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[2015] ZAGPPHC 1078
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Allens Meshco Group of Companies and Others v Competition Commission (31044/13) [2015] ZAGPPHC 1078; [2015] 2 CPLR 388 (GP) (17 July 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG: PRETORIA
CASE
NO: 31044/13
DATE:
17/7/2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
THE
ALLENS
MESHCO
GROUP
OF
COMPANIES
First
Applicant
ALLENS
MESHCO
(PTY)
LTD
Second
Applicant
HENDOK
(PTY)
LTD
Third
Applicant
ASSOCIATED
WIRE
I
NDUSTRIES (PTY)
LTD
Fourth
Applicant
I
NDEPENDENT
GALVANISING
(PTY)
LTD
Fifth
Applicant
GALVE
WIRE (PTY)
LTD
Sixth
Applicant
WIRE
FORCE (PTY)
LTD
Seventh
Applicant
CAPE
WIRE
(PTY)
LTD
Eighth Applicant
FOREST
WIRE
(PTY)
LTD
Ninth
Applicant
AGRI
WIRE (PTY)
LTD
Tenth
Applicant
AGRI
WIRE NORTH
(PTY)
LTD
Eleventh Applicant
AGRI
WIRE
UPINGTON (PTY)
Twelfth
Applicant
LTD
BARCO (PTY) LTD
Thirteenth
Applicant
and
THE
COMPETITION
COMMISSION
Respondent
JUDGEMENT
1.
In this application the applicants seek to review and set aside the
refusal by the Competition Commission to grant them immunity
from
prosecution in terms of the Commission's Corporate Leniency Policy
("the CLP") for their participation in a cartel.
The
applicants operate in the market, downstream from the manufacturer,
of products involving galvanised wire, barbed wire, diamond
mesh and
other wire products.
2.
The respondent is a statutory body established in terms of section 19
of the Competition Act, Act 89 of 1998 (the "Act").
Section 79 of the Act allows the Commission to prepare guidelines to
indicate the Commission's policy approach to any matter within
its
jurisdiction in terms of the Act. Section 21 provides for the
functions of the Commission. Of relevance for the present application
is the CLP developed by the Commission and duly published in the
Government Gazette. It is necessary to briefly refer to certain
aspects of the CLP before referring to the facts of the present
application.
3.
The CLP referred to is the one published in 2008. In its Preface and
Introduction the CLP briefly refers to the purpose and aims
of the
Act and then continues to set out the need for the CLP and what it
entails. According to the CLP the overriding purpose
of the Act is to
promote and maintain competition in the economy and to prevent any
form of anti-competitive conduct by a firm
or a group of firms
arising from agreements. The role of the Commission is to
investigate, control and evaluate restrictive
practices and abuse of
dominant position.
4.
This CLP refers to section 4 (1) (b) of the Act which is aimed at
eradicating and preventing cartel activity which, according
to the
CLP, harms the economy at large. This CLP then, in paragraphs 2.4 and
2.5, states the following:
"2.4
Cartel operation is often collusive, deceptive and secretive, and is
conducted through a conspiracy among a group of firms,
with the
result that it becomes difficult to detect or prove without the
assistance of a member who is part of it.
2.
5 In its endeavours to detect, stop, and prevent cartel behaviour,
the Commission has, in line with other international jurisdictions,
developed this policy to facilitate the process through which firms
participating in a cartel are encouraged to disclose information
on
the cartel conduct in return for immunity from prosecution."
5.
Paragraph 3 of the CLP sets out what the CLP is. It is only necessary
to refer to the first two subparagraphs which state that
the CLP
outlines a process through which the Commission will grant a
self-confessing cartel member, who is first to approach the
Commission, immunity for its participation in cartel activity upon
the cartel member fulfilling specific requirements and conditions
set
out under the CLP; and that it is a compliance mechanism devised to
encourage cartel participants to disclose to the Commission
a cartel
activity, to discourage or prevent the formation of cartels and
to eradicate this harmful conduct.
6.
