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Towards a Tipping Point: The Botswana Competition Act and the Nemo Judex Rule

Published online by Cambridge University Press:  29 December 2014

Zein Kebonang
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Abstract

While the Botswana Competition Act creates a hierarchical relationship between the Competition Commission and the Competition Authority, it also confers on the Competition Commission judicial powers over competition cases involving the Competition Authority and/or third parties. Although the Competition Authority's decisions have not yet been tested before either the Competition Commission or the High Court, this article argues that the institutional structure underpinning the Competition Authority is not sound, as it opens the Competition Commission to potential attacks of bias and other constitutional challenges. This article therefore makes a case for the creation of two separate bodies: one concerned purely with adjudicating competition cases and the other with administrative oversight of the Competition Authority.

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Type
Research Article
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Journal of African Law , Volume 59 , Issue 1 , April 2015, pp. 178 - 191
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Copyright
Copyright © SOAS, University of London 2014 

INTRODUCTION

The Botswana Competition Authority is now three years old, having been set up in 2011. The Competition Act which established the authority provides for two institutions to enforce and administer competition legislation: the Competition AuthorityFootnote 1 (the Authority) and the Commission of CommissionersFootnote 2 (the Commission). However, the Commission has both administrative and “judicial” oversight over the Authority. Although still in place, this institutional arrangement is problematic and potentially opens the Commission's decisions to constitutional challenge. The principle of nemo judex in causa sua, commonly referred to as the rule against bias, requires that no-one should be made a judge in his own cause.Footnote 3 The rule is an important aspect of the principles of natural justice and requires that persons making decisions that impact on others should do so impartially and fairly.Footnote 4 In other words, a person should decline to hear or determine a case in which he is personally interested. The rationale for this principle is to promote public confidence by ensuring that justice inures to all.Footnote 5 Although the rule originated in the courts and was for many centuries applied only to courts and judges, it has now become a rule of universal application and covers a wide range of decision-makers such as tribunals and statutory authorities.Footnote 6

This article highlights the twin role played by the Commission and maintains that the institutional framework that underpins it is not robust or optimal, and may result either in due process being compromised or in the Commission's decisions being challenged on constitutional grounds. In making this argument, the article first considers the Authority's institutional structure. This is then contrasted with the structures of institutions in Zambia and South Africa. The Commission's responsibilities and the dual nature of its functions are also evaluated against the nemo judex rule before a conclusion is drawn.

INSTITUTIONAL ARRANGEMENTS

The Competition Authority

The Authority was established under the Botswana Competition Act (the Act) as a body corporate, capable of suing and being sued in its own right.Footnote 7 Its principal mandate as set out in the Act includes the prevention of, and redress for, anti-competitive practices in the economy, and the removal of constraints on the free play of competition in the market.Footnote 8 In terms of the management structure of the Authority, the Act provides for the appointment of an executive secretary or chief executive officer.Footnote 9 It also provides for the appointment of a board or commission.Footnote 10 Thus, from a corporate governance perspective, the Act clearly defines and allocates authority and responsibilities between this board and the executive secretary. For instance, although the Authority's chief executive officer or executive secretary is appointed by the minister of trade and industry,Footnote 11 section 6.1 of the Act requires that the appointment be made in consultation with the Commission.

The chief executive is responsible for the day to day operations of the Authority, the management of the Authority's funds, property and business, and the organization and management of the Authority's employees.Footnote 12 In addition, section 6.2 of the Act subjects him to the general supervision of the Commission in the discharge of these functions. Similarly, although the executive secretary may recommend individuals for appointment as senior officers of the Authority, the final decision and matters relating to their terms and conditions of employment lie with the Commission.Footnote 13 In the same vein, the executive secretary's contract of employment may be terminated by the minister at the instance of the Commission.Footnote 14

