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[2018] ZACAC 5
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Standard Bank of South Africa Limited v Competition Commission of South Africa (160/CAC/Nov17, CR212Feb17 /DSC027Apr17) [2018] ZACAC 5; [2018] 1 CPLR 104 (CAC) (31 May 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE COMPETITION APPEAL COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CAC CASE NO:
160/CAC/Nov17
CT CASE NO
:CR212Feb17
/DSC027Apr17
In
the matter between:
THE
STANDARD BANK OF
SOUTH
AFRICA
LIMITED
APPELLANT
(Applicant
in the Application to Compel)
and
THE
COMPETITION COMMISSION OF
SOUTH
AFRICA
RESPONDENT
(Respondent
in the Application to Compel)
Judgment
Van
der Linde, AJA (Davis, JP and Mnguni. JA concurring):
Introduction
and back ground
[1]
This
appeal is concerned with the proper interpretation of Competition
Commission Rule 15(1)
[1]
and its application by the Competition Tribunal to the appellant's
application to the Tribunal for the respondent to produce its
record
of investigation into the alleged collusive conduct by banks with
regard to trading in foreign currency ("the Forex
case").
[2]
It
is apparent from the Tribunal's Reasons for Decision and Order
[2]
that the appellant is one of eighteen respondent banks who were
joined in the complaint referral of the Forex case to the Tribunal
on
15 February 2017. The case is that the respondents had engaged in
cartel conduct offensive of s.4(1)(b)(i) of the Competition
Act 89 of
1998 ("the Act").
[3]
On
22 February 2017 the appellant's attorney wrote to the Commission,
saying that the first time it became aware of the allegation
that it
had been involved in the offensive conduct was when the Commission
told the press about the referral.
[3]
It recorded that the Commission had been widely reported as being
willing to treat cooperative respondents more leniently than
non-cooperative ones; and, since the appellant had not been able to
find any evidence of improper or unlawful conduct but preferred
to
engage constructively with the Commission, it requested a meeting
with the Commission to discuss the complaint referral. The
Commission's response on 23 February 2017
[4]
was to decline the invitation, saying that the appellant had enough
detail in the complaint referral itself to plead or consider
its
position.
[4]
Not
deterred, the appellant wrote again on 1 March 2017,
[5]
requesting the Commission to reconsider its refusal to meet, but this
time requesting the Commission's record of the investigation
in terms
of rule 15(1) of the Rules for the Conduct of Proceedings in the
Competition Commission. Relying expressly on the judgment
of this
court in Group Five Ltd v The Competition Commission,
[6]
the appellant asked for an index of the record, indicating which
portions were restricted and the reasons therefor, and for copies
of
the unrestricted portions. The appellant asked that this be done by
15 March 2017.
[5]
Rule 15(1) of the Commission Rules provides as follows:
"15. Access to
information
(1)
Any person, upon payment of the
prescribed fee, may inspect or copy any Commission record-
(a)
if it is not
restricted information; or
(b)
if it is restricted
information,
to
the
extent permitted, and subject to any conditions imposed, by-
(i)
this Rule; or
(ii)
an
order of the Tribunal, or the Court."
[6]
Since rule 14(1)(e) will also feature
below, I quote it here:
"14. Restricted
information
(1)
For the purpose of this Part, the
following five classes of information are restricted:
(a)
...
(e)
Any other document to which a public body would be required or
entitled to restrict access in terms of the Promotion of Access
to
Information Act,
2000
(Act No. 2 of
2000)."
[7]
This court had held in Group Five only some eight months earlier, on
23 June 2016,
that rule 15(1) allowed
"any
person"
to
inspect the record, whether a litigant or not, and the Commission was
duty-bound within a reasonable time - importantly, to be
determined
without reference to the Commission's post-pleading discovery
obligations in pending litigation - to avail it.
[7]
I return more fully to this below.
[8]
The
Commission acknowledged receipt
[8]
but said nothing more. Specifically, it expressed no position on the
appellant's request for the record.
[9]
On
27 March 2017 the appellant followed up, requesting compliance with
the request for the record by 7 April 2017.
[9]
The Commission responded on the same day,
[10]
agreeing to make the record available:
"We
advise that the Commission is preparing the record of the
investigation and the index thereto. The Commission will furnish
your
client with the index of the record as soon as the record is
finalised in order for your client to decide which part of the
record
it wants copied."
[10] When
by 20 April 2017 the appellant had not yet received the index, it
wrote
[11]
asking when it would be made available. It concluded its letter:
"We
look forward to hearing from you as a matter of urgency."
On
21 April 2017 the Commission responded,
[12]
again saying that it was attending to the request, but asking the
appellant to inform it about the basis for the urgency of the
request. The appellant responded on the same day,
[13]
saying that a reasonable time - almost two and a half months - had
passed and the record had still not been provided.
