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[2013] ZAGPPHC 236
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Premier Foods (Pty) Ltd v Manoim NO and Others (38235/2012) [2013] ZAGPPHC 236; [2013] 2 CPLR 367 (GNP) (2 August 2013)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT.
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 38235/2012
DATE:
02 August 2013
IN
THE MATTER BETWEEN
PREMIER
FOODS (PROPRIETARY)
LIMITED
.................................................
APPLICANT
AND
NORMAN
MANOIM
N.O.
.....................................................................
FIRST
RESPONDENT
THE
COMPETITION
TRIBUNAL
..................................................
SECOND
RESPONDENT
THE
COMPETITION
COMMISSION
.................................................
THIRD
RESPONDENT
THE
TRUSTEES FOR TI IE TIME-BEING
…...............................
FOURTH
RESPONDENT
OF
THE CHILDREN'S RESOURCE CENTRE TRUST
THE
TRUSTEES FOR THE TIME-BEING OF
.................................
FIFTH RESPONDENT
THE
BLACK SASH TRUST
CONGRESS
OF SOUTH AFRICAN TRADE
.................................
SIXTH
RESPONDENT
UNIONS
NATIONAL
CONSUMER FORUM
…......................................
SEVENTH RESPONDENT
TASNEEM
BASSIER.EIGHTH RESPONDENT
BRIAN
MPIIAHLELE
..........................................................................
NINTH
RESPONDENT
TREVOR
RONALD GEORGE BENJAMIN
…..............................
TENTH RESPONDENT
NOMTHANDAZO
MVANA
…..................................................
ELEVENTH
RESPONDENT
FAREED
ALBERTS
…...............................................................
TWELFTH
RESPONDENT
JUDGMENT
KOLLAPEN
J
1)
The applicant, Premier Foods (Pty) Ltd has launched proceedings out
of this Court in terms of which it seeks the following relief:
(a)
Declaring that neither the first nor the second respondent can
lawfully issue a notice in term of
section 65(6)(b)
of the
Competition Act 89 of 1998
, certifying that the applicant’s
conduct has been found to be a prohibited practice under the Act in
Competition Tribunal
of South Africa, case numbers 15/CR/Feb07 and
50/CR/May08; and
(b)
Costs of the application in the event of opposition.
2)
The third to the twelfth respondents oppose the relief sought. While
the third respondent initially filed an answering affidavit
suggesting that it would abide the decision of the Court, it
subsequently filed a supplementary affidavit in which it sought to
clarify that position.
3)
In the supplementary answering affidavit it states that it had always
been the intention of the third respondent to participate
in these
proceedings and that despite its statement that it would abide the
decision of the Court, it was always its intention
to oppose the
application. That intention, the third respondent states, was evident
from it filing a notice of intention to oppose
and an answering
affidavit and in engaging with the applicant’s attorneys to
agree to a date for the hearing of the matter.
It also submitted that
even if the Court were to find that it sought to change its stance
from abiding to opposing, such a change
in stance should be permitted
as it was in the interests of justice to do so and the applicant in
any event could not claim any
prejudice on account of such a change
in stance.
4)
The applicant's stance was that in adopting the position that it
would abide the decision of the Court, the third respondent
had made
a decision not to oppose and accordingly the consequence of that
decision was that it abandoned its right to oppose the
application
and was precluded from seeking to revive such a right as it purported
to do. The applicant sought to rely in this regard
on the minority
judgment in the matter of COMPETITION COMMISSION v LOUNGEFOAM (PTY)
LTD
2012 (9) BCLR 907
(CC).
