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[2010] ZASCA 104
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Woodlands Dairy (Pty) Ltd and Another v Competition Commission (2010 (6) SA 108 (SCA); [2011] 3 All SA 192 (SCA)) [2010] ZASCA 104; 105/2010 (13 September 2010)
Links to summary
THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 105/2010
In
the matter between:
WOODLANDS
DAIRY (PTY) LTD First Appellant
MILKWOOD DAIRY (PTY) LTD Second Appellant
and
THE
COMPETITION COMMISSION Respondent
Neutral
citation:
Woodlands Dairy v Milkwood Dairy
(105/2010)
[2010] ZASCA 104
(13 September 2010)
Coram:
Harms
DP, Lewis, Heher, Ponnan JJA and Ebrahim AJA
Heard:
24
August 2010
Delivered:
13
September 2010
Summary:
Competition
Act 89 of 1998
–– requirements for valid complaint
initiation and referral – power to issue interrogation summons
– validity
of summons – consequence of invalid initiation
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
Competition Appeal Court (Davis
JP with Patel JA and Dambuza AJA sitting as court of appeal):
The appeal is upheld with costs.
The order of the Competition Appeal Court is set aside
and replaced with an order in the following terms:
The appeal against the order of the Competition
Tribunal of 17 March 2009 is upheld with costs and the cross-appeal
is dismissed
with costs.
Paragraphs 2 to 8 of that order are set aside and
replaced with an order in the following terms:
The complaints initiated by the Competition
Commission against the applicants during 2006 are set aside.
The referral of those complaints on 7 December 2006
by the Competition Commission to the Competition Tribunal is set
aside.
The Competition Commission is directed to return
forthwith to the applicants all documents and copies thereof in
its or its
legal representatives’ possession and control
procured from the applicants together with transcripts of the
interrogations
of Dr Kleynhans, Mr Gush and Mr Fick, including the
documents attached to affidavits included in the papers filed by
the
Competition Commission before the Competition Tribunal in the
main proceedings.
The Competition Commission is to pay the costs of the
proceedings.
All costs orders include the costs of two counsel.
__________________________________________________________________
JUDGMENT
___________________________________________________________________
HARMS DP (LEWIS, HEHER, PONNAN JJA AND EBRAHIM AJA
concurring)
INTRODUCTION
[1] This is an appeal from the Competition Appeal Court
(‘CAC’) consequent to the grant of special leave to
appeal by
this court. The appellants are Woodlands Dairy (Pty) Ltd
and Milkwood Dairy (Pty) Ltd. They purchase raw milk from dairy
farmers
for resale, presumably after processing and packaging. They,
and a number of other major players in the field, stand accused
before
the Competition Tribunal of ‘cartel activities’,
more particularly, contraventions of certain provisions of
s 4(1)
of
the
Competition Act 89 of 1998
.
[2] Shortly before the scheduled hearing before the
tribunal of the complaint referral the appellants applied for an
in
limine
determination of certain issues. The object of the
exercise was to obtain a number of orders which, if granted, would
have put
an end to the proceedings, at least as far as they were
concerned. The tribunal upheld some of the points raised but
dismissed
the others on the assumption that those upheld made their
consideration unnecessary. It found that two summonses issued in
terms
of
s 49A
(one against Woodlands and the other against Milkwood)
to submit to interrogations and produce documents were void. It did
not
declare the evidence that had been obtained pursuant to the
summonses to be inadmissible and held that questions relating to
admissibility
had to be dealt with during the main hearing on the
merits. Consequently the tribunal issued an order for the
preservation of this
evidence. This meant that the proceedings had to
continue.
[3] The appellants appealed to the CAC and the
commission lodged a cross-appeal against para 1 of the order which
declared that
the summonses were void. The CAC upheld the appeal and
the cross-appeal, both in part. It agreed with the tribunal that the
Woodlands
summons was void but held in favour of the commission that
the Milkwood summons was not. It found for the appellants that the
tribunal
did not have the power to issue a preservation order and
accordingly set it aside. Instead the CAC ordered the commission to
return
all the evidence obtained by virtue of the Woodlands summons
to Woodlands.