[11] Five
days later, on 26 April 2017, the appellant brought the application
to compel production of the
record within
five
days.
[14]
The founding affidavit drew attention to the fact that the
application was being launched ten weeks after the Commission had
made
the complaint referral, nine weeks after the appellant had first
requested the record, and a little
over
four weeks since
the Commission had undertaken to give access to the record.
[15]
That application was only set down for hearing on 18 September 2017.
[12] 0n 4
September 2017 the Commission declined
[16]
the appellant's request for the record. The reason for this change in
attitude was this:
'The
Commission acknowledges that SBSA's request to the record in terms of
rule 15{1} vests in it as an ordinary member of the public,
not a
litigant. Despite this, SBSA has not conducted itself as ordinary
member of the public. ft has conducted itself in a manner
that is
contrary to the Competition Appeal Court's judgment in Group Five v
Competition Commission. It has also used its position
as a litigant
to approach the Tribunal in the compelling application when it has no
locus standi
to
do so."
[17]
[13] The
Commission filed its answering affidavit on 7 September 2017, asking
that the appellant's application
be dismissed, amongst other reasons,
on the basis that the appellant should have applied to review the
Commission's decision.
[18]
After the replying affidavit was filed on 12 September 2017, the
matter was heard on 18 September 2017. The Tribunal's order and
its
reasons for them were issued on 6 November 2017.
[14] The
Tribunal dismissed the Commission's point that a review should have
been brought; it dismissed
the appellant's application that the
record should be produced in
five
days; and it directed the
Commission to provide the appellant with the record at the same time
as it produces discovery in the Forex
case.
[15] On
appeal, the appellant argued that the Tribunal erred because Group
Five constituted
"the
clearest authority
...
that there is no
rationale for linking production of a record under rule 15(1} of the
... Commission Rules to discovery."
[19]
The
Commission
argued that the record is
"restricted"
for purposes of
Commission rule 15; that in any event the Tribunal retains the
residual discretion to determine a "reasonable
time" within
which to make the record available; and - regardless of the first two
points - the appellant must fail because
its persistence in asking
for the record is an abuse of process and should not be
countenanced.
[20]
Discussion:
introduction
[16]
Perhaps the best place to begin the discussion of these submissions
is with the first and third arguments
advanced by the Commission. If
either of them is correct, then the Tribunal's order that the
Commission is obliged to make the
record available to the appellant
must be set aside. Yet there is no cross-appeal
[21]
by the Commission, except to the limited extent of the Tribunal's
dismissal of the Commission's argument that the appellant should
have
applied to review, and not appeal, the Commission's decision.
[22]
And that proposition was expressly abandoned before us by Adv.
Ngcukaitobi for the Commission, in my view rightly so.
[17] That
really disposes of the Commission's first and third arguments. But as
will appear from what follows,
in my view the
ratio decidendi
of
this court's judgment in Group Five in any event answers the
Commission's first and second arguments, unless this court finds
that
Group Five was clearly wrong. And in this regard both the appellant
and the Commission proceeded from the unexpressed premise
that the
principles of
stare decisis
and precedent applied not only as
between the Tribunal and this court, despite the Tribunal not being a
court of law; but also to
this court as regards its own earlier
judgments. Group Five also implicates the sustainability of the
Commission's second argument
and so it is appropriate that something
be said about precedent and its applicability to the Tribunal and to
this court.
Precedent
[18]
The first proposition in this regard is
that precedent is squarely part of our post 1994 law. This is, with
respect, well said by
Madlanga, J in the Constitutional Court in
Turnbull-Jackson v Hibiscus Court Municipality and Others (footnotes
omitted):
[23]
[24]
"[54]
The Walele
-
True
Motives controversy brings to the fore the important doctrine of
precedent, a core component of the rule of law, without which
deciding legal issues would be directionless and hazardous. Deviation
from it is to invite legal chaos. The doctrine is a means
to an end.
This Court has previously endorsed the important purpose it serves:
'The doctrine of precedent] is
widely recognized in developed legal systems. Hahlo and Kahn describe
this deference of law for precedent
as a manifestation of the general
human tendency to have respect for experience. They explain why the
doctrine of stare decisis
is so important, saying:
'In the legal system the calls
of justice are paramount. The maintenance of certainty of the law and
of equality before it, the
satisfaction of legitimate expectations,
entail a general duty of judges to follow the legal rules in previous
judicial decisions.
The individual litigant would feel himself
unjustly treated if a past ruling applicable to his case were not
followed where the
material facts were the same. This authority given
to past judgments is called the doctrine of precedent.
