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[2018] ZACAC 8
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Geldenhuis and Others v South African Batteries Importers Association and Others (153/CAC/AUG17) [2018] ZACAC 8; [2018] 1 CPLR 17 (CAC) (3 April 2018)

REPUBLIC
OF SOUTH AFRICA
IN
THE COMPETITION APPEAL COURT OF SOUTH AFRICA
CAC
CASE NO: 153/CAC/AUG17
In
the matter between:
GLENN
LLEWELLYN GELDENHUIS                     FIRST

APPELLANT
MARIA
MANUELA GONCALVES DA FONSECA   SECOND APPELLANT
THE
SOUTH AFRICAN BATTERY MANUFACTURERS'
ASSOCIATION                                                       THIRD

APPELLANT
and
THE
SOUTH AFRICAN BATTERIES IMPORTERS'
ASSOCIATION                                                       FIRST

RESPONDENT
HUDACO
TRADING PROPRIETARY LIMITED T/A
DELTEC
POWER DISTRIBUTORS                        SECOND

RESPONDENT
HUDACO
TRADING PROPRIETARY LIMITED TIA
BATTERY
SYSTEMS                                             THIRD

RESPONDENT
ENERTEC
BATTERIES
PROPRIETARY
LIMITED                                       FOURTH

RESPONDENT
PROBE
CORPORATION SOUTH AFRICA
PROPRIETARY
LIMITED                                       FIFTH

RESPONDENT
TIAUTO
PROPRIETARY LIMITED T/A YSA           SIXTH
RESPONDENT
JUDGMENT
MNGUNI
AJA:
[1]
This appeal lies against the order of the Competition Tribunal (the
Tribunal) directing the first and second
appellants to disclose the
documents referred to in items 18, 19 and 21 of annexure A to the
subpoenas (disputed documents), issued
by the Tribunal on 5 April
2015, against the first and second appellants, at the behest of the
respondents. The respondents have
also lodged a conditional
cross-appeal against the costs order and the Tribunal's failure to
direct the appellants to furnish affidavits
dealing with items 1 to
6, 11 to 14, 16, 20 and 24 to 27 of annexure A to the subpoenas as
modified in the letter of the first
respondent dated 31 March 2017.
The conditionality of the cross-appeal is dependent on this court's
decision on the appealability
of the Tribunal's order.
The
Background
[2]
To better understand the genesis of the dispute between the parties
it is helpful to briefly set out the background
facts.
[3]
The third appellant is an association of manufacturers in the lead
acid battery manufacturing industry in
South Africa and was
established in 1970. Its members include First National Battery (Pty)
Ltd (FNB), Powertech Industries (Pty)
Ltd trading as Willard
Batteries (Willard), Donaventa Holdings (Pty) Ltd trading as Dixon
Batteries (Dixon), Bridgestone South
Africa Retail (Pty) Ltd trading
as Supa Quick, HI-Q Automotive and Battery Centre (Pty) Ltd. FNB,
Willard and Dixon are the three
largest automotive battery
manufacturers in South Africa. The three entities distribute their
batteries in South Africa through
various distribution channels,
including major tyre fitment centres across the country. The first
and second appellants are the
chairman and secretary of the third
appellant respectively.
[4]
The first respondent is an association whose main objectives are to,
inter alia, examine legislative or policy
proposals likely to affect
importers of batteries in South Africa; to coordinate their
collective action in relation to those proposals;
engage and lobby
the Competition Commission (the Commission), the Department of Trade
and Industry (DTI), the International Trade
Administration Committee
(ITAC), the South African Parliament, the South African Revenue
Services and other legislative or regulatory
authorities to further
the general interests of the association and its members in order to
enable its members to maintain their
competiveness and viability;
and, generally promote and advance the best interests of battery
importers in South Africa. The second
to sixth respondents are
members of the first respondent.
[5]
On 13 August 2014, the first respondent lodged a complaint with the
Commission against FNB, Willard and Dixon,
alleging that the entities
contravened and continued to contravene s 4(1)(b)(i) and (ii) of the
Competition Act 89 of 1998 (the
Act) by agreeing to fix the price of
batteries. The complaint also alleged that FNB and Willard
contravened ss 5(1) and 8(c) of
the Act by virtue of their
distribution arrangements with retailers. The third appellant is not
cited as one of the respondents
in the complaint. The substance of
the complaint is captured in para 82 of the respondents' complaint
referral document as follows:
'FNB,
Willard and Dixon are all members of the South African Battery
Manufactures' Association (SABMA). The applicants believe that
FNB,
Willard and Dixon have through the auspices of SABMA agreed on the
amount of so-called scrap surcharge and have also reached
an
agreement and/or understanding as to how to price their respective
batteries in respect of the sales into so-called after market

