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[2018] ZACAC 6
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Continental Tyres South Africa (Pty) Ltd v Competition Commission of South Africa and Another; Goodyear South Africa (Pty) Ltd v Competition Commission and Others (150/CAC/JUN17; 151/CAC/JUN17) [2018] ZACAC 6; [2018] 2 CPLR 504 (CAC) (27 September 2018)
REPUBLIC OF SOUTH AFRICA
IN THE COMPETITION APPEAL COURT OF
SOUTH AFRICA
(HELD AT CAPE TOWN)
CAC CASE NO: 150/CAC/JUN17
In the matter
between
CONTINENTAL
TYRES SOUTH AFRICA (PTY)
LTD
Appellant/
Applicant
a quo
and
COMPETITION
COMMISSION OF SOUTH AFRICA
First
Respondent/
Respondent
a quo
GOODYEAR
SOUTH AFRICA (PTY)
LTD
Second
Respondent/
Applicant
a quo
AND
CAC CASE NO:
151/CAC/JUN17
In the matter
between:
GOODYEAR
SOUTH AFRICA (PTY)
LTD
Appellant
and
COMPETITION
COMMISSION
First
Respondent
APOLLO
TYRES SOUTH AFRICA (PTY)
LTD
Second
Respondent
CONTINENTAL
TYRES (PTY)
LTD
Third
Respondent
BRIDGESTONE
SOUTH AFRICA (PTY) LTD
Fourth
Respondent
SOUTH AFRICAN TYRE MANUFACTURERS
CONFERENCE
(PTY)
LTD
Fifth
Respondent
Summary:
Jurisdiction: Where Registrar
exercises discretion, in terms of s 4(2) of the Act, to accept
documents for filing outside of Tribunal
office hours in exceptional
circumstances, rule 6(4) has no application.
- Rule 6(4) - documents delivered
outside of office hours of Tribunal will be deemed to have taken
place on the following day -
will generally not impact on substantive
law relating to time bar provisions in Act.
- However, where Commission and
complainant have agreed, in terms of s 50(4) of Act, that Commission
has until 31 August 2010 to
refer the complaint to the Tribunal -
application of rule 6(4) will impose a fictional filing date on the
referral and result in
a deemed non-referral.
- Agreement extending the date for the
filing of the complaint referral to 31 August 2010 - expressly
incorporated into the Act
on account of s 50(4)(a) –
therefore has the force and stature of the provisions of the
Act.
- Neither rule 6(4) nor any other
Tribunal rules may cut-down that date because, in the absence of
express language to the contrary,
that date would include the hours
right up until midnight
J U D G M E N T
KATHREE-SETILOANE,
AJA
:
[1]
This appeal concerns the question of whether the Competition
Commission of South Africa (“Commission”) lawfully
referred a third-party complaint to the Competition Tribunal
(“Tribunal”) in terms of section 50(2)(a) read with
section
50(4)(a) of the Competition Act.
[1]
[2]
The appeal is against the decision of the Tribunal which it handed
down on 2 June 2017. The Tribunal’s decision
relates to a
special plea taken by both Goodyear South Africa (Pty) Ltd (“Good
Year”) and Continental South Africa
(Pty) Ltd (“Continental”)
that the Tribunal had no jurisdiction to adjudicate the third-party
complaint of Parsons
Transport (Pty) Ltd (“Parsons”), as
the Commission had failed to refer it to the Tribunal within the time
frames prescribed
in terms of section 50(2)(a) read sections 50(4)(a)
and rules 4(1) and 6(4) of the Competition Tribunal Rules (“Tribunal
rules”).
[2]
Background
[3] On 2 October 2006, Parsons lodged
a complaint with the Commission against the South African Tyre
Manufacturers (“the SATMs”)
under section 49B of the Act.
The complaint concerned the alleged simultaneous setting adjustment
of product prices by the SATMs,
following “coffee table
discussions” to agree on the price increases, in contravention
of section 4(1)(b) of the Act.
[4] The Commission investigated the
complaint from 2006 to 2010. On 28 September 2007 and prior to the
expiry of the initial investigation
period, the Commission obtained
consent from Parsons for an extension in terms of section 50(4)
of the Act, which allows
for the Commission and the complainant to
agree to extend the period for referral of the complaint contemplated
in subsection (2).
