A Decision Six Years Late is not only Late. It may be Unlawful.

By Lucinda Verster | Director

In business, delay is often treated as a cost of doing business. In litigation, particularly regulatory litigation, delay can be far more serious. It can affect evidence, memory, fairness and confidence in the institution making the decision.

That was the central issue in Cape Gate’s successful review before the Competition Appeal Court. Fairbridges acted for Cape Gate in the review proceedings, which arose from a long-running competition complaint that was initiated in 2009. The Competition Tribunal hearing concluded in June 2019. Its decision was delivered only in August 2025, more than six years later.

Cape Gate challenged the decision on review. The Competition Appeal Court upheld the review, set aside the Tribunal’s decision and remitted the matter to a differently constituted panel.

The Court’s finding was not based on delay alone. Its concern was that the delay, together with the process that unfolded during that period, compromised the legality, rationality and fairness of the decision.

The ‘golden thread’ running through the judgment is straightforward. A decision is only as lawful as the process that produces it.

The Competition Act requires the Tribunal to conduct hearings “as expeditiously as possible” and in accordance with the principles of natural justice. The Tribunal argued that this duty applied to the hearing itself, not to the later delivery of the decision. The Competition Appeal Court disagreed.

In its view, the duty to act expeditiously extends to the full adjudicative function, including the making, finalisation and delivery of the decision. A hearing cannot be separated from the decision that follows it. If the decision arrives years later, after a fragmented and inadequately explained process, the hearing has not served the purpose required by law.

The Court’s concern was not simply the passage of six years. It was what happened to the adjudicative process during that time.

The Court found that the explanations for the delay were inconsistent. The Tribunal’s reasons referred to alleged settlement discussions. The evidence did not support that version. The Court described that explanation as “false” and found that it contradicted the explanations advanced in affidavits before the Court.

The Tribunal Chairperson’s affidavit referred instead to COVID-19 and personnel shortages. The Court found that the various explanations did not provide a coherent account.

The judgment also addressed the preparation of the Tribunal’s reasons. The record showed substantive involvement by a case manager who had not been part of the panel that heard the matter. The Court accepted that administrative and research assistance may be permissible but drew a firm line between assistance and adjudication.

Its statement is pointed: “The preparation of reasons in a contested adjudicative matter is not a mechanical exercise in editing structure or presentation. It lies at the heart of the adjudicative function.”

That principle is wider than this case. Reasons are not paperwork. They show that the decision-maker has engaged with the evidence, submissions and issues. Where that process becomes detached from the panel that heard the matter, the integrity of the decision is placed at risk.

The Court also found that the Tribunal relied on legal authorities decided after the hearing had concluded, without inviting the parties to address them. In the context of a six-year delay and a developing area of law, fairness required the parties to be given that opportunity.

Taken together, the delay, inconsistent explanations, fragmented process, failure to engage with material evidence and reliance on post-hearing authorities without further submissions rendered the decision unlawful, irrational and unreasonable.

The Court described the defects as “systemic and interrelated”.

For Cape Gate, the judgment is an important vindication after years of pursuing the matter.

For administrative bodies, it is a firm statement that delay and poor process carry consequences.

For businesses involved in regulatory proceedings, the judgment gives practical force to a core principle of administrative justice. A decision is not made lawful by arriving eventually. It must be reached through a process that is expeditious, coherent, rational, fair and properly anchored in the evidence before the decision-maker.