The Commission

Established under section 9 of the Act, the Commission is the governing body of the Authority, responsible for the Authority's strategic direction and affairs. Over and above these administrative functions, the Commission also has quasi-judicial functions.Footnote 15 Under section 9.2 of the Act, the Commission adjudicates on matters brought before it by the Authority and gives general policy direction to the Authority. Secretariat functions for the Commission, whether in the discharge of its administrative or judicial functions, are executed by the Authority's executive secretary, who, although lacking a right to vote, is entitled to attend all the meetings of the Commission.Footnote 16

Generally there are at least three models or types of institutional design common to competition law agencies. These are the bifurcated judicial model, the bifurcated agency / tribunal model and the integrated agency model.Footnote 17 Under the bifurcated judicial model, enforcement of competition law is effected through a court system, while with the bifurcated agency/tribunal model a specialized tribunal is established to ensure enforcement.Footnote 18 Under the integrated agency model, however, a commission within the competition agency provides the first level of enforcement.Footnote 19 Botswana is an example of the bifurcated agency model.

The Commission as a board

As noted, the Commission plays an important oversight role. Not only does it approve the appointment of senior management but it has overall responsibility for the Authority, which includes approving and overseeing implementation of the Authority's strategic objectives and corporate governance policy guidelines. The Commission's administrative responsibilities are not only achieved through the Commission's oversight of senior management and approval of corporate policies, but also through its approval of the Authority's budget and regular board meetings with senior management.

The Commission as a tribunal

The Botswana Competition Commission is unique in that, besides its administrative oversight, it also has quasi-judicial functions. Thus, the Commission can sit as a tribunal or “court” to hear and determine competition cases.Footnote 20 The Authority, over which the Commission has administrative functions, can prosecute matters before the Commission,Footnote 21 refer matters it has investigated to the Commission for adjudication,Footnote 22 or deal with any matter referred to it by the Commission.Footnote 23 Whilst the power to investigate and prosecute complaints of anti-competitive behaviour lies with the Authority, the executive secretary (who would have presided over or authorized such investigations), is enjoined under the Act to sit as the secretary of the Commission in any adjudicative process,Footnote 24 even though he would clearly be a conflicted party.

To compound the problem, although the Act establishes the Commission as a quasi-judicial body, the Commission has neither funding of its own nor an independent secretariat. It has no cadre of personnel adequately trained and qualified in competition law and policy available to it, other than those of the Authority. The seven commissioners making up the Commission are all part-time commissioners. Apart from attending a few workshops on competition law and policy, they have not received or been given adequate prior training for the purpose of allowing them to implement the provisions of the Act. Because competition law is such a dynamic area that requires regular training to keep pace with its development, the Commission has had to rely on the support provided by the Authority. Over-reliance on the Authority by the Commission is not desirable, as it brings into question whether the Commission can effectively enforce the Act or competently carry out its quasi-judicial functions as spelt out in the Act. This over-reliance on the Authority gives rise to the issue of potential bias, an issue discussed in detail later in this article.

On the other hand, the Zambian Competition and Consumer Protection Act of 2010 is instructive. Section 4 of this act establishes the Zambian Competition Commission. Section 5 of the same act confers on the commission the power, among other things, to investigate unfair trading practices and unfair contract terms. Section 67 of the act establishes the Competition and Consumer Protection Tribunal as the adjudicative authority. The tribunal's decisions can be appealed to the High Court.Footnote 25 Like the Botswana Competition Act, the Zambian Competition and Consumer Protection Act provides for the appointment of a board.Footnote 26 The board is responsible for appointing the commission's executive director and members of staff, and setting out the terms and conditions of their employment.Footnote 27 Unlike the board of the Botswana Competition Commission however, the board of the Zambian Competition Commission has no adjudicative functions and provides only strategic and policy guidance to the commission.

