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[2017] ZACAC 4
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Pistorious N.O. and Others v Competition Commission of South Africa (148/CACNOV16, CR125DEC14, JO1029MAY16, JO1047JUN16) [2017] ZACAC 4; [2017] 2 CPLR 575 (CAC) (10 October 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE COMPETITION APPEAL COURT OF SOUTH AFRICA
HELD
AT
CAPE
TOWN
CAC
CASE NO: 148/CAC/NOV16
CT
CASE NO: CR125DEC14
J01029MAY16
J01047JUN16
In
the appeal on joinder and amendment between:
Pistorius,
HWC N.O.
First
appellant
Pistorius,
LC N.O.
Second appellant
Pistorius,
H N.O.
Third
appellant
Pistorius,
AK N.O.
Fourth appellant
McIntyr
e,
I
N.O.
Fifth appellant
Du
Plessis, DH
N.O.
Sixth appellant
Kalkor
(Pty) Ltd
Seventh
appellant
and
The
Competition Commission of South
Africa
Respondent
Judgment
Van
der Linde . AJA (Davis, JP and M akgoba. AJA concurring)
:
Introduction:
[1]
This is an appeal against two distinct decisions of the Competition
Tribunal in terms of s.37(1)(b)(i) of the Competition Act,
89 of 1998
("the Act"). The one, call it the joinder
appeal, was to join the fifth and sixth appellants
to a pending
complaint referral, and the other, call it the
amendment appeal, was to allow an amendment to the
complaint
referral. Although initially the Commission took the point
that both decisions were in
fact
interlocutory as envisaged in s.37(1)(b)(ii) of the Act and so not
appealable, this submission was not pressed before us and
nothing
more need be said about it.
[2]
In the joinder appeal the Commission had applied to join the fifth
and sixth appellants to the complaint referral because they
are the
remaining two trustees of a trust which, as a
"firm"
as defined in the Act, is a respondent in the complaint referral.
The first four appellants are the other trustees of
the
trust, called the Hendrik Pistorius Trust.
[3]
The
first four appellant
s
[1]
resisted the joinder of the remaining two trustees on the basis that
the pending complaint referral was a nullity from the outset
because
all the trustees had not been joined from the outset. Their argument
was that as a nullity the proceedings could, in principle,
not be
validated ex post facto by the joinder; and which in any event, ought
not to be permitted because the complaint
referral will
have been extinguished by "prescription"
[2]
by the time the trust was properly joined by all the
trustees having been properly
joined.
[4]
In
the amendment appeal the Commission had applied to amend its
complaint referral so that it would expressly
cover
the period January 1995 until April 2009 and not only until May 2008.
The appellants resisted the amendment on the basis
that the complaint
referral so extended will have become "prescribed."
[3]
[5]
The Tribunal granted both applications; hence this appeal. I
deal first with the facts relative to both decisions
and
then sequentially with the two decisions and the issues they raise.
The
facts
[6]
The
appellants and others produce agricultural lime, also known as
"aglime", which is marketed, sold and distributed by
agents
employed by fertilizer companies. On 20 August 2008 the Commission
received a complaint by Enviro Lime (Pty) Ltd against
a concern
described as
"H.
Pistorius
&
Co"
of
1100 Church Street, Colbyn, Pretoria.
[4]
The complaint included conduct offensive to sections 8(a), 8(b},
8(d)(i), and 9(1)(c)(i) & (ii) of the
Act.
[5]
[7]
On 21 December 2009 the Commissioner initiated a
complaint that
"H. Pistorius
& Co" and
others had potentially contravened sections 4(l}(a) and 4(b)(i) &
(ii) of the Act because members
of the FSSA had met quarterly to
discuss sales of lime, total provincial sales of aglime, net prices
of lime and transport components,
and gypsum sales for agricultural
uses.
[8]
Two
amendments to the complaint initiation followed on
respectively 10 August 2010
[6]
and 27 January 2012.
[7]
Both
these amendments referred to
"H.
Pistorius
&
Co
(Pty) Ltd"
and
no longer to simply
"H.
Pistorius
&
Co." When on 4 December 2014 the Commission filed the complaint
referral with the Tribunal, it referred
to
"H.
Pistorius
&
Co" as a trust that trades at 1100 Church Street (East),
Colbyn, Pretoria, and it identified the first four
appellants as its
tru
st
ees.
