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[2022] ZACAC 2
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Competition Commission v Interaction Market Services Holdings (Pty) Ltd In re: Interaction Market Services v Competition Commission (193/CAC/Jun21) [2022] ZACAC 2; [2022] 1 CPLR 1 (CAC) (25 March 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE
COMPETITION APPEAL COURT OF SOUTH
AFRICA
OF SOUTH AFRICA
HELD
IN CAPE TOWN
CAC
CASE NO:
193/CAC/Jun21
REPORTABLE:
OF
INTEREST TO OTHER JUDGES:
REVISED.
NO
DATE:
25 March
2022
In
the matter between:
THE
COMPETITION COMMISSION
Appellant
And
INTERACTION
MARKET SERVICES HOLDINGS (PTY) LTD
Respondent
In
re:
Exception Application
INTERACTION
MARKET SERVICES
Applicant
And
THE
COMPETITION COMMISSION
Respondent
JUDGMENT
SIWENDU
AJA
Introduction
[1]
The contentions in this appeal are whether in prosecuting a complaint
under
section 4(1)(b)(i)
Competition Act No
89 of 1998
(the Act), it is incumbent on the
Competition Commission (Commission)
to
plead a detailed market definition and define the geographical
markets where the alleged contravention occurred. The Court
is
also asked to determine whether it is essential for the Commission to
provide (1) details of the value chain where the contravention
happened in the relationship between the respondents; and set out (2)
the manner and extent to which the alleged contravention
had an
effect on competition in any relevant market.
[2]
A determination of t
he above contentions has a bearing on the
Commission’s ability to progress the prosecution of a complaint
it brought
against
fifteen respondents
including Interaction Market Services Holdings (Pty) Ltd (IMSA). IMSA
is a voluntary association in which the
respondents are members.
[3]
The Commission claims that the respondents were agents of South
African farmers and acted
as intermediaries between buyers and
farmers to sell fresh fruit and vegetables at various markets
throughout the country. It
alleges that the respondents agreed
and/or engaged in a concerted practice
[1]
to fix the base commission charged to farmers for selling the fresh
produce.
[4]
The Commission alleges that IMSA enforced the prohibited practice
directly through
its structures. It alleges further that of
approximately 97 agents, 60 are members of IMSA including the
respondents.
The appeal emanates from two
successive exceptions
raised by IMSA and other respondents
against the Commission’s referral complaint.
[5]
After hearing the first exception, the Competition Tribunal
(Tribunal) upheld it and
ordered the Commission to file a
supplementary affidavit to cure certain defects it found in the
referral complaint. IMSA
raised a second exception
notwithstanding the
supplementary
affidavit filed by the Commission on 30 November 2018 to cure the
defects. Following a second hearing, the Tribunal
[2]
issued an
order
[3]
directing a further supplementation. O
n
26 May 2021 the Tribunal furnished its reasons for
upholding
the second
exception.
[6]
The Commission challenges the orders by the
Tribunal
on account that the Tribunal erred. It contends
that the Tribunal’s decision is
dispositive
of the question whether or not the Commission can prosecute its case
without first defining the relevant market.
A further
compelling argument made before us is that, in
imposing
the erroneous requirements, the case would be decided on an incorrect
formulation of the Commission’s cause of action
and the law. If
left unchallenged, the broader consequence, is that in prosecuting
cartels, the Commission will be bound to first
conduct a market
definition exercise and provide evidence of anti-competitive effects
where such an exercise is not required in
law.
[7]
Consequently, the Commission seeks an order declaring that it
has substantially complied with Tribunal Rule 15(2).
Background
[8]
In October 2017, the Commission referred a complaint to the Tribunal,
for an order
declaring that the respondents breached section
4(1)(b)(i) of the Act and were liable to pay the administrative
penalty prescribed
in section 58(1)(a)(iii) read with section 59(2)
of the Act.
[9]
Various respondents namely, Botha Roodt (Pretoria), IMSA, and DW
Fresh Produce CC
first excepted to the referral complaint, contending
that the allegations against them were unsubstantiated and were
pleaded in
overbroad and imprecise terms inconsistent with Tribunal
Rule 15(2).