segment.'
[1]
The
third appellant and the first respondent are the competitors for the
supply of automotive batteries to the aftermarket in South
Africa.
[6]
The Commission assessed the complaint under ss 4(1), 5(1) and 8(c) of
the Act and concluded that the allegations
failed to sustain a
contravention of the Act The Commission decided not to refer the
matter to the Tribunal for determination as
it could not find any
evidence of collusion on the part of the appellants. The Commission
concluded that there is no agreement
or concerted practice between
the appellants to fix the price of the scrap deposit in contravention
of s 4(1) and found that the
appellants calculated the scrap deposit
independently of each other with due consideration to the market
value of scrap batteries.
[7]
On 25 February 2015, the Commission issued a notice of non-referral
of the complaint to the Tribunal. Aggrieved
by this outcome, on 25
March 2015, the respondents referred the complaint (complaint
referral) to the Tribunal as contemplated
in s 51 of the Act read
with rule 14(b) of the Competition Commission Rules, contending that
the Commission had erred in its conclusion
that there was
insufficient evidence to sustain their complaint against the three
entities and in not referring the complaint for
adjudication before
the Tribunal.
[8]
On 22 September 2015, the parties held a pre-hearing meeting at which
they agreed to a timetable for the further
conduct of the matter. The
agreed timetable was issued as a directive of the Tribunal. On 5
February 2016 and 1 April 2016, FNB
and Willard concluded settlement
agreements with the respondents respectively, resulting in the
complaint referral being withdrawn
against the two entities. Dixon is
the only entity against which the complaint referral is still pending
on the allegation of contravention
of s 4(1) of the Act.
[9]
On 6 April 2016, the respondents approached and caused the Tribunal
to issue two identically worded subpoena
duces tecum against the
first and second appellants in their capacities as foreshadowed in
para 3 above, requiring the first and
second appellants to produce
various categories of documents contained in annexure A of the
subpoenas.
[10]
This action on the part of the respondents gave rise to this present
application (the subpoena application) before the
Tribunal, brought
by the appellants on 5 May 2016, seeking an order to set aside and to
declare of no force and effect various
parts of the subpoenas.
Nonetheless, on 6 May 2016, the third appellant, with full
reservation of its rights, made available to
the respondents some of
the requested documents comprising of minutes of all its meetings
from 1999 to date, as well as copies
of its constitution. The first
and second appellants contend that they made these documents
available in order to make plain that
the third appellant is not
opposed to the furnishing of relevant documents to the respondents,
but is opposed to the over-breadth
and abuse of the process that
underpins the subpoenas.
[11]
The subpoena application was argued before the Tribunal on 28
September 2016. At the commencement of the hearing the
respondents
contended that the Tribunal did not have the requisite jurisdiction
to set aside the subpoenas. As such, Mr Bhana on
behalf of
respondents', argued that the Tribunal should determine the
jurisdiction issue first before hearing argument on the merits
of the
subpoena application. After hearing argument on the issue of
jurisdiction, the Tribunal directed that the parties deal with
the
merits and intimated to the parties that the ruling on the
jurisdiction issue would be made together with the merits of the

subpoena application. In the course of argument, Mr Bhana sought to
introduce and made reference to the documents apparently furnished
by
Russel Dixon, the managing director of Donaventa Holding (Pty) Ltd,
under subpoena. This elicited an objection from Mr Cockrell
for
appellants', on the ground that the documents did not form part of
the pleadings in the subpoena application. The matter was