[9]
In
preparing the complaint referral the Commission relied on the amended
trust deed of the trust as the source of identification
of the
trustees. That document, which is not included in the appeal record
and in respect of which none of the parties were able
to
make submissions to us, specified the first four
appellants only as the trustees, at least according
to the
Commission.
[8]
Consequently only
those four trustees were joined to the Commission's complaint
referral of 4 December 2014.
[10]
The complaint referral alleged that from January 1995 until May 2008
the respondents agreed the extent of the commissions that
each of
them would pay to the fertilizer companies for on-payment to the
agents. The alleged perpetrators would meet annually,
at around the
time of the AGM of the FSSA, and agree to fix the agents' commission,
effective for the ensuing year. It was alleged
that the appellants
and others, which included the Fertilizer Society of South Africa
("FSSA"), had accordingly contravened
s.4(1)(b)(i) of the
Act by using the FSSA as a platform to engage in the restrictive
horizontal practice of
"directly or indirectly fixing a
purchase or selling price or other trading condition."
[11]
ln paragraphs 28 and 32 respectively of the affidavit dated 2
December 2014 made in terms of s.50(1) of the Act, read with
Tribunal
Rules 14(1)(a) and 15, the deponent said, in relation to the annual
agreement regarding the quantum of the agents' commission:
"28.
During the period between January 1995 until May 2008, the
respondents met annually and agreed to fix the rates of the
agents'
commission."
And
"32.
The agreements reached by the respondents in respect of the agents'
commissions were effective for a one year period,
and were revised on
an annual basis at the time of the AGM."
[12]
The deponent annexed three letters to the affidavit, all dated 12 May
2008, by the then chairperson of the FSSA to three
different
fertilizer companies, each of which contained the following sentence
with reference to agents' commission (freely translated,
and emphasis
supplied):
The
lime companies connected to the MVSA have recently agreed that the
above increases to
R8.00 per ton as yardstick
as from 1
May 2008.
"
[13]
On 9 February 2015 the first four appellants, before they filed
answering affidavits, applied for what they called an "exception"
to the complaint referral on six disparate bases. This application
was supported by an affidavit, which proved a resolution of
the trust
dated 9 February 2015 to oppose the complaint referral. The
resolution was signed not only by the first four appellants,
but also
by the fifth appellant (not the sixth appellant) as trustees. That
eventually led to the Commission formally applying
on 10 May 2016 for
the joinder of the fifth appellant.
[14]
Thereafter, on 26 May 2016 the Commission applied for leave
"to
supplement or
amend"
its complaint referral
affidavit by including, amongst others, the following paragraph:
"13.
For the sake of clarity I state the following:
13
.
1
The agents' commissions that were agreed by the respondents
in May 2008 were implemented for a period of a year
thereafter.
13.2
This means that the duration of the contravention lasted until a year
after May 2008 and, at the very least, until April 2009."
[15]
Subsequently, following a hearing before the Tribunal on 2 June 2016,
the legal representatives of the first four appellants
revealed
Letters of Authority in respect of the trust issued by
the Master of the High Court. These were dated 12 March
2015 and
reflected the first to sixth appellants as trustees. That led to the
Commission's application on 10 June 2016 to
join also the sixth
appellant to the complaint referral.
[16]
The appellants' answering affidavits in the joinder applications
did not disclose on what dates the
fifth and sixth
respondents became trustees. On appeal before us none of the parties
were able to provide
those dates
from the Bar. In the result, as
noted by the Tribunal,
[9]
one does not know whether the fifth and sixth appellants became
trustees before or after the complaint was referred to the Tribunal
on 4 December 2014.
The
legal issues in the join der appea
l
[17]
The
exceptions are not before us.
[10]
That
includes the exception to the jurisdiction of the Tribunal on
the basis that the complaint initiation on 21 December
2009 was made
against
"H.
Pistorius
&
Co
(Pty) Ltd"
and
never, not even subsequently, against the trust. We would nonetheless
point out
en
passant,
as
already alluded to above, that the complaint initiation was not
against
"H.
Pistorius
&
Co
(Pty) Ltd"
but
expressly against simply
"H.
Pistorius
&
Co",
[11]
an economic rather than juristic entity
[12]
that
traded from what was then known
as
1100 Church Street, Colbyn, Pretoria,
[13]
the same address at which, and the same trading name under which, it
is common cause the trust still trades.