The Commission also obtained several further
extensions. The last was granted on 26 May 2010. This agreement
extended the period
for the referral of the complaint to the Tribunal
to 31 August 2010 (“the agreement”). It reads:
“
I
Christoffel Johannes Oelofse, being duly authorised to sign this
agreement for and on behalf of the complainant, do hereby agree
in
terms of
section 50(4)
of the
Competition Act 89 of 1998
, as amended,
to extend the time period in relation to case number: 2006OCT2537,
which is against the South African Tyre Manufacturers
to 31 August
2010
.
”
[5] On 24 April 2009, the Commission
initiated its own complaint against the SATMs alleging other
contraventions of
section 4(1)(b)(i)
and (iii) of the Act.
[6]
The Commission delivered the notice of motion and the referral
founding affidavit in the Parson’s complaint (“the
complaint referral”) to the Tribunal’s offices at 16h50
on 31 August 2010. It was received by the registrar at
the
time, Ms. Tebogo Mputle. She stamped it with the Tribunal stamp dated
31 August 2010 and filled in her name and the time of
receipt. She
also allocated a case number to the complaint referral
on
31 August 2010, i.e. “CR053Aug10”.
[7] Since the referral of the
complaint, there have been various interlocutory applications which
amongst others concerned the particularity
in the complaint referral
and access to documents. The Commission was ordered, pursuant to
these applications, to supplement its
complaint referral and to make
certain documents available to the appellants.
[8]
Some six years later in June-July 2016, the appellants filed their
respective answering affidavits in which they raised two
special
pleas. The first is related to the failure of the Commission to
file the complaint referral by 15h30 on 31 August
2010, which they
contended resulted in the lapsing of the Parsons’ complaint in
terms of
section 50(5)
of the Act. And the second related to the
Tribunal’s failure to note a case number on the electronic
version of the complaint
referral in accordance with
rule 8(2)(b)
[3]
which, the appellants contended, rendered service on them defective.
The Tribunal decision
[9] The Tribunal heard the appellants’
special pleas on 16 March 2017 and dismissed them on 2 June 2017. In
relation to the
first special plea, the Tribunal found that the
Parsons’ complaint was a valid referral under
section 50
of the
Act and the Tribunal Rules and it, therefore, had jurisdiction over
the complaint. It reasoned as follows:
“
The
Tribunal’s office hours are between 08h30 and 15h30.
Notwithstanding these office hours, the registrar, at his or
her
discretion may accept documents for filing on ‘
any
day and at any time
.’
Rule
4(2)(a) thus confers a wide discretion on the registrar to accept
documents at any time of any day, the only requirement being
that the
circumstances must be exceptional. The assessment of whether the
circumstances are exceptional or not also lies within
the discretion
of the registrar. Were it not so then there would be no need for Rule
4(2)(b) which stipulates that the registrar
must accept documents for
filing as directed in that rule. Hence Rule 4(1) (which stipulates
the office hours of the Tribunal)
cannot be interpreted to place
limitations on the registrar’s wide discretion to accept
documents at ‘any time and
any place’ simply because that
wide discretion is qualified by the rule itself namely the existence
of exceptional circumstances.
…
The
rationale for the existence of Rule 4(2)(a) and (b) is obvious.
These rules permit the filing of urgent applications,
filing via
electronic service and significantly the filing of documents outside
of the official hours of the registrar. They serve
to expand the
public’s constitutional right of access to the Tribunal.
In
summary, on a plain reading of Rule 4, documents can be accepted by
the registrar in the following three ways: first the
registrar
can accept documents during the office hours of the Tribunal, second
the registrar can accept documents outside the office
hours of the
Tribunal, in his or her discretion, at any time and on any day and
third the registrar may accept documents at the
direction of the
Tribunal or member of the Tribunal assigned by its Chairperson.
The
registrar in this case accepted the Commission’s referral at
16h50 on 31 August 2010. She was empowered to do so in terms
of Rule
4(2)(a). The Commission’s referral was thus filed in accordance
with the rules of the Tribunal on 31 August 2010.”
[4]
[10] In relation to the second special
plea the Tribunal concluded as follows:
“
The
relevant facts of this case are that the registrar after accepting
the referral allocated a case number to it on 31 August 2010
i.e.