Consequently it is stated further in paragraph 3.5 that
"...
a firm which is involved, implicated or suspecting that it is
involved in cartel activity, would be able to come forward
of its own
accord and confess to the Commission in return for immunity. In other
words, if a cartel member realises that such conduct
may be a
contravention of the Act, it could of its own free will without
waiting for the Commission to investigate them, report
the cartel
activity to the Commission under the CLP."
7.
According to paragraph 5.5 the CLP is aimed at cartel activity:
"5.5.1
which the Commission is not aware of; or
5.5.2
which the Commission is aware of but in relation to which it has
insufficient information, and no investigation has been initiated
yet; or
5.
5.3 in respect of pending investigations and investigations already
initiated by the Commission but, having assessed the matter,
the
Commission is of the view that it has insufficient evidence to
prosecute the firms involved in the cartel activity."
8.
Paragraph 5.6 provides that it is only a firm that is "first to
the door" to confess and provide information in accordance
with
the CLP to the Commission in respect of cartel activity, which would
qualify for immunity under the CLP. Other members of
the cartel who
wish to come clean on their involvement in the cartel to which the
applicant has already confessed, may receive
favourable or more
lenient treatment from the Commission outside the provisions of the
CLP. The CLP would not apply where another
firm has already made a
successful application for immunity under the CLP in respect of the
same conduct. (See paragraph 7.1.2).
9.
Paragraph 9 sets out the different forms of immunity available
through the CLP. Conditional immunity may be granted which precedes
total immunity or no immunity. Total immunity would only be granted
after the Commission has completed its investigation and referred
the
matter to the Tribunal or the Appeal Court, as the case may be. Until
that has occurred, the Commission may revoke the conditional
immunity. No immunity would be granted if the applicant fails to meet
the conditions and requirements under the CLP. (See paragraph
9.1.3.1).
10.
Paragraph 11 sets out the procedure to be followed by an applicant
who wants to receive immunity in terms of the CLP. Some of
the
salient features of this procedure are the following. The applicant
must make an application for immunity in writing to the
Commission.
The application must contain "... information substantial enough
to enable the Commission to identify the cartel
conduct and its
participants in order to determine whether or not an application for
immunity has been made in respect of the same
conduct." It is
not necessary for the applicant to disclose its identity at this
stage. If another firm has already made an
application in respect of
the same conduct, the Commission must advise the applicant
accordingly. If no firm has already made an
application, the
Commission must advise the applicant accordingly and the applicant
must thereafter make an arrangement for the
first meeting with the
Commission.
11.
At such a first meeting the applicant must bring all the
relevant information, evidence and documents at its disposal,
whether
written or oral, relating to the cartel activity for consideration by
the Commission. The applicant must reveal its full
identity and
answer all the questions that the Commission may ask in relation to
conduct being reported and all matters relating
thereto. The purpose
of this meeting is to find out whether the applicant's case would
qualify for immunity under the CLP. (See
paragraph 11.1.2).
12.
If the Commission decides that the applicant meets the conditions and
require ments set out in the CLP, a second meeting
is arranged.
If the conditions and requirements have not been met, the applicant
would be advised accordingly which means that
no immunity had been
granted.
13.
The aim of the second meeting is to discuss and grant conditional
immunity to the applicant pending finalisation of any further
investigations by the Commission in the matter and final
determination by the Tribunal or the Appeal Court, as the case may
be.
At this stage the applicant will be required to bring forward any
other relevant information, evidence and documents that it may
still
have in its possession or under its control, whether written or oral.
A written agreement between the applicant and the Commission,
otherwise known as the conditional immunity agreement, which will be
granted subject to the conditions and requirements of the
CLP, will
then be agreed upon between the applicant and the Commission.
14.
After the granting of conditional immunity the Commission will do its
own investigations relating to the cartel activity. Further
meetings
may be arranged by the Commission to revoke the conditional immunity
or to solicit further documents or information to
enable the
Commission to complete its investigations. If the Commission is
satisfied, a final meeting is arranged with the purpose
of informing
the applicant that the Commission intends to institute proceedings in
relation to the alleged cartel and to request
the applicant to
continue to cooperate fully and expeditiously in the proceedings.
Conditional immunity will continue to apply
until the Tribunal or the
Appeal Court, as the case may be, has reached a final decision
regarding the matter.
15.