5)
While the doctrine of peremption has been raised as representing an
obstacle to the third respondent's desire to oppose the application,
I am not convinced that the facts relevant to these proceedings
suggest that there was a deliberate abandonment of the right to
oppose. In THE MINISTER OF DEFENCE and OTHERS v SOUTH AFRICAN
NATIONAL DEFENCE UNION (161/11)
(2012) ZASCA 110
(30 August 2012),
the Court cautioned as follows:
'As
with all cases of the abandonment of rights, acquiescence will not
lightly he inferred. What is required to he shown is unequivocal
conduct on the part o f the litigant that is inconsistent with any
intention to appeal such as to point Indubitably and necessarily
’
to the conclusion that he or she intended to abandon the right.
6)
The Court went further however in affirming that even where it was
satisfied that there had been acquiescence, it was open to
the Court
to overlook the acquiescence where the broader interests of justice
would otherwise not be served and relied in this
regard on the dicta
in GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA v VON ABO
2011 (5) SA
262
(SCA). where the Court dealing with a challenge that the appeal
had been perempted responded that:
‘
It
would be intolerable if in the current situation, this Court would be
precluded from investigating the legal soundness of the
first order,
as a result of the incorrect advice followed by the applicants or an
incorrect concession made by them. ’
7)
In this regard I am not satisfied that on what is before me it could
be said that the conduct of the third respondent demonstrated
unequivocal conduct that it had abandoned its right to oppose and
accordingly it cannot be said that its right to oppose had become
perempted. However even if I am wrong on that conclusion, my view is
that the interests of justice would be best served by ensuring
the
full participation of the third respondent in these proceedings given
its important role in the administration and enforcement
of the Act.
8)
That being the case, the Court allowed the filing of the
supplementary affidavit which effectively enabled the third
respondent
to proceed with its opposition to the relief sought by the
applicant.
The
facts relevant to the dispute
9)
The facts underpinning this application are not in dispute and may be
summarized as follows:
(a)
During December 2006, the Competition Commission (the Commission)
received information concerning the operation of a bread cartel
in
the Western Cape and initiated a complaint investigation against the
applicant (Premier), Tiger Food Brands Ltd (Tiger), Pioneer
Foods
(Pty) Ltd (Pioneer) and Foodcorp (Pty) Ltd (Foodcorp).
(b)
Premier applied to the Commission for leniency and was granted
leniency in terms of the Commission's Corporate Leniency Policy
(CLP).
Some
of the main features of the Commission's CLP relevant to this
application are:
(i)
Section 3.1
of the CLP describes the CLP as follows:
‘
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.’
(ii)
Section 3.3
describes immunity as follows:
‘
Immunity
in this context means that the Commission would not subject the
successful applicant to adjudication before the Tribunal
for its
involvement in the cartel activity, which is part of the application
under consideration. Furthermore, the Commission would
not propose to
have any fines imposed on that successful applicant.’
(iii)
Section 5.9
provides that:
‘
The
immunity granted pursuant to the CLP does not protect the applicant
from criminal or civil liability resulting from its participation
in
a cartel infringing the Act.
(iv)
Finally,
Section 6.4
provides that:
‘
Nothing
in the CLP shall limit the right of any person who has been injured
by cartel activity in respect of which the Commission
has granted
immunity under the CLP to seek civil or criminal remedies.'
(a)
On the 14 of February 2007, the Commission referred a complaint under
case number 15/CR/07 to the Competition Tribunal (the
Tribunal)
against Tiger and Pioneer for alleged price fixing and dividing of
markets in the Western Cape (Western Cape complaint).
(d)
On the 6th of May 2008, the Commission referred a second complaint
under case number 50/CR/May 08 to the Tribunal against Pioneer
and
Foodcorp for the same alleged conduct in the broader South African
market (the national complaint).
(e)
Tiger and Pioneer were cited as respondents in the Western Cape
complaint while Foodcorp and Pioneer were cited as respondents
in the
national complaint. Premier was not cited as a respondent in the
referrals of the two complaints as the Commission’s
practice at
the time was not to cite a leniency applicant in Tribunal proceedings
as leniency immunized a self-confessed cartel
member from
adjudication before the Tribunal.
