Steel Cartel Case Returns to South Africa's Top Court; Cape Gate Fights Price-Fixing Verdi

Cape Gate’s fate in a steel price-fixing case now rests with South Africa’s Constitutional Court, where the Competition Commission is seeking to reinstate a guilty verdict against the manufacturer for alleged cartel conduct dating back more than two decades.

The commission’s appeal turns on a single, consequential question: whether a six-year delay by the Competition Tribunal in issuing its decision should be enough to void a conviction, even where evidence of cartel conduct exists. The answer will shape how South African competition law treats administrative failure going forward.

The underlying complaint involved four steel producers, Cape Gate, ArcelorMittal, Columbus Stainless and Scaw, and was heard by the tribunal shortly before the Covid-19 pandemic. The tribunal found Cape Gate guilty of cartel conduct in 2025, more than six years after the evidence was presented. Cape Gate moved immediately to the Competition Appeal Court, arguing the delay had fatally compromised the proceedings.

The CAC agreed, in a majority decision. The court found the delay had “contaminated the ultimate decision that was made” and that the tribunal members’ stated reasons for the postponement were “false and contradicts the explanation they proffer in their respective explanatory affidavits.” The appeal court sent the case back to a fresh tribunal panel.

The commission’s chief legal counsel, Bakhe Majenge, is now asking the Constitutional Court to overturn that ruling and restore the original conviction. Majenge argues the CAC majority placed excessive weight on the delay and treated it as grounds for review even though Cape Gate had not established a proper basis for overturning the decision. He contends the majority was “fixated” on labeling the tribunal’s reasons as false when no contradictory evidence supported that characterization.

A practical constraint shapes the commission’s position. A key prosecution witness has died, and the only remaining witness is of advanced age, making a fresh hearing effectively unworkable. The commission is therefore pressing a broader principle: that a firm cannot escape liability for cartel conduct simply because an administrative body was slow to act, provided the underlying evidence holds.

Cape Gate is contesting the application forcefully, characterizing the commission’s appeal as built on “obfuscation, omission and inaccuracy” in how it represents the CAC majority’s reasoning. At the center of the dispute is the tribunal’s stated justification for the delay, namely that the commission and Cape Gate were engaged in settlement negotiations and the panel therefore held off finalizing its decision. Both parties have flatly denied this. Cape Gate presented roughly 30 emails in which it and the commission repeatedly pressed the tribunal for a decision, with no mention of settlement talks. The CAC accepted these allegations and found that the panel members acted “either in reckless or deliberate disregard of the truth” in advancing the negotiations narrative.

A former case manager allegedly sent a letter to the tribunal after learning of the review application, denying she had ever mentioned settlement discussions between the parties to the panel members. That letter was also sent anonymously to Moneyweb.

By contrast, the dissenting judgment at the CAC would have condoned the delay despite its scale. The minority found that an unreasonable delay of six years and two months does not necessarily render the tribunal’s explanation for that delay equally unreasonable. Majenge leans on this dissent, emphasizing that the majority offered no contradictory evidence to support its finding that the stated reasons were false.

Cape Gate’s legal counsel, Lucinda Verster, has raised a procedural point that could prove decisive. The CAC made a “finding of fact” that the three tribunal panel members had been dishonest in their stated reasons. The commission is not appealing this finding of dishonesty in its Constitutional Court application. The tribunal itself has not appealed either. Verster argues that even if the commission succeeds on every ground it raises, the CAC’s finding on the panel members’ dishonesty would remain unchallenged and intact, leaving the original conviction on uncertain footing regardless of the outcome.

Whether the Constitutional Court is willing to restore a conviction resting on proceedings the CAC found to be tainted by dishonesty, without that finding itself being contested, is the question the case now leaves open.