[18]
Our remit therefore commences with the complaint referral of 4
December 2014
[14]
and the
submission that since the fifth and sixth appellants were not joined
then, the proceedings thus far against the first
four
appellants are a nullity.
[15]
[19]
There is a point allied to this, raised by the appellants: that
the joinder applications should not have been granted
because they
would in any event only be effective from the date of joinder; that
the trust would thus be joined only from that
date; and that by then
the claim against the trust will have prescribed.
[20]
We commence this part of the judgment by considering relevant
recent judgments concerning the effect of not joining all
the
trustees to legal proceedings. We do so despite the fact
that since the Tribunal is not a court
of
law, the complaint referral is not a
legal proceeding in procedural (common) law parlance.
We note
too that the definition in the Act of a
"firm",
the entity which is statutorily targeted, includes a
"trust."
Still, the judgments on the topic are concerned with the nature
of a trust and the powers of trustees generally and, so it is assumed
for present purposes, they would thus have equal application to the
present context.
[21]
Two Supreme Court of Appeal judgments are pertinent. The first is
Nieuwoudt and Another NNO v Vrystaat Mielies (Edms) Bpk
[16]
and
the second Land and Agricultural Bank of South Africa v Parker and
Others.
[17]
Nieuwoudt
concerned the power of trustees contractually to bind a trust. The
trust had two trustees but only one of them had signed
a contract for
the supply
of
maize.
The
question
was
whether
the
contract
was
enforceable.
[22]
The court held, with reference to Coetzee v Peet Smith Trust en
Andere,
[18]
that absent an
appropriate empowering provision in the trust deed, a trust could
only be bound if all the trustees acted jointly.
Since the trust deed
did not contain an appropriately empowering provision, there was no
power to have bound the trust, and the
contract was invalid and
unenforceable.
[23]
Nieuwoudt was referred to in Parker. There a bank had lent money to a
trust of which the trust deed required a minimum of three
trustees.
In fact only two had been appointed at the time the loans were made.
The bank subsequently sequestrated the trust estate
and the estate of
one of the two trustees. On appeal to the full court, the trust
successfully argued that since a sub-minimum
of trustees could not
bind the trust, the loans were invalid.
[24]
The
Supreme Court of Appeal subsequently upheld the bank's appeal. In
doing so, it nonetheless firmly restated the joint
action
requirement:
[19]
"[15]
... It is a fundamental rule of trust Jaw, which this Court recently
restated in Nieuwoudt and Another NNO v Vrystaat
Mielies (Edms) Bpk,
that in the absence of contrary provision in the trust deed the
trustees must act jointly
if the trust estate is to
be bound by their acts. The rule derives from the nature of the
trustees' joint ownership of the trust
property. Since co owners
must act jointly, trustees must also act jointly. Professor Tony
Honore's authoritative historical
exposition has shown that the joint
action requirement was already being enforced as early as 1848. It
has thus formed the basis
of trust law in this country for well over
a century and half."
[25]1n
response to the bank's argument that although the trust deed
required a sub-minimum of three trustees, the two existing
trustees
would in any event constitute a majority that could bind the trust,
the
court said:
[20]
"[17]
The bank contended that since the Parkers were a majority of the
trustees in office, and since they could form a quorum
at trust
meetings, they could bind the trust acting together. But this is to
confuse power to act with its due
exercise. The
deed empowered the majority of the trustees to meet and to
make decisions. To this extent
the joint action
requirement was abrogated - but the majority remained part of a
three-trustee complement, and
it had to exercise its will in relation
to that complement."
[26]
Still the bank succeeded before the Supreme Court of Appeal in
overturning the full court judgment because of the following
quirk:
the trust deed provided that upon sequestration a trustee ceased
immediately to have capacity so to act. That meant that
when the one
trustee was sequestrated by the court of first instance, his
trusteeship ceased. In terms of
s.150{3)
of the
Insolvency Act 24 of
1936
his subsequent application for leave to appeal did not suspend
his sequestration. Therefore, despite the fact that in the meantime
a
third trustee had been appointed, the number of trustees lapsed back
to two only.
[27]
These statements of trust law could have potentially important
ramifications for the appeal before us, because the SCA held
that the
petition by the trust for leave to appeal to the SCA, and the appeal
by the trust before the full court, were incapacitated
for lack of
the sub minimum of trustees. In other words, the SCA firmly
applied the requirement of
proper trustee
capacitation - as distinct from mere proper authority - to steps
taken in legal proceedings, at least where the
litigant trust was
initiating the proceedings.