Part of t
heir
complaint was that
the case against them was not cognisable
under section 4(1)(b)(i) of the Act because the
Commission
had not alleged facts to show:
·
cooperation and or coordination which
replaced their independent action amongst the respondents;
·
competitor contact leading to the concerted
practice;
·
concerted interdependent action in a
co-operative and co-ordinated way with other respondents amongst
others.
[10]
The respondents complained further that when they sought particulars
and facts of the collusive
agreement alleged, the Commission first
declined to provide the particulars.
[11]
It is not necessary to rehearse the grounds already dealt with in the
first exception, save to
point out that, after the first hearing, on
7 November 2018, as already alluded to above,
the
Tribunal
upheld the exception and
ordered
the Commission to set out:
·
the manner in which
section 4(1)(b)(i)
of the
Competition Act 89 of
1998
had been contravened;
·
The relevant market(s);
·
The geographical markets(s) in
which this contravention took place;
·
Full detail of the agreement and
how it was enforced;
·
The manner and extent that this
alleged contravention has on
competition in any relevant market
[12]
The Commission complied and filed a supplementary affidavit by Mr
Ramoshaba on 30 November 2018.
[13]
Dissatisfied with the supplementary affidavit, IMSA and the fifth
respondent
[4]
raised a second
exception, picking apart with granularity, the supplementary
affidavit. I deal only with those aspects of the exception
vital to
this judgment.
[14]
IMSA contended that the referral complaint fell short of the specific
guidance by the Tribunal
in the first order, as well as
Rule 15(2)
and that it did not disclose a cause of action under section 4(1)(b)
of the Act. It stated for a second time that; the Commission’s
reliance on an agreement and/ or concerted practice caused confusion
as it was not clear whether the Commission relied
on the agreement and/or concerted practice or whether it was relying
on the same
evidence to allege both contraventions.
It
asserted that rather than cure the defects, the supplementary
affidavit exacerbated them.
[15]
IMSA held the view which found favour with the Tribunal; that it was
obligatory for the Commission
to disclose facts supporting
allegations of
either
an agreement
or
a concerted
practice, and, in the absence of facts supporting either of the two
allegations, the Commission was obliged to state
at the early stage
of pleading whether its complaint was based on an inference.
[16]
Furthermore, IMSA held the notion that the Commission ought to have
pleaded material facts establishing
the relevant markets and/or the
geographic markets as well as facts pertaining to the respondent’s
horizontal relationship
in order to pass muster under section 4(1)(b)
of the Act. It contended that a reference to “
fresh produce
market
” throughout the country was inadequate, and that
unless self-evident, the Commission was obliged to plead why it
defined
the markets alleged. IMSA applied the same reasoning to the
allegations of the concerted practice.
[17]
Additionally, IMSA took issue with the allegations about the “
fixed
commission
” charge as well as the allegations of its role
in enforcing the agreement, complaining that there were no facts
pleaded supporting
allegations of its enforcement role rendering the
allegations obscure, vague and ambiguous.
[18]
Despite acknowledging that there had been compliance with aspects of
its first order, the
Tribunal upheld the exception on the
grounds that the Commission had not done so with
“
precision.”
[5]
T
he
Tribunal reasoned based on
Netstar
v Competition Commission
[6]
that the Commission must plead either an agreement or a concerted
practice. Persuaded by IMSA’s argument, it held that the
Commission must provide details of the facts supporting each of the
impugned practices, failing which it must state whether the
facts are
to be inferred
.
[19]
Even though the Tribunal accepted that the Commission had properly
defined the market, it nonetheless
ordered
the
Commission to provide:
·
Specific facts regarding the alleged
agreement to fix the base
commission charged – in particular, details of when, where, how
and by whom was the agreement reached.
Failing which, indicate if the
agreement is to be inferred from other facts.
·
Whether or not it relies on the
same facts to allege the agreement as
it does the concerted practice, if it relied on different facts for
each element, indicate
which facts relate to the alleged agreement
and which facts relate to the concerted practice.
·
To the extent that the Commission
alleged the agents were in a
horizontal relationship, to assist the respondents understand where
the horizontal relationship was,
describe the value chain more fully,
and indicate where in the value chain the alleged horizontal
relationship between the respondents
and what services were at issue.
·
The geographic markets where price fixing occurred.