(f)
The two complaints were consolidated into a single hearing before the
Tribunal. The hearings took place during June and September
2009 and
Premier, represented by counsel, participated in the proceedings. The
Commission filed the witness statements of several
Premier managers
who participated in the bread cartel and five of Premier’s
witnesses presented oral evidence of the unlawful
cartel activities
of Premier and the other cartel members.
(g)
In its decision and order handed down on the 3rd February 2010, the
Tribunal found inter alia that ‘During December 2006,
Pioneer,
Premier cmd Tiger Brands contravened
section 4(l)(b)(i)
and (ii) of
the
Competition Act' and
proceeded to set out the basis of the
conclusion arrived at.
Section
4
of the Act prohibits what is termed restrictive horizontal
practices and
Section 4
(b)(i) and (ii) describe such practices as
involving the direct or indirect fixing of the purchase or selling
price or any other
trading condition and the dividing of markets by
allocating customers, suppliers etcetera. The Tribunal was satisfied
that on the
evidence presented to it Premier and the other members of
the cartel had contravened the provisions of
Section 4(b)(i)
and (ii)
of the Act.
(h)
The fourth to the twelfth respondents seek to proceed with a civil
action to recover damages for the loss that the class of
consumers
they claim to represent suffered as a result of the unlawful
activities of Premier and other members of the cartel in
amongst
other things fixing the bread price. In this regard they made
application to the Chairperson of the Tribunal in terms of
Section
65(6)(b)
of the Act for the issue of a certificate to the effect that
the Tribunal had found that the conduct of Premier had been found to
be a prohibited practice in terms of the Act. The fourth to the
twelfth respondents relied on the Decision and Order of the Tribunal
of the 3rd of February 2010 to which reference has already been made
in support of its request for the issue of a certificate.
(i)
Premier opposed the issue of such a certificate and it appears that
the stance of the first respondent was that the issue of
the
certificate was an administrative function performed by the
Chairperson and not the Tribunal and could be determined by him
and
not the Tribunal.
(j)
Premier then launched these proceedings for the determination of the
ambit of either the Chairperson or the Tribunal's jurisdiction
as
regards Section 65 of the Act, seeking the declaratory relief already
referred to.
The
submissions of the parties and the issues in dispute
The
position of the Applicants
10)The
stance of Premier is that neither the first nor the second respondent
has the jurisdiction to issue the certificate the fourth
to the
twelfth respondents seek in terms of Section 65(6)(b) as against
Premier as Premier was not referred to the Tribunal by
way of
complaint referral and not cited as a respondent in the adjudication
proceedings before the Tribunal.
11)It
contends that once the Commission had made the election in not
referring Premier to the Tribunal, then the Tribunal, being
a
creation of statute was precluded from making any order in respect of
Premier as Premier was not before il as a party and the
complaint
that was the subject of the referrals did not in any event require
that an order be made in respect of Premier and against
Premier.
12)On
this basis it accordingly contends that the first and second
respondent cannot certify an order against Premier who was not
included in the complaint referrals and was not a party in the
proceedings before the Tribunal that culminated in its decision
and
order of the 3rd of February 2010. It also argues that for the first
or second respondent to do so will violate the principle
of audi
alterem partem, as Premier was not a party before the Tribunal.
The
position of the respondents
13)The
position of the third to the twelfth respondents is that if regard is
had to the Act as a whole and in particular the orders
that the
Competition Tribunal had the power to make then such orders were not
confined to parties before it but could extend to
non-parties and
that the decision not to cite Premier as a respondent did not, regard
being had to the Act, constitute an insurmountable
obstacle to the
making of the order it did against Premier on the 3rd of February
2010.