It enables the citizen, if
necessary with the aid of practising lawyers, to plan his private and
professional activities with some
degree of assurance as to their
legal effects; it prevents the dislocation of rights, particularly
contractual and proprietary
ones, created in the belief of an
existing rule of law; it cuts down the prospect of litigation; it
keeps the weaker judge along
right and rational paths, drastically
limiting the play allowed to partiality, caprice or prejudice,
thereby not only securing
justice in the instance but also retaining
public confidence in the judicial machine through like being dealt
with alike.
. .
.
Certainty,
predictability,
reliability, equality, uniformity, convenience: these are the
principal advantages to be gained by a legal system
from the
principle of stare decisis."'
[19]
This court is established in terms of
the
Competition Act,
[25
]
pursuant to the Constitution,
[26]
as a court of record with jurisdiction throughout the Republic,
similar in status to that of the High Court of South Africa.
[27]
As such, its own precedent - meaning its
rationes
decidendi
- binds it unless it finds
that the earlier judgment was clearly wrong.
[20]
The Tribunal is a specialist
administrative tribunal created under the Act, not a court of
law.
[28]
[29]
This is not to say that it does not perform functions akin to that of
a court. As Sachs, J said in Sidumo and Another v Rustenburg
Platinum
Mines Ltd and Others (footnotes omitted):
[30]
"218
The performance of judicial functions is not confined to courts of
law. Administrative
tribunals
are increasingly performing the same functions as courts of law do
and they do so by similar process. Thus an administrative
body may in
the discharge of its duties under a statute function as if it were a
court of law and perform judicial functions. And
at times it is not
easy to draw a clear line of demarcation between tribunals which are
and those which are not Courts of Law.
What characterises a judicial
function are proceedings in which rights are legally determined and
liability imposed by a competent
authority upon a consideration of
the facts and the circumstances placed before it.
220 But the performance of
judicial functions does not transform an administrative tribunal into
a court of law.”
[21]
Following from this proposition
concerning the Tribunal's status, flows the consequence that the
Tribunal is not bound by its own
previous decisions. In Canada the
Queen's Bench of Alberta has put it thus:
[31]
"[59]
Both applicants submit that the Board was not only interpreting its
own statute, but also that it had to follow the principle
of stare
decisis. The correctness standard will apply if an issue is one of
general law that is of central importance to the legal
system as a
whole and outside the tribunal's specialized area of expertise:
Dunsmuir at para 60. The proper application of the
stare decisis
doctrine fits within this description. However, I do not need to
decide on this matter because, as is elaborated
below, the doctrine
of stare decisis does not affect the Panel's decision in this case.
The Board can alter its own precedents:
see e.g. Health Sciences.
Furthermore, the Court has merely decided whether the Board's prior
decisions were reasonable or within
the Board's jurisdiction to
decide, not whether its decisions were correct on the issue of open
periods. The Court has declined
to interpret the relevant section of
the Code. The jurisprudence developed by the Courts and referred to
by the applicants does
not address the question before the Panel in
this case. Therefore, there is no question of whether the doctrine of
stare decisis
was correctly followed."
[22]
Self-evidently, when the Tribunal
applies the general law- as it always must - it must apply it as it
finds it, whether in previous
decisions by itself, or in decisions of
this court. But since it is not a court, it does not itself establish
precedent, whether
binding on itself or anyone else. It is however
bound by decisions of this court.
Group
Five:
ratio decidendi
[23] It is
appropriate now to move on to Group Five and what to it decided. In
that matter too the respondent
had under rule 15 asked for the record
of the Commission's investigation. And there too, although the
Commission initially agreed
to make the record available without
qualification, it later changed its position and conveyed that the
respondent could access
the record during the ordinary course of
post-pleading discovery. The Tribunal upheld the Commission's
position.
[24] On
appeal, this court held that the entitlement to the record under rule
15 is not derived from a litigant's
status as such, but from a
general public-access right.
[32]
It followed that, although the record had to be provided within a
reasonable time, the Tribunal erred in holding that what was
reasonable was affected by the respondent's position as litigant.
[33]
[25]
Concerning the Commission's argument
that the record was restricted under rule 14(1)(e), Rogers, JA on
behalf of this court held:
"[16]
...Section 7(1) expressly excludes PA/A's operation (i) if the record
is requested for
purposes
of criminal or civil proceedings; and (ii) after the commencement of
such proceedings; and (iii) any other law provides
for access to the
record in question. I leave open whether complaint proceedings are
'civil proceedings' (they are certainly not
'criminal' proceedings)
and whether the Tribunal's rules provide for the production of the
Commission's record {bearing in mind,
as I have observed, that
discovery in complaint proceedings strictly speaking depends on the
extent to which the Tribunal in its
discretion directs discovery to
be made). The simple point is that Group Five sought access in terms
of Commission rule 15(1),
not in terms of PAIA. Rule 15(1) does not
contain the same limitation ass 7(1)."