·
In so far as the alleged agreement by IMSA to fix base
(9.5% cap price for produce delivered without pellets) commission
charged
at 9.5% for produce delivered without pellets, the Commission
was to (1) clarify whether its case was that the capped price was
indeed charged to farmers during the relevant complaint period; and
(2) explain how this agreed maximum commission price cap when
charged
by competitors had negative consequences for competition.
[20]
A weighty part of the Commission’s complaint is
that
the decision of the Tribunal
conflicts with established
authority and principles governing exceptions.
Issues
for determination
[21]
We determine whether the Tribunal’s order is correct - in
particular whether in a case
of a contravention under s 4(1) (b), it
is incumbent on the Commission to supplement its referral complaint
and furnish the respondents
with (1) particulars of an agreement
and/or a concerted practice, (2) the market definition, their
geography, (3) the value chain
where the price fixing conduct
occurred in the horizontal relationship alleged as well as (4) the
anti-competitive effects of the
impugned conduct.
[22]
The Court is indebted to Counsel for the Commission for the able
assistance and for the concise
Heads of Argument which were of
valuable assistance to the Court. It is essential to state at the
outset that the Commission sufficiently
explained the horizontal
nature of the relationship between the respondents in its
supplementary affidavit. As argued by the Commission,
n
either
the language of the act nor the logic of how the section operates
requires that there be allegations that the respondents
operate in
the same geographical market in order to be considered competitors.
That point
need not be belaboured here. Rather, I deal
with the more contentious grounds for the complaint simultaneously
with submissions
made by the Commission.
[23]
For efficacy, the sequence followed in this judgment is to consider
the legal questions first
and determine whether the Tribunal’s
order is as envisaged by the Act. Thereafter, I evaluate the facts
alleged in the referral
complaint together with those facts alleged
in the supplementary affidavit and consider whether the Commission
complied with Tribunal
Rule 15(2).
Applicable
Principles and Submissions
[24]
Competition Tribunal
Rule 15(2) stipulates
that:
Subject to Rule 24(1), a
Complaint Referral must be supported by an affidavit setting out in
numbered paragraphs –
(a)
A concise statement of the grounds of the complaint; and
(b)
the material facts or points of law relevant to the complaint and
relied on by the Commission
or complainant, as the case may be
While
the framing of this rule is not dissimilar from Uniform Rule 18(4) of
the High Court,
[7]
the p
leadings
in the High Court motion proceedings differ from
proceedings
before the Tribunal.
[8]
The
Tribunal may adopt a more flexible approach to pleadings than is the
practice in the High Court.
[25]
Secondly, Section 37(1)(b) of the Act permits this Court to entertain
appeals in respect of:
(ii) any of its interim
or interlocutory decisions that may, in terms of this Act, be taken
on appeal.
[26]
There is no
quarrel with the principle that if the Commission relied on an
agreement, then
proof
of consensus to meet the statutory definition of an “
agreement”
would be required
.
Similarly,
in so far as the “
concerted
practice”
alleged, proof of a
co-operative or
co-ordinated conduct would be required.
[27]
To
structure the case advanced in the appeal, Mr Ngcukaitobi SC (for the
Commission) pointed to the
sui
generis
and
inquisitorial in nature
[9]
of Tribunal proceedings. They differ from the adversarial nature of
the proceedings before the High Court. He argued as observed
by
the Tribunal in
Competition
Commission of South Africa and Others and United South African
Pharmacies and Others,
that
unlike in the High Court, the aim of the proceedings is to
vindicate public interest.
[10]
[28]
Referring to the Tribunal’s decision in
Invensys
PLC
and Others v Protea technology (Pty) Ltd and Others
[11]
he argued that the Tribunal’s proceedings involve an
intersection of law and economics, often requiring complex economic
analysis of the facts to advance a theory of harm. Moreover, the
Tribunal has repeatedly articulated the guiding principle to the
determination of exceptions as one of fairness. Indeed, t
he
Tribunal enjoys flexible powers including the power to order an
amendment to the referral complaint
[12]
and the
powers
to direct the proceedings and call witnesses.
Therefore
i
t
is not uncommon to subject a complaint referral to more than one
iteration.
[13]
It
follows that
the
approach to the assessment of the prejudice an excipient will suffer
must vary.
