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[2023] ZACAC 2
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Mercantile Bank, A division of Capitec Bank Limited and Others v Surve and Others (206/CAC/Oct22 ; 208/CAC/Oct22 ; 209/CAC/Oct22 ; 210/CAC/Oct22 ; IR153Dec21) [2023] ZACAC 2; [2023] 3 CPLR 33 (CAC) (17 June 2023)
IN
THE COMPETITION APPEAL COURT OF SOUTH AFRICA
CAC
Case No: 206/CAC/Oct22/
208/CAC/Oct22/
208/CAC/Oct22/
210/CAC/Oct22
CT
Case
No: IR153Dec21
In
the matter between:
MERCANTILE
BANK, A DIVISION OF CAPITEC BANK
LIMITED
First
Appellant
STANDARD
BANK OF SOUTH AFRICA LIMITED
Second
Appellant
ACCESS
BANK
LIMITED
Third
Appellant
And
MOHAMMED
IQBAL SURVE`
First
Respondent
SEKUNJALO INVESTMENT
HOLDINGS (PTY) LTD AND
ENTITIES WITHIN THE
“SEKUNJALO GROUP OF COMPANIES”
LISTED
IN ANNEXURE
A
2
ND
to 36
th
Respondents
NEDBANK
LIMITED
37
th
Respondent
FIRST
RAND BANK
LIMITED
39
th
Respondent
ABSA
BANK
LIMITED
40
th
Respondent
SASFIN
BANK
LIMITED
41
st
Respondent
INVESTEC
BANK LIMITED
42
nd
Respondent
BIDVEST
BANK
LIMITED
43
rd
Respondent
THE
COMPETITION COMMISSION
45
th
Respondent
ORDER:
Court:
Competition
Appeal Court
Coram:
Manoim JP, Mlambo AJA,
Spilg AJA
Heard
:
30 -31 March 2023
Delivered
:
17 July 2023
Summary:
Application for interim relief for refusal to deal. Whether such
conduct constitutes a concerted practice in terms of sections
4(1)(a), or section 8(1)(c) and section 8(1)(d)(ii) of the
Competition Act, 89 of 1998 – need to establish at least a
prima facie
case
of anticompetitive effect – need for theory of harm–
Whether a respondent in an appeal against an order of the
Tribunal
has established that relief was final – Court finding it was in
interests of justice to allow appeal –
lis
alibi pendens
–same relief in
other courts does not constitute
lis
alibi pendens
as Competition Act
considerations are exclusive
On appeal from the
Competition Tribunal
1.
The appeal of the three appellants is
upheld.
2.
The Tribunal’s orders in respect of
paragraphs 1.2 (re Standard Bank), 1.5 (re Mercantile) and 1.8 (re
Access Bank) are set
aside.
JUDGMENT:
Manoim JP (Mlambo AJA
concurring)
Introduction
[1]
In this matter three banks seek to set
aside an interim relief order made by the Competition Tribunal that
obliges them, variously,
to reinstate or not to close bank accounts,
with firms comprising part of what is known as the Sekunjalo Group.
The practice complained
of is referred to in competition law parlance
as a ‘
refusal to deal
’.
[2]
When
it brought its application for interim relief the Sekunjalo Group
sought relief against nine banks. The Tribunal granted relief
against
eight of the nine.
[1]
Although
eight banks were implicated in the Tribunal’s order, only three
have sought to set it aside in this matter. I have
referred to the
Sekunjalo Group as a single entity because it is a useful shorthand
for discussing some of the issues. However,
there were 36 entities
that brought the application to the Tribunal comprising of
individuals, trusts, and firms.
[2]
Nevertheless all made common cause and were represented by one legal
team both in the Tribunal and before this court. It is also
accepted
that they form part of the same control group and are all identified
as black owned firms.
[3]
This
is not a case where all the entities banked with all the banks. The
two banks which provided services to most of the entities
are Nedbank
and ABSA, but they are not appellants. The three appellants only
provided some services to some of the entities. The
first appellant,
Standard Bank Ltd served three entities, whilst the second appellant,
Mercantile Bank and the third appellant,
Access Bank Ltd, served only
one each.
[3]
[4]
The Tribunal found that in refusing to deal
with the Sekunjalo entities all eight banks had contravened section
4(1)(a) and sections
8(1)(c) and 8(1)(d)(ii) of the Competition Act
89 of 1998 (“
the Act
”).
Put more simply in refusing to deal, the banks were found to have
acted in co- ordination with one another, and to have
acted
unilaterally as dominant firms, to abuse a dominant position. The
Sekunjalo Group had also sought relief in terms of section
4(1)(b)
and 5(1) of the Act based on the same facts but this relief was not
granted by the Tribunal.
[5]
Each appellant bank has both appealed and
reviewed the Tribunal’s order. (For simplicity I refer to the
banks simply as ‘
appellants
’
and where necessary by name). This leads to the first issue we have
to decide in this case. The appeals and reviews largely
traverse the
same issues. The Sekunjalo Group’s first challenge in opposing
the relief sought by the appellants is procedural.
It asserts that
the banks should not succeed on either route.
[6]
The Act gives both applicants and
respondents in interim relief proceedings before the Tribunal, the
right to appeal. However, while
that right is unrestricted for the
applicant before the Tribunal it is restricted for a respondent,
which may only appeal an order
that has “
a
final or irreversible effect.”
The appellant banks were the
respondents in the Tribunal proceedings.
Hence, they needed to show that the
Tribunal order had a final or irreversible effect. The Sekunjalo
Group argues that they have
not and hence the appeals should fail.
[7]
But the appellants have also brought a
review. Although the Act provides for reviews of interim relief
orders without, as in an
appeal, distinguishing between an applicant
and a respondent, Sekunjalo argues that nevertheless the review right
should be construed
narrowly for respondents, otherwise there is a
danger that it becomes a form of disguised appeal. Put differently,
the right to
review should not permit an unsuccessful respondent
before the Tribunal to recast a case as a review, which would
otherwise be
impermissible for it as an appeal.
[8]
The second range of issues concerns whether
a
prima facie
case
has been made out both in fact and law against the banks. Each
appellant makes out a similar argument here that no
prima
facie
case of an infringement has been
made out against them and hence they should succeed in setting aside
the order.
[9]
Finally, each bank makes out a narrower
case for relief based on facts specific to the particular bank. Here
the argument is that
the Tribunal erred in throwing all the banks
into the same pot for relief and thus failing to consider the
individual differences.
[10]
For reasons I explain later I will first
deal with the
prima facie
case
and then the issue of appeal and review although ordinarily one would
deal with these issues first.
Current status of the
orders
[11]
The
interim relief orders against the three banks operated for a period
of six months.
