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[2019] ZACAC 5
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Competition Commission of South Africa v Pickfords Removals SA (Pty) Ltd (167/CAC/Jul18) [2019] ZACAC 5; [2020] 1 CPLR 55 (CAC) (3 April 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE COMPETITION APPEAL COURT OF SOUTH AFRICA
CAC
CASE NO:167/CAC/Jul18
CT
CASE NO: CR129SEP15
CC
CASE NO.: 2010NOV5447 AND 2011JUN0069
In
the appeal of:
THE
COMPETITION COMMISSION OF SOUTH
AFRICA
Appellant
and
PICKFORDS
REMOVALS SA (PTY)
LTD
Respondent
In
Re: The complaint referral between
PICKFORDS
REMOVALS (PTY)
LTD
First Respondent
JH
RETIEF TRANSPORT
CC
Second Respondent
SIFIKILE
TRANSPORT
CC
Third Respondent
CAPE
EXPRESS REMOVALS (PTY) LTD
Fourth Respondent
Judgment
Van
der Linde, AJA
:
[1]
This appeal primarily concerns the correct interpretation of s.67(1)
of the Competition Act 89 of 1998 ("the Act")
which
provides as follows:
[1]
"67.
Limitations of bringing action
(1)
A complaint in respect of a prohibited practice
may not be initiated more than three years after the practice has
ceased."
[2]
The appellant, in this case the Commission, appeals a decision of the
Competition Tribunal of 28 June 2018 in which it held
that the date
on which the appellant acquired knowledge of the date on which the
prohibited practice ceased, was not the trigger
event for the
commencement of the running of the three year period referred to in
s.67(1).
[3]
The Tribunal also held that the initiation statement of 1 June 2011
(which the appellant calls the
"the
second initiation")
was
not an amendment of the earlier initiation statement dated 3 November
2010 (which the appellant calls
"the
first initiation"),
and
that the second initiation was a self-standing initiation which
founded the counts in the pending referral against Pickfords,
the
respondent in the present appeal. The appellant also appeals this
finding.
[2]
[4]
The respondent was not included in the first initiation, but only in
the second. The second initiation asserted that the respondent
had
been Involved in 36 individual instances of collusive tendering
involving the provision of "cover quotes" to customers
in
respect of tenders for furniture removals offending s.4(1)(b}(i),
(ii) and (iii) of the Act. In 20 of these 36 instances, the
alleged
offending conduct had ceased more than three years before 1 June
2011.
[5]
The appellant referred the second initiation to the Tribunal on 11
September 2015, asserting a contravention of only s.4(1 )(b)(iii)
of
the Act. The Tribunal held, upon preliminary objection raised by the
respondent, that these 20 alleged contraventions had been
time-barred
by virtue of s.67(1).
[6]
The appellant submits that s. 67(1) means that the three year
time-bar runs only from the date that the Commissioner or complainant
acquired knowledge of the prohibited practice. Alternatively, it
submits that the Tribunal has a discretion to exercise its powers
under the Act to condone non-compliance with the three-year time
period for a valid initiation as set out under s.67(1). During
oral
argument submissions took a different slant with the alternative
argument taking centre focus, with appellant's counsel seeking
to
persuade the court that the provision should be interpreted to be
procedural than substantive in nature, whilst the knowledge
issue was
no longer argued with as much force.
[7]
The appellant submits also that the second initiation was a mere
amendment of the first, and so the three year period, even
if it had
begun running already when the prohibited practice ceased - meaning
before the appellant had acquired knowledge of its
cessation, had not
yet expired by the time of the (relevant) first initiation.
[8]
The respondent's over-arching submission is that the language of
section 67(1) is incapable of sustaining the interpretation
advanced
by the appellant. The provision contains no language which could, on
the argument, conceivably refer to knowledge on the
part of the
Commissioner, and the knowledge requirement is at odds with the
measure which is prescribed, namely the cessation date.
[9]
The respondent contends that the first issue is whether the complaint
against it was initiated on 3 November 2010 (which it
calls
"the
2010 initiation")
or on 1 June 2011
("the 2011
initiation'').
It calls this issue
"the initiation
issue",
and contends here that the Tribunal correctly held
that the 2011 initiation was the relevant initiation, since it
described the
complaint differently from the 2010 initiation, and for
the first time included Pickfords. And the respondent contends that,
even
if the 2011 initiation merely amended the 2010 initiation, then
for the purposes of applying s.67(1) of the Act, the effective date
for the initiation of the complaint against the respondent was the
date of the 2011 initiation.