CR053Aug10. The Commission, after having filed the referral on
31 August 2010, sent an electronic version of the referral
to the
[appellants] via e-mail on 1 September 2010 with the accompanying
message;
‘
Dear
All, Herewith the Commission’s referral affidavit.’
The
[appellants] were thus made aware of the fact that the Commission had
filed a referral with the Tribunal on 31 August 2010 one
day
thereafter. Hence the Commission had complied with the
provisions of Rule 14(3)(a) which required it to serve the referral
on the respondents within three days of filing it with the Tribunal.
The attached document however did not reflect a case
number although
the registrar had in fact allocated such on 31 August 2010 as
contemplated in Rule 8(2).”
First Special Plea
[11] The Parsons complaint was
submitted to the Commission in terms of section 49B(2)(b) of the Act,
which provides that any person
may submit a complaint, against an
alleged prohibited practice, to the Commission in the prescribed
form. Section 49B(3)
requires the Commission, upon initiating
or receiving a complaint in terms of this section, to direct an
inspector to investigate
the complaint as quickly as practicable.
[12] Section 50(2)(a) obliges the
Commission, if it decides to refer the complaint to the Tribunal, to
do so within one year of
the complaint having been filed. This
period may be extended by agreement between the complainant and the
Commission in terms
of section 50(4)(a) of the Act. The Tribunal may,
in terms of section 50(4)(b), extend that period further on
application by the
Commission before its expiry.
[13] In the absence of an agreed
extension in terms of section 50(4)(a) of the Act, or an extension
granted by the Tribunal in terms
of subsection 4(b), the complaint
must be regarded as being non-referred by the Commission. Section
50(5) of the Act provides that
if the Commission has not referred a
complaint to the Tribunal or issued a notice of non-referral, within
one year as contemplated
in subsection (2) or the extended period
contemplated in subsection (4), the Commission must be regarded as
having issued a notice
of non-referral on the expiry of the relevant
period.
[14]
In
GlaxoSmithKline
South Africa (Pty) Ltd v Lewis NO
[5]
,
the Competition Appeal Court stated:
“…
section
50(5) is a deeming provision. If the Commission has not referred a
complaint to the Tribunal nor issued a notice of non-referral,
within
the one year contemplated in subsection (2), or any period extended
in accordance with subsection (4), the Commission “must
be
regarded as having issued a notice of non-referral on the expiry of
the relevant period”
Where the Commission is deemed to have
issued a notice of non-referral, the Tribunal will have no
prosecutorial power in respect
of that complaint. The complainant
may, however, refer the complaint directly to the Tribunal in terms
of section 51(1) of the
Act.
[15] The one year period contemplated
in section 50(2) of the Act is not applicable to the complaint
referral, because Parsons had
agreed to extend that period to 31
August 2017 in terms of the agreement. The issue for determination
is, therefore, whether the
Commission referred the Parsons’
complaint “within the extended period” agreed to in terms
of section 50(4)(a)
of the Act.
[16]
The agreement extended the period within which the Commission was
required to refer the Parsons’ complaint to the Tribunal
“to
31 August 2010”. This is the ordinary meaning of the phrase “
to
extend the time-period…to 31 August 2010
.
”
Properly construed, the agreement gave the Commission until midnight
on 31 August 2010 (ie until the end of that day) to refer
the
Parsons’ complaint to the Tribunal.
The Tribunal Rules
[17] It is common cause that the
Commission filed the Parsons’ complaint at 16h50 on 31 August
2010. This was outside of the
office hours of the Tribunal. Rule 4(1)
of the Tribunal Rules stipulates that “the offices of the
Tribunal are open to the
public every Monday to Friday, excluding
public holidays, from 08h30 to 13h00 and from 13h30 to 15h30”.
However, rule 4(2)
provides:
“
(2)
Despite subparagraph (1) –
(a)
In
exceptional circumstances the registrar may accept documents for
filing on any day and at any time; and
(b)
The
registrar must accept documents for filing as directed by either the
Tribunal or a member of the Tribunal assigned by its Chairperson.”
[18] Rule 6(4) of the Tribunal rules
provides:
“
Subject
to Rule 4(2), if the date and time for the delivery of a document
referred to in Table CTR1 is outside of the office hours
of the
Tribunal as set out in Rule 4(1), that document will be deemed to
have been delivered on the next business day.”