[4]
The orders
were granted on 16 September 2022 and would have expired on 15 March
2023. However, the orders were extended for a further
period of six
months until mid-September 2023. The extension of the orders for this
further period was not opposed by the three
banks. Whether an interim
relief order can be extended more than once is a matter of contention
but not one this court is called
upon to decide now. The fact that
the orders are still extant till at least September 2023 means the
proceedings before us are
not moot.
Background
[12]
The Sekunjalo Group is a group of companies
operating in a variety of different markets but all ultimately part
of the same control
structure. The first applicant is Dr Iqbal Survé,
who deposed to the founding affidavit, and in his personal capacity
was
the first applicant in the Tribunal proceedings. Dr Survé
is the executive Chairperson of the Group and sits on some of its
boards. He explains in his founding affidavit before the Tribunal
that the label Sekunjalo Group is a descriptive term not a legal
entity. What they have in common is that Sekunjalo Investment
Holdings (“
SIH”
)
has either a direct or indirect associate interest in the companies.
The Group identifies itself as a black controlled company
and many of
its entities are new entrants into the markets they operate in. The
Group extends beyond the 34 applicants and comprises
200 companies.
These companies have interests in a wide ranging number of markets.
Dr Survé identifies some as media, information
technology,
health services, fishing, and aquaculture.
[13]
The Group’s troubles in obtaining
banking services started in March 2020 when a government Commission
of Enquiry into allegations
of corruption at the Public Investment
Corporation (PIC) published its report. The Commission was led by the
former President of
the Supreme Court of Appeal, Justice Mpati, and
hence its name, the Mpati Commission. The Commission
inter
alia
concerned itself with the
relationship between the Sekunjalo Group and the state owned PIC.
Amongst the findings were that:
“
In
light of the above, the Commission recommends that PIC must conduct a
forensic review of all the processes involved and all transactions
entered into with the Sekunjalo Group. Ensure that the PIC obtains
company registration numbers of every entity to be able to conduct
a
forensic investigation as the flow of monies out of and into the
group.”
[5]
[14]
These findings had an immediate impact on
the banking sector. On 27 August 2020, ABSA which was the Sekunjalo
Group’s primary
banker, gave notice that it would close its
accounts. ABSA then closed several of the Group’s accounts on
27 February 2021.
Over the next fifteen months subsequent to the
decision made by ABSA, all eight banks either closed accounts of some
of the Sekunjalo
entities, or refused to onboard new accounts, or
indicated that the accounts were under review.
[15]
The
banks allege that their concerns emanate originally from the findings
of the Mpati Commission, and the consequent publicity,
including one
on an industry website known as the World Compliance Report.
[6]
[16]
The
banks explained that as registered financial entities they are
subject to strict regulatory requirements under a number of
statutes.
[7]
Most placed
emphasis on the provisions of the Financial Intelligence Centre Act
38 of 2001 (“
FICA
”)
which obliges banks in certain circumstances to terminate a banking
relationship with a client.
[8]
They
also relied on their common law right to terminate a contract with a
client unilaterally for reasons that include reputational
risk which
was recognised by the Supreme Court of Appeal (SCA) in
Bredenkamp
v Standard Bank of South Africa
.
[9]
[17]
The various banks maintained that the
findings by the Mpati Commission and the considerable media attention
they attracted, placed
an obligation on them to reconsider, or in the
case of new clients to consider, their reputational and regulatory
risk if they
continued or commenced a relationship with entities in
the Sekunjalo Group. Much publicity attached to these decisions which
some
of the late deciding banks considered in their decisions i.e.,
an admitted awareness of what the other banks were doing.
[18]
As some banks closed the doors to them, so
the entities in the Sekunjalo group sought banking services from
banks they had not previously
had any dealings with. Thus, in the
case of two of the appellants, Mercantile and Access, although only
banking for one of the
Sekunjalo entities at the time, they were
later each approached to provide services for other entities in the
Sekunjalo Group.
[19]
Faced with the prospect of being “
unbanked
”
with the doors of financial institutions apparently closing on it
sequentially, the Sekunjalo Group embarked on a series
of legal
actions against various banks to interdict them from closing its
entities accounts or to restore them. The court was advised
at the
time of the hearing before us that these applications were still
pending. Thus, the application to the Competition Tribunal
in terms
of the
Competition Act was
one of several legal actions. I turn to
this point later because one of the points Sekunjalo has raised is
the fact that these
applications make the present appeal
cum
review
lis
alibi pendens.
Case before the Tribunal
[20]
The Sekunjalo Group filed a complaint with
the Commission on 15 December 2021. The application for interim
relief was then filed
on 22
nd
December 2021. In the complaint Sekunjalo did not rely on
section
4(1)(a).
But this changed in the interim relief application. Its
significance is that it was one of the sections the Tribunal relied
on
to grant the relief that it did against the banks.
[21]
The Tribunal heard the case over two days
from 7
th
to 8
th
March 2022. It issued its reasons and order on 16
th
September 2022.
[22]
The Tribunal rejected Sekunjalo’ s
complaints in terms of
section 4(1)(b)
and
section 5(1).
Since there
was no cross appeal, these findings need not concern us. What the
Tribunal did find was that all eight banks, including
the three
appellants, had contravened sections 4(1)(a), 8(c) and 8(1)(d)(iii)
of the Act, in respect of the same cause of action,
namely, a refusal
to deal with the Sekunjalo Group or individual companies within that
group.
Did
the Tribunal findings establish a
prima
facie
case
.
[23]
In deciding whether or not to grant interim
relief the threshold set out in section 49C (2) of the Act states:
The
Competition Tribunal—
(a)
must give the respondent a
reasonable opportunity to be heard, having regard to the urgency of
the proceedings; and
(b)
may grant an interim order if it is
reasonable and just to do so, having regard to the following factors:
(i)
The
evidence relating to the alleged prohibited practice;
(ii)
the
need to prevent serious or irreparable damage to the applicant;
and
(iii)
the
balance of convenience.
[24]
The Act goes on to state in section
49(C)(3) that:
“
In
any proceedings in terms of this section, the standard of proof is
the same as the standard of proof in a High Court on a common
law
application for an interim interdict.”
[25]
The issue on appeal focussed on
sub-paragraph (b)(i) viz. the evidence relating to the alleged
prohibited practice. Read with subsection
49C (3) this requirement,
all were agreed, meant
prima facie
evidence.
[26]
The Tribunal, as noted, found that the
conduct contravened section 4(1)(a) not section 4(1)(b).