[10]
The parties both argued that there is a third issue, that of whether
the Tribunal has the power to condone the appellant's
failure to
initiate a complaint within three years after it has ceased. This
point became an issue because of the appellant's instance
that
s.67(1), property construed, contained a mere procedural time-bar,
non-compliance with which was therefore capable of being
condoned.
[11]
lt seems then that the appropriate sequence in which to address these
issues is to begin with the appropriate date of initiation
against
the respondent, then prescription and the knowledge point, and
finally the condonation point.
The
date of initiation
[12]
It is helpful to commence with some general observations concerning
the statutory background. Under s.49B(l) of the Act the
Commissioner
may
"initiate"
a
complaint against an alleged prohibited practice. The word
"initiate"
is not defined, and so
bears its ordinary meaning of causing
"(a
process or action) to begin".
[3]
In the context of the Act,
it impels an investigation into action, because under s.49B(3) the
Commissioner
"must",
upon
initiating
a complaint (or
receiving
a complaint), " ...
direct an inspector to
investigate the compliant as quickly as practicable."
Such
an inspector is an appointment under s.24 of the Act, and such an
investigation implies powers of search and seizure under
chapter 5
part B of the Act.
[4]
[13]
Chapter 2 of the Act deals with
"prohibited practices".
Two classes of practices are proscribed: restrictive horizontal
practices (s.4) and restrictive vertical practices (s.5). In both
instances the proscribed practice is an endeavour in which a
'1irm''
or
"party"
{these concepts are used
interchangeably) is engaged. It would follow that when a complaint is
initiated against a prohibited practice,
the Commissioner must have
in mind at least some of the firms or parties that are potentially
participants in that prohibited practice.
[14]
The reference to
"practices"
has relevance in this
appeal. The concept (or word) is not defined in the Act, but its
ordinary meaning includes
"the
customary or expected procedure or way of doing something".
[5]
This notion, of a degree of
ongoing conduct, is evident in the description of a restrictive
horizontal practice: either an agreement
(singular) or a decision
(singular) or a concerted practice, which either has a particular
"effect",
or
involves certain
"practices".
The notion of a
"concerted
practice"
is defined:
it means
"co-operative"
or
"co
ordinated conduct"
that
has particular features.
[15]
The point is that it would in my view be inappropriate, conceptually,
to break down a practice, or ongoing conduct, into its
constituent
single acts, and then to describe each of those individual instances
as a self-standing prohibited practice, be it
to determine whether a
complaint initiation is a fresh initiation or merely an amendment of
an earlier one, or be it to determine
whether a prohibited practice
has ceased. As we shall see below the parties and the Tribunal treat
the different agreements involved
in this case as each constituting a
separate, self-standing alleged prohibited horizontal practice.
[16]
This is not to say that the Commissioner may not, in the course of
investigations, come across more than one practice - say
groups of
practices - that all contravene the same prohibition. After all, both
s.4 and s.5 expressly envisage an activity which
groups together more
than one firm in a single, illegal bond. But there may - as a fact -
be a multitude of such groups in a particular
market.
[17]
ln this case the Commissioner expressly spelt out in the referral to
the Tribunal what his case against the respondent is.
His case is
that the respondent
"entered into
discrete bilateral collusive agreements with each of the other
(three) respondents."
In all, 37
separate agreements are alleged to have been entered into, one each
with Cape Express (Cape Express Removals (Pty) Ltd)
and Sifikle
(Sifikile Transport CC), and 35 with JH Retief (JH Retief Transport
CC), the three other respondents.
[18]
I revert below, in the context of discussing the cessation of a
prohibited practice for the purposes of s.67(1), to the respondent's
submission that some of these individual "counts" had
ceased more than three years before the Commissioner initiated
a
complaint against them. For now the examination does not go that far;
it is not concerned with the more substantive question
whether any
practice had ceased three years before initiation, but with the
earlier question of whether the second initiation is
an amendment of
the first.
[19]
The Commissioner's first complaint initiation is dated 3 November
2010. The prescribed covering form provides three blocks
that are
required to be completed: respectively the name of the
"person
submitting the complaint",
the name of the
"person
whose conduct is
the subject of the complaint", and a
"concise statement of the conduct that is the subject of
the complaint."