Arguably the most important feature of the CLP is the manner in which
it encourages a cartel member to report the unlawful cartelist
conduct. This is done by way of the principle of "first at the
door". A member of a cartel knows that any hope it would
have to
escape the penalties which would follow if being found to be part of
such conduct, would be to report such conduct to the
Commission and,
more importantly, to be the first one of the cartel members to do so.
To do so belatedly would, as a general proposition,
not result in
immunity being granted and may, depending on the circumstances, at
best for such an applicant, result in receiving
more lenient
treatment.
16.
Due to the importance of establishing who reported a matter first to
the Commission, paragraph 12 of the CLP provides for a
mechanism by
which a so- called "marker" can be placed by a prospective
applicant for immunity in order to protect that
applicant's place in
the queue of applications for immunity. It is necessary to refer
fully to the relevant parts of paragraph
12. It reads as follows:
"12.
Can a marker be placed?
12.1
Prior to making an application for immunity pursuant to section 11.1
of the CLP, a prospective applicant
may choose to apply to the
Commission for a marker (the "marker application"). The
marker application is made in writing
to the Manager of the
Enforcement and Exemptions Division of the Commission by one of the
following means:
(i)
Facsimile: ...
(ii)
Electronic Mail:
(iii)
Hand Delivery: …
The
marker application must identify that it is being made to request a
marker, the applicant's name and address, the alleged cartel
conduct
and its participants and justify the need for a marker.
12.2
The Commission may grant, at its discretion and on a case-by-case
basis, a marker to protect the applicant's
place in the queue of
applications for immunity. In granting the marker, the Commission
will determine on a case-by-case basis
the period of time within
which the applicant must provide the necessary information, evidence
and documents needed to meet the
conditions and requirements set out
in section 10 of the CLP. If the applicant submits at a later stage
an application for immunity
along with the necessary information,
evidence and documents within the time limit determined by the
Commission, such application
for immunity and information, evidence
and documents will be deemed to have been provided on the date when
the marker application
was granted by the Commission."
17.
Paragraph 13 and 14 deal with the revoking of conditional immunity
and the effect of an unsuccessful application for immunity.
Paragraph
15 provides for oral statements under the CLP and it is for present
purposes only necessary to quote the first sentence
of paragraph
15.1. It reads as follows:
"15.1
When submitting in writing its application for immunity or its
marker application, the applicant may apply to the
Commission to
request that information regarding the alleged cartel be provided
orally."
18.
As far as the current application is concerned the following may
briefly be referred to. The applicants stated that during July/August
2008 they had reason to believe that their group of companies may
have contravened certain prohibited practices contained in section
4
(1) of the Act. Mr R.B. Allen ("Mr Allen") who describes
himself as the chairman of the first applicant and who is
also the
deponent to the affidavits filed on behalf of the applicants,
submitted a marker application on behalf of the applicant's
on 5
August 2008.
19.
The Commission acknowledged receipt of the marker application on 12
August 2008 and undertook to evaluate the application and
to revert.
On 15 August 2008 the commission wrote to the applicants a letter
with the following contents:
"Subject:
FW: Allens Mescho marker application
We
refer to the application for a marker submitted on behalf of the
Allens Mescho Group of companies dated 5 August 2008.
After
an evaluation of your marker application we wish to inform you that:
1.
The Commission has granted a marker and is in the process of granting
conditional leniency
to the applicant who is "first through the
door" with regards to price-fixing, market allocation and
collusive tendering
on wire and wire products, including those
products listed in your marker application.
2.
Your client is second through the door in relation to the
price-fixing conduct stated
in its marker application and/or conduct
stated in par 1, and we therefore hereby grant a marker in respect of
the application
referred to above.
3.
From the evaluation it seems that there are different parties
referred to in the application
indicative of agreements in certain
products, where it is possible that your client may be first through
the door. However, the
success of your client's application for
leniency would depend on the information supplied by your client,
pursuant to the granting
of the marker. It is possible that some of
the information which your client furnishes to us may overlap with
that furnished by
the first CLP applicant. Your client will
accordingly only be given leniency on new information furnished.
We
look forward to receiving further information in support of your
application by 19 August 2008."
20.