[28]
The takeaway then from these two SCA judgments is the following three
propositions: first, where the sub-minimum of trustees
is not
appointed, the trust cannot act, nor can it
initiate legal proceedings. Second, absent an appropriate
provision in the trust deed, all the appointed trustees must,
as a general proposition, act jointly. This is an issue that
goes to
authority, not capacity. And third, importantly, as an extension
of the second proposition, the
trust deed may by
appropriate provision authorise the appointment of
a lesser number of trustees
properly to represent them, even in
legal proceedings.
[29]
Three lower courts were recently called upon to apply these
principles to the issue of trust litigation where not
all the trustees were present at the
initiating stage of the proceedings.
In
the first, a full court of the Western Cape Division in Hyde
Construction CC v Deuchar Family Trust and Another,
[21]
a trust had applied to the high court for the removal of an
arbitrator. The trust deed
required
a sub-minimum of
three trustees and when the
application was
brought there were four. However, only two of the
trustees had resolved to bring the application. However subsequently,
in another
resolution, all four trustees had ratified the
institution of proceedings.
[30]
In dismissing an appeal and holding that the ratification was
competent, the full court reasoned as follows:
"[31]
Mr Bruwer referred us to the decisions in Parker supra and Lupacchini
NO and Another
v
Minister of Safety and Security
2010 (6) SA 457
(SCA) ([2010] ZASCA
108), submitting that their effect was that the unauthorised
institution of proceedings on behalf of
a trust cannot be
ratified by a subsequent decision of all the trustees. I do not think
that these cases, properly understood,
support Mr Bruwer's
contention.
[32]
In Nieuwoudt supra Harms JA said, in a judgment concurred in
by the other members of the court, that the fact that trustees have
to act jointly '
does not mean that the ordinary principles of
the law of agency do not apply' (para 23). For example, he said, the
trustees might
expressly or impliedly authorise someone to act on
their behalf and that person might be one of the trustees.
Ratification
is one of the ordinary principles of the Jaw of agency.
In principle, therefore, there appears to be no good reason why a
decision
taken ostensibly in the name of the trust by
(say) two out of the four trustees should not subsequently be
ratified
by the full body of trustees. It is no objection that the
original decision was unauthorised; that is always so
where
ratification comes into play. The principle that the trustees
must act jointly is satisfied by the ratifying conduct of the full
body of trustees. The position is in principle no different, to my
mind, from the case where a decision is initially made on behalf
of
a company by (say) two out of four directors and the decision is
subsequently ratified by the full board.
[33]
Parker and Lupacchini do not bring this
analysis of general agency principles
into
question. Those cases address the position which
arises where the trust deed requires that there should be no fewer
than a specified
number of trustees and where, at the time the act
which is sought to be attributed to the trust was performed, fewer
than that
number existed. Where that is the case the trust lacks the
capacity to act; it is not a problem of authority but capacity.,,
[31]
The full court held too, albeit obiter, that where the sub-minimum of
trustees had not been appointed, the institution of proceedings
by a
trust would be a nullity and could not be ratified:
"[40]
It is apparent from Lupacchini that, where there is an incapacity to
transact or to institute proceedings because of
the absence of
the specified minimum number of trustees, the transaction
or the institution of the proceedings
is a nullity and cannot be
ratified. In Lupacchini itself the second trustee, Ms Conradie,
self-evidently continued to support
the proceedings after she
received her letters of authority but this was not regarded as
saving the proceedings. In
Simplex (at 113F -114G) and Van der
Merwe (para 21), which Nugent JA cited with approval, it was
specifically said that ratification
could not apply in such
circumstances. (In those two cases there was no duly
appointed trustee at
all at the time the
relevant transactions were concluded.)"
[32]
It must be observed that the SCA in Lupacchini NO and Another v
Minister of Safety and Security,
[22]
referred to by the full court, was concerned with the case
where the trust initiates the litigation.
It does
seem self-evident, I suggest, that a trust wishing voluntarily to
embark on litigation should have capacity and authority
so to
act.
[33]
But where the trust - duly capacitated and authorised - has engaged
in conduct giving rise to obligations enforceable by others
against
it, be they the State or private parties, the position may be very
different. The trust may be a recalcitrant defendant,
and may
not be forthcoming concerning the required trustees'
information; and the Master's
office may not be
able to assist.
[34]
In
the
next case,
Rupert
Investments (Pty)
Ltd
v
J.H.