14)
In addition it is contended that regard being had to the role of
Premier in the investigation, the referral and finalization
of the
complaints, in particular its self- confessing stance, its
application for leniency and its substantive participation in
the
proceedings before the Tribunal, then it could hardly be said that
Premier was not before the Tribunal in substance if not
in form and
that the order made in respect of the conduct of' Premier was wholly
consistent and in line with Premier's own admission
of its unlawful
conduct. It must have as a leniency applicant contemplated that the
Tribunal would declare the conduct of the cartel
(of which Premier
was a member) a prohibited practice.
1)
Finally its stance is that the very informed and substantial
participation of Premier as a leniency applicant and as a witness
before the Tribunal cannot and does not support the conclusion
contended for by Premier that its rights to audi alteram partem
were
violated.
Analysis
and discussion
2)
The Tribunal's jurisdiction and its powers are activated once the
Commission refers a complaint to it in terms of Section 50
of the
Act. Outside of such a referral the Tribunal has no powers mero motu
to enquire into, adjudicate or make findings or orders.
It would
necessarily follow' that the orders and findings that the Tribunal
makes must be related to and arise out of the matters
referred to it
in terms of Section 50.
3)
Once the referrals of the two complaints had been made on the 14th of
February 2007 (the Western Cape complaint) and the 6lh
of May 2008
(the national complaint), the Tribunal became seized with the
complaints and the manner of how it was required to deal
with the
complaints as well as its powers in doing so are set out broadly in
Part D of the Act (Sections 52 to 60) which of course
must be read
together with Section 27 which deals with the functions of the
Tribunal.
4)
Section 27 beyond affirming that the functions of the Tribunal are to
adjudicate on and determine whether prohibited conduct
has occurred
also provides in Section 27(c) that the Tribunal may ‘make any
ruling or order necessary or incidental to the
performance of its
functions in terms of this Act’.
Section
58 which deals with the Orders of the Competition Tribunal provides
in 58(l)(a)(v) that the Tribunal may:
‘
make
an appropriate order in relation to a prohibited practice including -
(v)
declaring conduct of a f irm to be a prohibited practice in terms of
this Act, for the purposes of section 65'.
19)The
language of the section referred to above is clear and unambiguous to
the extent that the order contemplated relates to a
prohibited
practice and further that it may be made in respect of the conduct of
a firm, which in turn is defined as ‘'including
a person,
partnership or trust'. On that basis it can hardly be suggested that
Section 58(l)(a)(v) confines the Tribunal to making
the kind of
orders contemplated only in respect of a party formally cited as
such. Clearly if such was the intention of the Legislature,
it would
have used language to that effect. To seek to give the section a
limited or restricted scope as the applicant seeks to
do is not
supported by the plain and clear language of the Act.
20)
In this regard it is worth noting that the Act, while it does not
define ‘party’, defines respondent as ‘a
firm
against whom a complaint of prohibited practice has been initiated in
terms of this Act'. Section 58(l)(a)(v) must have been
drafted
mindful of this distinction and to the extent that there is reference
to a firm and not a respondent in the section, it
can only mean that
the power to declare the conduct of a firm to be a prohibited
practice is not confined to a party or a respondent
in proceedings
before the Tribunal and of course provided there was a proper factual
basis to do so and that it was as a result
of a hearing that was fair
and in which the firm had the right to participate in as contemplated
in Section 53 of the Act. Again
if that was the intention of the
Legislature, it would have used the term ‘respondent’ in
Section 58(1)(a)(v) . 'That
it did not is clearly indicative of the
Legislative intent.
21)
Premier argued that the extended meaning sought to be given to the
term 'firm' in Section 58(l)(a)(v) is not sustainable in
particular
if one had regard to the provisions of Section 59 of the Act which
also uses the term ‘firm' and empowers the
Tribunal to impose
administrative penalties against firms. Arguing that the Tribunal
could only impose administrative penalties
against a firm who was a
party before the Tribunal, the term ‘firm’ must of
necessity be given a limited meaning.