Although the applicants were thus granted a marker, they were also
informed of the marker granted and conditional immunity to
be granted
to CWI which was first to the door in respect of matters to which the
applicants referred in their marker application.
It was, however
further noted that there might be areas in what the applicants wished
to disclose which were not covered by CWl's
application, in other
words, which would be new information,
and in respect
of which the applicants
might then very well be first at the door. All would thus depend on
the information subsequently
submitted and the contents of the
ultimate application for immunity by the applicants, if same were to
be submitted.
21.
The representatives of the applicants met with the Commission on 27
August 2008 to discuss the marker application and its effect
on
certain referral proceedings against the second applicant then
pending before the Tribunal. Subsequent thereto the parties exchanged
letters relating,
inter alia,
to the applicants' objection to
the granting of leniency to CWI on 28 August 2008. The applicants
objected to CWI relying on the
marker obtained by their parent
company and also stated, in the letter by its attorneys, that the
products underlying the applicants'
marker application fall outside
the product market of the pending leniency application of CWI. In its
answering affidavit the Commission
stated that based on the
correspondence, the Commission understood that the leniency
application to be submitted by the applicants
would contain new
information that would disclose prohibited practices in relation to
different products and thus in respect of
different markets to that
already disclosed by CWI. The Commission also noted that at that
stage, that the Commission was
only in possession of the
applicants' marker application and that the applicants have not yet
submitted a leniency application
nor have they submitted concrete
information. Although the CLP refers to both an application for
"leniency" and an application
for "immunity",
they both bear the same meaning.
22.
On 16 September 2008 the applicants' attorneys wrote an e-mail to the
Commission attaching "documents specifying the required
product
information for each product identified in our marker application."
23.
According to the Commission's answering affidavit the Commission
evaluated these documents on receipt thereof. In this regard
it was
stated that it became clear that the applicants disclosed the alleged
participants in cartel agreements in respect of various
products, as
well as the alleged terms of such agreements, but did not include any
evidence of the agreements. It also did not
provide any detailed
information of which of the applicants was involved in each
agreement. In fact, the documents did not disclose
any information
that would be sufficient to establish a prohibited practice as
against the applicant or any other party. These
documents and
information were, in themselves, insufficient to form a basis for the
grant of leniency. Furthermore, the documents
did not disclose
prohibited conduct in relation to new products or markets. All of the
products and markets disclosed in the documents
sent by the
applicants' attorneys had already been covered by CWl's application.
This meant, according to the Commission, that
the applicants were not
"first in line" in respect of any of the relevant products
or markets.
24.
According to the Commission the marker application thus did not meet
the specified requirements for the granting of leniency.
On 19
September 2008 the applicants were informed in writing as follows:
"RE:
ALLENS MESCHO GROUP OF COMPANIES - MARKER APPLICATION
1.
We refer to the marker application of 5
August 2008 made
on behalf of the Allens Mescho Group of
Companies and your subsequent e-mail of 16 September 2008.
2.
We confirm that your client is second to apply for a marker for
price-fixing in relation
to galvanised wire, barbed wire, diamond
mesh, nails, hard drawn wire, black annealed wire, field fence and
wire netting. The aforementioned
conduct is described in your e-mail
of 16 September and involves Allens Mescho, Hendok, Associated Wire
Industries, Independent
Galve Wire, Wireforce, Cape Wire, Forest
Wire, Agriwire, Agriwire North, Agriwire Upington, Barco,
Consolidated Wire Industries,
Barnes Wire Industries, Scaw Metals,
Davsteel and Cape Gate.
3.
However, your client's position in the queue will be reconsidered if
the first applicant
fails to comply with the conditions of the marker
as set out in the Corporate Leniency Policy
("CLP").
4.
Please note that in the event that the Commission grant immunity to
another applicant,
your client may still cooperate with the
Commission as contemplated in section 5.6 of the CLP."
25.
Subsequent to the receipt of this letter the applicants took no
further steps in relation to their marker application and neither
did
they submit an application for immunity. The next action by the
applicants was the current application seeking to review and
set
aside the aforesaid decision contained in the letter of 19 September
2008.
26.