Petzer
Inc
and
Others,
[23]
the
court
dealt with the converse situation; the trust was the respondent, but
not all the trustees had been cited and joined. The facts
were that
the applicant had applied to cancel mortgage bonds that had been
passed in favour of two trusts over property that it
had bought from
those trusts. The trusts were cited by their names, but only one of
the individual trustees was joined. That trustee
opposed the
application on the basis of a resolution by all the trustees in both
trusts. The respondents took the point that the
trusts had not been
properly cited and
joined.
[35]The
court dismissed the objection on the following basis:
[24]
"In
my view, the answer could be found in Honore in South African Law of
Trusts 4th Edition at 266 where the author said the
following: "All
the Trustees must join in suing and all must be sued though it is
sufficient for one Trustee, if properly
authorised by
the remaining Trustees to sign the power of attorney on their
behalf There appears moreover to
be no requirement of formality
regarding how the remaining Trustees should signify their
association with the action
so long as adequate proof is
produced that the litigating
Trustee is properly
authorized to act on behalf of all the other Trustees." I agree
with Ngwenya J in Desai-Chi/wan
N.O vs Ross and Another
2003 (2)
SA 644
where he said at 650 par. 21 that:
"If it is permissible that
Trustees can delegate or authorize one
of them to sign power
of
attorney for all of them to institute legal proceedings, then surely
it must be correct to authorize one of them to consult with
a lawyer
and to depose to an affidavit and bring an action to Court on their
behalf If this is correct, then what is the magic
in the citation of
all the Trustees in the legal proceedings. Though it is
preferable and ideally all the Trustees must be
cited in legal
proceedings, I do not think where one of the Trustees has not been
properly cited that this omission should non-suit
the Trust
where there was clear authority to bring the proceedings
to Court."
[36]
So here too the court applied the principle that not all the trustees
need be cited, in this case as respondent and not initiator
of the
proceedings, provided that the trustee actually joined was authorised
by the remaining trustees to represent the trust -
and presumably,
provided the trust deed permitted of such authorisation.
[37]
In Desai-Chilwan NO v Ross and Another,
[25]
referred to by the court, only one of two trustees had commenced
application proceedings on behalf of a trust. That trustee had
however been authorised by the other trustee to institute the
proceedings. The court dismissed the objection to the applicant's
citation and, in so doing, declined to follow the
apparent contrary position adopted in Van der Westhuizen
v Van
Sandwyk.
[26]
Desai-Chilwan was
also followed in Pro-Khaya Construction CC v Independent Development
Trust.
[27]
[38]
Finally,
in Vogel, N.O. v Melamed and Others
[28]
the applicant as sole trustee instituted an
application despite the trust deed requiring a sub-minimum
of two
trustees properly to capacitate the trust. The respondents took the
point that the applicant had no capacity to represent
the trust.
[39]
The court rejected the point, holding that the trust deed
expressly authorised the sub- minimum number of trustees
to
take steps "...
for the maintenance
and administration of the trust fund..."
;
and
that that was good enough on the facts to capacitate the application
proceedings.
[40]
Returning to the present matter: as noted before, the amended
trust deed is not part of the appeal record, nor the facts
relating
to the dates of the appointment as trustees of the fifth and sixth
appellants. It is therefore quite impossible for this
court to
discern whether or not the number of trustees here ever fell below
the capacity-defining sub-minimum; nor whether the
first four
appellants had the authority to represent the trust in the complaint
referral proceedings.
[41]
It is therefore not possible either for this court to consider
whether there is any scope for development of the trust form
in our
law along the lines suggested at paragraphs [37.1] to [37.3] of
Parker, including the notion that:
"[37.1]
As mentioned earlier, within its scope the rule that outsiders
contracting with an entity and dealing in
good faith may
assume that acts performed within its constitution and powers have
been properly and duly performed,
and are not bound
to inquire whether acts of internal management have been
regular, may well in suitable cases have
a useful role to play in
safeguarding outsiders from unwarranted contestation of liability by
trusts that conclude business transactions."
[42]
In this case the Commission "...
made
a diligent and proper enquiry into the names of the trustees of the
Trust. The Commission relied on the Trust's amended trust
deed ...",
[29]
and this did not identify the fifth and
sixth appellants as trustees. There
may
therefore well have
been
room
to
apply an
adjusted
version
of
the
Turquand
principle in
this
case,
given
the type of difficulties alluded to in Nieuwoudt
[30]
and taking
the
lead from the SCA; and to hold that it would be sufficient
in such a case
if
the known trustees were
joined as defendants/respondents in litigation,
leaving it to the
trustees so joined to apply join the non-joined trustees.