subsequently postponed sine die.
[12]
Before the matter was set down for the resumption of argument, the
respondents brought an application to have the Dixon
documents
admitted into evidence. The appellants opposed the application.
Thereafter, the Tribunal set the matter down on 19 April
2017 for the
resumption of argument. In the run up to the hearing, the parties
exchanged correspondence in an attempt to limit
the ambit of the
dispute. On the morning of resumed hearing, the parties' legal
representatives agreed that only items 18, 19 and
21 in the
Tribunal's subpoenas remained in dispute .The appellants persisted
with their call to have their production set aside.
[13]
The disputed documents are the following:
(a)
Item 18: All documents and communications relating to the third
appellant's engagements with DTI in respect of scrap batteries
being
exported from South Africa;
(b)
Item 19: All documents and communications relating to the third
appellant's engagements with ITAC in respect of scrap
batteries being
exported from South Africa and;
(c)
Item  21: All documents  and communications relating
to engagements between the third appellant and/or
any of its members
with ITAC relating to the imposition of increased tariffs in respect
of imported batteries.
[14]
The respondents did not move the application for the Dixon documents.
Mr Kelly for the respondents informed the Tribunal
that the Dixon
documents application had been overtaken by the events and the only
issue that remained to be argued was the question
of costs on that
application. After hearing argument the Tribunal reserved its
decision. Subsequent thereto, the appellants furnished
the
respondents with the affidavits which the appellants had undertaken
to provide, dealing with some of the documents in their
possession,
referred to in annexure A to the subpoenas.
[15]
On 3 August 2017, the Tribunal handed down its decision ordering the
first and second appellants to disclose the disputed
documents,
subject to a confidentiality regime. It also ordered the respondents
to pay the costs of the subpoena application and
Dixon documents
application.
[16]
The appellants advanced two contentions before the Tribunal why the
subpoenas constituted an abuse of process in this
particular case,
namely:
(a)
These documents were irrelevant as they concern the export of scrap
batteries and not the scrap surcharge on locally produced
batteries
and;
(b)
The Tribunal has no power or jurisdiction to order the disclosure of
these documents, as they had been claimed as confidential
documents
in terms of the International Trade Administration Act 71 of 2002
(ITA Act), and in terms of that Act, only the ITAC
and the High Court
could order their disclosure.
[17]
In rejecting the appellants' contention that the respondents had
failed to establish the relevance of the documents,
and concluding
that the documents may directly or indirectly be relevant and
therefore discoverable, the Tribunal placed reliance
on a dictum in
Rellams (Pty) Ltd v James Brown & Hamer Ltd to the effect that
every document which either may directly or indirectly
advance the
case of the requesting party should be disclosed.
[2]
[18]
With regard to the contention that the Tribunal has no power or
jurisdiction to order the disclosure of these documents
as the
confidentiality claim on them has been made under the ITA Act, the
Tribunal concluded that a pragmatic approach can resolve
these
difficulties. The Tribunal then ordered the disclosure of the
disputed documents to the respondents' legal representatives
and
expert witnesses provided the latter furnished a suitable written
undertaking. The Tribunal ordered further that the disputed
documents
should be used for the purposes of the determination of the referral
in this matter and may not be used in any proceedings
under the ITA
Act unless permission for the disclosure of the documents is granted
in terms of the ITA Act.
[19]
As already noted, each side has appealed the order of the Tribunal
insofar as it adversely affects it. In the notice
of conditional
cross-appeal, the respondents contend that the order of the Tribunal
is not appealable. In argument before us Mr
Budlender for the
respondents correctly abandoned this leg of the appeal. With regard
to the issue of jurisdiction, the Tribunal
correctly found that the
issuing of summons or subpoena is a function of the presiding member
at a Tribunal. It went further and
said that the variation, setting
aside or the release of a person from a subpoena are matters that are
incidental to the performance
of the Tribunal's function. It then
concluded that it has jurisdiction to vary or set aside a subpoena in
terms of s 27(1)(b).
The correctness of this finding is not in issue
before us.
[20]
The subpoenas were issued in terms of s 54(c)(i) which authorises the
member of the Tribunal presiding at a hearing to
summon or order any
person to produce any book, document or item necessary for the
purposes of the hearing. The appellants contend
that the issue and
service of the impugned subpoenas on the first and second appellants
in the circumstances of this case constituted
an abuse of the process
of the Tribunal.
[21]
It is trite that there is a general duty vesting on all members of
society to give whatever evidence they are capable
of giving, coupled
with a concomitant right of litigants to command such assistance.
However, should the court be satisfied in
any particular case that
the issue of a subpoena constitutes an abuse it is entitled to set it
aside.
[22]
The legal position regarding abuse of process was neatly summed up in
Beinash v Wixley
[3]
by Mahomed
CJ , who cited with approval the following passage from Hudson v
Hudson & another
[4]
where
the following was said by De Villiers JA:
When
... the Court finds an attempt made to use for ulterior purposes
machinery devised for the better administration of justice,
it is the
duty of the Court to prevent such abuse.'
The
learned CJ went on to say :
[5]
'There
can be no doubt that every Court is entitled to protect itself and
others against an abuse of its processes. Where it is
satisfied that
the issue of a subpoena in a particular case indeed constitutes an
abuse it is quite entitled to set it aside....What
constitutes an
abuse of the process of the Court is a matter which needs to be
determined by the circumstances of each case. There
can be no
all-encompassing definition of the concept of 'abuse of process'. It
can be said in general terms, however, that an abuse
of process takes
place where the procedures permitted by the Rules of the Court to
facilitate the pursuit of the truth are used
for a purpose extraneous
to that objective....A subpoena duces tecum must have a legitimate
purpose....Ordinarily, a litigant is
of course entitled to obtain the
production of any document relevant to his or her case in the pursuit
of truth, unless the disclosure
of the document is protected by law.
The process of a subpoena is designed precisely to protect that
right. The ends of justice
would be prejudiced if that right was
impeded. For this reason the Court must be cautious in exercising its
power to set aside
a subpoena on the grounds that it constitutes an
abuse of process. It is a power which will be exercised in rare
cases, but once
it is clear that the subpoena in issue in any
particular matter constitutes an abuse of process, the Court will not
hesitate to
say so and to protect both the Court and the parties
