquidators) had raised serious procedural irregularities which if decided in their favour could mean that the merits of the matter such as the rules pertaining to the conduct of an auction, whether these rules had been breached and whether the liquidators could be held responsible for the conduct of the auctioneer, would not have been heard by the Tribunal. The matter was only set down for 26 June 2012 and it was highly unlikely that both the procedural points and the merits could have been dealt with in a single day.  In the Tribunal’s view, to require the parties to spend hours preparing argument on both the procedural and substantive aspects of the matter when it was unlikly that the Tribunal could hear both, could have led to considerable amounts of costs incurred unnecessarily by the parties with little prospects of recovering them if successful in their challenge or resisting the challenge to the compliance notice.  

d.	The awarding of costs is governed by section 147 of the National Credit Act (NCA). Section 147 provides for the awarding of costs in very limited circumstances namely only where a complainant refers a matter to the Tribunal after receiving a notice of non-referral from the National Credit Regulator (NCR) or the Commission. If the circumstances do not fall within this exception the general rule that each party bears its own costs must be observed. This interpretation is unavoidable because section 147 (1) uses the word “must” and not “may” indicating that the Tribunal is not granted a discretion in these circumstances.

e.	The Tribunal’s rules also deal with the awarding of costs. Rule 25(7) of the Tribunal Rules provides “The Tribunal may award costs against any party who is found to have made frivolous or vexatious applications to the Tribunal. This rule allows the Tribunal to award punitive costs but only in circumstances where a party made frivolous or vexatious application. Therefore, just as with section 147, punitive costs can only be awarded in the narrow circumstances provided for by the rules.

THE APPLICABLE LAW
34.	The issuance of compliance notices is regulated in terms of sections 73 and 100 of the CPA and the review thereof in section 101.

35.	Section 73(1)(c)(iv) provides that the Commission may issue a compliance notice upon concluding an investigation in terms of section 100 of the CPA. 

36.	The issuance of a compliance notice is one of four regulatory options available to the Commission upon concluding an investigation should the Commission believe a person has engaged in prohibited conduct. The other options are to refer the matter to the Equality Court (section 73(1)(c)(i); propose a draft consent order (section 73(1)(c)(ii); and refer the matter to the Tribunal or the Consumer Court of the province where the supplier has its principal place of business in the Republic (section 73(1)(c)(iii)). The Commission chose to exercise its discretion to issue a Compliance notice against Auction Alliance and the Liquidators as opposed to, for example, making out a case of prohibited conduct and referring the prohibited conduct to the Tribunal for a determination. Thus the Commission must comply with the requirements of section 100 read with section 72 and 73. It is only where a matter of prohibited conduct is referred to the Tribunal or a Consumer Court that a consumer, who wishes to claim damages as a result of such prohibited conduct, may do so in terms of the CPA through the civil court. 
It requires of the consumer to file with the clerk of the court a notice from the Chairperson of the Tribunal in the prescribed form certifying whether the conduct constituting the basis for the action has been found to be prohibited or required conduct in terms of the Act, the date of the finding and the section of the Act in terms of which the Tribunal made its finding. 

37.	Section 100 is clear that certain jurisdictional facts must be satisfied before a compliance notice is issued. These jurisdictional facts are - 

a.	the compliance notice is issued to a person or association of persons whom the Commission, on reasonable grounds believes, to be engaged in prohibited conduct; and
b.	before the compliance notice is issued, the Commission must consult with the regulatory authority that issued a licence to that regulated entity.

38. 	The Tribunal dealt with the law relating to the issuing of compliance notices extensively in City of Johannesburg v National Consumer Commission and so we do not intend to repeat this here.  Suffice to say that the Tribunal has concluded that a compliance notice is issued once an investigation into a complaint against a particular individual or entity is completed.  In other words there must first be a complaint and then there must be an investigation which is necessary in order to -

a.	Establish the facts of the complaint;
b.	Measure those facts against the Act in order to reach the belief on reasonable grounds that the person against whom the compliance notice is to be issued was engaged in prohibited conduct; and
c.	Ensure that the compliance notice complies with the prescribed requirements as set out in section 100(3).  The compliance notice must provide details of the nature and extent of the non-compliance, any steps which must be taken to correct the non-compliance and the period within which those steps must be taken.

THE LIQUIDATORS AND THE COMPLIANCE NOTICE

39. 	It is common cause in this matter that no complaint was ever laid against the Liquidators, that no investigation was ever conducted against them and that therefore the Commission could not have formed the reasonable belief that the Liquidators were engaged in prohibited conduct.

40. 	Hence it must be concluded, as the Tribunal does, and as was originally conceded by the Commission, that the compliance notice should never have been issued against the Liquidators and at the very least all references to the Liquidators therein, as conceded originally by the Commission, must be removed from the compliance notice. 

41. 	In view of the fact that the compliance notice should never have been issued against the Liquidators in the first place since they have never been investigated the Tribunal will first deal with the effect of the removal of all references to the Liquidators on the compliance notice and then, if necessary, deal with the other procedural challenges raised.

42. 	Once all references to the Liquidators are removed from paragraph 2 of the compliance notice setting out the details of the steps to be taken, only one step remains. This remaining step relates to Auction Alliance and requires of it “ …to enure that the Auction of 10 December 2010 is nullified for failure to comply with the Act and the Regulations made in terms thereof.” It is assumed for the purposes of this judgment that the compliance notice should have read ”…Auction of 10 December 2011” as it is common cause that the auction took place on 10 December 2011.

43.	From the facts before the Tribunal the auction on the day involved the sale of numerous lots including the sale of the immovable property, Quoin Rock Winery.  In so far as the sale of the immovable property is concerned, it is common cause that this sale was never concluded, because the Liquidators did not accept the Complainant’s offer.