[26]
The
court thus underscored that s.7 of PAIA disapplies that Act
altogether if three features are present: the record is requested
for
criminal or civil proceedings; after the commencement of such
proceedings; and " ... the production of or access to that
record for the purpose referred to in paragraph (a) is provided for
in any other law." I revert to this latter aspect below.
[27]
But,
following the language of rule 14(1)(e), Group Five held that a
public body is only
"required or
entitled"
to restrict access in
terms of chapter 4 of PAIA, whose sections are not relied on by the
Commission in this matter. Perhaps more
plainly put: when PAIA does
not apply under s.7, the public body is not restricting access; it is
not acting at all in terms of
PAIA and accordingly rule 14 (l)(e) is
not of application.
[28]
In oral argument before us the Commission expressly accepted the
correctness of Group Five, provided
that court's reasoning was
understood in the way for which the Commission was contending .
Specifically, the Commission submitted
that properly construed Group
Five held that it was wrong to exclude access to the record by
reference to the identity of the requester,
but that it was perfectly
legitimate to exclude access by reference to the purpose for which
the record is requested. However,
since rule 15 did not contain an
exclusion by reference to the purpose for which the record was
required, Group Five held that
the Commission was obliged to avail
it.
[29]
Moving from this premise, the Commission
then submitted that what is excluded from the Commission's obligation
is
"restricted information,"
and under rule 14(1)(e) the
information referred to in s.7 of PAIA qualifies as
"restricted
information."
S.7 of PAIA
qualifies information with reference to the purpose for which it was
obtained, according to this argument. Paragraph
[19] of the judgment
in Group Five, expressly left open the introduction of such a
qualification (with reference to purpose, as
does s.7 of PAIA) to
rule 15.
[30]
Therefore, according to this argument,
this court was free to introduce such a qualification into rule 15,
through the incorporation
of s.7 of PAIA in rule 14(1)(e), by holding
that proceedings before the Tribunal are akin to
·"civil
proceedings"
as envisaged in
s.7 of PAIA, and that that section therefore served to qualify the
record as
"restricted
information."
[31]
I do not agree with this interpretation of Group Five. First it is
necessary to quote s.7 of PAIA:
"7.
Act not applying to records
requested for criminal or civil proceedings after commencement of
proceedings
(1)
This
Act does not apply to a record of a public body or a private body if
(a)
that record is requested for the
purpose of criminal or civil proceedings;
(b)
so requested after the
commencement of such criminal or civil proceedings, as the case
maybe; and
(c)
the production of or access to
that record for the purpose referred to in paragraph (a) is provided
for in any other law.
(2)
Any record obtained in a manner that contravenes subsection (1) is
not admissible as evidence in the criminal or civil proceedings
referred to in that subsection unless the exclusion of such record by
the court in question would, in its opinion, be detrimental
to the
interests of justice."
[32]
Paragraph [19] of Group Five reads:
"[19]
The policy considerations underlying s
7
of PA/A might justify the introduction
of a similar qualification in Commission rule 15. An exclusion
defined with reference to
the purpose for which a record is requested
(ie for purposes of litigation which has already commenced) rather
than with reference
to the identity of the requester does not give
rise to the absurdity mentioned in ArcelorMittal (para 46). Where
litigation has
commenced and a
record is
requested by a close associate of the litigant, it may not be
difficult to show that it has been requested for purposes
of the
litigation, ie that the requester is a front for the litigant.
However, and as I have said, rule 15 does not currently contain
any
such qualification."
[33]
The first and last sentences are the key
to the correct meaning of this paragraph. The judgment is saying that
although there might
be legitimate cause for amending rule 15, not
re-interpreting it, as yet it has not been amended; and in the light
of paragraph
[16) (quoted earlier), the rule as it currently stands
leaves no scope for the suggested reading in, even through rule
14(1)(e),
of a s.7 PAIA carve-out.
[34]
Nor, with respect, do I believe that
Group Five was incorrectly decided. As submitted by the appellant
before us, a public body
restricts access, i.e. it acts in making a
decision to restrict access, when it acts in terms of the power
conferred in sections
33 to 46 collected under the later chapter 4 of
PAIA. S.7 of PAIA finds no application at all, because under that
section the public
body does not act at all. Under that section PAIA
as a whole simply does not apply, and the
"purpose"
qualification in s.7(1) of PAIA does
not enter the interpretative endeavour.
[35]
It follows then that Group Five applies unabatedly in the present
matter. That has the implication
- quite apart from the absence of a
cross-appeal - that as a matter of law the Commission was obliged to
have availed the record
of its investigation to the appellant, to
have done so within a reasonable time, and to have disregarded the
appellant's status
as litigant in determining the extent of a
reasonable time.