Similarly, in contrast to the Botswana Competition Act, the South African Competition Act establishes three distinctive bodies: the Competition Commission,Footnote 28 Competition TribunalFootnote 29 and Competition Appeal Court.Footnote 30 All three are established as juristic persons and are institutionally separate from each other. The South African Competition Commission is responsible for, among other things, the investigation and evaluation of alleged breaches of competition law.Footnote 31 On the other hand, the South African Competition Tribunal, established under section 26.1 of the South African Competition Act, is responsible for the adjudication of competition law cases; in discharging those functions may hear appeals from, or review any decision of, the Competition Commission that may have been referred to it.Footnote 32 It is in fact a “court” of first instance. Decisions of the Competition Tribunal can be appealed to the Competition Appeal Court.Footnote 33 Established as a court under section 36 of the South African Competition Act and with status similar to that of the High Court, the Competition Appeal Court has authority under sections 37 and 61 of the Competition Act to review any decision of the Competition Tribunal or consider appeals arising from the Competition Tribunal in respect of any of its final decisions, other than consent orders.

In terms of composition, the South African Competition Commission is headed by a commissioner appointed by the minister of trade and industry.Footnote 34 Similar to the position in Botswana, this commissioner is the chief executive officer of the Competition Commission and is responsible for the commission's general administration, including the management and direction of its activities and the supervision of its staff.Footnote 35 Except for the deputy commissioner,Footnote 36 the chief executive officer is also responsible for the appointment of staff and determines (in consultation with the minister of trade and industry and the minister of finance) their remuneration, allowances, benefits and other terms and conditions of employment.Footnote 37 In contrast, under the Botswana Competition Act, senior members of staff are appointed by the Commission on the recommendation of the chief executive officer. The Commission is however not bound to accept the chief executive officer's recommendations. Similarly, the terms and conditions of employment are determined by the Commission in its capacity as the board and not by the chief executive officer.

Differences between the Botswana Competition Act and the South Africa Competition Act do not end with the appointment of the chief executive officer. Under the Botswana act, the chairperson of the Commission (who also doubles as the chairman of the competition “tribunal”) and the chief executive officer are appointed by the minister of trade and industry.Footnote 38 On the other hand, the chairperson of the South African Competition Tribunal is appointed by the president of the Republic on the recommendation of the minister.Footnote 39

Further, unlike the chairperson of the Botswana Competition Commission, the chairperson of the South African Competition Tribunal may appoint staff or contract with other persons to assist the Competition Tribunal in carrying out its functions and may, in consultation with the minister of trade and industry and the minister of finance, determine the remuneration, allowances, benefits and other terms and conditions of appointment of a member of the staff.Footnote 40 In contrast the Botswana Competition Commission does not have its own budget, let alone the benefit of a small independent secretariat, and relies on the Competition Authority for administrative support. Fines or fees raised by the Authority belong to it and not to the Commission.Footnote 41 This lack of financial independence has created a dependency on the Competition Authority, without which the Commission cannot fully discharge its mandate. This dependency makes arguments of impartiality or independence much more difficult to sustain.

Duality of roles

While something can indeed be said about the combination of administrative powers and judicial functions in a single entity, the problem lies in this duality of roles. As noted from the preceding paragraphs, the Botswana Competition Commission sits firstly as a board to give strategic direction to the Authority. It then sits as a tribunal to hear and determine cases that would have been brought before it either by or against the Authority. Inherent in this duality of roles are relational, informational and institutional bias.

As a board giving strategic direction to the Authority, there is regular contact between the Commission and officials of the Authority. This pre-existing relationship can only give rise to a reasonable appreciation of bias. The independence and impartiality of the commissioners cannot be guaranteed when the Commission doubles as a board and as a tribunal. Besides relational bias, the likelihood of informational bias is also far too great. Sitting as a board, the Commission acquires prior knowledge of disputes that are to be adjudicated before it as a tribunal. Undoubtedly, prior knowledge of a dispute may operate in the minds of the commissioners and thus deny the parties that appear before them a proper hearing. The danger of pre-disposition in favour of the Authority will forever be present. In R v Bingham Justices ex parte Jowitt, a speeding conviction was overturned after the presiding magistrate was heard saying “my principle in such cases has always been to believe the evidence of the police officer”.Footnote 42 Thus, loyalty to an institution, such as the Commission may have towards the Authority, could result in the commissioners being so committed to the objectives or interests of the Authority that they might be incapable of holding the balance fairly between those objectives and other interests.

