BA (Law and Philosophy) University of Cape Town
LLM (Competition Law) King’s College London
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Luke Kelly has been practising at the Bar in South Africa since 2011. He was called to the Bar of England and Wales in July 2022.
Luke has experience and expertise in the fields of competition law, administrative and public law, and general commercial law.
In South Africa, Luke has appeared in the Constitutional Court, Supreme Court of Appeal, Competition Appeal Court, Competition Tribunal, and various High Courts. In Namibia, he has appeared in the Supreme Court and the High Court.
Luke has served as a member of the Cape Bar Council. He has delivered ad-hoc lectures on competition law at the University of Cape Town. He is the lead author and editor of Principles of Competition Law in South Africa (Oxford University Press) and is a co-author and editor of Class Action Litigation in South Africa (Juta).
Heineken N.V. / Distell Group Holdings Ltd LM136Dec21 (8 March 2023): Junior counsel for Heineken NV in large merger proceedings before the Competition Tribunal approving the acquisition by Heineken of Distell’s wine, spirit and flavoured alcoholic beverages business (a deal worth £1,7 billion), and the divestiture by Heineken of its Strongbow cider brand as part of a proposed remedy to address horizontal overlap in the transaction.
Corruseal Group (Pty) Ltd / Neopak Holdings (Pty) Ltd IM196Mar 22 (22 February 2023): Lead counsel before the Competition Tribunal for an intervening party opposing a proposed merger in the containerboard and packaging industry in South Africa. The proposed merger was prohibited on the basis of vertical input foreclosure concerns and the inadequacy of a package of behavioural remedies offered by the merger parties.
GovChat (Pty) Ltd v Facebook Inc and WhatsApp Inc Case IR165 (November 2020)
Junior counsel for GovChat (Pty) Ltd in successful urgent application before the Competition Tribunal for interdictory relief preventing Facebook Inc and WhatsApp Inc (Meta) from terminating GovChat’s access to the WhatsApp Business API platform pending the conclusion of a complaint investigation by the Competition Commission into alleged abuses of dominance by Facebook and WhatsApp.
Competition Commission of South Africa v Standard Bank of South Africa Limited 2020 (4) BCLR 429 (CC): Junior counsel for Standard Bank in a matter before the Constitutional Court concerning the obligations of the South African Competition Commission to disclose the record of its investigation in proceedings for judicial review of the Commission’s decision to prosecute Standard Bank for price-fixing.
S.O.S Support Public Broadcasting Coalition v South African Broadcasting Corporation Limited 2019 (1) SA 370 (CC): Junior counsel for SOS Support Public Broadcasting Coalition before the Constitutional Court in a successful appeal against an order of the South African Competition Appeal Court concerning the powers of the Competition Commission to investigate whether a transaction between the South African public broadcaster and the largest paid television network in South Africa amounted to a notifiable merger.
Geldenhuis v South African Battery Importers Association  1 CPLR 17 (CAC) Junior counsel for the South African Battery Importers Association before the Competition Appeal Court in an appeal concerning the validity of a subpoena issued by the Competition Tribunal in private complaint referral proceedings.
Premier Foods (Pty) Ltd v Manoim N.O. 2016 (1) SA 445 (SCA): Junior counsel for Premier Foods in a successful appeal before the Supreme Court of Appeal concerning whether the South African Competition Tribunal had the requisite jurisdiction to make binding findings against a successful leniency applicant in terms of the Competition Commission’s Corporate Leniency Policy to be used in proceedings for the certification of a class action for private damages flowing from cartel conduct.
Cell C Service Provider Company (Pty) Ltd v Altech Autopage, a division of Altron TMT (Pty) Ltd  1 CPLR 165 (CT): Junior counsel for Saicom Holdings (Pty) Ltd in application to intervene in merger proceedings before the Competition Tribunal in the South African mobile telephone industry.
Caxton & CTP Publishers and Printers Ltd v Multichoice (Pty) Ltd  1 CPLR 307 (CT): Junior counsel for Caxton & CTP Publishers and Printers Limited in proceedings before the Competition Tribunal concerning whether an agreement concluded between Multichoice (Pty) Ltd and the South African Broadcasting Corporation constituted a notifiable merger in terms of the South African Competition Act.