Continental contends that; by filing
the complaint referral after 15h30 on 31 August 2010, the Commission
must be deemed to have
referred it on 1 September 2010, being the
following business day. This, so it contends, means that the
Commission lost prosecutorial
competence, and it fell to Parsons to
refer the complaint to the Tribunal if it intended to pursue it.
[19]
As I understand this contention, it is that where the complaint
referral is filed outside the office hours of the Tribunal,
then the
deeming provision in rule 6(4) would be triggered and the date of
filing would be deemed to be the next day, even where
the registrar
has exercised her discretion in terms of section 4(2)(a) of the Act
and determined that exceptional circumstances
exist for filing
outside of the Tribunal’s office hours. On this basis,
Continental contends that the complaint referral
was deemed to have
been made on 1 September 2010 and not 31 August 2010 as contended for
by the Commission.
[20]
I disagree with the interpretation of rule 6(4) for which Continental
contends. Where the Registrar has exercised her discretionary
power
under rule 4(2)(a), rule 6(4) has no application. Rule 6(4) is
prefaced by the words: “Subject to Rule 4(2) …”.
In relation to the meaning of this phrase, the SCA said this in
Sekeleni
[6]
:
“…
The
expression ‘subject to’ has no a priori meaning. …
While it is often used in statutory context to establish
what is
dominant and what is subservient its meaning in a statutory context
is not confined thereto and it frequently means no
more than a
qualification or limitation is introduced so that it can be read as
meaning ‘except as curtailed’ …”
[21] Rule 6(4) is qualified and
limited in its application. As correctly concluded by the
Tribunal, rule 6(4) has no application
in circumstances where the
Registrar has exercised her discretion, in terms of rule 4(2) of the
Act, to accept documents for filing
outside of the Tribunal office
hours in exceptional circumstances.
Tribunal rules do not alter
substantive law
[22]
The Tribunal rules are directed at facilitating the administration of
the Act and the functions of the Tribunal.
[7]
They are the consequence of a statutory power conferred, by section
27 of the Act, at the time on the Minister of Trade and Industry
in
consultation with the Chairperson of the Tribunal to prescribe
regulations on matters relating to the functions of the Tribunal.
[8]
Although
the
Tribunal rules are binding with the force of law, they cannot impose
requirements that are additional to, or inconsistent with,
the Act.
They
also cannot circumscribe the ambit of the Act. They remain
subordinate to the Act.
[23]
Rule 6(4), in particular, is a rational procedural mechanism aimed at
facilitating the administrative working of the Tribunal.
It
applies, not only to the delivery of documents to the Tribunal but to
all the entities listed in Table CTR1 (the Table).
[9]
The date and time of delivery of documents on the entities listed in
the Table are deemed according to the third column of
the Table.
[10]
The delivery of any document to any of the entities listed in the
Table, outside of the office hours of the Tribunal will, in terms
of
rule 6(4) be deemed to have taken place on the following day.
[24] In most cases, rule 6(4) will not
impact on the substantive law relating to time bar provisions in the
Act. However, in the
context of a matter such as the present one,
where the complainant and the Commission have agreed, in terms of
section 50(4) of
the Act, that the Commission has until 31 August
2010 to refer the complaint to the Tribunal, the appellants’
argument regarding
rule 6(4) would not only impose a fictional filing
date on the referral but also result in the referral being out of
time. It does
this even though the referral was actually made on 31
August 2010 (being the last day of the extended period and,
therefore, within
it) under an agreement sanctioned by the Act.
[25] So, although the complaint had
not lapsed at the time of its referral in terms of section 50(2)(a)
read with section 50(4)(a)
of the Act, the imposition of the
fictional filing date of 1 September would, on the appellants’
argument, render it non-referred
and lapsed, even though it was
referred within the extended period contemplated in sub-sections (4)
and (5) of the Act. The
effect of this would be that the
complaint would be rendered non-referred (and lapsed), on the basis
of a Tribunal rule that renders
it as such, in a manner simply not
contemplated in the Act.
[26] It bears emphasis that section
50(5) of the Act specifically contemplates that a complaint will be
regarded as non-referred
only if the Commission has not referred a
complaint to the Tribunal, or issued a notice of non-referral, within
the time contemplated
in subsection (2)
or the extended period
contemplated in subsection (4)
. In
Zalvest Twenty
Rogers J
held that:
“
The
rules of court exist to facilitate the ventilation of disputes
arising from substantive law. The rules of court may only regulate
matters of procedure; they cannot make or alter substantive
law.”