The Commissioner is the person entered in
the first block, the eight firms are listed in the second block (the
respondent is not
one of these), and the third block contains this
description:
"The respondents,
who are all in the business of furniture removal, are alleged to have
contravened section 4(1)(b)(i), (ii)
and (iii) if (sic) of the
Competition Act no 89 of 1998
as amended in that they have colluded
to fix the price at which they render their services, divided markets
and/or alternatively
engaged in collusive tendering in respect of
tenders issued by the State and private enterprises."
[20]
This concise statement of the offensive conduct in effect does no
more than identify the statutory provisions potentially engaged
and
the business in which the conduct has occurred.
Annexed
to the covering form is an
"Initiation
Statement”
[6]
which
provides greater detail of the offensive conduct. That statement
asserts that
"various
furniture removal companies"
have
engaged in the conduct; that
"the
main companies implicated in the alleged conduct include"
the
eight identified companies; that the collusion
"is
still ongoing";
and
it concludes:
"In the light of
the aforegoing and in terms of section 498{1} of the Act, I initiate
a complaint in respect of alleged contraventions
of section
4(1)(b)(i), (ii) and/or (iii) of the Act by the abovementioned firms
in the furniture removal market."
[21]
Had the matter ended there, there would not have been any doubt about
the non-inclusion of the respondent. The Initiation Statement
does
suggest that more companies are involved, since the named eight are
the
"main companies''
involved. But it does not suggest
that the others, the less significant ones, are unknown or
unknowable. And it would have been
surprising had these others been
unknown or unknowable: how conceivably is one aware that other
companies are involved in price
fixing, market division or collusive
tendering without being able to identify the participant?
[22]
But the matter did not end there. The complaint initiation dated 1
June 2011 next came. It again lists the Commissioner as
the person
submitting the complaint in the first block. The third block, the
concise statement of the offensive conduct, is to
all intents and
purposes the same as the third block in the earlier complaint
initiation.
[23]
But the second block is different, notably in that It refers the
reader to the Initiation Statement
“fo
r a complete
list of the Respondents.”
This time the respondent is
expressly listed, together with forty-six others, in all nearly six
times as many as in the first complaint
initiation. None of the eight
respondents mentioned in the first initiation is repeated. The same
sections of the Act are alleged
to be implicated.
[24]
The Initiation Statement commences by referring to the first
complaint initiation by reference to the respondents that were
there
targeted. It then continues:
"Following the
aforesaid initiation, further information has come to light
indicating that the following companies have also
been involved in
price fixing, market allocation and/or collusive tendering in respect
of the provision of furniture removal services
to the State
departments, private enterprises and individuals in contravention of
section 4(1)(b)(i), (ii) and (iii)
of
the
Act, namely
...", and then follow the
forty-seven names, including that of the respondent.
[25]
lt is not disputed that the Commissioner has the power to amend a
complaint initiation.
[7]
Has the
Commissioner by the second complaint initiation commenced a new
complaint, or has he merely amended the first initiation?
It seems to
me that if the Commissioner is to be taken at his word - and I
suggest that at least in so far as concerns the factual
assertions in
the two complaint initiations, that cannot legitimately be
contentious - then the Commissioner has done no more than
to amend
the first complaint initiation by means of the second complaint
initiation, for reasons that now follow.
[26]
First, the offensive conduct is alleged to have occurred in a market
that overlaps: that for furniture removal services to
various
government departments and large corporates in the first complaint
initiation, and that for furniture removal services
to State
departments, various private enterprises and individuals in the
second complaint initiation. It does appear that the market
has
become extended by the addition of individuals, but that would be an
expected consequence following the accumulation of more
facts as the
investigation continued; after all, the first complaint initiation
did say that the collusion was still ongoing.
[27]
Second, the second complaint initiation expressly said that it was an
extension of the first: it began by recording the historical
fact of
the first complaint initiation; then went on to say that “
further
information"
has come to light “
following the
aforesaid initiation";
and concluded by saying the upshot of
the further information was that "
the following companies
have also been involved ...".
[28]
Third, the second complaint initiation retains as firms targeted by
the complaint the first eight firms; that much appears
from the
introductory reference back to them as being the target of the first
complaint initiation, linked with the listed identification
of the
forty-seven companies that have also been involved, upon the receipt
of the further information.
[29]
This conclusion is at odds with the conclusion to which the Tribunal
came.
[8]
I respectfully disagree with its conclusion that the 2011 initiation
was not an amendment of the 2010 initiation. The Tribunal
reasoned
that the later initiation did not identify the offensive conduct as a
single, over-arching conspiracy that was still ongoing.
It reasoned
that the second complaint initiation is made up of discrete
conspiracies, none of which are ongoing.