Lastly, any decision, determination or direction made by the Commission is appealable to the High Court.Footnote 43 Like any other party appearing before the Commission, the Authority as a body corporate is entitled to appeal the Commission's decisions to the High Court, but currently cannot do so without the blessing of the Commission. To appeal the Commission's decision, the Authority would require the Commission to sit as a board to pass the necessary resolution authorizing it to appeal against the Commission's own decision. This is untenable. In playing the role of adjudicator, appellant and/or prosecutor, a case of institutional bias easily arises. Doubling as a board and tribunal, the Commission acquires information it ought not to possess, which opens it to accusations of bias. An institutional bias objection, if made, would be a direct attack on the Commission's independence.

The integration of investigative and adjudicative powers on a single or several entities is not entirely uncommon. In the United States for instance, investigative, prosecutorial and adjudicative powers lie with both the Department of Justice and the Federal Trade Commission (FTC).Footnote 44 The Department of Justice investigates and then prosecutes all anti-trust violations, whether civil or criminal, before a federal court. On the other hand, the FTC does not only have investigative and prosecutorial functions, but also adjudicative powers in administrative cases.Footnote 45 Where the FTC, which comprises five commissioners, decides by a majority vote in administrative proceedings to issue a complaint, an administrative law judge is then appointed to adjudicate over the complaint.Footnote 46 This really constitutes the first level of adjudication. The decision of the administrative law judge can be appealed to the FTC where it may be confirmed, modified or overturned. The FTC's decision can in turn be appealed to the Federal Court of Appeals.Footnote 47 Like the Competition Commission of Botswana, the FTC combines prosecutorial and adjudicative functions. First it can issue a complaint and then sit to hear appeals against a determination made by an administrative law judge in respect of a complaint that it would have filed or caused to be investigated. Much like the FTC, the chief executive officer of the Botswana Competition Authority initiates prosecutions before the Commission and then sits as part of the tribunal in adjudicating the case. Similar to filing a complaint, the Commission may also instruct the Authority to undertake certain investigations and cause them to be submitted to it for adjudication.

In Australia, the Australian Competition and Consumer Commission is responsible for investigating competition law breaches and initiating enforcement proceedings before the Federal Courts of Australia.Footnote 48 Appeals relating to mergers and other regulatory disputes are heard by the Australian Competition Tribunal.Footnote 49 The investigative and enforcement functions are however structurally separate from the adjudicative functions in relation to enforcement proceedings, but combined in respect of merger control and other regulatory functions.Footnote 50

In South Africa, the investigative and enforcement functions are structurally independent from the adjudicative functions. As noted earlier,Footnote 51 the commission investigates anti-competition complaints and enforces the South African Competition Act, while adjudicative functions are provided by the Competition Tribunal. Appeals from the Competition Tribunal must be filed with the Competition Appeal Court which is a specialized division of the High Court.

THE RIGHT TO AN INDEPENDENT AND IMPARTIAL TRIBUNAL

The principle that a court or quasi-judicial body should be independent and impartial is important and fairly well established. Independence relates to the personal connection or relationship between the adjudicator and the parties before him.Footnote 52 The stronger the connection between the adjudicator and a party to a dispute, the less independent the adjudicator. The independence and impartiality of the Botswana Competition Commission are therefore vital to perceptions of fairness and due process. These ensure that a matter or dispute is decided by a neutral and fair minded body. But, as explained by the House of Lords in Gillies v Secretary of State for Works and Pensions, “[i]mpartiality is not the same as independence, although the two are closely linked. Impartiality is the tribunal's approach to deciding the cases before it. Independence is the structural or institutional framework which secures this impartiality, not only in the minds of the tribunal members but also the perception of the public”.Footnote 53

Although members of the Botswana Competition Commission are expected to apply their minds faithfully to issues before them, their independence is somewhat compromised by the duality of their roles. This is particularly so as the Commission is expected to resolve disputes and disagreements on matters or issues that would have been investigated by the Authority, an entity over which it has administrative oversight. The matter is further compounded by the fact that the executive secretary, who is responsible for the day to day running of the Authority, also sits as the secretary to the Commission.