[4] The order to hand the inadmissible evidence to
Woodlands gave rise to a dispute between the parties. They disagreed
about its
effect and the appellants asked the CAC to clarify its
order. They simultaneously applied for special leave to appeal to
this court.
The commission, in turn, applied for leave to
cross-appeal. The CAC granted some of the clarification sought and
dismissed the
applications to appeal and cross-appeal.
[5] One of the grounds on which leave to appeal was
refused was that the tribunal and the CAC are specialists tribunals
while this
court is not one. However, as will appear in due course,
the issues in this case do not touch on any specialist areas but are
issues
similar to those that are dealt with by this court on a
regular basis. But that on its own would obviously not be a ground
for
special leave.
[6] Although the appellants sought and were granted
special leave to appeal, the commission neither sought nor received
similar
leave. This means that the order of the CAC setting aside the
Woodlands summons with the consequent clarification order stands.
THE RELEVANT STATUTORY PROVISIONS
[7] Before attempting to explain the issues in any
detail it is necessary to place the provisions of the Act in so far
as they impact
on this case in context. The purpose of the Act is, in
general terms, to promote and maintain competition in the Republic
(s
2).
In consequence, the Act applies to all economic activity within,
or having an effect on, the country
(s 3).
It prohibits in chapter 2
certain restrictive horizontal practices
(s 4)
and also some vertical
ones
(s 5)
, and the abuse of dominance
(s 8).
[8] The administration of the Act is in the hands of the
Competition Commission. Its chief executive officer, the
Commissioner,
is responsible for the general administration of the
commission and for carrying out any functions assigned to it in terms
of the
Act
(s 22).
Some of the responsibilities of the commission are
to ‘investigate and evaluate alleged contraventions of Chapter
2’,
to refer matters to the tribunal, and to appear before it
as claimant cum prosecutor
(s 21(1)).
[9] Chapter 5 of the Act, entitled ‘investigation
and adjudication procedures’, is divided into five parts.
Important
for present purposes are parts B and C: part B deals with
powers of search and summons, and
part C
with complaint procedures.
The other parts deal with confidentiality, tribunal hearings and
appeals and reviews. This chapter in
its present form was inserted by
amendment during 2000, and is not clear as to the sequence of steps
that have to be followed in
relation to the initiation of a
complaint, the investigation, the use of the power to summon
witnesses to testify and produce documents,
and the referral of
complaints to the tribunal. This, in turn, has given scope for
delaying tactics through preliminary proceedings
in different cases
before the tribunal and the CAC.
[10] The Act, unnecessarily, reminds us that it must be
interpreted in a manner that is consistent with the Constitution and
which
gives effect to the purposes set out in s 2 of the
Constitution. Importantly, in the context of this case is that the
Constitution
is based on the rule of law, affirms the democratic
values of dignity and freedom, and guarantees the right to privacy, a
fair
trial and just administrative action. Also important is the fact
that the actions of the commission in relation to chapter 2
complaints,
which are administrative, may lead to punitive measures.
The so-called ‘administrative penalties’ (more
appropriately
referred to as ‘fines’ in s 59(2)) bear a
close resemblance to criminal penalties. This means that its
procedural powers
must be interpreted in a manner that least impinges
on these values and rights.
[11] I accordingly disagree with the view of the CAC
that because it is difficult to establish the existence of prohibited
practices
a generous interpretation of the commission’s
procedural rights would be justified. This approach would imply that
the more
difficult it is to prove a crime, such as corruption, the
fewer procedural rights an accused would have.