affected thereby from such abuse.'
[23]
In Meyers v Marcus & another
[6]
Griesel Jamplified on the concept of abuse of process:
'Thus,
a subpoena issued in respect of a witness unable to give relevant
evidence or to produce relevant documents will ordinarily
amount to
an abuse of the process of the court.
However,
the converse is not necessarily true: the evidence sought to be
obtained may be relevant and yet amount to an abuse of
the process.
This will be so, inter alia, where the subpoena is issued for an
improper purpose.'
[24]
On appeal the appellants have put in issue the findings of the
Tribunal, contending that it erred in dismissing their
challenge to
the disputed documents and that the Tribunal was deprived of
competence to grant the order by the provisions of the
ITA Act.
The
issues on appeal
[25]
It is against this background that I turn to deal with the issues
isolated for determination in this appeal, which are
whether:
(a)
The Tribunal was correct in dismissing the appellants' challenge to
the disputed documents;
(b)
The Tribunal was deprived of competency to grant the order by the
provisions of the ITA Act;
(c)
The respondents were entitled to the affidavits they seek in the
cross-appeal and;
(d)
The court should interfere with costs orders against the respondents.
I
deal with them in sequence.
[26]
It is common cause that the complaint referral is continuing against
Dixon only There is a single complaint advanced
against it , namely
that it is involved in price­ fixing in contravention of s 4(1)
of the Act. The question therefore is whether
the disputed documents
are of any relevance to the complaint of price-fixing advanced
against Dixon in the complaint referral.
As stated, items 18
and 19 refer to communications between the third appellant and DTI or
ITAC in respect of scrap batteries being
exported from South Africa.
Mr Cockrell contended that this question ought to be answered in the
negative because the complaint
referral does not make any mention of
the export of scrap batteries from South Africa and the exportation
of scrap batteries is
not an issue in the complaint referral. He
further submitted that in the answering affidavit in the subpoena
application, the respondents
made no attempt to establish the
relevance of the disputed documents but instead only made a bald
denial without putting up a positive
case to show why these documents
should be considered relevant.
[27]
Item 21 refers to all documents and communications relating to
engagements between the third appellant and/or any of
its members
with ITAC relating to the imposition of increased tariffs in respect
of imported batteries. Mr Cockrell submitted that
the disputed
documents are of no relevance to the complaint of price-fixing
against Dixon in the complaint referral because the
complaint
referral does not make any mention of the imposition of tariffs on
imported batteries. He submitted that the respondents
have made no
meaningful attempt in the answering affidavit to demonstrate how the
disputed documents are relevant in the complaint
referral against
Dixon.
[28]
By contrast , Mr Budlender contended that the respondents pleaded the
existence of a cartel through the auspices of the
third appellant and
that the third appellant's members were engaged in direct or indirect
price-fixing through a scrap surcharge.
He submitted that in the
answering affidavits filed in the complaint referral by FNB, Willard
and Dixon as well as in the limited
documentation produced by the
third appellant in terms of the subpoenas, there is evidence that the
scrap surcharge is the component
of a system implemented by the third
appellant and its members referred to as the one-for-one system. He
submitted that in terms
of this system the third appellant's members
charge retailers a surcharge over and above the price of the battery,
and every battery
manufactured by a member of the third appellant was
sold with a scrap surcharge which inflates the wholesale price
charged to retailers,
and ultimately to consumers. According to Mr
Bud/ender the third appellant's members reimburse retailers for all
scrap batteries
which are unused and returned. He submitted that with
this system, it is anticipated that a scrap battery is purchased by
the manufacturer
in question. He submitted that the evidence from the
minutes produced by the third appellant demonstrates that the third
appellant's
members collect and submit to the third appellant data
about their respective sales and collections, and this data is
discussed
in the third appellant's meetings when determinations are
made as to the scrap surcharge. He submitted that the third
appellant's
members clearly understood that a key aspect of ensuring
the stability of the one-for-one battery system would require the
restriction
of the export of scrap batteries from South Africa.
[29]
Relying on Ansac & another v Botash & others (1)
[7]
Mr .Budlender submitted that the third appellant's criticism that the
respondents did not make out a case of relevance in their
pleadings
is unwarranted and misdirected as the Tribunal is not bound by the
strictures of pleadings in the same way as is a civil
court. Unlike
in the investigative stage or in civil proceedings before a High
Court, the Tribunal may, through an instrument such
as a summons,
require a party to address evidential issues that travel outside of
that which is strictly pleaded in the complaint.
Evaluation
[30]
The purpose of the subpoena is to obtain evidence that is relevant to
a complaint referral. This much is clear from s
54(c)(i) of the Act
which requires that a document or the item must be necessary for the
purposes of the hearing. In assessing
relevance regard must be had to
a complaint referral. The respondents bear the onus to establish the
relevance of the documents
they seek to be produced under the
subpoenas. It is common cause that save for Dixon, there is no /is
between the third appellant
and the respondents in the complaint
referral. FNB and Willard have already settled their dispute with the
respondents. Notwithstanding
this settlement , the subpoenas require
the appellants to furnish documents in relation to all members of the
third appellant,
including those members in respect of whom there is
no tis. In my view, the difficulty confronting the respondents is
that these
documents are sought from the third appellant who is not
cited as a party in these proceedings. In Meyers supra Griese\ J said
at para 69:
'In
the final analysis, Meyers has a constitutionally protected right to
privacy. As he is not a party to the pending litigation,
the impugned
subpoena constitutes a gross invasion of such right to privacy.
Before such an invasion will be sanctioned, the party
seeking to
infringe such right bears an onus of persuading the court that it is
justified.'
This
reasoning commends itself to me as applying equally to the present
matter. I am unable to find that the disputed documents
are relevant
to the complaint referral and therefore necessary for the purposes of
the hearing as envisaged in s 54(c). In all
the circumstances, I find
that the respondents have failed to discharge the requisite onus.
[31]
I turn to deal with the second issue. Mr Cockrell contended that the
Tribunal was deprived of competence to grant such
an order by the
provisions of the ITA Act.
The
evidence reveals that the first respondent has always been in
possession of the non-confidential submissions made by the third