Unlike the Botswana Competition Act, the South African Competition Act states in very clear terms that the commission is independent and subject only to the constitution and the law.Footnote 54 It further enjoins the commission to be impartial and to perform its functions without fear, favour or prejudice.Footnote 55 Section 20.3 of the South African act further requires each organ of state to assist the commission to maintain its independence and impartiality and to exercise its powers and duties effectively. While the commission's independence and impartiality are clearly enshrined in the South African Competition Act, under regulation 35 of the Rules for the Conduct of Proceedings in the Competition Commission, the South African minister of trade and industry is allowed to participate in any intermediate or large merger proceedings before the commission. Under regulation 35, to participate in these proceedings, the minister must file a minister's “notice of intention to participate” within ten days of receiving a copy of the merger notice from the commission. One could argue that the minister's participation in merger cases negates the independence claim and renders the commission susceptible to political influence. This view notwithstanding, the case involving the minister of economic development and others, the South African Commercial, Catering and Allied Workers Union, the Competition Tribunal, Wal-Mart Stores Inc and Massmart Holdings LimitedFootnote 56 (Wal-mart/Massmart), appears to give credence to the claim of independence and impartiality articulated in the South African Competition Act.

The facts in Wal-Mart/Massmart were briefly as follows. Wal-Mart was incorporated in the United States of America and listed on the New York Stock Exchange, with several subsidiaries across the world. Massmart on the other hand was a South African company with major wholesale and retail businesses in South Africa. It also operated in several other African countries and therefore had a significant market presence. The proposed merger between it and Wal-Mart was to facilitate Wal-Mart's expansion into Africa where it could take advantage of Massmart's existing operations to drive its growth opportunities on the continent. Three government ministers (the minister of trade and industry, the minister of agriculture forestry and fisheries and the minister of economic development) and a number of trades unions had opposed the proposed merger on grounds relating to employment and procurement. They argued that the merger would result in job losses, poor working conditions and a reduction in local procurement, as retail merchandise would be sourced from foreign low cost suppliers instead of South African entities. The Competition Commission proceeded to recommend the merger, despite objections from the government and trades unions. The Competition Tribunal proceeded to approve the merger, although it placed a number of conditions on it. Likewise, while acknowledging concerns raised by the government and trades unions over employment and supply concerns, the Competition Appeal Court held that the public interest concerns did not outweigh countervailing factors, such as the benefits to consumers arising from reductions in the cost of goods. It therefore allowed the merger to proceed.

The Botswana Competition Act on the other hand makes no bold assertions of independence. Independence is assumed. The danger however is that, because of the lack of separation between the Commission and Authority, every empanelled member of the Commission is likely to be viewed as biased. As explained in the Canadian case of R v Lippe, the test for institutional bias is whether “having regard inter alia, to the parties who appear before a decision maker, a fully informed person would harbor a reasonable apprehension of bias in a substantial number of cases”.Footnote 57 It is therefore not sufficient that the Commission is not biased. It must be perceived not to be biased because such a perception will undermine confidence in its adjudicative role. The closeness of the relationship between the Authority and Commission is likely to put into question the impartiality of the Commission's decisions.

Independence requires that the Authority and Commission are free from undue influences, whether internal or external, perceived or real. With the current institutional framework, this is unlikely to be the case. By comparison, the Botswana Income Tax Act,Footnote 58 which provides for the imposition, assessment and collection of tax by the Botswana Unified Revenue Service, established institutionally separate and independent administrative and adjudicatory organs. There is the Board,Footnote 59 which provides policy direction to the organization, and the Tax Tribunal,Footnote 60 which adjudicates over tax appeals or disputes and is manned by nine board members. As Professor Eleanor Fox of the New York School of Law and Professor Michael Trebilcock of the University of Toronto succinctly argue, “the integration of investigation, enforcement and adjudicative functions [raise systemic concerns of] bias or lack of objectivity or the appearance of it [and] may render the agencies ‘judges in their own cause’”.Footnote 61

