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[2022] ZACAC 12
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Giwusa and Another v Milco SA (Pty) Ltd and Others (184/CAC/May20; LM263Mar19) [2022] ZACAC 12; [2023] 1 CPLR 4 (CAC) (4 November 2022)
IN
THE
COMPETITION
APPEAL
COURT
OF
SOUTH
AFRICA
CAC
Case No: 184/CAC/May20
TRIBUNAL
Case No: LM263Mar19
In
the matter between:
GIWUSA
FIRST
APPLICANT
FAWU
SECOND
APPLICANT
and
MILCO
SA (PTY) LTD
FIRST
RESPONDENT
CLOVER
INDUSTRIES LTD SECOND
RESPONDENT
COMPETITION
TRIBUNAL OF SA THIRD
RESPONDENT
ORDER
'The
application is dismissed with each party to pay its own costs'.
JUDGMENT
Poyo
Dlwati AJA
[l]
GIWUSA and FAWU (the applicants), being trade unions registered in
terms of the
Labour Relations Act 66 of 1995
, seek an order reviewing
and setting aside the Competition Tribunal's decision of 25 September
2019 approving the merger of Miko
SA (Pty) Ltd and Clover Industries
Ltd. They seek that the matter be remitted back to the Tribunal in
order for it to consider
various issues raised by the applicants. The
applicants also seek condonation for the late filing of this
application.
[2]
On 25 September 2019 the Competition
Tribunal of South Africa (the Tribunal) conditionally approved the
merger between Milco SA
(Pty) Ltd (the first respondent) and Clover
Industries Ltd (the second respondent)
in
terms of s 16(2)(b) of the Competition
Act
89 of 1998 (the Act). A merger certificate in terms of Competition
Tribunal Rule 35(5)(a) was also issued. The merger was implemented
on
14 October 2019. The reasons for the order were issued on 22 January
2020.
[3]
On 14 May 2020, the applicants who had
opposed the merger for various reasons, launched this review
application. Their grounds of
review are that the Tribunal did not
consider the objections they raised prior to the merger approval as
no reasons were provided
for the dismissal of their objections. They
contended that the decision to approve the merger on the face of
their objections was
irrational and not a decision of a reasonable
decision maker. They contended that the decision was procedurally
unfair, unreasonable
and violated the standards for just
administrative action contained in the Constitution.
[4]
The
applicants further submitted that the Tribunal erred in its finding
that the first respondent's holding company's violations
of
international law by operating in illegally occupied Palestinian
territories fell outside its adjudication jurisdiction. In
their
view, the Tribunal was duty bound to deal with the issue and allow
the applicants to bring evidence in support of their contentions.
Thus, the Tribunal failed to considers 1(2) of the Act
[1]
ands
232 of the Constitution
which
states that 'customary international law is law in the Republic
unless it is inconsistent
with
the Constitution or an Act of Parliament'.
[5]
In their submissions concerning the
condonation
for
the late filing of the application, the applicants averred that their
first contact with their attorney was at the end of October
2019.
There is no explanation as to why this was the case and what the
cause of the delay in contacting their attorney was. According
to the
applicants, their attorney conducted research and contacted the
Tribunal on 19 November 2019 and requested a full record
of the
proceedings. The record of the proceedings was received by the
applicants on 9 January 2020. On 27 January 2020, the applicants'
attorney tried securing the services of counsel. A consultation was
held with counsel on 10 March 2020 and the papers were drafted.
This
was a delay of another month on the applicants' side which was not
explained. The founding affidavit was commissioned
on 11 May 2020. There is no explanation for
the delay of two months between the consultation and having the
affidavit commissioned.
[6]
The
application for condonation appears in the notice of motion dated 13
May 2022. There is no full and reasonable explanation provided
by the
applicants covering
the
entire
period
of
the
delay
which
amounts
to
approximately
four
months.
As
held
in
Grootboom
v
National
Prosecuting
Authority
and
Another
[2]
an
application for condonation is not for the mere asking. An applicant
seeking condonation is required to explain the entire period
of the
delay and the explanation given must be reasonable.
[3]
It is not sufficient for an applicant to set out a 'number of
generalised causes without any attempt to relate them to the
time-frame
of its default or to enlighten the court as to the
materiality and effectiveness of any steps taken by the applicants'
legal
representatives to achieve compliance with the rules of
the
court at the earliest reasonable opportunity
[4]
'.
[7]
Rule
23(2)(
b)
of
this
court
contemplates
a
review
being
filed
within
15 business days after the date of the
decision or order that is the subject of the review. The applicants
have failed to provide
a detailed and comprehensive explanation as to
why there was non-compliance with this rule. Furthermore, the
applicants only filed
a non-confidential version of the record on 22
December 2020. There is no explanation for this seven months delay.
There was nothing
further from the applicants for almost 14 months
thereafter until the Registrar of this court enquired from the
applicants as to
whether they were still pursuing the application
or
whether
it
could
be
accepted
that the application
was
withdrawn.
It was only then that further action seemed to have taken place
culminating in the matter being set down for hearing.