appellant to ITAC. Mr Cockrell submitted that the purpose of the
subpoenas was to allow the first respondent to gain access to
the
documents over which the third appellant had asserted confidentiality
in relation to the trade dispute
[8]
before ITAC,
[9]
by circumventing
ss 33 and 34 of the ITA Act. He pointed out that it is only the High
Court that may determine that the information
is not confidential,
and that if the High Court makes a determination that the information
is confidential, it may make an appropriate
order concerning access
to that confidential information. He submitted that unless and until
the High Court makes such a determination
that information is not
confidential. ITAC is required to treat any information that is the
subject of a confidentiality claim
as confidential.
[32]
Mr Budlender sought to overcome these difficulties by submitting that
the respondents' had made an undertaking before
the Tribunal that the
disputed documents may be used only in proceedings before the
Tribunal and may not be disclosed to the respondents,
but only to the
respondents' legal representatives and expert economists for the
purposes of the Tribunal proceedings. He submitted
that the two
undertakings were captured in the Tribunal's order. He also submitted
that the appellants did not lay a proper evidential
basis for the
assertion that the respondents appear to seek the disputed documents
for an ulterior purpose. He pointed out that
the first appellant was
successful in obtaining an increase in duties on imported batteries
from ITAC and that this decision has
not been appealed by the
respondents. He submitted that there is no dispute before ITAC in
which these documents could conceivably
be of assistance and the
proceedings before ITAC were concluded some three years ago and were
not taken on review.
[33]
He further submitted that the ITA Act contains a procedure which
regulates what ITAC may do with this information and
it does not mean
that the party who submitted the information is entitled to assert
that the information which is in that party's
possession is protected
from disclosure in all cases where confidentiality had been claimed
before ITAC. In his submission, while
ITAC may be precluded from
producing the disputed documents subject to the confidentiality
regime, the third appellant is not entitled
to rely on its claim of
confidentiality before ITAC as a means to preclude the Tribunal from
requiring it to disclose the disputed
documents in the same way that
this information would not be protected from discovery in civil or
criminal proceedings before a
High Court.
[34]
It is common cause that by letter dated 12 August 2014, the
respondents lodged the original complaint with the Commission
wherein
they informed the Commission that FNB and Willard had applied to ITAC
for an increase in the customs duties applicable
to automotive
batteries and that ITAC was investigating the matter. The respondents
requested the Commission to liaise with ITAC
in order to indicate
that a formal complaint had been filed with the Commission. In para
29.5 of the founding affidavit, the second
appellant states:
[10]
'Most
of the demands have nothing to do with the complaint referral, but
are a "fishing expedition" in which documents
are
apparently sought for some ulterior purpose, such as institution of a
new complaint or a representation to the International
Trade
Administration Commission ("ITAC"). Having regard to the
enormous breadth of the requests and as the documents
requested are
entirely irrelevant to the complaint referral, the only reasonable
inference is that these documents are sought for
a reason other than
the proper adjudication of the complaint referral.'
In
response to this paragraph, Warwick Ian Radford, who deposed to the
answering affidavit on behalf of the respondents states in
paras 30
and 31:
[11]
'30. The content
of these paragraphs has been addressed above. In particular, and for
the avoidance of any doubt, the Respondents
deny that the subpoenas
are in any way overbroad, are abusive or oppressive, or seek the
disclosure of irrelevant documentation.
31. The contents of these
paragraphs also contains matters for legal argument, which would be
addressed at the hearing.'
[35]
A perusal of Mr Warwick's response demonstrates that the respondents
do not deny the allegation that the documents are
being sought for
use in the ITAC proceedings. In my view this failure leads to the
ineluctable conclusion that the subpoenas seek
to circumvent the
confidentiality regime by claiming access to documents submitted by
the first appellant to ITAC under claims
of confidentiality. The
Tribunal did not offer any justification for its finding in this
regard. Importantly, there is no evidential
basis for the Tribunal's
statement that it was likely that the first respondent's submissions
to ITAC and DTI would have raised
the issue of scrap surcharges.
[36]
It is trite that in motion proceedings affidavits serve as both the
pleadings and evidence relevant to the issue between
the parties, and
a party can only be expected to deal with averments raised by the
other side and not with allegations possibly
anticipated but which
are not made (see Minister of Law and Order & another v Dempsey
1988 (3) SA 19
(A) at 37G-H). Having regard to the nature of the
complaint referral, it seems to me that no evidential basis was
placed before
the Tribunal to enable it to arrive at the decision
that the disputed documents 'may, directly or indirectly, be relevant
and are
therefore discoverable'. I arrived at this conclusion mindful
of the fact that the Tribunal is required to discharge its
adjudicative
functions under the Act as an inquisition specialist
administrative Tribunal.
[37]
In concluding that the documents protected by the confidentiality
regime in the ITA Act be disclosed, the Tribunal reasoned
as
follows:
[12]
'[32]
Mr Cockrell's submission that we are precluded from ordering the
disclosure of these
documents
because they have been claimed as confidential in terms of
International Trade and Administration Act raises some difficulties.