THE NEMO JUDEX RULE

Although the Botswana Competition Authority is only three years old and is yet to have its decisions challenged either before the Commission or the High Court, a perceived lack of institutional independence will bring into question whether the Commission will be impartial in dealing with matters emanating from the Authority. Impartiality is simply the absence of any bias in the mind of the adjudicator towards a party or matter in dispute that is before him. As explained by Lord Denning MR in Metropolitan Properties Co v Lannon:

“In considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit … The reason is plain enough. Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: ‘the judge was biased’.”Footnote 62

Bias not only disqualifies the decision-maker from hearing a case but also renders a decision void unless the parties waive their right to object. It is therefore a fundamental principle not only in court proceedings but also in public administration that decision-makers or judges should not only be independent but also impartial in the discharge of their functions.Footnote 63

In Botswana, the rule against bias was established in the case of Ali Khan and Others v The State (Ali Khan).Footnote 64 In that case the appellants appeared before the district commissioner in Ghanzi on a number of charges of contravening various sections of the Fauna Proclamation No 22 of 1961 and on one charge of contravening section 2 of the Central Kalahari Game Reserve Regulations of 1963. After a lengthy trial, the accused persons were acquitted on all charges except one relating to unauthorized entry into the Central Kalahari Game Reserve. The district commissioner who presided over the case was also the person charged with the administrative responsibility for enforcing the Fauna Proclamation.

In overturning the conviction, Justice Maisels, then acting chief justice, held that the presiding officer should have recused himself, to avoid an instance where he appeared to be a witness, prosecutor and judge in a case before him. Justice Maisels ACJ quoted with approval the oft quoted dictum by Lord Hewart in R v Sussex Justices that “it is of fundamental importance that justice should not only be done, but should manifest and undoubtedly be seen to be done”.Footnote 65

The rule against bias as explained in Ali Khan requires that a decision-maker must, in deciding matters before him, do so with an open mind. In other words, he must be free of prejudgment and prejudice, if justice is to be served. The importance of impartiality is clearly linked to public confidence in the courts and/or quasi administrative bodies. In the absence of this rule, public confidence in the judicial or legal process or outcome would be greatly diminished. Explaining the rule against bias, Justice Maisels stated that the test was not whether “the Resident Commissioner was in fact biased … against the appellants but [whether] there were facts ‘which might indicate a likelihood of bias’”.Footnote 66 The court explained that, in determining whether there was any bias, the test was not one of actual bias but whether a reasonable person in the position of the appellants would have thought that he would not have a fair trial in the circumstances.

The principle enunciated in Ali Khan has since been applied in numerous Botswana cases. In Lesedi Funeral Parlour v Nate Footnote 67 for instance, the Court of Appeal found that the principles of nemo judex in sua causa had been violated, in that the respondent's supervisor who had complained about the respondent's conduct had presided over the respondent's disciplinary hearing and had thus become a judge in his own cause. The court also emphasized that it was important that persons taking disciplinary decisions should be unbiased and should enter into the proceedings with an open mind.

In Ali Khan, the presiding officer had prior knowledge as to whether a permit had been issued to the appellants. It was therefore not inconceivable that the presiding officer, whose own authority had been flouted, might take a harsher view of the case and impose a more severe sentence if the appellants were convicted. It is submitted that the close relationship between the Authority and Commission leave the two institutions open to an attack of a likelihood of bias.