[27]
Section 4(1)(a) states:
“
An
agreement between, or concerted practice by, firms, or a decision by
an association of firms, is prohibited if it is between
parties in a
horizontal relationship and if—
(a)
it has the effect of substantially
preventing, or lessening, competition in a market, unless a party to
the agreement, concerted
practice, or decision can prove that any
technological, efficiency or other procompetitive gain resulting from
it outweighs that
effect; …
[28]
Under section 4(1)(a) the conduct
complained of could constitute an agreement, decision by an
association of firms, or a concerted
practice. The Tribunal found
that it constituted a concerted practice. There is therefore no need
to consider the two other possibilities
[29]
A concerted practice is defined in the Act
as “[…]
cooperative or
coordinated conduct between firms, achieved through direct or
indirect contact, that replaces their independent action,
but which
does not amount to an agreement;”
[30]
Before coming to a conclusion that a case
for a concerted practice had been made out the Tribunal observed the
difficulty with coming
to such a conclusion in an oligopoly market
which it identified the market for banking services to be;
“
The
concept that a concerted practice may be inferred from behaviour
might seem to suggest, at first glance, that interdependent
oligopoly
behaviour amounts to a concerted practice. However, oligopoly
behaviour does not establish a concerted practice unless,
given the
nature of the market, the behaviour of the firms concerned cannot be
explained other than by concerted behaviour
.”
[10]
[31]
This was a salutary note of caution.
Unfortunately, as I will demonstrate, this
was not followed through by the Tribunal in its analysis. The basis
for the Tribunal’s
decision that there was a
prima
facie
case of a concerted practice
hinged on the following facts: The banks had adopted a common
position – to close or threaten
to close the Sekunjalo
entities’ bank accounts, that they did so within a short time
frame (fifteen months) and that despite
relying on the fact that they
responded to the same regulatory environment this justification was
unconvincing.
[32]
The conclusion of its reasoning is
contained in the following paragraph:
“
While
parallel conduct is not by itself proof of a concerted practice (such
proof can only be uncovered through
an
investigation
by
the
Commission),
given
the
nature
of
the
banking
services
market
–
the
undisputed
evidence of high barriers to entry and concentration – and the
conduct of the banks, we find that the conduct complained
of does at
a prima facie level establish a case of a concerted practice between
firms.
This
is because the Respondents, acting in concert, closed the bank
accounts one after another
without
an adequate justification. For this finding it is not necessary to
show that the Respondents agreed
to
this
.”
[11]
(My
emphasis)
[33]
The Tribunal is here dealing with the
evidence of the conduct of all eight respondent banks and not just
the three appellants. The
evidence was that in a period of fifteen
months, starting with ABSA bank, all the banks had either terminated
their banking relationships
with entities in the Sekunjalo Group or
when approach to provide banking services had refused to do so.
[34]
There
is no evidence in the record that any of the banks directly
co-ordinated with each other in refusing to deal. Indeed, Standard
Bank had not yet made a decision to refuse banking services at the
time the application was heard. In the case of Mercantile, it
had not
closed down the account of the only entity to whom it was providing
services although it had decided not to take on any
new ones. This
suggests that the banks were more probably behaving independently
than acting in co-ordination with one another.
[12]
.
[35]
The strongest evidence of the regard that
any of the banks had to the actions of the others came from Access
bank’s internal
emails. These suggest that the bank’s
officials had regard to the actions of other banks when considering
their position
in providing services to one of the Sekunjalo
entities.
But
even if one were to extrapolate from this that such a ‘
follow
my leader’
approach informed the
decision-making of all the appellants, it does not amount to a
concerted practice. Firms may frequently have
regard to the approach
taken by rivals but that at best is conscious parallelism not
parallel behaviour and the two should not
be confused.
[36]
The
Tribunal acknowledged that the concertation did not relate to price,
market division or collusive tendering (all of which are
identified
as anticompetitive practices under section 4(1)(b)).
[13]
But having correctly made this observation it did not identify, as it
was obliged to as an essential step in the process of legal
reasoning, what the object of the concertation was. Rather the
Tribunal moved on to what the effect of the concertation was;
concluding
that it was exclusionary because it denied the Sekunjalo
Group banking services, making it impossible for them to operate as
commercial
entities competing in their respective markets.
[37]
The
Tribunal then went on to consider whether the banks had raised an
efficiency justification for their conduct. Whilst acknowledging
the
importance to the banks of reputational risk, this was rejected
because the Tribunal accepted the accusation made by Sekunjalo
that
the banks had been selective in adopting this policy. It was
suggested that firms whose conduct was highly questionable did
not
have their banking services terminated. Whilst some names were
mentioned it was not made clear which banks were providing them
with
services
[14]
.
The
Tribunal then concluded that the applicants had established, on a
prima
facie
basis
that there had been a concerted refusal to deal.
[38]
The problem with the Tribunals’
approach is that the case falls at the first hurdle. Even under
section 4(1)(a) which unlike
4(1)(b) does not itemise specific
anticompetitive practices, there needs to be some theory of harm. The
subsection refers to the
concerted practice having an anticompetitive
effect. Making this conclusion based on parallel conduct in a
concentrated market
does not amount to an explanation of why the
conduct is anticompetitive. What the Tribunal did was to conflate an
outcome –
exclusion from the market – with an
anticompetitive effect.
While
exclusion may be the result of an anticompetitive practice it does
not suffice to use it as a substitute for analysing whether,
as a
fact, there has been an anticompetitive practice; particularly where
the Sekunjalo Group did not allege that any of the banks
had a direct
or indirect interest in any relevant market that was in issue.
[39]
There are many reasons why a practice may
be anticompetitive – typically it may lead to higher prices,
reduced supply, inferior
service or quality, or lack of innovation.
The refusal to offer services might be anticompetitive, if linked to
some other theory
of harm such as raising a rival’s costs or
attempting to exclude it from a market in which the refusing firm
competes with
the refused firm. But none is advanced here. The
Tribunal does not contend that the exclusion occurs in the banking
markets. It
occurs in the markets where each entity competes. What
this means is that the banks are alleged to have concerted in an
upstream
market (banking) to exclude customers in downstream markets.
This would make the effect of the alleged co-ordination vertical.
Granted, it is a legitimate theory of harm to allege that horizontal
co-ordination among rivals have vertical effects.
[40]
But it is not suggested that any of the
appellants competes in the markets in respect of any of the entities
they are alleged to
have excluded. Moreover, for the most part it
appears that the different banks dealt with different entities in the
Sekunjalo Group.
It is thus not clear why the banks should want to
co-ordinate to achieve some anticompetitive outcome against the
Group’s
various entities in unrelated markets. Such an
explanation or theory of harm is completely absent in this case. But
given the language
of section 4(1)(a) which refers to the practice “…
substantially, lessening or preventing
competition in a market…”
such a case needed to be made out.