It is not necessary for purposes of this judgement to refer to all
the grounds upon which the applicants attacked the aforesaid
decision
by the Commission and I shall only refer to
certain salient features thereof. Firstly, the applicant's
proceed
from the premise that the granting of a marker and the granting of
immunity is one integrated process and that two separate
applications
need not be made in terms of the Commission's CLP. Secondly, the
applicants submitted that the Commission failed to
consider the
applicants' application. It was submitted that the
Commission's attitude was that the applicants would
not be considered
at all because it was not "first to the door" and that they
were beaten by CWI who got there first.
According to the
applicants they had identified additional parties
who were involved in the cartel and
that they also had different
information to that provided by CWI. Thirdly, it was submitted that
the Commission was obliged, in
the proper exercise of its discretion,
to consider each application on its own merits, which was not done,
and if it had been done,
immunity should also have been granted to
the applicant. Fourthly, it was submitted that the decision was also
not taken by the
Commissioner or the Deputy Commissioner, who could
act on behalf of the Commission, but by another official who did not
have the
authority to do so. I shall refer to these aspects again
below.
27.
The Commission argued a number of points in limine but it is only
necessary to refer to the one relating to the applicants unreasonably
delaying the institution of the present review proceedings.
28.
The applicants stated that they were informed of the decision to
refuse them leniency, and the reasons for it, on 19 September
2008.
The present application was only launched on 20 May 2013 - some 4
years and 8 months later. The question is whether this
extraordinary
delay can be condoned.
29.
In terms of section 7 of the Promotion of Administrative Justice Act,
Act 3 of 2000 ("PAJA"), proceedings for judicial
review
must be instituted without unreasonable delay and not later than 180
days after the date on which the person concerned became
aware, or
ought reasonably to have become aware, of the relevant decision and
its reasons. In terms of section 9 of PAJA the period
of 180 days may
be extended by a court where the interests of justice so require.
30.
The approach to the issue of delay was set out by Brand JA in
Opposition to Urban Tolling Alliance v SANRAL and others
[2013] 4 All
SA 639
(SCA) at paragraph 25 as follows:
"[25]
As to the purpose and function of the delay rule under section 7 (1)
of PAJA and its common law predecessor, Nugent JA
explained in
Gqwetha v Transkei Development Corporation Ltd and Others
2006 (2) SA
603
(SCA) at paragraphs 22-23:
'[22]
It is important for the efficient functioning of public bodies (I
include the first respondent) that a challenge to the validity
of
their decisions by proceedings for judicial review should be
initiated without undue delay. The rationale for that longstanding
rule - reiterated most recently by Brand JA in Associated
Institutions Pension Fund and Others v Van Zyl and Others
2005 (2) SA
302
(SCA) at 321 - is twofold: First, the failure to bring a review
within a reasonable time may cause prejudice to the respondent.
Secondly, and in my view more importantly, there is a public interest
element in the finality of administrative decisions and the
exercise of administrative functions. As pointed out by Miller JA in
Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978
(1) SA 13
(A) at 41 E - F (my translation):
'It
is desirable and important that finality should be arrived at within
a reasonable time in relation to judicial and administrative
decisions or acts. It can be contrary to the administration of
justice and the public interest to allow such decisions or acts
to be
set aside after an unreasonably long period of time has elapsed -
interest reipublicae ut sit finis litium. . . . Considerations
of
this kind undoubtedly constitute part of the underlying reasons for
the existence of this rule.'
[23]
Underlying that latter aspect of the rationale is the inherent
potential for prejudice, both to the efficient functioning of
the
public body and to those who rely upon its decisions, if the validity
of its decisions remains uncertain. It is for that reason
in
particular that proof of actual prejudice to the respondent is not a
precondition for refusing to entertain review proceedings
by reason
of undue delay, although the extent to which prejudice has been shown
is a relevant consideration that might even be
decisive where the
delay has been relatively slight (Wolgroeiers Afslaers, above, at
42C).'