22)
In this regard the term ‘firm’ is clearly used in two
different contexts in Section 58 and Section 59. While it
may be
contended that a narrow meaning is necessitated by the circumstances
contemplated in Section 59 (the imposition of administrative
penalties which in any event would not be permissible in terms of the
CLP) the same is not necessarily the same in respect of the
matters
dealt with in Section 58(l)(a)(v) and accordingly ‘firm1 could
have different meanings if regard is had to the context
of the two
sections in question. This application does not concern the
interpretation of Section 59 and to the extent that it may
be
relevant, it is in any event distinguishable as I have outlined
above.
23)
Accordingly the reference to ‘firm’ in Section
58(l)(a)(v) would not be confined to a part7 before the Tribunal.
24)
Premier sought to rely on the dicta in AGRI WIRE (PTY) LTD and
ANOTHER v COMMISSIONER OF THE COMPETITION COMMISSION and OTHERS
2012
(4) All SA 365
(SCA) where the Court in dealing with the position of
an entity who has been afforded leniency in terms of the CLP stated
that:
4that
this signals quite clearly that a party who has been afforded
conditional immunity, is not before the Tribunal for the purposes
of
the latter making a determination against it , including the
imposition of an administrative penalty. ’
On
this basis it was argued that it was not competent for the Tribunal
to make an order in respect of Premier as it was not before
the
Tribunal for that purpose.
25)
In Agri Wire (supra) the Court however went further and dealt with
the position of an applicant for leniency before the Tribunal
and in
paragraph 8 of the judgment refers to Clause 3.3 of the CLP which
reads:
'Immunity
in this context means that the Commission would not subject the
successful applicant to adjudication before the Tribunal
for its
involvement in the cartel activity, which is part of the application
under consideration. Furthermore the Commission would
not propose to
have any fines imposed to the successful applicant.
26)
The Court then referred to the footnote in the CLP which explains
adjudication as follows:
‘
Adjudication
means a referral of a contravention of chapter 2 to the Tribunal by
the Commission with a view to getting a prescribed
fine imposed cm
the wrongdoer. Prosecution has a similar import to adjudication
herein’.
It
is accordingly clear that the order of the Tribunal in respect of
Premier was not an exercise in adjudication as defined in the
CLP and
which the CLP prohibits in respect of a leniency applicant. Premier
was not being prosecuted and no fines were being sought
against it.
To that extent the order made was not in contravention of the CLP and
while Premier was in the main not before the
Tribunal for the purpose
of the latter making a determination against it, there is with
respect nothing in the CLP or in the Act
that prevents the Tribunal
from making such an order as opposed to adjudicating on the conduct
of Premier. On the contrary the
express provisions of Section
58(l)(a)(v) empower the Tribunal to make such an order in such
circumstances.
27)
Premier, relying on the dicta in NETSTAR (PTY) LTD and OTHERS v
COMPETITION COMMISSION and ANOTHER 2011(3) SA 117 (CAC) sought
to
argue that once the referral of the complaint had taken place the
Tribunal’s ‘only function was to determine whether
in the
light of the Act's provisions and the evidence placed before it or
obtained by it pursuant to the exercise of its inquisitorial
powers,
that complaint is made out'. As I understand its argument. Premier
contends that the two complaints were confined to the
respondents
named therein and that Premier was not named as a party or a
respondent and no determination was required with regard
to the
conduct of Premier by the Tribunal. Accordingly it argues that the
finding made in respect of the conduct of Premier was
both not
necessary and not competent.
28)
I have some difficulty with the conclusion that Premier seeks to draw
from the dicta in Netstar. In Net star the Court cautioned
that the
Tribunal was not at large to decide whether conduct was
anti-competitive but had to do so in the light of a specific
complaint referred to it and to ensure that its hearings were
confined to the matters set out in the referral. Accepting this as
a
useful starting point it would be then be necessary to examine the
referral in order to determine its parameters.