Since none was alleged on the papers, none could be contended to
exist even on a
prima facie
basis.
Section 4(1)(b) itemises three practices which are presumptively
anticompetitive, but section 4(1)(a) does not, hence it
requires them
to be alleged before the respondent firm is required to plead its
pro- competitive justification.
[41]
The Tribunal however jumped this necessary
hurdle and proceeded to ‘claw back’ an inference of
anticompetitive practice
by rejecting the banks regulatory compliance
justification.
This
approach is impermissible. The onus in section 4(1)(a) requires the
party alleging it to make out why the practice is anticompetitive
before the respondent is required to rely on the pro-competitive
proviso. A mere observation of parallel behaviour coupled with
a
conclusion that it is exclusionary does not suffice. Otherwise, every
firm that cut off a debtor at the same time as its competitors
would
be vulnerable to accusations of perpetrating a concerted practice.
The party alleging must make out a case of why the parallelism
creates some form of competitive harm, even if it be only on a
prima
facie
basis for the purposes of an
interim interdict.
[42]
In the well-known decision of the European
Court of Justice in the so-called
Woodpulp
case the approach to parallel conduct
evidence was expressed in this way:
“
In
determining the probative value of those different factors, it must
be noted that parallel conduct cannot be regarded as furnishing
proof
of concertation unless concertation constitutes the only plausible
explanation for such conduct”.
[15]
[43]
On the evidence before the Tribunal, it was
only the banks that have given an explanation for their conduct.
Sekunjalo gives an
observation of the conduct not an explanation of
why it is anticompetitive. Simply to allege that it is
anticompetitive because
the outcome was exclusionary is not
sufficient; not even at a
prima facie
interim interdict stage since the issue
is whether a legally competent basis has been alleged. There is no
alternative explanation
of why the banks would want this outcome.
Thus, faced with that scenario the Tribunal could not infer there
was,
a fortiori
,
an anticompetitive explanation for the conduct simply because it
rejected the plausibility of the
banks
justification.
[44]
We find that there was no legal let alone
factual basis to find that
prima facie
the appellant banks had contravened
section 4(1)(a) by engaging in a refusal to deal with Sekunjalo
entities.
Abuse
of dominance.
[45]
It
is trite law that in order for a firm to transgress the dominance
provisions of the Act it must be a dominant firm. Section 7
provides
for three possibilities for a firm to be regarded as dominant. The
first two, although reversing the onus, depend on market
shares,
[16]
and the third, section 7(c), says a firm may be considered dominant
if “
it
holds less than 35% of that market, but has market power"
.
[46]
Market power is defined in the Act as: “[…]
the power of a firm to control prices,
to exclude competition or to behave to an appreciable extent
independently of its competitors,
customers or suppliers;”
[47]
This means that even if there is no
evidence that the firms’ market share exceeds one of the
threshold requirements in sub-sections
7(a) or (b), it still might be
considered dominant under 7(c) if it can be shown to have market
power. The onus to prove market
power rests on the party alleging
this. In the present case Sekunjalo did not rely on market share for
its allegation of dominance
and instead relied on section 7(c).
[48]
The Tribunal accepted that dominance
depended on the application of section 7(c) and thus it had to
determine whether each of the
banks had market power. However, in
making the assessment the Tribunal considered the banking sector as a
whole and not the situation
of the individual banks. Thus, it reached
the following conclusion:
“
The
banking services market is highly concentrated. The Applicants’
unchallenged evidence is that Nedbank, Standard Bank,
FirstRand,
ABSA, and Investec collectively have a market share of about 90%
[17]
This suggests that the market is oligopolistic, with a fringe of
smaller players. A combination of factors such as high concentration,
high barriers to entry, and a weak position of customers, suggests
that the Respondents have an appreciable degree of market power.
[18]
[49]
The Tribunal went on to conclude:
“
We
do not have to decide whether the Respondent Banks are collectively
dominant since on the prima facie evidence before us they
individually possess market power.”
[19]
[50]
This
is a thin case on which to base a finding of the existence of market
power, even by the less demanding standards of interim
relief.
Firstly, by adopting an overall approach and not dealing with each
individual bank the Tribunal did not deal with the fact
that two of
the appellants, Access Bank and Mercantile, have market shares of
around 1%.
It
would be hard to conceive of market power being exercised at such low
levels. It was suggested in argument that the theory of
a ‘
lucky
monopolist’
could
apply. This is based on this court’s finding in the
Babelegi
case.
[20]
That case concerned a
firm’s excessive pricing of face masks during the Covid 19
pandemic. The Court found that the respondent
firm which was
otherwise not dominant prior to the pandemic, had become a dominant
firm because of the demand spike and supply
constraints created by
the pandemic and restrictive regulations. Hence it was a ‘
lucky
monopolist
’
and able to extract an excessive price. This theory might hold in
this case if the other seventy registered banks were refusing
or
unable to supply, leaving the remaining firms – the appellants
- with market power.
[21]
However this theory has not been made out in the papers nor does the
Tribunal advance this theory. None of the appellants can be
regarded
as a lucky monopolist.
[51]
Second, switching costs is not a relevant
issue on the facts of this case. It is a refusal to deal case, not a
case where the dominant
firm leverages market power over customers
because of their reluctance to switch. The evidence in this case is
that Sekunjalo was
willing to switch or forced to switch when other
banks began to refuse to deal with them. Thus, switching costs in
this case was
not an appropriate factor for inferring market power.
[52]
But even if the dominance finding is
sufficient for the purpose of interim relief, which I do not accept,
there are still problems
with the next step which is to determine
whether the alleged dominance had been abused.
The Tribunal found that Sekunjalo had made
out a
prima facie
case
for a contravention of section 8(1)(c) and 8(1)(d)(ii).
[53]
Section 8(1)(c) states:
“
It
is prohibited for a dominant firm to— (a)…
(b) …;
(c) engage in an
exclusionary act, other than an act listed in paragraph (d), if the
anticompetitive effect of that act outweighs
its technological,
efficiency or other procompetitive gain;”
[54]
Section 8(1)(d)(ii) states:
“
It
is prohibited for a dominant firm to —engage in any of the
following exclusionary acts, unless the firm concerned can show
technological, efficiency or other procompetitive gains which
outweigh the anticompetitive effect of its act—
(i)
…
(ii)
refusing
to supply scarce goods or services to a competitor or customer when
supplying those goods or services is economically feasible;”
[55]
The
Tribunal adopted the same analysis of the facts to come to its
conclusions under both 8(1)(c) and 8(1)(d)(ii).
The
reasoning went as follows: Banking services are an essential service
for the entities to compete in their respective markets.