[30]
Leaving aside formalistic points, such as that the conspiracy may
simply have ceased by the time the second complaint initiation
came
along, conduct prohibited under s.4 and s.5 of the Act includes an
"arrangement or understanding",
notions that imply
states of mind of individuals that are easy to obscure and difficult
to prove. Gathering facts that sustain such
a case, will also be
trying. In these circumstances it would not be surprising to find
that a top down investigation uncovers greater
participation by a
larger number of participants than might initially have been
envisaged.
[31]
And this fact leads to a prior consideration. When considering
whether a complaint initiation is merely amending an earlier
complaint initiation, or whether it is a fresh initiation unrelated
to the earlier one, it seems to me to be inappropriate to consider
material that came into existence subsequent to the complaint
initiation, such as the complaint referral. By then substantially
more information would have become available than would have been
available when the complaint was initiated, requiring only a
reasonable suspicion at that stage:
"[13] A complaint
has to be 'initiated'. The commissioner has exclusive jurisdiction to
initiate a complaint under s 498(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 on 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 498(2)(0) which permit
anyone to provide the commission with information concerning
a
prohibited practice without submitting a formal complaint."
[9]
(Emphasis
added)
[32]
The next question is whether this conclusion implies that, as far as
the respondent was concerned, the complaint against it
was already
initiated on the date of the first complaint initiation (3 November
2010) when it was not yet mentioned as a respondent,
or whether the
complaint against it was only initiated on the date of the second
complaint Initiation (1 June 2011), in which it
was first mentioned
as a respondent.
[33]
If, as I have concluded, the complaint initiation must be taken at
face value for purposes of determining its contents, then
it would
follow that the respondent was not alleged to be a party to a
prohibited practice until the second complaint initiation
had
occurred. This proposition may be put differently: the substance of
the complaint initiation cannot be assessed with reference
to facts
that only came into existence after the complaint was initiated,
whether one is concerned with a first or a second initiation.
The
effect for the respondent is therefore that it only became a named
party when the second complaint initiation occurred; before
that, the
alleged prohibited practice did not involve it. After all, if it had,
the Commissioner was free to have mentioned the
respondent by name
when first it initiated the complaint, but it did not.
Prescription,
expiry periods, and knowledge
[34]
There are a number of statutory provisions that constrain the
institution of legal proceedings by one party against another.
The
cases have, in analysing these, differentiated between a limitation
or expiry period on the one hand and a prescription period
on the
other.
[10]
Instances of the
former class, a limitation or expiry period, are considered
irreconcilable with the provisions of chapter 3 of
the Prescription
Act 68 of 1969 ("the
Prescription Act"
;), dealing with
instances of the latter class.
[11]
[35]
Chapter 3 of the
Prescription Act contains
s.12
, which restrains the
commencement of the running of a prescriptive period until the
creditor has knowledge of the identity of the
debtor and of the facts
from which the debt arise, unless the creditor was able by the
exercise of reasonable care to have acquired
this knowledge at an
earlier date. A provision containing a limitation or expiry period
may - and often is - ameliorated by some
other provision expressly
conferring a power of condonation to assuage the potentially harsh
effect of the application of the limitation
or expiry provision.
[36]
Whether a statutory provision falls into the one or the other class
depends on a proper interpretation of the relevant statutory
provision, and so it is necessary to consider
s.67(1)
from that
perspective. In doing so, the text, context and purpose of the
provision needs to be considered.
[37]
It seems to me that its text is to limit the considerable power
conferred upon the Commissioner in terms of
s.49B(1)
, a power which
may only be exercised on having first acquired a reasonable suspicion
of the existence of a prohibited practice.
[12]
That is a comparatively low threshold, certainly substantially lower
that the requirement laid down in
s.12
of the
Prescription Act, of
knowledge
of the identity of the debtor and the facts from which the
debt arose.
[38]
The context of
s.67(1)
is that once the
s.49B(l)
power is exercised,
the statutory obligation under
s.49B(3)
to direct an inspector to
investigate the complaint as quickly as possible, is triggered. The
relevant particulars of the alleged
offensive conduct are likely only
to become known when the inspector is about her/his investigation.
But since the complaint will
by then already have been initiated, the
Commissioner need not be concerned that the process will have been
time-barred.
[39]
The over-arching purpose of
s.67(1)
seems to me to be to bar - in the
public interest - investigations into events (prohibited practices)
that have ceased an appreciable
time ago, and are therefore no longer
endangering the public weal.