44.	The ability and the practicability of Auction Alliance “nullifying” the auction and the consequences thereof to the buyers of the other lots of which the sales were concluded, is then a question the Tribunal has to consider carefully in respect of the implementation and enforceability of the remainder of the compliance notice. 

45. 	What is apparent is that it would not be possible for Auction Alliance to nullify the auction. On the one hand the sale of Quoin Rock Winery was never concluded and is not capable of being nullified. The sale of the various other lots has been concluded and transfer presumably effected to the buyers.  It would therefore be non-sensical to require of Auction Alliance to nullify the auction. As a result the effect of the remainder of the compliance notice is meaningless as the one remaining step required by the Commission to be taken by Auction Alliance can neither be implemented nor enforced. 

46.	In this regard it is useful to consider the purpose for which a compliance notice is issued.  The purpose of a compliance notice is to ensure that a party who is not complying with the Act, is informed of its non-compliance and it is given an opportunity to amend its ways and ensure that in the future, going forward, it does comply with the Act.  For this reason the Act requires (in section 100 (3)) that the non-compliance be identified, that the party be informed of the steps which it must take to ensure it cures the non-compliance identified and that it be given a period of time in which to amend its behaviour.  A party which then fails to comply with a compliance notice can be referred to the Tribunal for the imposition of an administrative penalty. It must be stated here that the conduct complained of in this matter took place on 10 December 2011 and was complete on 10 December 2011.  

47.	The Tribunal is of the view that issuing a compliance notice in these circumstances does not serve any legitimate purpose as intended by the Act. The Tribunal is further of the view that an amendment to the compliance notice which involves removing any reference to the Liquidators will result in a compliance notice which will serve no legitimate purpose.

48.	In the present case the issuing of a compliance notice will have no effect in that the conduct complained of ceased to exist prior to the issuing of the compliance notice and the rationale of following the route of a compliance notice as opposed to making out a case of prohibited conduct, does not achieve the desired result of ensuring that the conduct complained is censured in the appropriate fashion.

49.	The Tribunal is therefore of the view that - 

a.	After the removal of the references to the Liquidators from the compliance notice due to the fact that there was no basis for the issuance of the compliance notice against them; and the remainder of the compliance notice being rendered meaningless as a result; and

b.	That the remaining step the Commission requires of Auction Alliance to take is due to its content and nature unenforceable for the reasons set out above.

the compliance notice is fatally defective and must be cancelled.

OTHER PROCEDURAL CHALLENGES RAISED 

50.	The Tribunal noted the other procedural issues raised by the parties objecting to the compliance notice, including -  

a.	That section 69(1)(c)(ii) and 2(b) of the CPA do not exist which has possible constitutional implications for the Act; 

b.	The requirement for the Commission to consult with the Estate Agency Affairs Board because Auction Alliance may possibly be a regulated entity;

c.	Allegations of bias by the Commission against Levitt and / or Auction.
 
51.	However, because of the findings of the Tribunal that the compliance notice was fatally defective, the Tribunal deems it unnecessary to deal with the above issues in detail in its judgment.  

52.	The allegations of bias by the Commission against Levitt and / or Auction Alliance deserve mention. They turn mainly on the conduct of the Commission pertaining to the timing and content of a ten page media statement issued by the Commission on 30 March 2012 prior to the issuance of the compliance notice on 4 April 2012; and the issuance of the compliance notice before 10 April 2012, the date Levitt was scheduled to appear before the Commission for an inquiry into the complaints brought against him by Applebaum. 

53.	The Tribunal has some serious concerns regarding the media release issued by the Commission.  In particular it is concerning that the Commission advised the media that Auction Alliance had engaged in a “mock auction” which allegation did not form part of the compliance notice subsequently issued by the Commission. 

54.	The timing of the media statements on 30 March 2012 further preceded the issuing of the compliance notice on 4 April 2012 and both the media statement and the compliance notice were issued before the completion of the investigation (if regard is to be had that an inquiry was scheduled with Levitt for 10 April 2012). In this regard it is useful to refer to the Supreme Court of Appeal decision of Pretoria Portland Cement Company Limited v the Competition Commission where the Competition Commission was severely criticised for informing the media that it intended to conduct a search of business premises which resulted in the media being present at the time the premises were searched.  The SCA concluded that the Commission was intent on advertising itself with no regard for the harm it might do to its suspects (para 62).  The court found further that the whole conduct of the Commission “smacked of rampant triumphalism”. Schultz JA concluded this aspect of the judgment with the following comments:
“I take a serious view of the Commission’s conduct and am of the view that we must make it clear that we will not allow persons or businesses to be subjected to an abuse of power and must also make it clear to the Commission that it also is subject to the Constitution and the law and must accordingly mend its ways in certain respects.  The effective way of achieving these ends is, in my view, to set aside the whole of the proceedings commenced by the Commission when applying for a warrant.  What it decides to do thereafter is for it to decide.  I must emphasize that the facts which I have set out, even the undisputed facts, involve a gross violation to the appellants’ rights to privacy under the Constitution and s49 (1) of the Act, and also of the appellants’ rights of resort to a court.  These are fundamental matters.”

55.	The Tribunal has concerned itself only with the validity of the compliance notice which, regardless of the conduct of any of the parties, must be issued in accordance with the law and must comply with the law.  Nothing in this judgment exonerates Levitt from his self-confessed failure to comply with the CPA.

Accordingly, the Tribunal makes the following order:
The compliance notice issued against Auction Alliance and the Liquidators is hereby cancelled.
No order is made as to costs.

DATED THIS 30 TH DAY OF JULY 2012

_______________________________________
P A BECK
TRIBUNAL MEMBER

Prof T Woker, Presiding Member and Ms D Terblanche, Member concurring