MacNeil Agencies (Pty) Ltd v Competition Commission  2 CPLR 416 (CAC) Junior counsel for MacNeil Agencies before the Competition Appeal Court in an appeal against an administrative penalty imposed by the South African Competition Tribunal for price fixing. The penalty imposed by the Competition Tribunal was reduced by the Competition Appeal Court on appeal.
Lead author and editor of Principles of Competition Law in South Africa (Oxford University Press).
Co-author and editor of Class Action Litigation in South Africa (Juta).
South African Fruit & Vegetable Canners Association v Impumelelo Agri Business Solutions (Pty) Ltd  3 All SA 242 (GP): Junior counsel for the Perishable Products Export Control Board in matter concerning a constitutional challenge to provisions of the Agricultural Products and Standards Act which regulates the inspection of perishable products exported out of South Africa.
Minister of Finance v Hollard Insurance Company of Namibia Limited (SA 51 of 2020)  NASC 12 (29 March 2021): Junior counsel for the Namibian Minister of Finance in the Namibian Supreme Court concerning the obligations on administrative decision maker to produce the record of decision in review proceedings.
Minister of Finance v Hollard Insurance Company of Namibia Limited 2019 JDR 2585 (NmS): Junior counsel for the Namibian Minister of Finance before the Namibian Supreme Court in an appeal against a refusal by the High Court to grant relief compelling insurance companies in Namibia to comply with measures promulgated by the Minister in terms of the Namibia National Reinsurance Corporation Act obliging insurers to cede a portion of their insurance risk in reinsurance to the Namibia National Reinsurance Corporation.
Cash Paymaster Services (Pty) Ltd v CEO of the South African Social Security Agency  4 All SA 327 (SCA): Junior counsel for Corruption Watch in a successful application to review and set aside a decision by the South African Social Security Agency (SASSA) to vary a contract with Cash Paymaster Services for the distribution of social grants, and to claim repayment to SASSA of R416 million (£18 million) unlawfully paid pursuant to the variation of the contract.
Pioneer Foods (Pty) Ltd v Minister of Finance  4 All SA 428 (WCC): Junior counsel for Pioneer Foods in an administrative challenge to the legality of the Minister of Finance’s determination of import duties levied on imported wheat.
Mobile Telephone Networks (Pty) Ltd v Beekmans NO 2017 (4) SA 623 (SCA): Junior counsel for property owners in a review to set aside planning approval granted by the City of Cape Town to Mobile Telephone Networks to erect a telecommunications mast on adjacent land.
South African Broadcasting Corporation SOC Ltd v Democratic Alliance 2016 (2) SA 522 (SCA): Junior counsel for Corruption Watch (acting as amicus curiae), in an appeal concerning the binding nature of findings made by the South African Public Protector, an institution established in terms of Chapter 9 of the South African Constitution to investigate malfeasance and corruption committed by public officials.
Afriforum NPC v Eskom Holdings SOC Limited  3 All SA 663 (GP): Junior counsel for Eskom (South Africa’s state-owned power utility) in an administrative challenge to Eskom’s disruption of electricity supply as a debt collection measure in relation to debts owed by various municipalities.
Electronic Media Network Limited v e.tv (Pty) Ltd 2017 (9) BCLR 1108 (CC):
Junior counsel for Media Monitoring Africa and SOS Support Public Broadcasting Coalition in judicial review of a decision by South Africa’s Minister of Communications to promulgate a broadcast digital migration policy in terms of the Electronic Communications Act to migrate South Africa from analog terrestrial television to digital television.
Black Sash Trust v Minister of Social Development 2017 (3) SA 335 (CC): Junior counsel for Corruption Watch (amicus curiae) in an urgent application for direct access to the Constitutional Court to obtain a supervisory interdict to extend a contract for the distribution of social grants for a period of 12 months. The judgment established the principle in South African law that in certain cases private companies (such as the company in this case tasked with distributing social welfare grants) can be regarded as ‘organs of state’ in limited circumstances with heightened constitutional obligations.
Areva NP v Eskom Holdings SOC Ltd 2017 (6) SA 621 (CC): Junior counsel for Westinghouse Electric Belgium Société Anonyme in an appeal against a decision of the Supreme Court of Appeal setting aside a R5 billion (£221 million) tender award by Eskom Holdings SOC Ltd (South African state-owned energy company) for the refurbishment of steam generators at Koeberg nuclear power station in the Western Cape.