[13]
If that is correct, the subjective knowledge (more correctly, the
reasonable suspicion) of the Commissioner is irrelevant; more
importantly, it is not necessary to read into
s.67(1)
the
pre-existence of the Commissioner's reasonable suspicion for that
section not to offend the Constitution.
[14]
[40]
I therefore conclude that s.67(1) Is a limitation or expiry period
and that a knowledge requirement such as is evident in s.12
of the
Prescription Act cannot be read into it. This conclusion also implies
that there is not scope for condonation by the Tribunal
or this
court, as there is no power. This is expanded upon below. Does that
mean that the appeal must be dismissed?
[41]
To answer that question it is appropriate now to revert to the
discussion above concerning prohibited practices and their ongoing
nature. In considering whether the respondent's exception application
should be upheld, the Tribunal was now free to weigh the
material
contained in the complaint referral; after all, that is the object of
the respondent's objection. Accepting in favour
of the respondent
that a prohibited practice ceases when the last payment is made by a
customer who was subjected to a prohibited
practice, the question is
whether the respondent has shown that on the Commissioner's case the
prohibited practice alleged against
the respondent had ceased more
than three years before the second complaint referral.
[42]
As indicated, the Commissioner's allegation against the respondent is
that it had entered into
"discrete bilateral collusive
agreements with each of the other respondents"
in
contravention of the prohibition against the restrictive horizontal
practice of
"collusive tendering"
in contravention
of s.4(1)(b)(iii) of the Act. These agreements, as is evident from
the various "parts" in which they
are cast, span the period
from 2007 to 2010 in the case of JH Retief, 2011 in the case of
Sifikile, and 2008 in the case of Cape
Express.
[43]
The point is, in the case of JH Retief, the fact that no less than 35
agreements are alleged to have been concluded suggests
that these
were all simply examples of the execution by the respondent and JH
Retief of one, single, concerted practice between
them during the
years in question; and that 35 separate, distinct agreements, each
one completely unrelated to the others, smacks
of improbability. If
that were so, then that one single concerted practice would only
cease for the purposes of s.67(1) of the
Act when the last payment
was made by a victim customer. On the facts of this case, this
implies that none of the earlier mere
individual instances of
execution of the one single concerted practice is capable of
"prescribing".
[15]
[44]
This line of reasoning brings into play the correct approach to be
adopted in this "exception application"; is it
to be dealt
with as an exception proper, in which the impugned pleading is taken
at face value, read benevolently, and then assessed
for excipiabllity
(from an expiry/limitation point of view)? It seems that was the
approach both of the parties and of the Tribunal,
and so It is
appropriate that we too adopt it here, on the basis that that was the
agreed process.
[45]
On that basis one must then look again at the Commissioner's referral
to assess what the case is in its own terms. When that
is done, then
one must eschew the notion of one single, over-arching collusive
practice. Then it seems reasonably uncontested that
the case is that
of 35 individual, discrete, agreements, just as the Tribunal has -
with respect - assessed it. Then each of those
agreements is an
alleged prohibited horizontal practice for purposes of s.4(l)(b)(ii};
and then some of those agreements are In
fact capable of being hit by
the limitation/expiry period laid down by s.67(1), leaving scope
indeed for the respondent's argument
that some of these 35 individual
practices have ceased more than three years before the complaint
referral in respect of them had
occurred.
Condonation
[46]
Is there any scope for the condonation of the failure of the
Commissioner to have initiated complaints within three years of
the
prohibited practice having ceased? There is no express power, and so
it would have to be implied. A moment's reflection should
dispel such
a notion. In s.67(1) Parliament has provided that State power may not
be invoked against its subjects unless it is
done within three years
of the prohibited practice ceasing. Why should the provision be
interpreted so as to grant a court the
implied power to extend that
period?
[47]
Condonation provisions often appear in legislation containing expiry
periods within which the subject must take steps to enforce
her
rights.
[16]
The power in those
cases is not implied, and the condonation provisions are often the
subject-matter of close judicial analysis.
[48]
More importantly, in the present matter the language of s.67(1) is
cast in the form of a prohibition, and it does not leave
scope for
the implication contended for. The plain language certainly does not
require the implication for the provision to be
implemented sensibly.
Once the period has expired, there is no statutory power to initiate
a complaint and so engage the power
of the State against the subject.
Conclusion
[49]
The Tribunal, following on the Commissioner's case as pleaded, made
an order directing the parties to provide certain information
so as
to make clear precisely when the last payments were made in respect
of the separate impugned practices, and there does not
appear to be a
basis to interfere with it.