[11]
[27] The Parsons’ complaint was
lawfully and timeously referred to the Tribunal by the extended
period provided for in the
agreement concluded in terms of section
50(4)(a) of the Act. Neither rule 6(4) nor rule 4(1) have the
legislative standing to negate
that position. It was open to
the Commission and the complainant, in terms of section 50(4)(a) of
the Act to extend the period
of the investigation of the complaint,
at any time after 15h30 and before midnight on 31 August 2010.
This is because the
complaint would have lapsed on 31 August 2010 at
midnight only.
[28]
The argument that a valid referral could not be made after 15h30 on
31 August 2010 as rule 6(4) deemed the referral to have
been made on
1 September 2010, ignores the intention of the parties and the clear
and ordinary meaning of the words in the agreement.
It also ignores
the impact that the application of rule 6(4) will have on the
on
the complainant's rights of access to court in terms of section 34 of
the Constitution,
[12]
because the imposition of a fictional filing date will result in a
deemed non-referral of the Parsons’ complaint.
[13]
[29]
Although the complainant would have had 20 business days in terms of
section 51(1) read with Rule 14(1)(b) to refer the complaint
directly
to the Tribunal, the appellants’ six-year delay in raising the
special plea effectively negated that right. As argued
by the
Commission, even if the complainant were now to be given the
opportunity to refer the complaint directly to the Tribunal,
“the
prejudice it would suffer, as a result of the inordinate delay, would
be practically insurmountable.”
[14]
[30] In my view,
rule 6(4) has a more modest scope than the appellants’ argument
attributes to it. Where the rules require
some further document in a
case to be delivered within a specified period after the “filing”
of some earlier document
(for example, the three days “after
filing” specified in rule 14(3) for the serving of the
complaint referral on the
respondent), the deemed date of filing
specified in rule 6(4) would be the date of “filing” for
purposes of computing
the specified period. This would be part of the
setting of procedural time periods and within the legitimate scope of
the rules.
[31] Even where the
registrar has accepted a document out of hours in exceptional
circumstances in terms of rule 4(2)(a), rule 6(4)
will have this
effect. The purpose of rule 6(4) is evidently to ensure that parties
affected by late filing (ie parties who may
need to take a further
procedural step in response to the filing) have an additional day. In
other words, they are – in respect
of time periods triggered by
the filing – in the same position as if the document had been
filed in due course on the day
following its actual filing. On this
interpretation, the opening words of rule 6(4), “Subject to
Rule 4(2)”, merely
remind the reader that in terms of rule 4(2)
documents will not necessarily be accepted late and that late filing
is subject to
the provisions of the latter rule.
[32] I must add
that, in my view, the existence of “exceptional circumstances”
is not a jurisdictional prerequisite
in order for the registrar to
accept the filing of a document outside of ordinary working hours. To
the extent that the Tribunal’s
reasons suggested such a
jurisdictional requirement, I respectfully disagree. Rule 4(2)(a)
conveys to users of the registrar’s
office that they cannot
expect filing services to be made available outside of the working
hours specified in rule 4(1). This is
subject to the two exceptions
mentioned in rule 4(2).
[33] In the case of a direction
from the Tribunal, the registrar must accept the late filing. Absent
such a direction, where
“exceptional circumstances” exist
the registrar has at least a duty to consider whether to accept a
late filing. I
need not decide whether, if “exceptional
circumstances” exist, the registrar’s power is coupled
with the duty
to exercise it. On the face of it, it would seem
strange to hold that, despite the existence of “exceptional
circumstances”,
the registrar could rationally refuse to accept
the late document.
[33] Be that as it
may, it by no means follows that the absence of “exceptional
circumstances” limits the power of the
registrar to accept the
filing. Efficiency in the public service should be encouraged. It
would be perverse to say that a diligent
official who still happens
to be at her desk cannot receive a document filed out of time. Rule
4(2)(a) protects the registrar without
restraining her. (By
“protecting” I mean that she cannot for example, and
absent exceptional circumstances, be expected
to come back to the
office out of hours to receive a late filing).
[34] It is accordingly unnecessary to
decide whether, in the present case, “exceptional
circumstances” existed. The
registrar was still in the office
and was willing to receive the late filing. That is sufficient.