[12] The tribunal, after a hearing in relation to a
prohibited practice, may make an appropriate order in terms of s
58(1). Such
a matter may reach the tribunal as a result of a referral
of a complaint to it by the commission (s 50(1)). In other words, a
complaint
referral by the commission is (subject to s 51) a
jurisdictional fact for the exercise of the tribunal’s powers
in respect
of prohibited practices.
[13] A complaint has to be ‘initiated’. The
commissioner has exclusive jurisdiction to initiate a complaint under
s
49B(1). The question then arises whether there are any
jurisdictional requirements for the initiation of a complaint by the
commissioner.
I would have thought, as a matter of principle, that
the commissioner must at the very least have been in possession of
information
‘concerning an alleged practice’ which,
objectively speaking, could give rise to a reasonable suspicion of
the existence
of a prohibited practice. Without such information
there could not be a rational exercise of the power. This is
consonant with
the provisions of s 49B(2)(a) which permit anyone to
provide the commission with information concerning a prohibited
practice without
submitting a formal complaint.
[14] The section also deals with the
submission of formal complaints. A formal complaint is one submitted
by a member of the public
(a ‘complainant’) in the
prescribed form and not one put in motion by the commissioner (s
49B(2)(b)).
1
[15] In both instances, whether upon initiation of a
complaint by the commissioner or on receipt of a complaint in the
prescribed
form, the commissioner ‘must’ direct an
inspector to investigate the complaint as quickly as practicable (s
49B(3)).
[16] The use of the word ‘must’ gave rise to
debate. The commission submitted that an investigation by the
commission
may precede the initiation of a complaint by the
commissioner while the appellants contended that the investigation
must follow
the initiation. The word ‘must’ has often
been equated with ‘may’ in the course of statutory
interpretation.
But that depends on context and, as Davis JP said in
the court below, submissions about the meaning of the Act ‘must
be tested
against the wording employed by the Act’.
[17] There can be little doubt that in the case of the
submission of a formal complaint by a complainant such an
investigation is
necessary. It would otherwise not be possible for
the commission to refer the complaint to the tribunal or to issue a
notice of
non-referral to the complainant (s 51).
[18] It is conceivable that the commissioner, by virtue
of facts submitted informally or from facts obtained by the
commission in
the course of another investigation, may wish to
initiate a complaint and to dispense with a subsequent investigation.
It would
accordingly appear reasonable to assume that in this case
one could read ‘must’ as ‘may’. The problem
is
that Parliament chose to deal with the two cases in an identical
manner. The same word cannot bear different meanings in the same
sentence depending on the circumstances. Even recourse to purposive
construction superimposed on benevolent construction does not
help.
Furthermore, Parliament was quite particular in its use of ‘may’
and ‘must’ in this Act. In the preceding
two subsections
and the subsequent one the word ‘may’ is used. Why then
the use of ‘must’ in this subsection
if ‘may’
was intended? One finds the same pattern in other sections of the Act
(compare s 50(3) and s 52(2)).
[19] The complaint must be initiated
against ‘an alleged prohibited practice’. In this regard
the CAC has held in
Sappi
2
that ‘the
Commission is not empowered to investigate conduct which it generally
considers to constitute ‘anti-competitive
behaviour’ and
that a complaint can relate only to ‘an alleged contravention
of the Act as specifically contemplated
by an applicable provision
thereof by that complainant’. Otherwise, the CAC said in that
case, the commission would act
beyond its jurisdiction. No one
submitted that this approach is in any respect incorrect.
[20] It is only during this investigation (‘an
investigation in terms of this Act’) that the commissioner may
summon
persons for purposes of interrogation and production of
documents (s 49A(1) read with s 49B(4)). I do not accept the
submission
on behalf of the commission that these far-reaching
invasive powers may be used by the commissioner for purposes of a
fishing expedition
without first having initiated a valid complaint
based on a reasonable suspicion. It would otherwise mean that the
exercise of
this power would be unrestricted because there is no
prior judicial scrutiny as is the case with a search warrant under s
46.