[29]
While
there is consensus in the judgments between the Tribunal and the
CAC
[14]
that
an
“
agreement”
and “
a
concerted practice
”
differ, t
he
two causes of action are not always mutually exclusive or
inconsistent. T
he
CAC underscored that in many cases, the same evidence may be relied
upon as pointing either towards an agreement or a concerted
practice.
[30]
A pertinent c
ontrasting feature is
that the observations by the CAC in
Netstar
were made after all the evidence had been led. I find that by
requiring the Commission to plead upfront facts supporting either
of
the two forms of the prohibited practices, in particular the order to
state what inferences the Commission relied on, before
evidence is
led the Tribunal erred.
[31]
Firstly, the Tribunal ought to have properly delineated what the
Commission may allege during
the complaint referral stage from what
the Commission was required to prove at the hearing stage.
Secondly, in my view, it
inadvertently shoehorned the
Commission to a premature election about its case before all the
evidence was led and assessed. Ultimately,
whether there was
undeniably an agreement or a concerted practice on the one hand, or
whether this was to be inferred from the
facts is a matter for
evidence.
[32]
The above approach is fortified by this Court’s view in
Aranda
Textiles Mills and Another v The Competition Commission.
[15]
After conducting an extensive review of authorities here and abroad,
the Court considered the role and application of inferential
reasoning in cartel cases. The Court reasoned that in the prosecution
of cartel conduct, at best, a combination of direct and
circumstantial evidence may be necessary. At worst, circumstantial
evidence may be all that is available to prove cartel conduct.
The
court’s duty is to assess all the evidence holistically.
Logically, it follows that such inferences can only be drawn
from
proven facts at the hearing.
[33]
What is more is that, it is
permissible for the Commission to
plead its case in the alternative, and
allege a
prohibited practice based on the same facts
in terms of
Tribunal Rule 15(3). The effect of the Tribunal’s order is to
deprive the Commission of the right to do so. It
would be manifestly
unfair to dismiss the Commission’s case on account of
particulars which are a matter for evidence.
Netstar
does not
find application in the circumstances of the current case.
[34]
Turning to the Tribunal’s order for additional information
about the definition of market,
allied with the order to provide
details of the anti-competitive effects of the price fixing conduct
alleged, I agree that the
Commission
does not allege with any measure of detail, what the effect of the
price fixing allegations were on the price consumers
paid for fresh
produce, whether
directly
and/ or indirectly.
[35]
Mr
Ngcukaitobi SC pointed the Court to various authorities.
In
Competition
Commission v Pioneer Foods (Pty)
Ltd,
[16]
the Tribunal had this to say about
anti-competitive
conduct under section 4(1)(b):
“
In
South Africa, price fixing agreements and agreements to divide
markets between competitors are considered to be the most egregious
offences under the
Competition Act. It
is for this reason that the
South African legislature has sought to create a per se offence
under
section 4(1)(b)
and has recently introduced an amendment to the
Competition Act which
intends to create criminal liability for
persons participating in cartel activity.”
[36]
Locating
the
import of
section 4(1)(b)
, he argued that the Supreme Court of
Appeal in
American
Natural Soda Ash Corp v Competition Commission,
[17]
a
decision which predated Pioneer, stated as follows:
“
It
is clear from its juxtaposition with
s 4(1)(a)
that
s 4(1)(b)
is
aimed at imposing a ‘per se’ prohibition: one, in other
words, in which the efficiency defence expressly contemplated
by
sub-para (a) cannot be raised. The reason for the blunt terms of
sub-para (b) is plain. Price-fixing is inimical to economic
competition, and has no place in a sound economy. Adopting the
language of United States anti-trust law, price-fixing is
anti-competitive per
se. All countries with laws protecting
economic competition prohibit the practice without more. The fact
that price-fixing has
occurred is by itself sufficient to brand it
incapable of redemption.
[37]
He
further contends t
h
at
th
e
section does not make a reference to: (a) efficiency or
pro-competitive outcomes of an agreement or a concerted practice, or
(b) implementation or effects of an agreement or concerted
practice
.
[18]
Significantly, in
Pioneer
Foods (Pty)
Ltd,
[19]
the Tribunal, alluding to the decision in
American
Soda Ash Corporation and Another v Competition Commission and
Others
[20]
had
this to say:
“
Section
4(1)(b)
, as opposed to
section 4(1)(a)
defines the prohibited
practices by reference to whether or not an agreement contains one or
more features set out in the sub-sections
of 4(1)(b) rather than by
reference to their effect in a relevant market.