Does the civilian computation
apply?
[30] Good Year seeks to persuade the
Court that in terms of the extension agreement the Commission had to
refer the complaint to
the Tribunal by midnight on 30 August (i.e by
the end of that day) at the latest, and by doing so on 31 August at
16h50 there was
no valid referral to the Tribunal. Good Year relies
on the civilian method of computation to support its argument.
It contends
that regardless of whether the phrase “to 31 August
2010” is found to be ambiguous, the Court is enjoined to
determine
the correct date of referral by applying the civilian
method of computation. I disagree.
[31]
The precise method of calculating time periods depends on the wording
used by the legislature in the case of a statute,
[15]
and on the terms used by the contracting parties in the case of a
contract.
[16]
In the interpretation process, a court must have regard to the
context and the purposes for which the computation of time
is to be
made. Where the language is equivocal or ambiguous, and it is not
clear whether it was intended to include or exclude
the first and
last days of computation, the ordinary civilian method of computation
must be applied.
[32]
The ordinary civilian method of computation treats the calendar days
as the unit in terms of which the first day, i.e., the
day upon which
the event occurred is included and the last day is excluded. Unless
the language of a statute or contract indicates
a contrary intention,
the ordinary civilian method of computing time must be adopted.
[17]
[33]
The civilian method will, for instance, apply to the calculation of
the time in section 50(2)(a) of the Act because it prescribes
a
referral period of one year from the date upon which the complaint
was submitted to the Commission. But would it apply to the
situation,
such as we have here, where there is an agreement extending the
referral period contemplated in section 50(2)(a) of
the Act to 31
August 2010? In relation to agreements specifically, the Supreme
Court of Appeal held in
Dormell
Properties
,
[18]
that the terms of a contract are the decisive criterion by which any
potential expiry of a deadline has to be determined.
And it is
only when the contract is not decisive on the point that it is
permissible to introduce the rules of law with regard
to computation
of time.
[34]
Contrary to the submissions of Good Year,
Dormell
Properties
supports the Commission’s case. Referring to
Cock
v Cape of Good Hope Marine Insurance Company
[19]
in which a marine insurance policy that was taken out for a period of
“twelve months from” from 14 August 1857 to 14
August
1858, was held to have expired at midnight on 13 August 1858, the SCA
held:
“
The
present matter may be contrasted with
Cock
v Cape of Good Hope Marine Insurance Co
.
In that case, the insurance cover was for a period of 12 calendar
months from January 14
th
1857 to January 14
th
1858. There, a calculation of the period of time was required and the
court, in applying the civilian method for computation of
time, held
that the twelve months expired at midnight on 13 January 1858. Here
no period of time has to be calculated and the guarantee
expired on
28 February 2008. Once that is so, there is ancient and modern
authority in support of the proposition that the guarantee
could be
called up at any time, or at least during business hours on 28
February 2008.”
[35] Equally, in the agreement
concluded between the Commission and the complainant, there is no
period to be calculated as the
complainant, and the Commission agreed
to extend the complaint referral date “to 31 August 2010.”
They intended 31
August 2010 − and not 30 August or 1 September
2010 − to be the day until which the Commission could file the
complaint
referral.
The agreement is incorporated
into the Act
[36] The agreement extending the date
for the filing of the complaint referral to 31 August 2010 is
expressly incorporated into
the Act on account of section 50(4)(a).
As such, it has the force and stature of the provisions of the
Act. Neither rule
6(4) nor any other Tribunal rules may cut-down that
date because, in the absence of express language to the contrary,
that date
would include the hours right up until midnight
[37] For these reasons, I conclude
that the complaint referral was filed timeously and in accordance
with section 50 of the Act..
[38]
Thus, whether it was Ms. Tebogo Mputle (the registrar of the Tribunal
at the time) who accepted the filing of the complaint
referral at
16h50 on 31 August 2010, or someone else on duty that afternoon (as
suggested by the appellants), is immaterial. Public
law acts are to
be regarded and relied upon as lawful unless and until they are set
aside by the courts.
[20]
Accordingly, the registrar is presumed to have acted lawfully and
within the confines of her authority in accepting the complaint
referral.
Second Special Plea
[39]
Rule 14 of the Tribunal rules deals with the initiation of a
complaint. Sub-rule 14(3) provides that a complaint referral
must be served on the respondents (and other listed parties) within
three days of filing the complaint referral.