[43]
What is clear on the above authorities, however, is that it is not
sound trust law unqualifiedly to assert that merely because
all of
the trustees were not joined as respondents from the outset,
therefore the institution of the proceedings is a nullity.
This was
the appellants' main legal argument before the
Tribunal
and also before us.
[31]
It
follows that the resistance to the joinder application on this basis
cannot succeed.
[44]
That leaves the "prescription" basis for opposing the
joinder application. The answering affidavit raises prescription
without identifying the particular statutory provision relied upon.
Section 67 of the Act may, however, comfortably be excluded,
because
it deals with the period between the cessation of the impugned
conduct and the commencement of the complaint initiation.
The point
put up for consideration in this appeal, is whether or not the
joinder of only some of the trustees and not all of them
in the
complaint referral resulted, without more, in that proceeding being a
nullity from the outset. I
have
concluded above that it does not.
[45]
Could it be that the appellants had the
Prescription Act 68 of 1969
in mind? That is unclear, not only because the answering affidavit
does not say so, but also because the period between the date
of the
complaint referral of 4 December 2014 and the joinder applications of
10 May 2016 and 10 June 2016 respectively does not
resonate with any
relevant period of prescription mentioned in the latter Act.
[46]
In the result the resistance to the joinder applications was
ill-founded, and so therefore this joinder appeal. It should be
dismissed.
The
amendment appea
l
[47]
It will be recalled that the Commission had applied to amend its
complaint referral so that it would expressly cover the period
January 1995 until April 2009 and not only until May 2008; and that
appellants resisted the amendment on the basis that the complaint
referral so extended will have prescribed.
[48]
The facts pertaining to the original complaint referral and its
subsequent amendments have been set out above. It seems
evident from
those that the affidavit supporting the complaint referral stated
that the contentious agreements were annually concluded
during the
period January 1995 until May 2008, and that each agreement had an
effective duration of one year.
[49]
That
seems to imply, inexorably, that the last agreement's duration would
have spanned the period up to April
2009. The
three letters, all dated 12 may 2008, annexed to
the affidavit corroborate this inference.
As the Tribunal
observed, the prohibited practice continues to
exist when the future prices are implemented.
[32]
[50]
lt may well be asked why the Commission felt the need to apply for
the amendment at all,
if
the facts asserted in support of the complaint referral so
self-evidently conveyed a period ending
only
in
April
2009. But there could not have been
any
harm in
seeking
to
make things expressly plain for everyone, and so the resistance to
that application was also, in my view, unwarranted.
[33]
Conclusion
[51]
lt follows that in my
view
the appeal against the Tribunal's
order on both the joinder application and the amendment application
must fail. I would therefore
propose the following order:
The
appeal is dismissed with costs, including the costs consequent upon
the employment of two counsel.
Van
der Linde, AJA
I
agree, and it is so
ordered.
Davis, JP
I
agree.
Makgoba, AJA
For
the first to sixth appellants:
Adv.
AJ Coetzee Instructed by:
Louw
Prokureurs-Attorneys 2 Lenchen Park
Lenchen
Avenue South Centurion
Tel:
012-6634292
Ref:
JC Louw/aj/19032
For
the seventh appellant: Adv. AJ Coetzee Instructed by:
Marinus
van Jaarsveld Attorneys 4 Hout Road
Cnr
Buffels Street Randpark Randburg
Tel:
011-8865624
Ref:
MVJ/ddb/S2401
For
the respondent: Adv. NH Maenetje, SC Adv. PMP Ngcongo
The
Competition Commission of South Africa The DTI Campus
3rd
floor, Mulayo Building (Block C)
77
Meintjies Street Sunnyside
Pretoria
Tel:
012-3943335
Ref:
K Ayayee/N Ntjanjana
Date
argued: 20 September 2017
Date
judgment: 10 October 2017
[1]
The fifth and sixth appellants did not oppose the joinder
applications.
[2]
The reference here was to s.67(1) of the Act which provides as
follows:
"(1)
A complaint in respect of a prohibited practice may not be
initiated more than three years after the practice
has ceased."
[3]
Ibid.