Section 4(1)(b)
constitutes an offence for which no justification grounds are
admissible. Once the Tribunal has found that an agreement or
concerted
practice between or among competitors exists as
contemplated in
section 4(1)(b)
that is the end of the matter. There
is no further enquiry as to the effect of the conduct on the market
or whether it was justified
or not. This approach is confirmed by the
Competition Appeal Court and by the Supreme Court of Appeal.”
[38]
The Court has no quibble with these authorities or line of argument
save to point out that the
decisions fortify the conclusion that
these questions are best determined after all the evidence had been
led. The Tribunal erred
on this account.
Was
there substantial compliance with Tribunal
Rule 15(2)?
[39]
It behoves that I now examine whether the supplementary affidavit
substantially complies with
Tribunal
Rule 15(2)
in light of the
Tribunal’s assessment that the Commission disclosed “
the
bare minimum”
and has not done so “
with
precision.
”
[40]
An appraisal of the supplementary affidavit, shows that it sets out
the regulatory history of
the fresh produce market, and the basis of
Commission’s complaint. The Commission states that the fruit
and vegetable market
was regulated by Fresh Produce Markets Act, 1970
(Act No 82 of 1970). Even though the Act did not prescribe applicable
tariffs
and/or commission, it authorised the Minister to set the
tariffs or commission from time to time.
[41]
The regulation of the fresh vegetable and fruit produce market ceased
in 1992 when it was repealed
by the Agricultural Produce Agents Act
No 12 of 1992. The Commission asserts that despite the deregulation,
and, irrespective of
their respective location in the country, the
respondents continued to charge the same commission in the same
manner that applied
during the regulation period. It also claims that
the respondents have a presence in multiple fresh produce markets and
the practice
of charging the same base commission does not vary from
market to market.
[42]
In addition to the above, the Commission complains that the practice
of charging the same base
commission was not a unilateral decision by
the respective agents. IMSA, an association in which the respondents
are members, communicates
what the base commission should be, and
encourages them to charge a commission not below a certain base price
for particular types
of fresh produce through its structures. It
claims the respondents do not deviate from the base commission set by
IMSA.
[43]
The maximum commission was set at 9.5% for fresh produce delivered
without pallets. It has set
the commission for categories of produce
as follows:
·
5% for potatoes and onions
·
7.5% for all other fruits and
vegetables, and
·
7.5% for all other fruits and
vegetables delivered to the Respondent
by farmers without pallets
[44]
The Commission alleges that members of IMSA, acting under the
auspices of the association
agreed
to fix the commission they
charge,
alternatively
engaged in a concerted practice to fix
the Commission. The Commission further clarified that the respondents
engaged in a single
concerted practice and/ or entered into an
agreement to charge the same base commission, a conduct which could
only have been sustained
if the participants had agreed,
alternatively they knew of the co-ordinated practice and associated
themselves with it. The compulsory
percentages for each category of
vegetable or fruit could not be clearer. No further particularity is
required.
[45]
A trite principle governing the adjudication of an exception is that
allegations of fact by a
complainant must be accepted as true. In
this instance, the Tribunal accepted the role of the respondents as
fresh produce market
agents and intermediaries between farmers and
buyers. As already alluded to above, it also accepted the horizontal
relationship
between them given that
they
are in the same line of business.
It also accepted that
the respondents were members of IMSA.
[46]
Turning to the level of particularity required in the referral
complaint,
the
Tribunal altered the applicable test requiring a degree of
“
precision
.”
Yet, in
Paramount
Mills (Pty) Ltd v Competition Commission
[21]
this
Court held that:
“
a
party against whom a complaint has been lodged is clearly entitled to
sufficient information to determine the nature of the prohibited
practice
”
, however “the enquiry
as to the requisite level of understanding should not be sourced in
the principles which apply to the
nature of adversarial proceedings
employed in a civil case.”
[47]
I agree with the submission that the purpose of the exception is not
to scrutinise pleadings
for every flaw and imperfection.