Without this
input they are likely to be forced to exit their markets. If they
exit there will be less competition in the markets
the entities
serve. The entities are black owned firms and hence, adopting a
transformative constitutional approach, exclusion
should be looked at
with greater sensitivity to its effect on the excluded firm. The
Tribunal then relies for this on the decision
of this court in the
eMedia
case
where interim relief was granted in a case concerning sub-section
8(1)(d)(ii) where a black owned firm alleged it was subject
to
exclusionary conduct by the denial of service from a dominant
supplier.
[22]
[56]
But there is an important distinction
between this case and that of
eMedia.
There, the dominant firm, and the firm
allegedly being excluded, competed in the same market where the
excluded firm was a significant
rival.
[57]
No such facts are advanced in this case.
Thus, as with the section 4(1)(a) count, there is no theory of harm
in respect of the section
8 counts. As Whish and Bailey note in their
book:
“
Most
refusal to supply cases concern a vertically integrated undertaking
that is dominant in an upstream market, and which refuses
to supply
to an existing or new customer in a downstream market.”
[23]
[58]
Again, it must be repeated that the
appellant banks are not competitors of their customers or attempting
to leverage their alleged
dominance into any market in which their
customers compete. Thus, the actions on the present record cannot be
explained under any
competition theory of harm. None has been offered
and no facts were alleged to sustain such a case in law. Instead, the
only explanation
for the conduct is the one offered by the banks -
the refusal to supply was a response to the regulatory climate they
faced in
respect of serving these customers, post the Mpati
Commission report.
[59]
Nor is there any analysis of why the
removal of services will lead to the exclusion of the respective
entities and why their removal
will lead to an anticompetitive effect
in their respective markets. Indeed, conducting the analysis at such
a high level of generality
has meant the Tribunal has not considered
the specific impacts of each of the appellant’s decisions.
[60]
Thus,
in the case of Mercantile Bank the Tribunal ordered it to keep open
an account for an entity known as Health System Technology
(HST).
However, it is now common cause that Mercantile had never closed this
account. Although HST is mentioned in the founding
affidavit before
the Tribunal, Sekunjalo complains that it was Bidvest Bank and ABSA
which were alleged to have denied HST facilities,
not Mercantile. The
complaint made against Mercantile was that between May and August
2022 it had declined to provide services
to other Sekunjalo entities
namely, AEEI, Afrinat and Loot Online. The Tribunal reflects this
earlier in its reasons.
[24]
But its relief was restricted to HST not the refusal in respect of
the other entities. Thus, there is no rational connection between
the
relief sought against Mercantile and that which was granted.
Moreover, the service provided to HST was confined to the operation
of a forex trading account.
[61]
Access
bank only provided services for one entity in the Group, a company
called Afrinat. It is not disputed that Access bank provided
these
services to Afrinat. However, the complaint in the founding affidavit
was that the exclusionary effect in respect of Afrinat
was that it
was unable to secure forex services and thus procure raw materials
from overseas suppliers. But Access never provided
such a facility,
only a transactional banking facility. The Tribunal’s order
compels Access bank to restore the services
it previously offered.
But since it never offered forex services to Afrinat,
the
order
does
not
remedy
the
alleged
harm
in
respect
of
Afrinat.
Nor
does
the
order
require Access bank to offer banking services to the other entities
which it refused to deal with – the relief was confined
to
Afrinat.
[25]
[62]
In
relation to Standard Bank the situation is more complex. At the time
of the hearing, and the Tribunal does acknowledge this,
Standard Bank
had not yet refused services to any of the clients from the Group
that it then served.
[26]
However it had given an indication that it was reviewing these
clients. What Standard Bank had done at the time the application
for
interim relief was launched was to request information from Sekunjalo
as a result of the adverse media reports about the Group.
There is
some dispute of fact about when the information was then furnished to
Standard Bank and indeed whether it was ever adequately
provided.
Certainly, Standard Bank considered it had not.
[63]
Nevertheless, it was only subsequent to the
hearing, after conducting a due diligence exercise, that Standard
Bank terminated these
services. The Tribunal was aware that Standard
Bank had not yet terminated these services, but it seems to have
regarded the information
request as a sufficient basis to grant the
relief in the form that it did, which was to interdict Standard Bank
from closing the
accounts held with it. Standard Bank contends that
the Tribunal could not have given such an order at the time since at
the time
of the hearing these accounts were still open and there was
no reason,
prima facie
or
otherwise, to suggest that it would not bring an independent mind to
bear on whether to continue operating the account.
[64]
Standard
Bank through the review wanted its due diligence efforts to be placed
on record to achieve two objectives: To suggest it
did not act in
concert with the other banks but followed its own process. Second, to
make a factual case under FICA that it was
not given a discretion to
refuse to provide the services but was, having conducted the due
diligence and found the information
wanting, obliged to do so.
Sekunjalo strongly opposed the admission of this new evidence either
by way of appeal or review. However,
for reasons given earlier this
case can be decided on the assumption that Standard Bank would have
closed the accounts as it is
now common cause it did.
[27]
However Standard was not the exclusive banker of any of these three
entities all of whom also had accounts with other banks. These
facts
were not considered and needed to be as part of an exclusionary
analysis of Standard Bank’s potential abuse of dominance.
[65]
Finally, the real question was whether a
theory of harm was made out in respect of any of the appellants and
the answer to that
is in the negative. Abuse of dominance requires an
analysis of the unilateral actions of the respondent firm. By relying
on generalised
facts and applying it to all the respondent banks the
Tribunal failed to do so. In conclusion then, there was no
prima
facie
case made out sustainable in law
of an abuse of dominance established in respect of any of the
appellants. The case failed as the
appellants were neither shown
prima facie
to
be dominant, let alone if they had been, to have abused that
dominance in relation to the entities for which relief was granted.
Conclusion
on
prima facie
case
[66]
The Tribunal appears to have been alive to
these weaknesses in the competition theory of harm but sought to
compensate for it in
two ways.
The
first was to place reliance on the fact that an applicant only needs
to make out a
prima facie
case.
The second was that the factors which require consideration for
interim relief must be viewed cumulatively and the presence
of one
strong factor can make up for the weakness of any other. It certainly
considered that the evidence of irreparable harm to
the entities was
strong as was the balance of convenience favouring the granting of
the relief. As a legal approach to considering
interim relief
applications both propositions are correct. But a distinction needs
to be made between a
prima facie
case
though open to some doubt (as per the
Webster
v Mitchell
formulation) and a
non-existent one. Even in a case requiring only
prima
facie
evidence the complainant has to
place some facts before the decision maker to pass muster. Here, for
the reasons I have explained,
Sekunjalo has not made out a case that
the refusals to deal were anticompetitive.