[8]
The
issues
for
determination
by
this
court
therefore are:
(a)
whether
the
applicants
ought
to
be condoned
for
the
late filing of their application; and
(b)
whether
the
Tribunal
dealt
with
all
the
issues/objections
raised
by
the applicants in its reasons of 22 January
2020.
[9]
Adv
Desai,
who
appeared
pro bono
on
behalf of the applicants, submitted that the applicants raised
constitutional issues which
is
of public interest and that as they have good prospects of success,
condonation ought to be granted. He submitted
that
the
Tribunal
committed
an error
of
law when
it
disavowed
itself
of the jurisdiction to deal with the matter. He submitted that the
prejudice to be suffered by the respondents if condonation
is granted
is outweighed by the commercial interest in the matter and the effect
the decision would have on the country if it remained
unchallenged.
[10]
Adv
Wilson
SC
on
behalf of the respondents submitted that the delay was inexcusable
and that the applicants had not shown good cause for the delay,
especially when regard is had of the fact that merger proceedings are
by nature urgent. He referred this court to
Ethos
Private Equity Fund IV v Tsebo Outsourcing Group (Pty) Ltd
[5]
where
it was held that consideration of legal certainty in merger control
and the need for an approach to merger control that accords
with
economic and commercial
reality
must
be
adhered
to.
[11]
Furthermore,
it was submitted on behalf of the respondents that one of the parties
in the merger, the second respondent, had since
been liquidated.
Under such circumstances, so went the submission, the interests of
justice did not justify granting the condonation
sought.
[6]
[12]
One
of the factors to
be
taken into account in an application
for
condonation
is
the prospects of success.
[7]
However,
as held in
Madinda
v Ministerof Safety and Security
[8]
,
good
cause usually comprehends the prospects of success on the merits of a
case, for obvious reasons... The court must decide whether
the
applicant has produced acceptable reasons for nullifying, in whole,
or at least substantially, any culpability on his or her
part which
attaches to the delay in serving the notice timeously.
[13]
In
Darries
v Sheriff, Magistrate's Court, Wynberg and Another
[9]
Plewman
JA held that where non- observance of the Rules has been flagrant and
gross an application for condonation should not be
granted, whatever
the prospects of success might be. In my view, this court need not
even consider the prospects of success as
prejudice to be caused to
the respondents due to delays in launching this application far
outweighs the applicants' prospects.
To grant condonation after such
an inordinate delay and in the absence of a reasonable explanation,
would undermine the principle
of finality and cannot be in the
interest of justice
[10]
.
Accordingly, the application for condonation
must
fail.
[14]
During
argument, submissions were made from the bar that the applicants
relied on
pro
bona
services
in pursuing this application and therefore ought not be mulcted with
the costs if they were unsuccessful. The applicants'
application
raised genuine constitutional issues albeit hopelessly out of time
and for that reason their application cannot be
labelled as frivolous
or vexatious or manifestly inappropriate.
[11]
The applicants sought to assert a constitutional right on behalf of
their members and sought to make the Tribunal accountable for
its
decision. In such circumstances, the appropriate costs order will be
the one of each party to bear its own costs.
Order
[15]
Accordingly, I make the following order:
'The application is
dismissed
with each party
APPEARANCES
Date
of Hearing: 18
October 2022
Date
of Judgment: 4
November 2022
Counsel
for Appellant : Adv
Mohammed Desai
Instructed
by: Yousha
Tayob Attorney·
Counsel
for Respondent: Adv
Jerome Wilson SC
Instructed
by: Herbert
Smith Freehills South Africa
[1]
Section
I(2)
of
the
Act
reads:
'(2)
This Act must be interpreted -
(a)
in
a
manner
that
is
consistent
with
the
Constitution
and
gives effect
to
the purposes
set
out
in
section 2; and
(b)
in compliance with the international
law obligations of the Republic.'
[2]
Grootboom
v National Prosecuting Authority and Another
2014
(2) SA 68
(CC) para 23.
[3]
Van
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
Amicus Curiae)
[2007] ZACC 24
;
2008
(2) SA 472
(CC) para 22.
[4]
Uitenhage
Transitional local Council v South African Revenue Services
2004
(I)
SA
292 SCA para 7
[5]
Ethos
Privale
Equily Fund IVv Tsebo Outsourcing Group (Ply) ltd
(30/LM/Jun03)
[2003] ZACT 51(3 October 2003).
[6]
Brummer
v Gorjil Brothers lnvestmenls (Ply)
lid
and
Others
[2000] ZACC 3
;
2000
(2) SA 837
(CC) para 3.
[7]
Van
Wyk v Unitas
Hospilaf
para
20 and
eThekwini
Municipality v lngonyama Trust
2014
(3) SA 240
(CC) para 25.
[8]
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
2008
(4) SA 312
SCA para 12
[9]
Darries
v Sheriff, Magistrate's Court, Wynberg and Another
1998
(3) 34 SCA at 41D
[10]
See
Van
Wyk
above
para 31
[11]
Biowatch
Trust v Registrar, Genetic Resources and Others
2009
(6) SA 232
(CC) para 24.