THE 2005 COMPLAINT INITIATION
[21] Mrs Louise Malherbe, a dairy farmer from Riversdal,
wrote a letter to the commission during June 2004. She alleged that
three
milk distributors (Nestlé, Parmalat and Ladismith
Cheese) were guilty of cartel activities by fixing the price of fresh
milk. It is common cause that the letter was not a formal complaint
by a ‘complainant’ as meant in s 49B(2)(b) but that
it
contained information submitted to the commission under s 49B(2)(a).
[22] Her information was followed up by two inspectors
in the employ of the commission, Messrs Liebenberg and Theron. They
obtained
confirmation from other sources that corroborated Mrs
Malherbe’s allegations of price fixing or manipulation by
Parmalat
and Ladismith Cheese. They did not find any evidence of
wrongdoing by Nestlé but they established that another
distributor,
Clover, may have been abusing its dominance in
contravention of s 8.
[23] In line with the provisions of the Act they
submitted a memorandum to the then commissioner, Mr Simelane, in
which they set
out the information at their disposal, and they
recommended that a complaint be initiated against Parmalat and
Ladismith Cheese
regarding the fixing of the purchase price of milk
in terms of s 4(1)(b). They also recommended that a complaint be
initiated against
Clover under s 8 of the Act. They did not, in
particular, recommend any complaint initiation against Nestlé
or any other
member of the industry and also did not suggest that
they had any information about contraventions of any other provisions
of the
Act.
[24] The commissioner did not follow their
recommendations. If he had, the present proceedings would never have
arisen. He instead
initiated a single complaint ‘concerning’
these three entities on 9 February 2005. The initiating statement
recorded
that the purpose of the ‘contact’ reflected in
the Liebenberg/Theron memorandum was ‘to establish whether
there
is anticompetitive behaviour “at any level” in the
[milk producing] industry’. The commissioner then stated that
he had formed the belief ‘that there exists anticompetitive
behaviour in the milk industry’. He formed this belief,
he
said, in the light of the memorandum, a letter (we now know that it
was Mrs Malherbe’s), and public comments two years
earlier by
the Minister of Agriculture about the alleged high prices of food
products.
[25] He added, senselessly, that he had ‘in
addition, further information’ but then referred again to the
information
in the memorandum which he already had listed. This, he
said, gave information about ‘possible’ price fixing in
contravention
of s 4(1)(b)(i) by Parmalat and Ladismith Cheese and
‘indicated’ the abuse of a dominant position by Clover,
something
covered by s 8.
[26] The commissioner then, in the
light of the above, initiated without any qualification ‘a full
investigation into the
milk industry’. The commissioner appears
to have been oblivious to the fact that he was supposed to initiate a
complaint
against an alleged prohibited practice and that this should
have led to a direction to an inspector to investigate. He also
ignored
the fact that his initiation ran foul of the
Sappi
principles set out
earlier. As said by the tribunal below, competition law is about
anti-competitive effects that take place in
markets and not in
industries and that it seems highly unlikely that even the ‘most
egregious industry’ in the country
could be suspected of every
crime in the Act. In addition, the commissioner did not have any
material to support his belief that
there was illegal
anti-competitive behaviour in the industry as a whole.
[27] The subsequent events provide conclusive evidence
that this initiation was seriously flawed. On 22 March 2005, the
commissioner
issued a commission summons against Dr Kleynhans, the
then managing director of Woodlands, to be interrogated and produce
documents
in relation to an ‘investigation into the milk
industry’. The summons recorded that it had been issued in
connection
with a ‘full’ investigation based on the
commissioner’s reasonable belief in the existence of
anti-competitive
behaviour in the milk industry, which, apart from
price fixing (s 4(1)(b)) and abusive behaviour (s 8), ‘included’
‘restrictive vertical practices’ (s 5) – something
that had not even been mentioned in the complaint initiation.
This,
by the way, belies the commission’s argument that the
initiation was limited to the three entities mentioned and in
respect
of the prohibited practices identified in the complaint initiation.