[50]
ln the result I make the following order:
The appeal is dismissed
with costs, including the costs consequent upon the employment of two
counsel.
______________________
WHG
van der Linde
Acting
Judge of Appeal
I
agree.
______________________
NP
Boqwana
Judge
of Appeal
I
agree.
______________________
F
Kathree-Setiloane
Acting
Judge of Appeal
Date
argued: 13 December 2018
Date
judgment: 3 April 2019
For
the appellant:
Adv
D Mpofu, SC
Adv
M Sella
Adv
T Ngcukaitobi
Adv
C Tabata
Instructed
by:
Ndzabandzaba
Attorneys Inc
Attorneys
for appellant
Unit
3, ground floor
63
Peter Place Road
Bryanston,
Sandton
Johannesburg
Email:
Anthony@nalegal.co.za
/
Musa@nalegal.co.za
/
Karabo@nalegal.co.za
Ref:
AC Ndzabandzaba/Karabo/CCSAOOOG
For
the respondent:
Adv
M Norton, SC
Adv
F Pelser
Instructed
by:
Edward
Nathan Sonnenbergs
Attorneys
for the First Respondent
1
North Wharf Square
Lower
Loop Street Cape Town
Tel:
+27 21410 2500
Fax:
+27 21410 2555
Email:
lblignaut@ensafrica.com
and
hsenekal@ensafrica.com
Ref:
HB Senekal / Lizel Blignaut
[1]
The Competition Amendment Act 18 of 2018 has amended this section as
follows:
"37.
Section 67 of the principal Act is hereby amended by the
substitution for subsection (1) of the following subsection:
'(1) A
complaint in respect of a prohibited practice that ceased more than
three years before the complaint was initiated may
not be referred
to the Competition Tribunal.' "Act 18 of 2018 was first
published in Government Gazette No.42231 as a law
on 14 February
2019, and so that was the day on which it took effect; compare
s.13(1) of the Interpretation Act 33 of 1957. It
was not submitted
that this amendment has any effect on the outcome of this appeal,
and I do not believe it has.
[2]
Pursuant to its findings, the Tribunal directed (record p21) both
parties reciprocally to provide further particulars so as to
enable
the exception application to be finalised. These particulars include
the respondent's answering affidavit, a pleading
usually irrelevant
in exception proceedings proper.
[3]
The Concise Oxford Dictionary, Tenth Edition, revised.
[4]
See generally, 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) at [13] ff.
[5]
The Concise Oxford Dictionary, Tenth Edition, Revised.
[6]
Record, p164.
[7]
Compare Woodlands Dairy, op cit; Power Construction (Pty) Ltd v The
Competition Commission, 145/CAC/SEP16.
[8]
The question of whether the second initiation was an amendment of
the first is of course, as appears from this judgment, different
to
the question of when the complaint was initiated against respondent.
[9]
Woodlands Diary, op cit.
[10]
Compare Premier of the Western Cape Provincial Government NO v Lakay
(184/11)
(2011) ZASCA 224
;
2012 SA 1
(SCA);
[2012] 1 All SA 465
(SCA) (30 November 2011) at (7) to (10); Commissioner for Customs &
Excise v Standard General Insurance Company Ltd. (507/98)
(20001
ZASCA 55
[2000] ZASCA 138
; ;
2001 (1) SA 978
(SCA) (29 September 2000) at [10] ff;
Labuschagne v Labuschagne; Labuschagne v Minister van Justisie,
1967(2) SA 575 (AD) at
p584G ff; LAWSA, second edition, vol 21, par
158.
[11]
Labuschagne op cit; LAWSA op cit.
[12]
Woodlands, op cit [20].
[13]
Cf. Mohlomi v Minister of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC), para 11
[14]
Cool Ideas 1186 CC v Hubbard and Another,
2014 (4) SA 474
(CC) at [2
8). I suggest too that the respondent's reliance in this regard on
Marc J Gabelli and Bruce Alpert v Securities and
Exchange Commission
568 U.S. 1046
(2013) is well-founded.
[15]
I leave aside, in using this language, the fact that I have
concluded that prescription is inapplicable in this context, and
that s.67(1) has instead a limitation or expiry period.
[16]
See The Institution of Legal Proceedings against certain Organs of
State Act 40 of 2002, and the discussion in the LexisNexis
electronic publication, Prescription in South African Law, by Johan
Saner at chapter 5.3 at footnote 78 ff.