[36]
The Tribunal, although acknowledging the binding force of Group Five,
nevertheless arrived at precisely
the result which Group Five, as a
matter of principle, eschewed. In embarking on its assessment of what
would, in the circumstances,
constitute a reasonable time, the
Tribunal moved straight into considering the appellant's position as
litigant.
[34]
[37]
It reasoned, for example, that:
"Standard
bank has not advanced any facts as to why it should acquire the
record prior to discovery."
And
it said:
"After considering
all these facts we do not consider the Commission's tender to produce
the record when it makes discovery
in this matter to be unreasonable
when weighed against the fact that Standard Bank advanced no reasons
why it should be produced
before then."
[38]
In view of this approach, the Tribunal's concluding paragraph, that
"Our decision would have been no different if the requester
had been a member of the public who was not a litigant in this
matter. The same considerations in respect of reasonableness would
still apply",
is not convincing. It plainly took into
account the fact that the appellant was a litigant who was getting
discovery anyway, and
so it again fell into the very conceptual error
that Group Five expressly identified in paragraph [11]. In doing so,
it misdirected
itself. It is regrettable that the Tribunal eschewed
adherence to a recent clearly expressed precedent from this court.
The consequence
is to create legal uncertainty of a kind that the
principle of precedent is designed to prevent.
[39]
It follows that the Commission's first two propositions cannot be
upheld. That leaves the third argument,
that the appeal must fail
because the appellant's persistence in asking for the record is an
abuse of process and should therefore
not be countenanced. As pointed
out above, there is no cross-appeal to this effect,
[35]
despite this point having been pertinently argued before the
Tribunal.
[36]
Since the point
was fully argued before us, we deal with it.
[40]
First it is necessary to decide on the time-frame within which the
appellant's conduct must be scrutinised.
This is relevant, because it
cannot be that the Commission can unlawfully deny the record, and
then convert the appellant's responsive
persistence into abusive
conduct thereby relying on its own unlawful denial. That would offend
a fundamental principle of our law,
that a person is not permitted to
take advantage from his/her own unlawful conduct. In Comwezi Security
Services (Pty) Ltd and
Another v Cape Empowerment Trust Ltd
[37]
Van Zyl, AJA said in this context:
"[12]
The rationale for this rule is twofold: A party to a contract should
not by its own
unlawful conduct be
allowed to obtain an advantage for himself to the disadvantage of his
counterpart. 'It is a fundamental principle
of our law that no man
can take advantage of his own wrong' and 'to permit the repudiating
party to take advantage of the other
side's failure to do something,
when that failure is attributable to his own repudiation, is to
reward him for his repudiation'.
The converse is that the innocent
party is not expected to make the effort or incur the expense of
performing some act when, by
reason of the repudiation, 'it has
become nothing but an idle gesture'. This is consistent with the
general principle that the
law does not require the performance of a
futile or useless act. These principles are of general application
and may find application
in a variety of circumstances. The doctrine
of fictional fulfilment of contractual terms is, for example,
similarly based on the
principle that a contractant cannot take
advantage of its own wrongful conduct to escape the consequences of
the contract.”
[41]
The factual background is set out above. It seems fair to conclude,
as the Tribunal appears to have
done, that the Commission changed its
mind about making the record available when the appellant asked for a
response as a matter
of urgency. Whether that response was out of
pique is not now relevant. The point is can it be said that the
appellant's conduct
before that time evidences abuse of process?
[42]
Dewrance, AJ had occasion recently to consider the meaning and reach
of this concept in Fourie NO and
Another v Smith and Another.
[38]
The learned judge, having collected a number of authorities, said:
"[48]
Court proceedings may not be used or threatened for the purpose of
obtaining for the person so using or threatening them
some collateral
advantage
to
himself,
and not for the purpose for which such proceedings are properly
designed and exist; and a party
so
using
or threatening proceedings will be liable to be held guilty of
abusing the process of the court and therefore disqualified
from
invoking the powers of the court by proceedings he has abused. A
legal process is abused when it is used for a purpose other
than for
what it has been intended or designed for."
[43]
In the course of discussing the authorities, the learned judge
remarked that fraudulent motive cannot
of itself constitute abuse;
the fraudulent motive must couple with conduct that ultimately leads
to defeat the rights of others.
[39]
And relying on the Appellate Division in Hudson v Hudson and
Another,
[40]
the learned judge
remarked
[41]
that the court's
duty to intervene to stop an abuse of process "...
is
a power which has to be exercised with great caution, and only in a
clear case."
Although
that case was concerned with court process, it is akin to the present
matter, concerned as it is with procedural provisions.