[26]
At common law, the application of the undue delay rule required a
two-stage enquiry. First, whether there was an unreasonable
delay
and, second, if so, whether the delay should in all the circumstances
be condoned (see eg Associated Institutions Pension
Fund and others v
Van Zyl and others
2005 (2) SA 302
(SCA) at paragraph 47 ... . Up to
a point, I think, section 7 (1) of PAJA requires the same two-stage
approach. The difference
lies, as I see it, in the Legislator's
determination of a delay exceeding 180 days as per se unreasonable.
Before the fluxion
of 180 days, the first enquiry in applying section
7 ( 1) is still whether the delay (if any) was unreasonable. But
after the 180-day
period the issue of unreasonableness is
pre-determined by the Legislator; it is unreasonable per se. It
follows that the court
is only empowered to entertain the review
application if the interest of justice dictates an extension in
terms of section
9. Absent such extension the court has no authority
to entertain the review application at all. Whether or not the
decision was
unlawful no longer matters. The decision has been
"validated" by the delay (see e.g. Associated Institutions
Pension
Fund (supra) at paragraph 46. That of course does not mean
that, after the 180-day period, an enquiry into the reasonableness of
the applicant's conduct becomes entirely irrelevant. Whether or not
the delay was unreasonable and, if so, the extent of that
unreasonableness is still a factor to be taken into account in
determining whether an extension should be granted or not (see e.g.
Camps Bay Ratepayers' and Residents' Association v Harrison
[2010] 2
All SA 519
(SCA) at paragraph 54)."
31.
In casu
the review application was launched outside the
180-day time period, even on the applicants' own
version.
The delay was thus
per
se
unreasonable and this court can consequently not entertain the
application unless it can also find, as envisaged in section 9 of
PAJA, that it would be in the interest of justice to do so. In order
to come to a decision in this regard the court should, in
my view,
inter
alia,
have regard to the facts of the
case, the extent of the delay, the reasons for the delay and any
prejudice which the parties
or the public may suffer. It
is for the party bringing the review to persuade the court that its
delay should be condoned.
32.
The applicants submitted that the delay was not caused by any
tardiness on their part but was occasioned by the fact that the
basis
for the review only became apparent to them during October 2012 after
the SCA-judgment in the Agri matter to which most of
the applicants
were parties, and more specifically after leave to appeal was denied
by the Constitutional Court during December
2012.
33.
According to the applicants the SCA judgment made them aware of the
fact that the reasons given by the Commission for its decision
triggered one or more grounds of review. According to the applicants
it became clear that decisions made in terms of the CLP are
expressly
authorised by section 21 (1) (a) of the Act and that the section
places a responsibility on the Commission to implement
measures to
increase market transparency. Consequently, so it was submitted by
the applicants, it became clear to them that the
Commission must
consider every application submitted to it and must itself come to a
decision in respect of such application. According
to the applicants
the period of 180 days should be calculated from the time they became
aware as aforesaid, with the result that
the present application was
launched shortly after the expiry of the 180 days period.
34.
In my view this explanation does not constitute a valid excuse.
Section 21 of the Act is quite clear as to the functions of
the
Commission and so is section 79 which allows the Commission to
prepare and publish in the Gazette guidelines to indicate the
Commission's policy approach to any matter within its jurisdiction in
terms of the Act. The Commission is quite clearly and administrative
body whose decisions can be taken on review in terms of the
provisions of PAJA. The applicants did not need any judgment or
ruling
by the SCA or the Constitutional Court to make them aware of
the availability of the provisions of PAJA.
35.
But even if the officials of the applicants were unaware of their
rights in this regard, it was incumbent upon them to take
comprehensive legal advice on the remedies available to them at the
time that they were advised of the Commission's decision. There
can
be no doubt that if they had done so, they would have been advised of
their rights and they would have been in a position to
bring the
present review timeously. The failure of the applicants to do so for
more than four years cannot assist them.
36.
1 did not understand the applicants' case to be that the existing law
had been altered or reversed by the SCA in the Agri matter
and that
they now find themselves with a remedy which they did not previously
have. But even if that were to be the case of the
applicants, it
would be without any merit. Firstly, the judgement by the SCA
did not alter or reverse existing law in any
manner. It also did not
create a right which had not previously existed for the applicants.