It is not necessary to detail the content of the summons
because both
the tribunal and the CAC have found that it was so improper,
overbroad and vague that it had to be set aside.
[28] In response to the summons the attorneys for
Woodlands politely sought some particulars to enable Dr Kleynhans to
comply fully
with the demand. The commission’s response is
revealing. It said that a complaint had been initiated against
Parmalat, Ladismith
Kaas and Clover in order to establish whether
there is anti-competitive behaviour at any level of the industry
thereby allowing
the commission the opportunity to evaluate the whole
industry. This, too, refutes the commission’s belated
restrictive interpretation
of the complaint initiation.
[29] The interrogation of Dr
Kleynhans took place. His complaints about the nature of the
investigation and the scope and meaning
of the summons were brushed
aside in an unseemly and threatening manner. Requests for elucidation
were either evaded or ignored.
3
[30] Then followed a summons for the interrogation of Mr
Fick of Milkwood concerning, once again, an ‘investigation into
the
milk industry’. He was ordered to bring with him any
‘other’ documents or items in his possession or under his
control ‘that relate to this matter’. This summons
differed from the Woodlands summons in that it did not give a list
of
documents. He was told that he would be asked about possible price
fixing in the market and abusive behaviour and also about
issues
arising from the information submitted in response to a summons dated
22 March 2005. The summons or information was not
more closely
identified but one may now surmise that it was the Woodlands summons
of that date.
[31] As mentioned, the tribunal held that this summons
was also bad but the CAC held otherwise. The tribunal reasoned that a
summons
in terms of s 49A requires the stipulation of a prohibited
practice accompanied by some particularity as to its nature,
something
that was missing. The CAC, however, held that the
prohibited practices had been disclosed because Fick was entitled to
see the
information submitted pursuant to the 22 March summons. The
first problem with this is that the validity of a summons must appear
ex facie the document and does not depend on a possible request for
further particulars. In addition, since the information obtained
pursuant to that summons was, according to the CAC, tainted and could
not have been used by the commission, it is difficult to
see how that
information could have given validity to the summons and be used to
extract information from Fick. The CAC also did
not mention the other
problems with the summons such as the unbounded request for documents
nor did it consider whether there was
any indication on the papers
that Fick was in fact entitled to see the information (see s 45 and
45A).
[32] The CAC also failed to deal with the proceedings
pursuant to the summons. Fick was informed, as the interrogation
began, that
the investigation was in relation to prohibited practices
including possible collusion and/or price fixing, abusive behaviour
as
well as vertical practices in the milk industry and that the party
subject to the complaint was Parmalat. This statement was palpably
untrue. Three companies were named in the initiation and Parmalat was
but one of them. Parmalat was not suspected of abusive behaviour
–
that was Clover. What was not said was that Woodlands was being
investigated. And it was also not said that the whole purpose
of the
interrogation was to extract information from Fick about the
relationship between Woodlands and Milkwood. As Fick said (something
the commission did not even deem worthy of reply) the whole enquiry
targeted the relationship between Milkwood and Woodlands, and
not one
question was asked during the entire interrogation about Parmalat.
[33] I now revert to the 2005 initiation. The tribunal
did not deal with its invalidity because of its finding that the
summonses
were bad for other reasons. The CAC did not deal with the
issue in its main judgment but belatedly during the course of its
judgment
dealing with the merits of the application for leave to
appeal. It focussed on the question whether it is possible to
initiate
a complaint against cartels within an industry without
naming any one of the parties thereto and expressed the view that any
finding
that a party has to be mentioned would amount to Austinian
formalism of the kind of jurisprudence employed during apartheid.
[34] The problem with this
generalisation and tar brushing is that it ignored the structure of
the Act, the impact of the Constitution
on its interpretation, the
CAC’s own jurisprudence, not only in
Sappi
but also
Glaxo
Wellcome
,
4
and the relevant facts. The CAC did not take into account that the
initiation must at least have a jurisdictional ground by being
based
on a reasonable suspicion. The initiation and subsequent
investigation must relate to the information available or the
complaint
filed by a complainant.