However, a pragmatic approach can resolve them.
[33]
Mr Cockrell's contention means that once the documents are claimed to
be confidential in terms of the International Trade
and
Administration Act, the Tribunal cannot order their disclosure in
terms of the
Competition Act and
they cannot be used in the
determination of the referral before their disclosure is permitted by
ITAC or the High Court in terms
of the International Trade and
Administration Act.'
It
appears that the Tribunal recognised at the same time that it cannot
act in a manner that undermines the processes and rules
contemplated
in the ITA Act.
[38]
It is an established principle of our law that when a party to an
action refuses to make discovery of or to produce for
inspection, any
documents on the ground that they are not relevant to the dispute, a
court is not entitled to go behind the oath
of that party unless
reasonably satisfied that the denial of relevancy is incorrect.
[13]
Section 35(3) of the ITA Act makes it clear that it is the High Court
that may determine that the information is not confidential
and if it
finds that the information is confidential, it may make an
appropriate order concerning access to that confidential information.

There seems to be no provision in the Act which gives powers to the
Tribunal to make such an order. In my view, the pragmatic approach

adopted by the Tribunal in this matter is founded on an unsound
foundation.
[39]
I turn now to deal with the issue of affidavits sought by the
respondents. The first respondent contends that the appellants

undertook to, in relation to items 1 to 6, 11 to 14, 16, 20 and 24 to
27 of annexure A to the subpoenas modified in the letter
from the
first respondent dated 31 March 2017, furnish affidavits stating:
(a)
whether the first appellant has the item in his or her possession or
under his or her control and;
(b)
if the item is not in the possession or control of the first
appellant, to state whether or not, to the best of his or
her
knowledge and belief, the relevant requested item exists and, if so,
who has possession or control of it.
The
respondents assert that it was agreed between the parties, and
recorded before the Tribunal, that the aforesaid undertaking
as
formulated would be made an order of the Tribunal. The appellants
disagree with this contention. The appellants assert the correct

position is that they undertook to furnish affidavits in relation to
component (a) only. The appellants contend that they have
already
complied with this by delivering the affidavits that dealt with
component (a}. The appellants contend further that the
correspondence
leading up to the hearing on 19 April 2017 makes it plain that the
first respondent requested the appellants to
furnish an affidavit
that dealt with component (a) only.
[40]
The record reveals that on the morning of the hearing on 19 April
2017, the legal representatives for the parties met
to discuss the
prospect of resolving some of the disputed issues. The parties
thereafter addressed the Tribunal in open session
about the issues
which remained in dispute, and about affidavits which would be
provided by the third appellant's representatives.
This is recorded
in the following passages of the transcript:
'ADV
KELLY: "Perhaps I should just mention for the record that my
learned friend has undertaken that his client will provide
an
affidavit or affidavits from M[s] Fonseca and Mr Geldenhuis
indicating ... which will indicate that the documents requested
in
items 1, 5, sorry 1, 2 to 4, 5, 6, 11 to 14, 16, 20 and 24 to 27
either do not exist or are not in its possession. So really
Chair and
members of the Tribunal, the dispute centres on 18, 19 and 21.'"
[14]
And
'ADV
COCKRELL: "This morning, before we commenced argument, we
reached agreement with our learned friends regarding what parts
are
not in dispute and what parts are in dispute. As he indicated, we
will give them an affidavit by the relevant functionaries
within my
client, indicating where documents don't exist and they've indicated
that they would be happy to receive that affidavit.'"
[15]
[41]
The parties then agreed before the Tribunal that the wording of the
order would be transmitted to the Tribunal for inclusion
in the
Tribunal's order. The third appellant undertook to do so by no later
than close of business on 20 April 2017. This, however,
did not occur
because a dispute arose between the parties about the wording of the
order to be provided to the Tribunal.
[42]
It is significant that the Tribunal was not asked to adjudicate what
was in fact agreed to between the appellants and
respondents
regarding the affidavits to be provided.
[43]
Mr Cockrell submitted that it would be impossible for the appellants
to furnish an affidavit dealing with component (b)
given the
over-breadth of the summons. He submitted that it would also be
impossible for the appellants to state under oath whether
documents
of such an enormous ambit covering a period of almost ten years
existed and, if so, was in possession of them. He contended
that the
most that the appellants could say is that they do not have those
documents in their possession.
[44]
According to Mr Bud/ender in the respondents' letter of 31 March
2017, the third appellant was expressly called upon
to furnish
affidavits addressing whether the documents sought are in its
possession, or, at least whether its representatives have
knowledge
as to whether they exist. The issue of whether the third appellant
would deal with the existence of the documents was,
therefore,
clearly at issue between the parties in the lead up to the hearing.
He expressed the view that it is not "inconceivable"
for
the third appellant to have agreed to provide the affidavits sought
by the respondents because by their very nature settlement