But, secondly, even if it did, and
having regard to the extraordinary
long delay, the principles applied in the matters of S v Franco and
Another; S v Lasovsky Brothers
(Pvt) Ltd and Others
1974 (4) SA 496
(RA), R. v Brodie,
1935 T.P.D. 114
, Sloman v Attorney-General;
Rabinowitz v Attorney-General, 1944 S.R. 144 and the cases therein
referred to, should, in my
view, also apply to a review
application such as the one presently before this court.
37.
In the result the conclusion is inescapable that, for approximately 4
years and 8 months and without good cause, the applicants
failed to
bring their current application.
38.
As far as the facts of the case are concerned I do not deem it
necessary for purposes of this judgment to analyse and discuss
all
the submissions made by the respective parties and I shall merely
refer to certain salient features.
39.
The first issue to be addressed is the question whether the
applicants ever submitted an application
for
leniency. According to the Commission's
version the applicant failed to submit
a leniency
application as a separate application from the marker application, as
required by the CLP. This, according to the Commission,
frequently
happens if an applicant's marker application is unsuccessful. There
was no document submitted by the applicants which
reflect that it
constitutes an application for leniency. All the documents referred
to the marker application. The applicant sought
to overcome this
difficulty by submitting,
inter
alia,
that
the application for a marker and the application for leniency is one
integrated process and that two applications are not necessary.
40.
In my view this submission cannot be sustained. From the passages of
the CLP quoted above it is quite clear that the application
for a
marker application and the application for leniency are two separate
applications and that each has to comply with its own
set of
procedural and other requirements.
41.
It was also submitted on behalf of the applicants that the documents
and information which the Commission allowed them to submit
subsequent to the marker application and the meeting between the
parties, is proof of the fact that the Commission was dealing
with
the applicants' leniency application. This submission is not
factually correct. Firstly, the applicants mentioned in the marker
application that the facts provided in that application will be
expanded upon in the leniency application which were to follow.
This
clearly envisaged a further and separate application. Furthermore,
the Commission was clearly also of the view that the information
submitted up to that point disclosed no more information than had
already been received from CWI in respect of CWl's application
for a
marker and their application for leniency. The initial
reference by the Commission to information and documents was
clearly
in relation to the applicants' marker application.
42.
As mentioned before, in the letter dated 15 August 2008 the
Commission informed the applicants that they were "second
through the door" in respect of price-fixing, market allocation
and collusive tendering regarding the stated products. However,
in
the next paragraph the Commission specifically stated that "it
seems that there are different parties referred to in the
application
(of the applicants) indicative of agreements in certain products,
where it is possible that your client (the applicants)
may be first
through the door." The Commission then proceeded to explain the
obvious namely that the success or otherwise
of the applicants'
application for leniency would depend on the information supplied by
the applicants pursuant to the granting
of the marker. The Commission
was clearly referring to a future application for leniency still to
be submitted which would have
to entail more than what had been
disclosed at that point, if the applicants wanted to receive any form
of immunity.
43.
The next sentence of the letter then states another obvious fact as
follows: "It is possible that some of the information
which your
client furnishes to us may overlap with that furnished by the first
CLP applicant. Your client will accordingly only
be given leniency on
new information furnished." It is obvious that the applicants
could not expect leniency in respect of
information already in
possession of the Commission. As stated before, they could only,
ceteris
paribus,
expect leniency in
respect of information of which the Commission was unaware.
44.
The final letter dated 19 September 2008 accords with the aforesaid.
It specifically refers to the marker application and confirms
that
the applicants were second to apply for a marker in respect of the
conduct and items stated. In paragraph 3 of the letter
reference is
only made to the applicants' "position in the queue", which
is a response to the marker application. It
does not refer to the
leniency application.
45.
In light of the aforesaid it may already at this stage be mentioned
that the applicants' application, which is aimed at
reviewing an
alleged refusal to grant immunity, cannot succeed. The Commission
never had an application for immunity, as envisaged
in paragraph 11
of the CLP, before it. It was at that point only dealing with the
marker application and merely mentioned as an
aside that their
analyses of the matter showed that the applicants would have to
present more, or rather, new information in its
application for
immunity if they were to have any hope of success.
46.