Economic Freedom Fighters v Speaker of the National Assembly 2016 (3) SA 580 (CC): Junior counsel for Corruption Watch (amicus curiae) in proceedings before the Constitutional Court to declare unconstitutional the failure by former South African president Jacob Zuma to implement the findings of a report by the Public Protector into irregular expenditure at his private residence.
Anna-Marie De Vos N.O. v Minister of Justice & Constitutional Development 2015 (2) SACR 217 (CC): Junior counsel for Cape Mental Health, a non-profit organization (acting as amicus curiae), in a matter concerning a successful challenge to the constitutionality of provisions of the Criminal Procedure Act, 51 of 1977 mandating the incarceration in prison (as opposed to in a mental health facility) of accused persons in circumstances where they lack capacity to understand legal proceedings.
Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of the South African Social Security Agency 2014 (1) SA 604 (CC) (‘Allpay I’): Junior counsel for Corruption Watch, a non-profit organization (acting as amicus curiae), in a matter concerning the lawfulness of the award of a tender for the distribution of social grants in South Africa. AllPay 1 was a landmark case establishing the proper approach to reviews of public procurement decisions on the basis of irregularities in the procurement process.
Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer of the South African Social Security Agency 2014 (4) SA 179 (CC) (‘Allpay II’): Junior counsel for Corruption Watch (acting as amicus curiae) in a case concerning the proper approach to remedies in the context of judicial reviews of administrative action.
Business Doctor Consortium Limited v Old Mutual Finance (RF) (Pty) Limited  4 All SA 719 (WCC): Junior counsel for Old Mutual Finance in proceedings before the High Court brought against it (and other companies within the Old Mutual group) for minority oppression relief in terms of the South African Companies Act.
Stellenbosch University Law Clinic v Lifestyle Direct Group International (Pty) Ltd  4 All SA 219 (WCC): Junior counsel for the Stellenbosch University Law Clinic in successful application before the High Court for the certification of class action proceedings against multiple companies employing unlawful and misleading marketing campaigns to lure consumers into unknowingly subscribing for paid subscription ‘services’.
Recycling and Economic Development Initiative of South Africa NPC v Minister of Environmental Affairs 2019 (3) SA 251 (SCA): Junior counsel for the Recycling and Economic Development Initiative of South Africa (Redisa), a non-profit organization appointed by the Minister of Environmental Affairs to operate a waste tyre recycling scheme in South Africa. Redisa successfully appealed against a decision of the High Court to place it in final liquidation at the instance of the Minister of Environmental Affairs in an application brought in terms of extended standing provisions contained in the Companies Act.
Mukaddam v Pioneer Foods (Pty) Ltd 2013 (5) SA 89 (CC): Junior counsel for Premier Foods before the Constitutional Court in a landmark matter concerning the common law requirements for the certification of class actions in the context of class action claims for follow-on damages for cartel conduct.
Luke has experience in commercial arbitrations administered by the London Court of International Arbitration (LCIA), the International Chamber of Commerce (ICC), and the Arbitration Foundation of Southern Africa (AFSA).
He is currently or has recently been involved in a number of large commercial disputes in arbitration proceedings or before the High Courts in South Africa, including:
Acting as junior counsel for an independent power producer in Rwanda in proceedings against a listed engineering company for contractual damages relating to the design and construction of component parts for a methane gas power plant.
Acting as junior counsel for a group of insurance companies in two separate matters involving claims for business interruption (BI) cover in multiple Southern African jurisdictions associated with the Covid19 pandemic.
Acting as lead counsel in proceedings before the Supreme Court of Namibia relating to the enforcement of an arbitral award obtained pursuant to private commercial arbitration proceedings in Namibia.
Acting as junior counsel in a claim against the liquidators of a large tyre recycling company (formerly in liquidation) for damages flowing from alleged breaches of the liquidators’ fiduciary and other duties owed to the company while in liquidation.
Acting as junior counsel in various proceedings relating to corporate structures established in multiple jurisdictions (including the Cayman Islands, the Netherlands, South Africa and Namibia) for the investment of the proceeds from the sale of cryptocurrency.
Acting as junior counsel for a multinational telecommunications company in breach of contract proceedings in the LCIA and the High Court.
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