[67]
There is therefore no
prima
facie
case made out on the papers in
terms of a prohibited practice by the appellants either in terms of
section 4(1)(a) or sections 8(1)(c)
or 8(1)(d)(ii). For that reason,
no order for interim relief should have been granted against the
appellants.
Is the decision of the
Tribunal appealable or reviewable?
[68]
I now turn to the issue of whether the
appellants have made out a case for appeal or review given that the
decision of the Tribunal
was for interim not final relief.
[69]
Sekunjalo argues that none of the
appellants has met the threshold requirements for an appeal set out
in subsection 49C (8) of the
Act. That subsection states
:
“
The
respondent
may
appeal
to
the
CAC
in
terms
of
this
section
against
any
order
that
has
a
final
or
irreversible effect
.”
(My emphasis).
[70]
On the face of it this language appears
tautologous. After all what could be more final than an order which
is not irreversible.
Yet because of the ‘
or
’
these words must be read disjunctively. Unterhalter AJA has offered a
sensible interpretive solution to this problem when
in
Business
Connexion,
an interim relief case in
this court, he explained that:
“
(a)
The interim order is rendered final in effect because the prohibited
practice and the relief to which it gives rise will not
be considered
by the Tribunal because no referral is likely to be made or the
Tribunal purports to decide an issue with finality
by way of interim
relief that it would be required to decide on a referral to it. This
second variety of finality will likely constitute
an ultra vires
decision that is reviewable, but it may be also be (sic) appealed.
The interim order has an irreversible effect
where it materially
disadvantages the competitive position of the respondent in the
market and the disadvantage is not likely to
be undone should the
respondent prevail before the Tribunal upon the hearing of the
referral or should the referral never occur.
[28]
[71]
The appellants in this matter contend that
the appeal is competent because the effect of the Tribunal order is
irreversible. If
they have to comply with the terms of the order,
they will be in contravention of their regulatory and governance
obligations.
The consequence of that is reputational damage. That
damage they argue is irreversible even if the interim relief does not
become
final relief.
[72]
Sekunjalo argued that the reputational
damage argument is exaggerated. The banks would be seen to be
complying with an order of
a regulator which they had attempted to
oppose. Any sense of their being complicit with providing a facility
in breach of the law
is fully met by the argument that they had to
comply with another regulator. There is no suggestion at this stage
that banking
regulators are acting against any bank for providing
services to the Sekunjalo Group.
[73]
This slender reliance on irreversibility
may well explain why
ex abundanti
cautela
the appellants have also
brought a review for essentially the same relief as would be brought
in an appeal. The review focuses on
both a legality and PAJA review
of the Tribunal.
[74]
However, this does not mean that an appeal
is not competent in the present case. A more solid basis for
considering the case appealable
is also found in
Business
Connexion
. Unterhalter AJA despite
having formulated a narrow test in the passage I cited earlier, goes
on to take a more holistic approach
when he observed that:
“
a
proper understanding of what constitutes a final or irreversible
effect must reflect the need to permit this Court to correct
error
when particular failures of justice would otherwise result.”
[75]
This
test is consistent with what the Constitutional Court laid down in
ITAC
v SCAW,
where
it held that the appealability of an interim order made by a High
Court will depend on what the interests of justice require.
[29]
[76]
In the present case we have found the
actions of the banks did not only not contravene the Act but were
carried out in what the
banks perceived was necessary compliance with
their regulatory obligation. The banks obtained no financial benefit
for their actions.
It would amount to a failure of justice if the
appellants, in seeking to comply with one regulatory regime (banking
legislation)
remained subject to an order, under another regulatory
regime, albeit only interim, that without a sufficient legal basis,
required
them not to comply with what they believe are their
obligations under the former. Hence, I find the order for interim
relief is
appealable.
[77]
Finally on this score, I consider the issue
of deference to the Tribunal which was also raised. It is correct
that in the case of
Mediclinic
the
Constitutional Court held in overturning a decision of this court
that in turn had overturned a decision of the Tribunal that:
“
Interference
with factual findings by appellate courts would thus be justified
only in the event of a misdirection or a clearly
wrong decision. And
this is to be done for the sole purpose of achieving justice.”
[30]
[78]
But
here we have found that the decision was clearly wrong and would lead
to an injustice. Nor have we sought to second guess the
Tribunal’s
economic expertise. To the extent that the Tribunal made an economic
analysis about parallel conduct in oligopoly
markets, in the passage
from the paragraph in its reasons that we quoted earlier, we have
accepted that analysis.
[31]
The problem is that the Tribunal did not follow it through in its own
analysis.
[79]
It is understandable that the Tribunal was
concerned about the effect on the Sekunjalo Group of being ‘
unbanked
’
when access to banking is essential to being able to compete in a
market. But that concern may well be addressed by the
other
challenges we understand the Group has made in terms of the
Promotion
of Equality and Prevention of Unfair Discrimination Act 4 of 2000
and
the common law. This case is confined to the question of whether that
refusal can be remedied under the
Competition Act, and
I find that
based on the present record, it cannot. The conclusion therefore is
that the matter should properly be determined on
appeal. However, if
I am wrong, then on the ground of irrationality and for the same
reasons given earlier regarding the irrationality
of the Tribunal’s
decision, and it exceeding the lawful parameters of the relevant
provisions of the Act, the appellants’
review of the Tribunal
would fall to be upheld and it would be an act of supererogation to
remit it back.
Lis
alibi pendens
.
[80]
Sekunjalo also raised a defence of
lis
alibi pendens
. Aside from bringing an
application before the Tribunal it has also brought proceedings
before the Equality Court and the ordinary
High Court - in each
instance apparently seeking interim interdictory or mandatory relief.
What is surprising is that Sekunjalo
raised this issue given that it
was responsible for bringing all these applications.
[81]
It therefore should not be open to
Sekunjalo to raise
lis alibi pendens
,
save possibly to the limited extent that the High Court proceedings
also involve a review. However, that is a review of the bank’s
decision to terminate a contractual arrangement, while the review
before us is that of the Tribunal’s decision. Moreover,
even if
the facts before each court now seized with the respondents’
applications are the same, the outcomes are based on
different
considerations.
[82]
Before this court the issues are confined
to considerations of whether the appellants conduct was
anti-competitive.
Those
considerations fall within the exclusive jurisdiction of the
Competition Tribunal and this court in terms of section 62(1)
of the
Act. Conversely, the Tribunal and this court do not have jurisdiction
over the subject matter in the cases brought by Sekunjalo
before the
Equality Court and the High Court.
[83]
Accordingly,
the principles and law (whether circumscribed by statute or common
law) to be applied before each forum will be different
to this forum
even if the result may ultimately be the same.