29)
In both complaints the referral is effected using a particular form
(Form CT 1) accompanied by a notice of motion and referral
affidavit
which together define the ambit of the Tribunal’s jurisdiction.
Thus it is difficult to conceive of a situation
where the Tribunal
makes an order in terms of Section 58(1)(a)(v) in respect of a
prohibited practice that falls outside of a referral
or makes a
finding in respect of a firm that is not identified in the referral.
Clearly the powers in Section 58(l)(a)(v) can hardly
be said to be
unlimited and there must at the very least be a causal link between
the orders that the Tribunal makes in terms of
Section 58(l)(a)(v)
and the referral which ultimately remains the foundational basis for
the Tribunal to exercise its powers.
The
referral in Case No 15/CR/Peb07 (Western Cape complaint)
30)
An examination of the referral and the Form CT 1 a well as the Notice
of Motion and affidavit of Ms Nandisile Mokoena, senior
investigator
in the Enforcement and Exemptions Division in the Commission reveals
that while the named respondents are Tiger and
Pioneer, the referral
affidavit provides considerable detail of the role of Premier in the
cartel and its conduct in price fixing,
the fixing of discounts and
the division of the market.
31)
In her affidavit Ms Mokoena states that Premier was granted
conditional immunity from prosecution 'as a result of its
co-operation
with the applicant (the Commission) during its
investigation and confession of its role in the bread cartel activity
involving
the first and second respondents and Blue Ribbon itself in
the Western Cape'. (Premier was trading as Blue Ribbon Bakery).
32)
She also states in her affidavit that the 'gravamen of the
applicant's complaint is that during the period November to December
2006, the respondents and Blue Ribbon... directly fixed the selling
price of bread...fixed discounts and...agreed not to poach
each
other's independent distributors’.
The
referral in Case No 50CR/Mav08
33)
In the national complaint referral, the affidavit filed in support of
the referral by Mr Avishkar Kalicharan, senior legal analyst
in the
Enforcement and Exemptions Division of the Commission also describes
in considerable detail the operations of the bread
cartel and the
role of Premier in the acts that constituted unlawful price fixing
and the division of the market. In his affidavit
he also
characterizes the complaint as conduct involving the respondents and
Premier in the fixing of the bread price and the division
of the
market.
34)
The terms and the scope of the referrals were clear and included the
role and conduct (self-confessed) of Premier in how the
Commission
described the complaint. In the determination of the complaints
before it the Tribunal by way of referral as well as
through the
evidence led before it (including senior staff of Premier), became
privy to the role played by Premier and to the extent
that its
finding and order were located both in the referral and the evidence
before it, it can hardly be argued that in making
the finding that it
did in respect of Premier, it acted outside of its powers or outside
of the terms of the referral. Recognizing
that the Tribunal was
tasked with making a determination in respect of cartel activity, it
is inconceivable how the Tribunal could
have been expected to make
factual findings but in doing so was prohibited from including in
those findings the conduct of a self-confessed
cartel member who was
represented before the Tribunal, led evidence before it and confessed
to its role in the unlawful cartel
activity, simply because such a
cartel member was not formally cited as a party or a respondent in
the proceedings before the 'Tribunal.
11)
In addition the facts in Netstar and the finding of the Tribunal
which was reversed 011 appeal are clearly distinguishable.
There the
Tribunal went outside of the referral in considering facts and
circumstances, even engaging in speculation and the Court
accordingly
concluded that the factual findings of the Tribunal could not stand.
The caution therefore from Netstar that the only
function of the
Tribunal is to determine if the complaint is made out must
accordingly be understood in the context and the factual
matrix of
the particular case.
12)
I have difficulty in associating myself with this line of reasoning
that Premier has urged me to embrace. It militates against
the very
purpose and architecture of the Act, it undermines the objectives of
the CLP, it encourages opportunism when an applicant
for leniency
after making confession of its role in a prohibited practice and
being immunized as a result thereof is able to successfully
argue
that notwithstanding its confessed role, the Tribunal is not
competent from affirming in the form of an order such a role
purely
because it was not formally a party.