[22]
It is not about the granularity of the facts alleged. The affidavit
must contain sufficient “
concise
statements
”
of the grounds relied upon and “
material
facts or point of law”
relied
upon. The same applies to answering affidavits. Not all facts pleaded
must be answered either, but only those facts that
are material to
the grounds of the referral must be answered.
[48]
I find that the Commission sufficiently pleaded its case in the
referral complaint read with
the supplementary affidavit and has
substantially complied with Rule 15(2). There is no prejudice
to the respondents.
Conclusion
[49]
There is compelling merit in the appeal. The effect of the decision
of the Tribunal contradicts
established jurisprudence of this Court.
The orders place the cart before the horse. Their import has
negative implications
for future prosecution of cartel conduct. The
decision and order falls to be set aside.
Accordingly,
I make the following order:
a.
The appeal is upheld.
b.
The decision and order of the Tribunal is
set aside.
c.
The respondent is directed to file its
answering affidavit within 10 days of this judgment.
d.
There is no order as to costs.
This
judgment was handed down electronically by circulation to the
parties’ and/or parties’ representatives by email
and by
being uploaded to CaseLines. The date and time for hand-down is
deemed to be 10h00 on 25 March 2022
.
________________
T
SIWENDU AJA
I
concur
M
VICTOR JA
pp.
I
concur
T
POYO DLWATI AJA
pp.
Counsel
for the Commission: Mr Ngcukaitobi SC
With
him: Mr Mehluli
Nxumalo
Instructed
by: Ndabanzaba Attorneys Inc
Heard
on: 31 January 2022
Delivered
on: 25 March 2022
[1]
A
“
concerted
practice” means co-operative or coordinated conduct between
firms, achieved through direct or indirect contact,
that replaces
their independent action, but which does not amount to an agreement.
[2]
CT Case No CR191OCT17/EXC248JAN19.
[3]
The second exception was heard on 31 October 2019 and the order was
issued on 27 November 2019.
[4]
The
fifth
respondent was a party, but later withdrew from the proceedings.
[5]
C
ase
number CR1910ct17/Exc248Jan19 para 49.
[6]
2011 (3) SA 171
(CAC) para 25.
[7]
18
(4) Every pleading shall contain a clear and concise statement of
the material facts upon which the pleader relies for his
claim,
defence or answer to any pleading, as the case may be, with
sufficient particularity to enable the opposite party to reply
thereto.
Facts
and not evidence must be pleaded.
[8]
Competition
Commission of South Africa v Arcelor Mittal South Africa Limited and
Others
[2013] All SA 234
(SCA) para 37.
[9]
Section
52(2)
of the
Competition Act, states
that subject to subsections (3)
and (4), the Competition Tribunal- (a) must conduct its hearings in
public, as expeditiously
as possible, and in accordance with the
principles of natural justice; and (b) may conduct its hearings
informally or in an inquisitorial
manner;
See
also
Competition Commission of South
Africa and Others and United South African Pharmacies and Others
(04/CR/Jan02)
[2003] ZACT 4
(22 January 2003) and
Global
v the Competition Commission, Botswana Ash (Pty) Ltd and Chemserve
Technical Products
.
[10]
(04/CR/Jan02)
[2003] ZACT 4
(22 January 2003).
[11]
(31/IR/Apr11)
[2012] ZACT 97
(21 November 2012).
[12]
Competition
Commission v Bank Of America Merrill Lynch International Ltd And
Others
2020 (4) SA 105 (CAC).
[13]
BAMLI
.
[15]
CAC
Case No: 190/CAC/Dec 20.
[16]
(15/CR/Feb07,
50/CR/May08)
[2010] ZACT 9
(3 February 2010)
Para
27.
[17]
[2005]
3 All SA 1
(SCA) (13 May 2005) para 37.
[18]
Section
4
(1)
states that - 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 - (b) it
involves any of the following restrictive horizontal practices:
(i)
directly or indirectly fixing a purchase or selling price or any
other trading condition.
[19]
Pioneer
Para 29.
[20]
[
2005] 1 CPLR 1
(SCA) at para 37.
[21]
(112/CAC/Sep11)
[2012] ZACAC 4
(27 July 2012) para 61
[22]
Living
Hands (Pty) Ltd and Another v Ditz and Other
2013 (2) SA 368
(GSJ)].