[32]
Costs
[84]
Costs must follow the result. The question
is whether having decided that this matter can be decided as an
appeal the respondents
should also pay the costs of the review. The
Act allows a party to bring both an appeal and a review. The fact
that the review
points were in a large part identical to those raised
in the appeal should not mean that the appellants should be
penalised.
[85]
A
court which enjoys both appeal and full review jurisdiction, as this
court does, should not adopt a highly technical approach
as it might
result in failing to provide access to justice.
[33]
[86]
A court should also recognise the dilemma
that faces a party who genuinely wishes to challenge both the
regularity of the proceedings
and the merits of the case. If it is
driven by ulterior motives, then that will be readily discernible to
a court and suitable
orders of costs can be made to discourage
similar abuse. This is not such a case.
N. Manoim
Judge
President
I
concur
D. Mlambo
Acting
Judge of Appeal
ORDER
1.
The appeal of the three appellants is
upheld
2.
The Tribunal’s orders in respect of
paragraphs 1.2 (re Standard Bank), 1.5 (re Mercantile) and
1.8 (re Access Bank) are
set aside.
3.
The appellants are entitled to the costs of
the appeal and review including the costs of two counsel where
employed.
Spilg AJA (separate
concurring)
[87]
I have had the privilege of reading the
decision of the Judge President and concur with the grounds set out
for upholding the appeal,
failing which in finding on the alternative
basis relied on that the reviews fall to be upheld.
[88]
There is a matter I wish to touch on
briefly. It concerns the position of Standard Bank, including my
willingness to have received
the further evidence sought to be
introduced regarding events after the parties had argued the case
before the Tribunal.
[89]
I am of the view that Sekunjalo acted
precipitously in joining Standard Bank. At the time it brought the
application, Standard Bank
was still awaiting a response from
Sekunjalo to a series of incisive questions arising from the Mpati
Report and Sekunjalo’s
earlier but clearly inadequate reply to
previous enquiries from the bank.
[90]
Of
particular concern, bearing in mind the contents of the Mpati
Report
[34]
, were issues
relating to verifying the identity of the ultimate beneficial owners,
whether future transactions would be consistent
with the bank’s
knowledge of a prospective client having regard to the nature of the
intergroup transactions and where the
bank was unable to conduct
ongoing due diligence in respect of the banking relationship with the
client due to the Sekunjalo Group’s
failure to adequately
respond to the bank’s enquiries.
[91]
A number of concerns also arise from
Sekunjalo’s failure to have replied to Standard Bank before
bringing its application.
The more obvious one is that had it
properly responded to the enquiries timeously and had Standard Bank
decided not to continue
providing banking services to Sekunjalo then
the matter would have been argued on principled and not speculative
grounds. Sekunjalo
would then have demonstrated that either it could
on a
prima facie
basis
deal with the bank’s position, and in particular that there was
no ground to raise FICA compliance red flags. Of course,
had it done
so there may have been a knock on effect because if Sekunjalo was
unable to deal adequately with Standard Bank’s
request for
further information then its case against the other banks may also
have been affected.
[92]
Moreover, it was a simple matter for
Sekunjalo to have proceeded against the other banks and then join
Standard Bank once it had
replied to the bank’s further, and
quite legitimate enquiries, and received their response.
[93]
I would therefore have found that the case
was bought prematurely against Standard Bank. In bringing its case
prematurely, Sekunjalo
precluded a proper ventilation of the issues
in relation to that bank. For this reason, it does not lie in
Sekunjalo’s mouth
to preclude the bank from introducing
evidence of the former’s response to Standard Bank’s
enquiries, the bank’s
evaluation of the response and the
processes it applied leading to its decision to terminate Sekunjalo’s
banking services.
[94]
These events occurred after the parties had
presented argument before the Tribunal. Sekunjalo only had itself to
blame for the inordinate
delay (in marked contrast to the urgency
with which Sekunjalo professed its need to approach the Tribunal on
urgency) in responding
to legitimate and highly relevant information
it was requested to produce to enable Standard Bank to consider its
position within
the context of legislation affecting the conducting
of its banking business within the four corners of such laws.
[95]
The further evidence sought to be
introduced was highly relevant and Sekunjalo was not prejudiced
because it could have responded
had it so wished. Had it been
necessary to do so, I would therefore have allowed the introduction
of this further evidence.
B Splig
Acting Judge of Appeal
Counsel
for the First Appellant: Adv
G. Engelbrecht SC
Instructed
by: Werksmans
Attorneys
Counsel
for the Second Appellant: Adv
S. Budlender SC, Assisted
by Adv P.
Ngcongo and Adv I. Cloete
Instructed
by: Herbert
Smith Freehills South Africa
Counsel
for the Third Appellant: Adv
A. Subel SC, Assisted by
Adv A. Botha SC and Adv
T. Marolen
Instructed
by: Lawtons
Africa
Counsel
for the First Respondent: Adv
H. Maenetje SC
Assisted by
Adv V. Ngalwana SC, Adv
K. Monareng
And Adv E.N. Sithole
Date
of hearing:
30 – 31 March 2023
Date
of judgment:
17 July 2023
ANNEXURE “A”
SEKUNJALO
INVESTMENT HOLDINGS (PTY) LTD
2
nd
Respondent
AFRICAN EQUITY
EMPOWERMENT INVESTMENT LTD
3
rd
Respondent
AFRINAT (PTY) LTD
4
th
Respondent
BIOCLONES (PTY) LTD
5
th
Respondent
SEKPHARMA (PTY) LTD
6
th
Respondent
ORLEANS COSMETICS
(PTY) LTD
7
th
Respondent
ESP AFRICA (PTY)
LTD
8
th
Respondent
PREMIER FISHING AND
BRANDS LTD
9
th
Respondent
PREMIER FISHING SA
(PTY) LTD
10
th
Respondent
MARINE GROWERS
(PTY) LTD
11
th
Respondent
TALHADO FISHING
ENTERPRISES (PTY) LTD
12
th
Respondent
AYO
THECHNOLOGY SOLUTIONS
LTD
13
th
Respondent
HEALTH SYSTEMS
TECHNOLOGIES (PTY) LTD
14
th
Respondent
GLOBAL COMMAND &
CONTROL TECHNOLOGIES (PTY) LTD
15
th
Respondent
KALULA
COMMUNICATIONS
(PTY)
LTD
16
th
Respondent
KATHEA
COMMUNICATIONS
(PTY)
LTD
17
th
Respondent
SEKUNJALO
PROPERTIES (PTY) LTD
18
th
Respondent
3LAWS
CAPITAL
(PTY)
LTD
19
th
Respondent
CAPE SUNSET VILLAS
(PTY) LTD
20
th
Respondent
SILO CAPE
WATERFRONT (PTY) LTD
21
st
Respondent
AFRICAN NEWS AGENCY
(PTY) LTD
22
nd
Respondent
SOUTH AFRICAN PRESS
ASSOCIATION (PTY) LTD
23
rd
Respondent
MAGIC 828 (PTY) LTD
24
th
Respondent
INDEPENDENT
NEWSPAPERS (PTY) LTD
25
th
Respondent
INDEPENDENT MEDIA
CONSORTIUM (PTY) LTD
26
th
Respondent
SAGARMATHA
TECHNOLOGIES
LTD
27
th
Respondent
LOOT ONLINE (PTY)
LTD
28
th
Respondent
SURVE`
PHILANTHROPIES
29
th
Respondent
SEKUNJALO
DEVELOPMENT
FOUNDATION
TRUST
30
th
Respondent
DR IQBAL SERVE`
BURSARY TRUST
31
st
Respondent
SOCIAL
ENTREPRENEURSHIP
FOUNDATION
TRUST
32
nd
Respondent
HARAAS TRUST
33
rd
Respondent
LINACRE INVESTMENTS
(PTY) LTD
34
th
Respondent
KILOMAX INVESTMENTS
(PTY) LTD
35
th
Respondent
BUSINESS VENTURE
INVESTMENTS NO 1126 (PTY) LTD
36
th
Respondent
[1]
This
was Investec Bank. The Tribunal explains that this was because the
wrong entity had been cited; Investec Bank and not Investec
Securities which had terminated one of the Sekunjalo entities
accounts.