[4]
Since that date Church Street, Pretoria in that area has been
renamed as
"Stanza
Bopape Street".
It
is common cause in these proceedings that the trust trades under the
name of
"H.
Pistorius
&
Co"
at
1100 Stanza Bopape Street, Colbyn, Pretoria.
[5]
This appears from annexure RAl to the replying affidavit of PBD
Boeredienste (Pty) Ltd in its application to dismiss the complaint,
at vol 3 p 314 to 316 of the appeal record. It does appear
that the annexure is however not complete because at the
top
of p315 it starts with paragraph 2), and so it is not clear whether
the current alleged restrictive horizontal
practices
were implicated from the
outset.
[6]
This was to include Rozie Agencies CC.
[7]
This was expressly to include the allegation that the then
respondents had agreed on the amount of or trading condition in
respect of commissions that each would pay to fertilizer companies
that employ agents who distribute aglime in contravention of
s.4(1)(b)(i) of the Act.
[8]
This bit of parol evidence was not disputed by the first four
appellants in their answering affidavit
and may
thus be accepted as admissible and as correct. But what one still
does not know, are the provisions of the amended
trust deed relative
to the minimum number of trustees required to be appointed
for the trust to be
able to pass binding
resolutions (i.e. capacity provisions), nor whether there are trust
provisions authorising a lesser number
of trustees that the full
contingent to represent all the trustees in legal proceedings (i.e.
agency provisions). This issue
is dealt with more fully
below.
[9]
Tribunal judgment, vol 4, p323, paragraphs 24 to 27.
[10]
Tribunal judgment, vol 4, p322, paragraph 21.
[11]
Vol 3, p280.
[12]
A “
firm”
as
defined in the Act is an economic rather than juristic entity: "...
a
person, partnership or a trust."
[13]
Vol 3, p 314.
[14]
Vol 1, p67 ff.
[15]
See generally answering affidavit LC Pistorius, vol 1 pp 41 to 51.
This was also the scope of the appellants' argument before
the
Tribunal; see vol 4, p323, paragraph 28.
[16]
2004 (3) SA 486
(SCA).
[17]
2005 (2) SA 77 (SCA).
[18]
2003 (5) SA 674
(T), esp at p679, quoting as authority the
substantial English law position to this effect.
[19]
At [15], footnotes omitted.
[20]
At (17).
[21]
2015 (5) SA 388
(WCC).
[22]
2010 (6) SA 457 (SCA).
[23]
(36878/ 2013) [2015] ZAGPPHC 118 (13 February 2015).
[24]
At p6.
[25]
2003 (2) SA 644 (C).
[26]
1996(2) SA 490 (W). In Desai-Chil wan the court said:
"[21]
If it is permissible that the trustees can delegate or authorise one
of them to sign a power of attorney
for all of them to
institute legal proceedings, surely it must be correct
to authorise one of them to consult with
a lawyer and to depose to
an affidavit and bring an action to court on their behalf. If this
is correct, then what is the magic
in the citation of all the
trustees in the legal proceedings. While it is preferable and
ideally all the trustees must be cited
in legal proceedings, I do
not think that where one of the trustees has not been properly cited
that this omission should non-suit
the trust where there was
clear authority to bring the proceedings to court. It should be
noted that, unlike directors
in a company, the trustees,
irrespective of their number, hold one office. Even if they hold
different views, they still bind
one another, regardless of the
dissenting views. The powers which the trustees have vest in them
jointly."
[27]
(3065/2015) (2016] ZAECPEHC 10;
[2016] 2 All SA 909
(ECP) (22 March
2016).
[28]
(35494/16) [2017] ZAGPJHC 127 (5 April 2017).
[29]
Vol 1,
pl4,
paragraphs 30
-
32.
See also, in regard to the joinder of the sixth appellant, vol 1,
p26, paragraph 22.
[30]
At paragraphs [19] and [24]. Compare too Cupido v Kings Lodge Hotel,
[1999]3 All SA 578 (EC) at 385, cited in the Tribunal
judgment, vol 4, p324, paragraph 36.
[31]
Tribunal judgment, vol 4, p322, paragraph 24.
[32]
Tribunal judgment, vol 4, p330, paragraph 58.
[33]
The appellants submitted too that if the amendment were granted they
would be prejudiced for not being able to raise prescription.
But
even if the submission is sound in law, in fact nothing stops them
from still raising prescription; see Tribunal judgment,
vol 4, p330,
paragraph 59.