[35] There is in any event no reason to assume that an
initiation requires less particularity or clarity than a summons. It
must
survive the test of legality and intelligibility. There are
reasons for this. The first is that any interrogation or discovery
summons depends on the terms of the initiation statement. The scope
of a summons may not be wider than the initiation. Furthermore,
the
Act presupposes that the complaint (subject to possible amendment and
fleshing out) as initiated will be referred to the tribunal.
It could
hardly be argued that the commission could have referred an
investigation into anti-competitive behaviour in the milk
industry at
all levels to the tribunal.
[36] Members of the supposed cartel were in fact
mentioned in the initiating statement. It was therefore not a case
where no cartel
member had been identified. The problem is that there
were no facts that could have given rise to any suspicion that others
were
involved. A suspicion against some cannot be used as a
springboard to investigate all and sundry. This does not mean that
the commission
may not, during the course of a properly initiated
investigation, obtain information about others or about other
transgressions.
If it does, it is fully entitled to use the
information so obtained for amending the complaint or the initiation
of another complaint
and fuller investigation.
THE 2006 COMPLAINT INITIATIONS
[37] The commissioner did not refer the 2005 complaint
to the tribunal. This explains why the invalidity of this complaint
did not
form the basis of a prayer in the notice of motion. The
commissioner instead referred six complaints that were initiated
during
2006. The first was dated 13 March and accused Woodlands and
others of fixing the purchase price of raw milk. Two other complaints
involving Woodlands were initiated on 12 May and, finally, on 6
December one was initiated against Woodlands and Milkwood. The
remaining complaint did not affect either of the appellants. All the
complaints involving one or both of the appellants related
to
practices prohibited by s 4(1).
[38] The appellants sought an order setting these
complaints and consequent referral on 7 December aside. Their
argument was premised
on a finding that all the commission’s
evidence against them was derived from the invalid 2005 initiation
and subsequent
tainted interrogations and production of documents.
Since the commission’s investigation preceded these complaints
it placed,
according to the argument, the cart before the horse which
means that the commission acted beyond its powers.
[39] It is necessary to emphasise that the CAC, in its
clarification judgment, made it clear that its intention was to
ensure that
all documentation procured pursuant to the investigation
and other steps taken by the commission pursuant to the tainted
Woodlands
summons had to be placed beyond the use of the commission
because Woodland’s privacy had been unfairly breached. It
crafted
the clarification order on that basis.
[40] The commission, as mentioned, did not appeal this
order and did not seek to argue that the approach of the CAC towards
tainted
evidence was flawed. It follows that the same approach has to
be adopted towards the Milkwood evidence in view of the finding
earlier
that it, too, was likewise tainted.
[41] Both the tribunal and the CAC found that the
commission’s whole case against the appellants was derived from
the impugned
interrogations. These findings were based, presumably,
on an allegation in the founding affidavit that it was apparent from
the
commission’s founding affidavit in the referral, witness
statements and argument that the evidence obtained through the
tainted
investigation forms the basis of the referral in relation to
the appellants and was inextricably part thereof.
[42] The allegation was denied in the answering
affidavit in bald terms with reference to ‘all of the reasons
set out above’.
There were no preceding reasons and this means
that that the denial was meaningless. Counsel for the commission
nevertheless sought
to rely on inferences from other facts for the
submission that there may have been further untainted facts which
could have justified
the referral and that it should be left to the
tribunal to determine whether there was any admissible evidence. I
agree that as
a general rule it is preferable to leave such a
determination to the tribunal during the referral hearings.
