However, this must either be with the leave of the CAC or in the interests of justice, says Chris Charter, director of competition at law firm Cliffe Dekker Hofmeyr.
In these cases, the Commission sought direct access to the ConCourt and did not seek leave to appeal from the CAC to the SCA. Presumably, the Commission did not think the SCA would rule in its favour given the court's decision in the Woodlands Dairy case, on which the CAC largely based its reasoning.
"The ConCourt appears to have dismissed the cases based on procedural issues. What is curious is that the ConCourt's decisions suggest that it was not in the interests of justice to allow the appeal. At a Constitutional Court level, direct access can be allowed where the issue relates to constitutional matters and where the interests of justice require the matter to be decided directly," says Charter.
"The test for whether an appeal is in the interests of justice typically includes whether there are prospects of winning the appeal - presumably the reason the ConCourt took six months to dismiss the cases is because there was much debate among judges as to whether the Commission has a prospect of success on the merits.
"It is tempting to conclude that the fact that leave to appeal was dismissed means that the judges felt the case was not that strong. However, this does not emerge from the written judgements, where there are statements suggesting that the prospects of success may have been good," he continues.
In the majority judgement in the Loungefoam case, Justice Maya writes that, accepting that the matter raises issues of public importance and assuming that there may well be good prospects of success in the appeal, these factors are nonetheless not decisive. The minority judgement goes even further, stating that there are prospects of success in the appeal.
Charter says it seems that the ConCourt has refused to hear the case based on strict procedural grounds, while tantalisingly suggesting that the Commission may be justified in appealing. There have been a slew of direct access applications to the ConCourt recently, and perhaps the Court has decided to send a message to the effect that it really should be a final stage of a legal process and that the jurisdiction of the SCA should not be side-stepped as a matter of course.
However, there may be just enough in the judgements to send a signal to the SCA (and the CAC in determining leave to appeal) that it should consider reversing the CAC decision, as a further appeal to the ConCourt may well succeed.