[21]
Rule 8(2)(b) provides that before serving a copy of the complaint
referral on any person, “the initiating party must
note the
case number on every copy of that document.”
[40] The Commission complied with Rule
14(3) by serving an electronic copy of the referral on the appellants
on 1 September 2010.
However, the electronic copy did not
contain a case number as required by rule 8(2)(b). The
appellants contend that the Commission’s
failure to comply with
rule 8(2)(b) rendered the service of the complaint referral on them
irregular. Consequently the referral
was not initiated before the
Tribunal and, therefore, not validly referred to it for purposes of
section 50 of the Act.
[41] This argument is flawed. Indeed,
the conclusion (quoted below) reached by the Tribunal on this issue
is unassailable:
“
In
our view the failure by the Commission to place the case number on
the electronic version of the referral sent to the respondents
on 1
September 2010 does not amount to a grievous non-compliance with the
rules so as to warrant a dismissal of the complaint referral.
The Commission had only omitted to place the case number on the
document it had served on the respondents on 1 September 2010.
Since
then however all the material documents in this matter have reflected
the case number, the respondents had accepted service
of the referral
at that time and that acceptance has been amply demonstrated by the
fact that they have embarked on extensive litigation
over a period of
seven years regarding the referral. Clearly no prejudice can adduce
to the respondents were the Tribunal to condone
the Commission’s
omission.”
[42] There is merit in the submission
of the Commission that the irregularity complained of is merely
technical, and manifestly
an instance where the maxim
de minimis
non curat lex
(the law does not concern itself with trifles)
would apply. The Commission’s omission to note the case
number on the
electronic version of the complaint referral is,
therefore, so trifling as to be overlooked. It certainly does
not warrant
a finding that there was no valid referral in terms of
section 50 of the Act.
[43] Crucially, neither Good Year nor
Continental has demonstrated that they will suffer prejudice as a
result of the Tribunal’s
omission to note the case number on
the electronic copy of the complaint referral in terms of rule
8(2)(b). They waited some six
years to take this special plea, even
though they were aware of the case number assigned to the referral
and engaged with the Commission
and the Tribunal in accordance with
the state of affairs of a valid complaint referral. Good Year, in
particular, effectively pursued
its rights of access to documents and
information, despite this omission.
[44]
Having recognised the technical nature of the defect complained of,
and that the appellants suffered no prejudice in pursuing
their
rights following upon the referral, the Tribunal exercised its wide
discretionary powers under section 55(2) of the Act in
favour of
condoning the technical non-compliance.
[22]
The appellants rely on the
SAD
Holdings
[23]
in support of the contention that the Tribunal could not condone the
irregularity. Their reliance on
SAD
is misplaced principally because in
SAD
it was common cause that the Commission did not comply with section
50 of the Act. The Tribunal, consequently, had no jurisdiction
over
the complaint and was unable to exercise its statutory authority in
terms of sections 55(2) or 58(1)(c)
[24]
of the Act to condone any non-compliance of its Rules.
[45]
In
SAD
the Tribunal cautioned that its powers under section 58(1)(c) of the
Act cannot be invoked to “defeat non-compliance with
threshold
jurisdictional issues, which relate to whether the Tribunal or
Commission has jurisdiction to determine a matter”,
since the
provision applies “to matters over which they already have
jurisdiction and not those where jurisdiction may have
lapsed”.
[25]
[46] For all of the above reasons we
conclude that the Commission had complied with section 50 of the Act
and that the Parsons’
complaint was validly referred to the
Tribunal. Accordingly, the Good Year and Continental appeals must be
dismissed with costs.
Order
[47] In the result, we order that:
The
appeals in CAC Case No: 150/CAC/ June 2017 and CAC Case No:
151/CAC/June 2017 are dismissed with costs, including the costs
of
two counsel.
________________________________________
F KATHREE-SETILOANE AJA
DAVIS JP and ROGERS JA concurring
Counsel for
Continental:
J P V McNally
SC with M Engelbrecht
Instructed
by
Bowman Gilfillan Inc
Counsel for Good
Year
A Gotz with N Lewis and L Nyangiwa
Instructed
by
Judi Combrinck Inc
Counsel for the Competition
Commission:
D Berger SC with S Kazee
Instructed
by
Competition Commission of South Africa
Date of
Hearing:
9 April 2018
Date of
Judgment:
27 September 2018
[1]
No
89 of 1998.