discussions involve a process of give and take and thus shifting
positions in an effort to reach a settlement.
[45]
He submitted that the statements made by counsel for the appellants
and the respondents were made during an open session
of the Tribunal,
in the presence of the third appellant's attorneys and client
representatives, yet none of them caused any query
or concern to be
raised about what was stated. He expressed the view that it is not
impossible for the third appellant's officials
to produce affidavits
dealing with whether or not documents not in the third appellant's
possession exist. The deponents need simply
confirm whether, to the
best of their knowledge, the documents exist, and, if so, their
whereabouts, and if they have no such knowledge
of whether the
documents exist, then they will simply record this in the affidavit.
He submitted that the Tribunal ought to have
included in its order
the undertaking by the third appellant to furnish affidavits in
relation to items 1 to 6, 11 to 14, 16, 20,
and 24 to 27 of annexure
A to the subpoenas. This ought now to be corrected by this court on
appeal to reflect the position set
out during the hearing by both
counsel.
[46]
It is important to state that the discussions referred to were held
on a 'without prejudice' basis .The agreement between
the parties was
that the wording of the order would be transmitted to the Tribunal
for inclusion in the Tribunal's order. The evidence
demonstrates that
no agreement was ever reached between the parties about the wording
of the order to be provided to the Tribunal.
[47]
There appears to be a dispute of fact as to what was agreed by the
parties.
Obviously,
this cannot be resolved by this court as it has no admissible
evidence before it and the issue has not been properly
ventilated.
The
costs order
[48]
What remains to be considered is the appeal on the costs order. The
question is whether the Tribunal exercised its discretion
in a manner
that was irregular. In Trencon Construction (Pty) Ltd v Industrial
Development Corporation of South Africa Ltd &
another, Khampepe J
stated as follows:
[16]
'When
a lower court exercises a discretion in the true sense, it would
ordinarily be inappropriate for an appellate court to interfere

unless it is satisfied that this discretion was not exercised -
"judicially, or that it had been influenced by wrong principles

or a misdirection on the facts, or that it had reached a decision
which in the result could not reasonably have been made by a
court
properly directing itself to all the relevant facts and principles".'
(Footnote omitted)
[49]
Mr Budlender submitted that on 31 March 2017, the respondents
proposed to narrow the scope of the subpoenas. He also
pointed out
that the respondents proposed, without accepting any obligation to do
so and "with prejudice", to pay the
appellants' costs of
the subpoena application until that date. On 11 April 2017, the
appellants' attorneys acknowledged receipt
of the proposal, advised
that they were taking instructions, and enquired about the ambit of
the tender including whether it included
the costs of two counsel. On
12 April 2017, the respondents replied, indicating that the tender
for costs encompassed the costs
of all proceedings before the
Tribunal between the parties, and included the costs of one counsel.
[50]
The appellants rejected this proposal. Ultimately, the parties argued
over the disputed documents before the Tribunal,
and the appellants'
application to have items 18, 19 and 21 of the subpoenas set aside
was dismissed. Mr Bud/ender submitted that
the Tribunal awarded costs
against the respondents without having regard to the tender made on
31 March 2017 and that the respondents
had made an eminently
reasonable tender to the appellants, and had succeeded in having that
which remained of the appellants' application
dismissed. He submitted
that the Tribunal misdirected itself on the costs issue, and that its
misdirection infected all its reasoning
and was instrumental to the
conclusion to which it came. He submitted further that the Tribunal
ought to have ordered that the
appellants should bear the costs
incurred after the respondents' tender of 31 March 2017.
[51]
Mr Cockrell submitted that although the Tribunal ordered the
appellants to furnish the disputed documents, this order
was limited
only to three items in the subpoena because the respondents had
abandoned the other items in the run-up to the hearing
in April 2017.
In these circumstances, he submitted, on any account, the appellants
had achieved substantial success in the subpoena
application.
[52]
In concluding that the respondents should pay the costs in the
subpoena application, the Tribunal reasons as follow:
[17]
'The
second issue is the subpoena application. In our view, the
respondents should be liable for the costs of this application,