[42]
[44]
The central tenet of the Commission's argument here was that the
appellant's conduct was abusive because
its persistence in seeking
the record was intended to delay its obligation to file its answer;
and in any event was aimed at getting
access to evidence. Does the
evidence sustain the asserted inference?
[45]
The appellant's assertion in its founding affidavit reads thus:
[43]
"Extraordinarily,
SBSA became aware of the fact that it was alleged to be involved in
the conduct that is the subject of the
forex referral through the
Commission's press release on 15 February 2017. SBSA, as a party that
had not been informed that the
Commission was investigating it, was
not provided the courtesy even of access to the referral affidavit
before a media release
containing damaging allegations was sent out
by the Commission. Only after the fact of the referral had been
widely publicised
was SBSA favoured with a copy of the complaint
referral."
[46]
This
evidence was met with a tactical denial, not one that engaged
substantively with the point. This is the type of denial of which
Heher, JA said in Wightman t/a JW Construction v Headfour (Pty) Ltd
and Another:
[44]
[13]
A real, genuine and bona fide dispute of fact can exist only where
the court is satisfied
that
the party who purports to raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be
disputed.
There will of course be instances where a bare denial meets the
requirement because there is no other way open to the
disputing party
and nothing more can therefore be expected of him. But even that may
not be sufficient if the fact averred lies
purely within the
knowledge of the averring party and no basis is laid for disputing
the veracity or accuracy of the averment.
When the facts averred are
such that the disputing party must necessarily possess knowledge of
them and be able to
provide
an answer (or countervailing evidence) if they be not true or
accurate but, instead of doing so, rests his case on a bare
or
ambiguous denial the court will generally have difficulty in finding
that the test is satisfied. I say 'generally' because factual
averments seldom stand apart from a broader matrix of circumstances
all of which needs to be borne in mind when arriving at a decision.
A
litigant may not necessarily recognise or understand the nuances of a
bare or general denial as against a real attempt to grapple
with all
relevant factual allegations made by the other party. But when he
signs the answering affidavit, he commits himself to
its contents,
inadequate as they may be, and will only in exceptional circumstances
be permitted to disavow them. There is thus
a serious duty imposed
upon a legal adviser who settles an answering affidavit to ascertain
and engage with facts which his client
disputes and to reflect such
disputes fully and accurately in the answering affidavit. If that
does not happen it should come as
no surprise that the court takes a
robust view of the matter."
[47]
A
real dispute of fact is thus not created unless the point is properly
challenged. This is a self-evident proposition that has
always
been
[45]
central to our civil
process by way of affidavit evidence, such as was this application
before the Tribunal. So it remained uncontested
that the Commission
surprised the appellant, and did so publicly, by the fact and
contents of the referral.
[48]
The
appellant's response was to make internal inquiries, and a week later
to ask to meet with the Commission, in the context of
the
Commission's known willingness to treat more leniently those
respondents that co-operate, so as to discuss the referral.
[46]
The Commission's two-sentence response the next day rebuffed the
request. It said the appellant's Answer was expected in the normal
course. On 1 March 2017
[47]
the appellant then formally asked for the record in terms of rule
15(1), to be provided by 15 March 2017.
[49]
There is no doubt, as the Commission
contends - here relying on Group Five - that the appellant cannot use
the guise of rule 15(1)
to avoid its obligation to plead. And it
would also be naive, given the appellant's ignorance of its alleged
involvement, to suppose
that the appellant would not be far better
enabled to plead once it had the record of the investigation.
[50]
But it is equally true that the Commission's decision to surprise the
appellant cannot operate to prejudice
the appellant's entitlement as
a member of the public to obtain the record. The fact that the
appellant would want to use that
information to plead is, standing
alone, quite irrelevant. It only becomes relevant if the objective in
seeking the record is to
delay pleading.
[51]
I do not consider that one can find, on these papers, that the record
was being sought deliberately
in order to delay pleading. I say so
for two reasons. First, it is a completely natural response for a
person being accused of
egregious conduct, and in the public glare
too, to want to know what the facts are that sustain the allegations.
And second, if
delaying the obligation to plead were the true
(disingenuous) objective, it would seem that formally (but
disingenuously) objecting
to the legal sustainability of the referral
would securely avoid filing the answer for some considerable time.
[52]
It is obviously not suggested for a moment that such objections, or
"exceptions" as they
have been referred to, as have been
raised in this matter are disingenuous. The point is that the
Tribunal has been at pains, both
in this case and in others, to lean
over backwards to accommodate respondents that raise legal objections
to a referral. Here a
timetable was accepted that provided for the
filing of a supplementary affidavit by the Commission, and provision
was made for
a reply by the Commission to the exceptions. A date for
a pre hearing was set. No doubt there was provision for
preparation
and exchange of heads of argument. As it happens, the
pre-hearing collapsed, and a date for hearing the exceptions was in
the event
only fixed for 24 - 26 January 2018.