[2]
The
Tribunal excluded from its order of relief the personal bank
accounts of the first applicant a quo, Dr Iqbal Survé,
who
had accounts with Nedbank on the basis that these were personal
accounts and were thus irrelevant to the ability of the Sekunjalo
Group firms to compete in the markets in which they operated.
[3]
Mercantile
in the course of the proceedings merged with Capitec Bank. Whilst
this was initially made a joinder issue before the
Tribunal,
Mercantile proceeded to defend itself on the merits and we were not
asked to decide this point. I have approached the
decision on the
basis that Mercantile has been properly cited.
[4]
This
is by way of operation of section 49(C)(5) which states: “If
an interim order has been granted, and a hearing into
that matter
has not been concluded within six months after the date of that
order, the Competition Tribunal, on good cause shown,
may extend the
interim order for a further period not exceeding six months.”
[5]
Mpati
report, paragraph 72. In paragraph 58 the Report also states: “The
evidence gleaned from various bank statements show
that there has
been significant movement of the funds between different related
parties. This created the impression of funds
in bank accounts but,
in reality, this was only the case at specific moments in time.”
[6]
Access
bank stated that it performed a screening exercise on this website
for one of the entities AEEI and the result came back
“alert
threshold met.” Access states that this raised a red flag for
it. Access Bank Answering Affidavit paragraphs
126-128.
[7]
Since
this is not in dispute, it is not necessary to deal with all the
applicable legislation . The banks mentioned inter alia
that they
must comply with the requirements of the
Prevention of Organised
Crime Act 121 of 1998
, the Prevention and Combatting of Corrupt
Activities Act 2 of 2004, the Banks Act 84 of 1990, the Code of
Banking Practice and
the Basel Committees Guidelines on “Sound
Management of Risks related to Money Laundering and Financing of
Terrorist Activities”.
[8]
Section
21E of FICA.
[9]
2010(4)
SA 468 (SCA).
[10]
Paragraph
131 of the decision .
[11]
Paragraph
35.
[12]
It
is correct that Access Bank took on one of the entities, Afrinat, as
a customer in May 2021, which was at a time when some
of the other
banks had refused to deal with the Sekunjalo Group. However, Afrinat
had not disclosed to Access Bank that it was
part of the Sekunjalo
Group.
[13]
Paragraph
139.
[14]
The
PIC was mentioned as being a client of the major banks. However,
unlike the Sekunjalo entities which are all subject to the
control
of Dr Survé, the PIC is subject to external oversight and as
a State-owned enterprise is subject ultimately to
State control.
[15]
A.
Ahlström Osakeyhtiö and others v Commission of the
European Communities. EU:C: 1993:120 paragraph 71.
[16]
Section
7 states: “A firm is dominant in a market if—
(a)
it has at least 45% of that market;
(b)
it has at least 35%, but less than 45%, of that market, unless it
can show that
it does not have market power; or
(c)
it holds less than 35% of that market but has market power".
[17]
This
conclusion is based on the Commission’s Banking Enquiry report
that was issued in June 2008.
[18]
Tribunal
reasons, paragraph 170.3
[19]
Ibid,
paragraph 171.
[20]
Babelegi
Industrial Workwear and Industrial Supplies CC v the Competition
Commission, Case No. 186/CAC/JUN20
[21]
The
Tribunal mentions that there are approximately seventy registered
banks in South Africa. Tribunal reasons paragraph 176.
[22]
eMedia
Investments (Pty) Ltd SA v Multichoice (Pty) Ltd and Another
(201/CAC/Jun22).
[23]
Whish
and Bailey, Competition Law , (Oxford) Tenth edition, page 734.
[24]
Paragraph
96.1
[25]
This
is the allegation referred to in paragraph 96.3 of the reasons.
[26]
They
were Orleans Cosmetics, Independent Newspapers and Loot Online.
[27]
For
this reason, I have not needed to deal with the issue of whether the
additional evidence which Standard Bank sought to introduce
should
be admitted. Spilg AJA deals with this issue in his separate
concurring decision.
[28]
Business
Connexion (Pty) Ltd v Vexall (Pty) Ltd and another
[2020] 2 CPLR 490
(CAC) (“Business Connexion”) para 41
[29]
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
2012
(4) SA 618
(CC) (“ITAC v SCAW”) at para 53.
[30]
Competition
Commission of South Africa v Mediclinic Southern Africa (Pty)
Limited 2021 JDR 3149 (CC); 2022(4) SA 323 (CC).
[31]
Paragraph
131 of the Tribunal’s reasons.
[32]
Compare
Visagie v Health Professions Council of South Africa and Others
2023
(2) SA 626
(GP) at para 15 where in an analogous situation Potterill
J said that: The approach by the two presiding officers, and the
principles
applied in the review and the appeal, would thus be
wholly different, albeit the result may be the same. I am thus
satisfied
that lis pendens herein is not applicable
[33]
See
the observations in Liberty Life Association of Africa v
Kachelhoffer NO
2001 (3) SA 1094
(C) at 1111C-E. This case also
acknowledged circumstances where a party may appeal on the merits of
the decision and still bring
a review where grounds for doing so
also existed.
[34]
See
for instance the extracts mentioned in para 13 and footnote to the
main judgment.