Although a number of common law countries had initially followed the test of actual bias, the likelihood test of harm referred to in Ali Khan and R v Sussex Justices now seems to have found universal acceptance. In the United Kingdom for instance, courts generally used to apply “a real likelihood test” of harm, insisting that a proper test for disqualification was whether the facts, as assessed by the court, gave rise to a real likelihood of bias. In R v Gough (Gough), the House of Lords articulated this test as follows: “since however the court investigates the actual circumstances, knowledge of such circumstances as are found by the court must be imputed to the reasonable man, and in the result it is difficult to see what difference there is between the impression derived by a reasonable man to whom such knowledge has been imputed and the impression derived by the court, here personifying the reasonable man”.Footnote 68

Gough was subsequently challenged and overturned by the European Court of Justice on the grounds that it violated article 6.1 of the European Convention on Human Rights in its disregard for the hallowed principle of nemo judex in causa sua.Footnote 69 The inward assessment of the facts as articulated by the court was subjective, as it tended to project the court's own view of the realities of the situation and not the views of an objective bystander.

The lack of uniformity in the United Kingdom as to what test to apply in cases of bias resulted from the formulation of different tests by the courts. For instance, in Eckersley v Mersey Docks and Harbour Board,Footnote 70 the test applied was one of reasonable suspicion or likelihood of bias. This test was and is concerned more with outward appearances and public confidence in the integrity of courts, tribunals and public administrators and gives meaning to Lord Hewart's dictum in R v Sussex Justices.Footnote 71 English courts have since moved away from the “real likelihood test of bias” and now accept that the applicable test is whether “the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.Footnote 72

This English test has found its way to other jurisdictions. For instance, in the Australian case of Johnson v Johnson, the High Court affirmed the test, holding that the proper test or question was “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.Footnote 73 By making reference to the “fair-minded lay observer” rather than “the appearance to the court”, the court in effect allowed for the use of an objective test as a basis for determining bias. The beauty about this test is that it allows claims of bias to be tested by reference to the public, whose confidence the rule is intended to secure.

In Jamaica Stock Exchange v Fair Trading Commission,Footnote 74 the court held that the merger of investigative and adjudicative functions in the Jamaican Fair Trading Commission (JFTC) infringed principles of natural justice as enshrined in the Jamaican Constitution. The court went further and suggested that the “problem [could] however be remedied for the future if the legislature would place those functions in two separate bodies, that is, the investigative functions in the Commission and the adjudicating function in the Courts or some other appropriate body”.Footnote 75

The facts in this case were briefly as follows. The JFTC instituted investigations to consider, among other things, the criteria used for companies to be listed on the Jamaican Stock Exchange. It had been alleged that the criteria used to list companies breached the Fair Competition Act.Footnote 76 In its investigations, the JFTC proceeded to summon witnesses from the Jamaica Stock Exchange, a party allegedly in breach of the Fair Competition Act. Having questioned the witnesses, the JFTC proceeded to amend the complaint and sought to conduct a hearing in order to allow it to obtain more information in order to conclude its investigations. The court took the view that the failure to separate investigative and adjudicative powers offended the Jamaican constitutional requirements of due process and the doctrine of separation of powers.

CONCLUSION

Procedural fairness demands that investigative and adjudicative functions must be kept separate. This is desirable because competition law and policy must be implemented in an objective, impartial and transparent manner. Unless the Commission and Authority are afforded independence from each other, they are unlikely to decide matters presented before them objectively and the risk of bias will forever be present. Public confidence and trust can only be enhanced if the adjudicative and administrative functions are separated. In the absence of this separation, suspicions of unfairness in matters involving the Authority are likely to surface and thus undermine the credibility of the Commission. The Act must therefore be amended to create two separate bodies: an adjudication body that meets for the purposes of adjudication and a board that meets for activities related to the governance of the Authority. Combining these functions in a single entity provides neither an effective nor efficient structure. It simply creates a structure that is in breach of the rules of natural justice.

Footnotes

1 See the Botswana Competition Act no 17 of 2009, sec 4.

2 See id, sec 9.

3 In Re Pinochet [2000] 1 AC 61.

4 Khei v Botswana Meat Commission 2010 (3) BLR 649.

5 Keganne v Maunge and Another [2005] 2 BLR 480.

6 O'Brien, F “Nemo judex in causa sua: Aspects of the no-bias rule of constitutional justice in courts and administrative bodies” (2011) 2/2Irish Journal of Legal Studies 26.