The next two issues relate to the submission by the applicants that
the Commission failed to consider their application,
and, if it did
so, did not consider all the relevant factors. These submissions
cannot be sustained. I refer to what I have stated
above and the
contents of the letters from which it clearly appears that the
Commission had fully investigated the marker application,
including
the additional documents and information, and had compared that with
the applications of CWI. Furthermore, in his affidavit
Mr Thulani
Kunene, the Acting Deputy Commissioner, confirmed the contents of the
founding affidavit in so far as it related to
him and also added that
he and Me Shan Ramburuth, who was the Commissioner at the time,
considered the application for leniency
by CWI and that he evaluated
the marker application as well as the additional documents submitted
by the applicants. He further
stated that he determined that
the applicants did not raise any new information or justify the grant
of leniency to any of the
applicants, either as second applicant in
line or at all.
47.
The applicants' submissions that the Commission did not consider
their application at all or did not do so properly, appears
to be all
based on assumptions made by the applicants. It would appear that
most of these assumptions were made as a result of
the applicants'
erroneous viewpoint, based on a misinterpretation of the provisions
of the CLP, that the application for a marker
and the application for
immunity is one integrated process. As stated before, marker and
leniency applications are separate and
distinct from one another. A
marker application does not contain sufficient information and will
not justify the granting of leniency.
In order to
consider a leniency application, a specific procedure is followed and
much more information is required
by the Commission than is the
case with a marker application. The Commission stated what type of
information would be required
to justify the grant of leniency and
why it says that the applicants did not present such information to
it. With reference to
this version and the version of the applicants,
this court cannot go beyond the version of the Commission and more
particularly
the evidence of Mr Kunene in this regard.
48.
A further issue which is to be considered in respect of the
condonation issue, is that of prejudice. In response to the
applicants'
rather bald statement that the substantial delay in this
case did not cause any prejudice to the Commission, the Commission
stated
that the delay is highly prejudicial to the Commission and to
the public at large. In respect of the applicants themselves the
Commission submitted that the present review proceedings
are designed to prevent the referral
against the applicants from being prosecuted to
completion. The Commission further submitted that it pursues this and
other referrals in the public interest, to prevent and penalise
prohibited anti-competitive conduct. Where its ability to do so
is
undermined, particularly because it is required to oppose a belated
application like the present one, the public interest is
harmed. The
Commission also pointed to the fact that referral proceedings seek to
impose administrative penalties against the applicants
which will
deter them from engaging in prohibited practices in future and which
would compensate the public at large through the
fiscus. Any delay in
the imposition of penalties affords the applicants time to
restructure their affairs and thus potentially
to frustrate the
imposition and collection of any fine.
49.
There is merit in the aforesaid submissions by the Commission.
Further prejudice of course also arises, especially after
an extended
period as is the case
in casu,
from the fact that review
applications often require detailed facts or events to be related to
the court for consideration. Administrative
bodies, which act through
its officials, might find such information to be unavailable due to
the normal turn-over of personnel
or even due to the mere inability
of such officials to recall the detailed facts and circumstances of
matters in times gone by.
Reference should also be made to the
prejudice referred to by Miller JA in Wolgroeiers Afslaers (Edms) Bpk
v Munisipaliteit van
Kaapstad
1978 (1) SA 13
(A) quoted above.
50.
In summary, nothing which the applicants have put forward negates the
aforesaid evidence and inferences of prejudice and
potential
prejudice to the Commission and the public at large.
51.
Consequently, having regard to, inter alia, all the aforesaid, I am
of the view that the applicants have failed to show
that the
interests of justice require an extension of time as envisaged in
section 9 of PAJA for the bringing of this application.
In the result
the application cannot be entertained and should be dismissed.
52.
If I were to be wrong in respect of the delay issue, I am
nevertheless satisfied, as already mentioned, that the applicants
have never submitted an immunity application and that the Commission
has not made a decision by which it denied immunity to the
applicants. The application to set aside such a decision is thus
misplaced and should be dismissed.
53.
As far as costs are concerned, costs should follow the event and
should also include the costs of two counsel.
54.
In the result the following order is made:
1.
The application is dismissed with costs which costs shall include the
costs of two counsel.
_______________________
C.P.
RABIE
JUDGE
OF THE HIGH COURT