despite being partially successful. The reasons for this relate: (a)
the over-breadth of the documents sought, and the fact that
many of
the documents for which they required disclosure were abandoned; (b)
the result vis-a-vis the jurisdiction point; and,
(c) the way in
which the jurisdiction point was raised - it was not raised in the
papers, which would have allowed the parties
and the Tribunal to
prepare properly on the issue.'
[53]
It seems to me in those circumstances that the appellants have raised
issues and achieved substantial success in the
subpoena application.
Having regard to all these circumstances I am satisfied that the
order of the Tribunal on costs should remain
undisturbed.
[54]
In respect of costs in the Dixon documents application, Mr Cockrell
submitted that the respondents elected not to move
the Dixon
documents application and thereby abandoned it. He submitted that in
the circumstances the respondents are liable for
the costs of that
application. The difficulty facing the respondents in this regard is
that the effect of the Dixon documents application
was that the
respondents applied for leave to re-open its case by adducing fresh
evidence into the record in the subpoena application
at a lime when
the appellants had already completed their argument. The respondents
furnished no adequate explanation for why they
had not put up the
Dixon documents when they filed their answering affidavit in the
subpoena application. It needs to be recorded
that the respondents'
answering affidavit in the subpoena application had referred to the
Dixon documents but the respondents did
not annex those documents to
their answering affidavit. The general rule is that in the ordinary
course costs follow the result
I am unable to find any circumstances
which persuades me to depart from this rule.
Order
[55]
In the result the following order is made :
(1)
The appeal is upheld with costs including the costs of two counsel.
(2)
Paragraphs 43.1 and 43.2 of the order of the Competition Tribunal are
set aside and replaced with the following order:
'The
subpoenas issued on 6 April 2016 are set aside in their entirety and
are declared to be of no force or effect.'
(3)
The cross-appeal is dismissed with costs including the costs of two
counsel.
MNGUNI
AJA
DAVIS
JP (concurring)
Appearances
Heard:
12

December 2017
Delivered:
3

April 2018
For
the Appellants:       Mr A. Cockrell SC
Mr N. Luthuli
Assisted
by:                 Mr
N. Luthuli
INSTRUCTED
BY:       Webber Wentzel
REF.:
Mr

D Dingley/Mr V Movshovich/Ms J Coyle 2538353
TEL.:
011-

530 6867
For
the Respondents:   Mr S. Budlender
Assisted
by:                  Mr
L. Kelly Nortons
Inc.
INSTRUCTED
BY:        Mr A Norton
REF:
Mr

W Radford
TEL:
011-666

7560
[1]
Vol. 27, pg 2467 of the Supplementary Record.
[2]
Rellams (Pty) Ltd v James Brown & Hamer Ltd
1983 (1) SA 556
(N)
at 564.
[3]
Beinash v Wixley 1997 (3) SA 721 (SCA).
[4]
Hudson v Hudson & another
1927 AD 259
at 268.
[5]
Beinash v Wixley supra at 7340-735A
[6]
Meyers v Marcus & another2004 (5) SA 315 para 24.
[7]
Ansac & another v Botash & others (1)
[2001] ZACT 10
(27
March 2001).
[8]
Section 33 provides: 'Right of informants to claim
confidentiality.-(1) A person may, when submitting information to
the Commission,
identify information that the person claims to be
information that-
(a)
is confidential by its nature; or
(b)
the person otherwise wishes to be recognised as confidential.
(2)
A person making a claim in terms of subsection (1) must support that
claim with-
(a)
a written statement in the prescribed form-
(i)
explaining, in the case of information that is confidential
by its
nature, how the information satisfies the requirements set out in
the definition of "information that is by nature
confidential"
in section 1 (2); or
(ii)
motivating, in the case of other information, why that information

should be recognised as confidential, and
(b)
either­ (i)
(ii)
a written abstract of the information in a non-confidential form;
or
a sworn statement setting out the reasons why it is impossible to
comply with subparagraph (i).
[9]
Section 34 provides: 'Determination by Commission.-(1) If a person
makes a claim in terms of section 33, the Commission must-
(a)
in the case of information claimed to be confidential by nature,
determine whether the information satisfies the requirements
of the
definition of "information that is by nature confidential"
set out in section 1 (2); or
(b)
in the case of other information, determine whether the information
should be recognised as confidential.
(2)
If, upon considering a claim in terms of subsection (1) (a), the
Commission determines that the information is not, by nature,

confidential-
(a)
the Commission must invite the claimant to submit a further
motivation for the information to be recognised as otherwise
confidential; and
(b)
if the claimant submits such a motivation within the prescribed
time, the Commission must reconsider the claim in terms of

subsection (1) (b).
(3)Upon
making a final determination in terms of subsection (1) or (2) (b),
the Commission­
(a)
must notify the claimant in writing of its determination; and
(b)
may it has determined that the information is not, by nature,
confidential or should not be recognised as being otherwise

confidential, advise the claimant that the information will not be
considered in determining the merits of an application or
other
matter in question.'
[10]
Vol. 1, pg 13 of the Record.
[11]
Vol. 1, pg 84, lines 30-31 of the Record.
[12]
Vol. 1, pg 84, lines 30-31 of the Record.
[13]
Continental Ore Construction v Highveld Steel & Vanadium
Corporation
1971 (4) SA 589
(WJ at 597E-F.
[14]
Vol. 25, pg 2234 of the Record.
[15]
Vol. 25, pg 2237 of the Record.
[16]
Trencon Construction (Pty) Ltd v Industrial Development Corporation
of South Africa Ltd & another 2015 (5) 245 SA (CC) para
88.
[17]
Vol. 7, pg 539, para 41 of the Record.