7 See Botswana Competition Act, sec 5.

8 Footnote Ibid.

9 Id, sec 6.1.

10 Id, sec 10.1.

11 Id, sec 6.1.

12 Id, sec 6.2.

13 Id, sec 8.1.

14 Id, sec 7.2.

15 Id, sec 9.2.a.

16 Id, sec 19.2.

17 EM Fox and MJ Trebilcock “The design of competition law institutions and the global convergence of process norms: The GAL competition project” (New York University Law And Economics Working Papers, 2012) at 8.

18 Footnote Ibid.

19 Footnote Ibid.

20 See note 15 above.

21 The Act, sec 5.2.n.

22 Id, sec 5.2.o.

23 Id, sec 5.2.q.

24 See note 16 above.

25 Zambian Competition and Consumer Protection Act of 2010, sec 75.

26 See id, first sched, part 1.

27 Id, sec 6.1–4.

28 South African Competition Act of 1998, sec 19.

29 Id, sec 26.

30 Id, sec 36.

31 Id, sec 21.c.

32 Id, sec 27.c.

33 Id, sec 26.

34 Id, sec 22.1.

35 Id, sec 22.3.

36 Id, sec 23 provides that the minister “must appoint at least one person and may appoint other persons with suitable qualifications and experience in economics, law, commerce, industry or public affairs as Deputy Commissioner to assist the Commissioner in carrying out the functions of the Competition Commission”.

37 Id, sec 25.

38 See the Act, secs 6.1 and 10.3.

39 South African Competition Act, sec 26.2.

40 Id, sec 35.a and b.

41 The Act, sec 21.

42 R v Bingham Justices ex parte Jowitt 1974 QBD 193 at 197.

43 See the Act, sec 67.

44 See Fox and Trebilcock “The design of competition law institutions”, above at note 17 at 10.

45 Wils, WPJ “The combination of the investigative and prosecutorial function and the adjudicative function in EC antitrust enforcement: A legal and economic analysis” (2004) 27/2World Competition Journal 201 at 216.

46 Footnote Ibid.

47 Footnote Ibid.

48 See Fox and Trebilcock “The design of competition law institutions”, above at note 17 at 7.

49 Id at 16.

50 Footnote Ibid.

51 See note 31 above.

52 See note 3 above.

53 [2006] 1 WLR 781 at 788.

54 South African Competition Act, sec 20.1.a.

55 Id, sec 20.1.b.

56 Minister of Economic Development and Others v Competition Tribunal and Others, South African Commercial, Catering and Allied Workers Union (SACCAWU) v Wal-Mart Stores Inc CAC case no 110/CAC/Jul 11.

57 [1991] 2 SCR 114 at 117.

58 CAP 52.01 Laws of Botswana.

59 Established under sec 6 of the Botswana Unified Revenue Service Act, CAP 53.03 Laws of Botswana.

60 Established under sec 90 of the Botswana Income Tax Act.

61 See Fox and Trebilcock “The design of competition law institutions”, above at note 17 at 9.

62 [1969] 1 QB 577 at 599.

63 See for instance R v Sussex Justices ex parte McCarthy [1924] 1 KB 256.

64 (1968) BLR 4.

65 R v Sussex Justices, above at note 63 at 259.

66 Ali Khan, above at note 64 at 7.

67 2010 (1) BLR 179.

68 1993 AC 646 at 670.

69 Art 6.1 of the European Convention on Human Rights provides that “in the determination of his civil rights and obligations or of a criminal charge against him, everyone is entitled to a fair hearing and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

70 (1894) 2 QB 667.

71 Above at note 65.

72 Porter v Magill [2002] 2 AC 357 at 367.

73 (2000) 174 ALR 655 at 669.

74 Supreme Court civil appeal no 92/97, Jamaica.

75 Id at 35.

76 Act no 9 of 1993.

Ibid
Ibid
Ibid
Ibid
Ibid
Ibid