[43] The general rule does not,
however, find application in the present proceedings. The problem for
the commission derives from
the terms of the 2006 complaint
initiations. They all explicitly relate back to the investigation
under the 2005 complaint and
state that they were drawn as a
consequence of that investigation. In other words, the 2006
complaints were the direct consequence
of an invalid complaints
procedure. Without the invalid complaint initiation and subsequent
investigation these complaints against
the appellants would not have
seen the light of day. It follows that by applying the approach in
Pretoria Portland
Cement
5
the consequent referral should have been set aside, unfortunate as
the result might be in the circumstances.
CONCLUSION
[44] It follows from this that the appeal should be
upheld and that the 2006 complaints and the subsequent referral to
the tribunal
should be set aside. The relief granted by the tribunal
in relation to the summonses has in a sense become moot but will for
the
sake of clarity be retained. The same applies to the
clarification order of the CAC. It is not necessary to deal with
Woodland’s
separate attack in relation to the fifth complaint.
[45] The commission, in its heads of argument, raised
the issue of waiver but did not address it during oral argument. The
issue
was dealt with in some detail by both the tribunal and the CAC
and there is no reason to revisit the matter. The commission also
complained about what it called the delaying tactics of the parties
cited in the referral. Although one has to agree that such
tactics
are to be deprecated and that tribunals and courts should take a
strong stand where feasible, it is not possible to dismiss
a valid
complaint of this nature merely because of delay.
[46] There did not appear to be any disagreement between
the parties that the result should determine costs, also in relation
to
the proceedings before the tribunal, and that the costs of two
counsel should be allowed. The appellants sought costs of a third
counsel and costs on the scale as between attorney and client. There
is no justification for such an order.
THE ORDER
[47] The following order is made:
1. The appeal is upheld with costs.
2. The order of the Competition Appeal Court is set
aside and replaced with an order in the following terms:
The appeal against the order of the Competition
Tribunal of 17 March 2009 is upheld with costs and the cross-appeal
is dismissed
with costs.
Paragraphs 2 to 8 of that order are set aside and
replaced with an order in the following terms:
The complaints initiated by the Competition
Commission against the applicants during 2006 are set aside.
The referral of those complaints on 7 December 2006
by the Competition Commission to the Competition Tribunal is set
aside.
The Competition Commission is directed to return
forthwith to the applicants all documents and copies thereof in
its or its
legal representatives’ possession and control
procured from the applicants together with transcripts of the
interrogations
of Dr Kleynhans, Mr Gush and Mr Fick, including the
documents attached to affidavits included in the papers filed by
the
Competition Commission before the Competition Tribunal in the
main proceedings.
The Competition Commission is to pay the costs of the
proceedings.
3. All costs orders include the costs of two counsel.
_____________________
L T C Harms
Deputy President
APPEARANCES
APPELLANT/S J J Gauntlett SC (with him R G Buchanan SC
and F B Pelser)
Instructed by: Rushmere Noach Inc, Port Elizabeth
Webbers Attorneys, Bloemfontein
RESPONDENT/S: A R Bhana SC (with him A J Coetzee and T
Dalrymple)
Instructed by Knowles Husain Lindsay Inc, Sandton
McIntyre & Van der Post, Bloemfontein
1
Clover Industries Ltd v Competition
Commission; Ladismith Cheese (Pty) Ltd v Competition Commission
CAC cases 78/CAC/Jul08 and 81/CAC/Jul08 paras 9 and 12.
2
Sappi Fine Paper (Pty) Ltd v Competition
Commission of SA and Papercor CC
23/CAC/SEP02 para 35 and 39.
3
The order of the CAC included the setting aside
of a summons concerning one Gush. This part of the order is not
subject of the
appeal and need not be considered but has to be
reflected in the ultimate order to the extent that the order of the
CAC is not
in issue.
4
Glaxo Wellcome (Pty) Ltd v National
Association of Pharmaceutical Wholesalers
15/CAC/Feb02.
5
Pretoria Portland Cement Co Ltd v Competition Commission
2003
(2) SA 385
(SCA) paras 71-73.