13)
If the Tribunal is correctly confined to determining whether a
complaint has been made out, then that is precisely what it did
given
the width and the scope of the complaints referred to it. In my view
while it was limited in its adjudicative function to
the respondents
before it, there was no such limitation in determining whether the
complaint was made out and while in that regard
such a finding and
order that it made related to Premier, it was in the context of
Premier being before it, participating in the
proceedings and
confessing to its cartel activity.
38)
Mr Unterhalter in response to a question by the Court conceded that
while the Tribunal was competent to make a factual finding
in respect
of the conduct of Premier, it was however precluded from elevating
such a finding to an order as it then did. Me argued
that the failure
to cite Premier as a respondent continued to stand as an
insurmountable obstacle to the Tribunal making the order
that it
ultimately did in respect of Premier.
39)
I have some difficulty in following the distinction, particularly in
the context of the matter before the Tribunal and the finding
and
order made in respect of Premier, which Premier seeks to advance.
Surely if the Tribunal was entitled to make a finding against
Premier, as was conceded, it could only have done so on the basis of
the complaint that was referred to it and having been satisfied
that
there was a proper factual basis for doing so and that the rules of
natural justice were honoured in doing so. It has not
been suggested
that the finding made in this regard was open to any criticism or
attack. On the contrary it could not have been
when it was so wholly
consistent with what Premier had placed before the Tribunal.
40)
If the finding is not open to attack, can it be arguable that the
order can be assailed simply on account of Premier not being
cited as
a respondent? The order in respect of Premier mirrors in every
respect the findings made against Premier and I cannot
imagine any
circumstanccs that would compel this Court to accept the correctness
of the findings made but not the order that follows
it, in particular
when that order purely mirrors the findings. To do so would be
importing an unacceptable level of formalism into
the work of the
Tribunal and may well have the consequence of undermining the ability
of the Commission and the Tribunal in giving
effect to the Act.
41)
In this regard it warrants mention that the order of the Tribunal in
relation to Premier was an affirmation of the stance and
role that
Premier had confessed to and which it must have expected when it
elected to avail itself of the provision, including
the protective
provisions, which benefited it from, of the Corporate Leniency
Policy.
The
issue of a certificate in terms of Section 65(6)(b)
42)
What Section 65(6)(b) contemplates is the issuing of a certificate in
respect of a finding of a prohibited practice made by
the Tribunal.
The certificate is purely an affirmation or an attestation of a
finding already made. Such a finding is of the kind
contemplated by
Section 58(l)(a)(v). Accordingly when a request is made for the issue
of a certificate it would be in respect of
a finding already made and
in existence. No new finding is required in order to issue a
certificate.
43)
Put simply if there is no finding on record, there can be no
certificate issued and conversely it must follow that if there
is a
finding the issue of the certificate should ordinarily follow in
accordance with the finding. In this regard the proposition
that the
Chairperson of the Tribunal is obliged to issue a certificate where a
finding has been made is difficult to countenance
as it is indeed
difficult to conceive of circumstances under which the Chairperson of
the Tribunal could justifiably refuse to
issue a certificate in the
face of a finding that remains valid and in place at the time the
certificate is requested.
44)
Any interested person has the right in terms of Section 66 to apply
to set aside or amend a finding or order erroneously sought
or
granted in the absence of a party. If Premier contends that it was
not a party and therefore by implication was absent as a
party it
could theoretically have brought an application in terms of Section
66. It has not done so and even if it did it would
in my view have
faced an insurmountable obstacle in making out a case that the
finding of the Tribunal in respect of its conduct
was either
erroneously sought or erroneously granted.
45)
For the reasons already offered the finding was both justified in law
and on the facts available to the Tribunal in the main
the confession
and the evidence by Premier of its role in the cartel and in the
conduct that the Tribunal found to be a prohibited
practice in terms
of Section 4 of the Act.