[2]
Competition Tribunal Rules GN 2, GG 22025 of 1 February 2001
[3]
Rule
8(2) of the Tribunal rules provides:
“
Before
serving a copy of an initiating document on any person, the
initiating party must –
(a)
obtain
a case number for that document from the registrar ; and
(b)
note
the case number on every copy of that document .“
[4]
Tribunal Decision (Case No.CR053/Aug 10/PIL22, 5 December 2016) at
paras 32 to 36.
[5]
GlaxoSmithKline
South Africa (Pty) Ltd v Lewis NO and Others
[2007]
1 CPLR 18
(CAC) at 29F-H.
[6]
Premier
of the Eastern Cape Province and Another v Sekeleni
2003
(4) SA 369
(SCA) at para 14. See also
Omnia
Fertiliser Limited v The Competition Commission
[2009] ZACAC 5
at para 13.
[7]
The
Tribunal rules are promulgated under section 27(2) of the Act,
Government Gazette No. 22025 of 1 February 2001.
[8]
Section
27(2) of the Act.
[9]
This
includes the Commission, trade unions, municipalities, natural and
juristic persons, statutory bodies, employees and others.
[10]
Section
6(1) of the Act provides:
“
(1) A
notice or document may be delivered in any matter set out in Table
CTR1.
(2) Subject to sub-rule (4), a
document delivered by a method listed in the second column of Table
CTR1 will be deemed to have
been delivered to the intended recipient
on the day and at the time shown office of the method, in the third
column of that Table.
(3) If, in a particular matter, it
proves impossible to serve a document in any manner provided for in
these rules –
(a) If the Tribunal is required the
document, the registrar may apply to the High Court for an order of
substituted service; and
(b) In any other case the person
concerned may apply to the Tribunal for an order of substituted
service.”
[11]
ABSA
Bank Limited v Zalvest Twenty (Pty) Limited
2014 (2) SA 119
(WCC) para [11].
[12]
Section
34 of the Constitution provides that:
“
Everyone
has the right to have any disputes that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
[13]
Section
1(2)(a) of the Act provides that the Act must be interpreted in a
manner that is consistent with the Constitution and
gives effect to
the purposes set out in section 2.
[14]
See
Allens
Meshco Group of Companies and Others v Competition Commission
(Case
No. 31044/13, dated 17 July 2015) [2015] ZAGPPHC 1078 at paras
48-49.
[15]
Kleynhans
v Yorkshire
1957
(3) SA 544
(A) at 549.
[16]
Dormell
Properties 282 CC v Renasa Insurance Company Limited and Another
2011
(1) SA 17
(SCA);
[2011] 1 All SA 557
(SCA) at paras 26 and
55.
[17]
Kleynhans
at
549.
[18]
Dornell
Properties
at
para 26
[19]
Cock
v Cape of Good Hope Marine Insurance Company
3 Searle 114
C.
[20]
MEC
for Health, Eastern Cape v Kirkland Investments (Pty) Ltd
2014
(3) SA 481
(CC) at para 102;
Community
Healthcare Holdings (Pty) Ltd v Competition Tribunal
[2006] ZACAC 4
at para 10.
[21]
Rule 14(3) of the Tribunal rules provides:
“
The
person who files a Complaint Referral must serve a copy of it within
3 business days
after
filing on -
(a)
The
respondent;
(b)
The
Commission, if the Commission did not file the Referral; and
On
each other person who has previously filed a Complaint Referral in
that matter.”
[22]
Section
55(2) of the Act provides:
“
The
Tribunal may condone any technical irregularities arising in any of
its proceedings.”
[23]
SAD
Holdings Limited and Another v Competition Commission In re:
Competition Commission v SAD Holdings Limited and Another
[2001] ZACT 40
(23 October 2001).
[24]
Section
58(1)(c) of the Act provides:
“
In
addition to its powers in terms of this Act, the Competition
Tribunal may –
(c)
subject
to sections 13(6) and 14(2) condone, on good cause shown, any
non-compliance of –
(i)
The
Competition Commission or Competition Tribunal rules; or
(ii)
a
time limit set out in this Act.”
[25]
SAD
at
7.