[53]
And so, if a dishonest litigant had set
out to abuse the system by deliberately retarding the process before
the Tribunal, there
were easier ways to delay justice, just as often
occurs in our courts.
[54]
That leaves the point that seeking the record is abusive because the
appellant is attempting to obtain
access to the evidence. This
argument is met completely, I believe, by the proposition articulated
in Group Five, that a member
of the public who seeks access to the
record cannot be prejudiced by the fact that such a member is also a
litigant.
Conclusion
and order
[55]
This then disposes of the merits of the appeal. The appellant must
succeed and the next question relates
to the order that ought to
follow. Since this court will in the normal course simply have
substituted its order for that of the
Tribunal, the question is
whether a reasonable period for the provision of the record of the
investigation had lapsed by 18 September
2017 when the matter was
heard by the Tribunal.
[56]
Group
Five made it plain that what would constitute a
"reasonable
period"
is concerned only with
the time the Commission would reasonably require to prepare its
record and identify what parts are restricted.
[57]
It is difficult to work out precisely what could have delayed the
Commission's provision of the record
since 1 March 2018 when it was
first requested. The answering affidavit deals with this issue at
paragraphs 36 (with six sub-paragraphs)
and 37.
[48]
The assertions relevant to this issue are regrettably of a
generalised nature, e.g.:
"It
takes time, resource and the
assistance
of experts and witnesses to determine what should reasonably be
classified as restricted information for the purposes
of disclosing
the record.',
[49]
And:
"The
Commission has a defined limited staff that have been dedicated to
this matter.”
[50]
so
And:
"A
lot of the Commission's time and resources in the matter were
diverted and have been devoted to dealing with the exceptions
and
various interlocutory applications that have been filed in the
matter
.”
[51]
[58]
It did not help that the Commission later - before the hearing on 18
September 2017 - declined to make
the record available, but did not
say whether it had stopped preparing it as it had earlier undertaken
to do and, if so, on what
date. Given its own, changed, stance, the
Commission also did not predict - with reference to facts - when the
record would be
available.
[59]
In consequence the Tribunal was poorly equipped to determine a
reasonable period, absent the litigation
of course; and so is this
court. Should this court refer the matter back to the Tribunal? In my
view not, given that so much time
has already elapsed.
[60]
In the result I propose the following order:
(a)
The appeal is upheld with costs,
including the costs of two counsel.
(b)
Paragraph (1) of the order of the
Tribunal dated 6 November 2017 remains unaltered.
(c)
Paragraph (4) of that order is
renumbered as (3).
(d)
Paragraphs (2) and (3) of that order are
deleted, and there is substituted for them the following:
(2)
"An order is granted in
terms of prayer 2 of Standard Bank's Notice of Motion dated 26 April
2017."
Van
der Linde, AJA
I
agree, and it is so ordered.
Davis,
JP
I
agree.
Mnguni,
JA
For
the appellant:
Adv.
A Subel, SC
Adv.
MJ Engelbrecht
Instructed
by:
Herbert Smith Freehills
15 Biermann Ave
Rosebank
Towers, 4
th
floor
Rosebank
Ref:
J Meijer/S Naidoo
Tel:
010 500 2642/3
Jean.meijer@hsf.com/sandhya.naidoo@hsf.com
For
the Commission:
Adv.
T Ncgukaitobi
Adv.
F Hobden
Adv.
L Zikalala
Adv.
I Kentridge
Instructed
by:
Ndzabandzaba
Attorneys Inc
Unit
3, Ground Floor
65
Peter Place Road
Bryanston
Sandton
Johannesburg
Tel:
011463 8448
Ref
AC Ndzabandzaba/CCSA0050
Anthony@nalegal.eo.za/musa@nalegal.eo.za
[1]
These rules were made by the Minister of Trade and Industry, in
consultation with the Competition Commission, in terms of
s.21(4)
of
the
Competition Act 89 of 1998
, and published as Government Notice
No.22025 in Government Gazette 428 on 1 February 2001.
[2]
Vol 3/118 ff.
[3]
Vol 1/19/27 - 29.
[4]
Vol 1/21/10-11.
[5]
Vol 1/23, 24.
[6]
[2016] 2 CPLR 386
(CAC).