Under
these circumstances it must therefore follow that for as long as the
finding of the Tribunal remains unchallenged, then the
issue of the
certificate as proof of such finding is not only permissible but also
in my view peremptory.
46)
Premier additionally sought to suggest that the finding of the
Tribunal in relation to Premier was void on account of the fact
that
Premier was not cited as a party and placed reliance on the dicta in
TODT v JPSER
1993 (3) SA 577
AD, arguing as I understand that no
consequences could flow from an act that is void. While Todt (supra)
provides support for the
broad proposition that no consequences flows
from a void decision, the case is also clear as to under what
circumstances a decision
of a Court could be regarded as being void.
Those circumstances are:
a)
Where there has been no proper service;
b)
Where there is no proper mandate; or
c)
Where the Court lacks jurisdiction.
47)
None of those circumstances present themselves in this matter that
will allow the formulation of a conclusion that the finding
of the
Tribunal in relation to Premier is void. The challenge on this aspect
is also destined to fail.
The
applicant’s rights to audi alterem partem
48)
Premier contends that the consequence of a finding made in the
absence of it being cited as a party violated its rights in terms
of
the audi principle. Beyond restating that the applicant was a
participant in the proceedings, represented by counsel and fully
aware of the nature of the proceedings and the stance it had adopted
as a Ieniency applicant who had confessed to its unlawful
role in
cartel conduct before the Tribunal, it does not state in what manner
it has been prejudiced or in what fashion its rights
to audi were
violated.
49)
The third respondent points out, compellingly in my view, that the
applicants claim that its audi rights were violated remains
unsupported and unsubstantiated in that it (the applicant) cannot say
it was unaware of the complaint referral, not informed of
the details
of the complaint, did not have adequate notice of the Tribunal’s
proceedings, did not participate in the proceedings
and was unable to
present its evidence to the Tribunal.
50)
In as much as the principle of audi is inextricably linked to
considerations of fairness, evenhandedness, objectivity and
inclusiveness
in the decision-making process, it is also both a
matter of form and of substance. It may in appropriate circumstances
where form
may be said to be wanting, to examine issues of substance
in order to determine whether there has been observance of the
principle
notwithstanding any deficiency in form. Not to do so would
run the risk of adopting an overly technical and formal approach to a
principle that at the heart of it is about procedural fairness.
51)
In the context of the proceedings before the Tribunal, it could not
be said that the principle in relation to Premier was not
observed.
It was represented at the hearing, allowed its staff to participate
and to contribute to the proceedings as witnesses
and was heard in
every sense of the term.
52)
I accordingly conclude that the challenge to the finding of the
Tribunal on this aspect must also fail.
In
all the circumstances and for the reasons given, it is evident that
the applicant has failed to make out a case for the relief
it seeks.
Order
53)
In the circumstances I make the following order:
1.
The application is dismissed;
2.
The applicant is ordered to pay the costs of the third respondent
which costs shall include the costs of two counsel;
3.
The applicant is ordered to pay the costs of the fourth to the
twelfth respondents.
N
KOLLAPEN
JUDGE
OF THE NORTH GAUTENG HIGH COURT
38235/12
HEARD
ON: 15 JUNE 2013
FOR
THE APPLICANT: ADV D UNTERHALTER SC with ADV M du PLESSIS & ADV L
KELLY
INSTRUCTED
BY: NORTONS INCORPORATED
FOR
THE THIRD RESPONDENT: ADV G MARCUS SC with ADV C STEINBERG INSTRUCTED
BY: CHEADLE THOMPSON & HAYSOM INCORPORATED
FOR
THE FOURTH TO TWELFTII RESPONDENTS: ADV M le ROUX
INSTRUCTED
BY: ABRAHAMS KIEWITZ ATTORNEYS