CAC Clarifies Competition Commission's Investigative Duties And The Threshold For Non-referral

Any person who suspects a breach of the Competition Act 89 of 1998 (Competition Act) is entitled to lodge a complaint with the Competition Commission (Commission) for investigation. But what if the Commission conducts only a limited desktop analysis and closes the file with a “Sorry, we’re not taking this on”? To what extent must the Commission investigate before declining to pursue a complaint and can a complainant challenge that decision in the Competition Appeal Court (CAC)? 

At a glance

• The Competition Act 89 of 1998 entitles anyone to lodge a complaint with the Competition Commission (Commission) for investigation.
• Nevilles Tours and Logistics (Pty) Ltd v The Competition Commission of South Africa (274/CACAug25) [2026] ZACAC 6 (26 AUGUST 2026) had to determine to what extent the Commission must investigate before declining to pursue a complaint and can a complainant challenge that decision in the Competition Appeal Court.
• The judgment also reinforces the Commission's obligation to use its investigative tools where a complaint warrants further enquiry.

The CAC recently clarified the Commission’s investigative duties and the threshold for non-referral (where a complaint is not prosecuted).

In Nevilles Tours and Logistics (Pty) Ltd v The Competition Commission of South Africa (274/CACAug25) [2026] ZACAC 6 (26 AUGUST 2026), the applicant (Nevilles Tours and Logistics), a relatively new interprovincial bus operator, alleged that established long-distance operators abused their dominance through predatory and excessive pricing. Predatory pricing is the act of pricing below cost (legal definitions are more nuanced); while excessive pricing is the act of pricing higher than a competitive price where such difference between the two is unreasonable. Both are prohibited conduct for dominant firms (statutory presumptions of dominance begin at 35% market share).

The Commission’s screening unit normally tests whether conduct falls within the ambit of the Competition Act (which circumscribes the Commission’s mandate) and, if so, whether it should be routed to the market conduct division (dealing with restrictive practices and abuses of dominance) or the cartels division (dealing with price fixing, market allocation and collusive tendering). Given the volume of complaints, screening helps direct limited resources efficiently.

Upon receipt of this complaint, the Commission’s screening unit, among other things, engaged with the applicant and the respondents, then used Computicket ticket-price information to compare fares and assess whether there seemed to be any predatory or excessive pricing. It found that the pricing appeared generally competitive, without making a definitive finding on dominance, and issued a notice of non-referral. Dissatisfied, Nevilles Tours and Logistics sought a review in the CAC, asking the court to compel the Commission to conduct a more comprehensive investigation.

The Commission did not oppose the application and filed a notice to abide, but submitted an explanatory affidavit to assist the court. Given the issue’s complexity and novelty, the CAC appointed an amicus curiae.

The CAC emphasised that, upon receiving a prohibited practice complaint, the Commission must investigate it “as quickly as practicable”. The court stressed that the Commission is the primary investigator and enforcer of competition law and cannot simply dispose of a complaint through a superficial assessment where the allegations warrant further enquiry. The court found that the Commission’s approach to consult pricing on a publicly available platform and to not prod the respondents’ responses further was inadequate.

The court’s guidance on a meaningful investigation was that it: 

• Requires more than reviewing publicly available information. The Commission has extensive investigative powers, including the ability to interview witnesses, compel the production of information and documents, summon persons for questioning, and, where appropriate, exercise search-and-seizure powers.
• The Commission should not reach conclusions about respondents that provide little or no information.
• An abuse of dominance complaint requires assessment of the relevant market and dominance. Dominance is a prerequisite to establishing abuse under the Competition Act.
• The Commission should interview affected parties (in this case, liquidated operators, small, medium and micro enterprises, and taxi operators); the court called their exclusion a fundamental failure reflecting a closed mind.

While the CAC’s guidance is helpful, the reality is that resources are limited and the Commission receives hundreds of complaints every year, many outside its mandate. Exhaustive investigation of every complaint may be challenging.

The CAC also addressed two procedural questions:

• Can the CAC consider a review application directly?
  
  The Competition Act entitles a complainant who receives a notice of non-referral to refer the complaint directly to the Competition Tribunal. Typically, a complainant should first exhaust that avenue rather than bypassing it for a CAC review. However, the court treated this matter as exceptional because the Commission’s inadequate investigation deprived the complainant of the evidence needed to decide if self-referral was viable.
  
  
• PAJA or legality review?
  
  The applicant relied on the Promotion of Administrative Justice Act 3 of 2000 (PAJA) alternatively the principle of legality. The court could find no prior authority directly on point concerning review of a non-referral, underscoring the issue’s novelty. The CAC held that PAJA was unavailable because these decisions are investigative rather than administrative and can only be brought under the principle of legality.

The court set aside the non-referral and remitted the matter to the market conduct division for investigation.

Takeaways

The judgment reinforces the Commission’s obligation to use its investigative tools where a complaint warrants further enquiry. Recognising the Commission’s workload and limited resources, it remains to be seen whether the Commission can (or should) extensively investigate every complaint, but:

• Respondents should expect the Commission to request more granular and detailed information, backed where necessary by summonses and search-and-seizures powers; and
• Complainants should identify the relevant market, support allegations of dominance with evidence, and preserve the record if a complaint is non-referred.

The exceptional direct-review route is narrow: a serious investigative failure that deprives a complainant of evidence needed to assess self-referral. Any such review must proceed under the principle of legality.