[7]
Op cit, [11] (emphasis supplied):
"In so holding the
Tribunal fell into error. The Tribunal correctly recognised that the
right of access in rule 15{1) is
a public-access right, not a right
given specifically to litigants. Group Five's right in terms of
rule
15(1)
vests in it as part of the unlimited class of "any
person", not as a respondent in complaint proceedings . From
this
it follows that the determination of a reasonable period within
which the Commissioner must give access is not affected by whether
or not the requester is a litigant. Put differently, Group Five's
entitlement to the record within a reasonable period of time
cannot
be negatively affected by its status as a respondent.
The
determination o f a reasonable period is only concerned, in mv view.
with the time the Commission would reasonably require
to prepare its
record and identify what parts are restricted. That may vary from
case to case but would not be affected by the
identity of the
requester. "
See also [13] and [15].
[8]
Vol 1/13/10 -12.
[9]
Vol 1/25.
[10]
Vol 1/26.
[11]
Vol 1/28.
[12]
Vol 1/32/10.
[13]
Vol 1/37/9 - 17.
[14]
Vol 1/1-3.
[15]
Vol 1/14/16- 20
[16]
Vol 2/89 - 93.
[17]
Vol 2/93/6 - 12.
[18]
Vol 1/44/10 -15. S.27(1}(c) of the Act provides that the Tribunal
may: "...
hear appeals from, or review any decision of, the
Competition Commission that may, in terms of this Act, be referred
to it;
.."
[19]
Appellant's heads of argument, p2, para 1
[20]
Commission's "notes for oral argument", paras 2.1, 2.2,
and 2.3.
[21]
Rules 18 and 16 of the Competition Appeal Court rules
[22]
Vol 3/142/15 -16.
[23]
(CCT 104/13)
[2014] ZACC 24
;
2014 (6) SA 592
(CC);
2014 (11) BCLR
1310
(CC) (11September 2014).
[24]
And see too True Motives 84 (Pty) Ltd v Madhi and Others (543/2007)
[2009] ZASCA 4
;
2009 (4) SA 153
(SCA);
2009 (7) BCLR 712
(SCA) ;
[2009] 2 All SA 548
(SCA) (3 March 2009) at [100] ff; Camps Bay
Ratepayers and Residents Association and Another v Harrison and
Another (CCT 18/10)
[2010] ZACC 19
;
2011 (2) BCLR 121
{CC) ;
2011
(4) SA 42
(CC) (4 November 2010) at [28]; Laubscher N.O. v Duplan
and Another (CCT234/15)
[2016] ZACC 44
;
2017 (2) SA 264
(CC);
2017
(4) BCLR 415
{CC) (30 November 2016); and Living Hands (Pty) Ltd NO
and Another v Ditz and Others (42728/2012) [2012] ZAGPJHC 218;
2013
(2) SA 368
(GSJ) (11 September 2012).
[25]
S.36.
[26]
S.166(e).
[27]
Since this court sits with three judges, it has the status of a full
court.
[28]
Competition Law of South Africa, Sutherland and Kemp, LexisNexis
(loose leaf), para 11.4.1, p 11-20.
[29]
And the Tribunal does not view itself any different: Competition
Commission South Africa v Sasol Chemical Industries Ltd, In
re:
Competition Commission South Africa v Sasol Chemical Industries Ltd
and Others (45/CR/May06, 31/CR/May05)
[2010] ZACT 48
(20 July 2010)
at [29].
[30]
(CCT 85/06)
[2007] ZACC 22
;
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC) ; (2007) 28 IU 2405 (CC)
[2007] ZACC 22
; ;
2008 (2) BCLR 158
(CC) (5 October
2007),
[31]
Construction Workers Union (CLAC), Local No. 63 v. United
Association of Journeymen and Apprentices of the Plumbing and
Pipefitting
Industry of the United States and Canada, Local 488,
2012 ABQB 540.
[32]
Para [13].
[33]
At [10], [11].
[34]
Vol 3/129/12 - 21; 130/15 - 20.
[35]
Vol 3/142 -148.
[36]
Vol 3/119/9 - 19, although the Tribunal made no finding in regard
thereto.
[37]
(759/2011)
[2012] ZASCA 126
(21 September 2012).
[38]
(57474/13) [2015] ZAGPPHC 388 (9 June 2015).
[39]
See [46], [47].
[40]
1927 AD 259
at p 268.
[41]
At [44].
[42]
See generally also Lawyers for Human Rights v Minister in the
Presidency and Others, 2017 {l) SA 645 (CC) at [20], quoted by
the
Commission .
[43]
Vol 1/19/27 - 29.
[44]
2008 (3) SA 371 (SCA).
[45]
At least since Peterson v Cuthbert & Co,
1945 AD 420
at 428 -
429, and likely before that.
[46]
Vol 1/19, 20.
[47]
Vol 1/23, 24.
[48]
Vol 1/52 - 54.
[49]
Para 36.2.
[50]
Para 36.3.
[51]
Para 36.4.