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[2013] ZAKZDHC 57
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Astral Operations Ltd v Nambitha Distributors (Pty) Ltd; Astral Operations Ltd v O'Farrell N.O and Others (689/2013; 13794/2011) [2013] ZAKZDHC 57; [2013] 4 All SA 598 (KZD) (15 October 2013)
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
REPORTABLE
CASE
NO:689/2013
In
the matter between:
ASTRAL
OPERATIONS LTD Excipient
and
NAMBITHA
DISTRIBUTORS (PTY) LTD Respondent
CASE NO: 13794/2011
In
the matter between:
ASTRAL
OPERATIONS LTD Plaintiff
and
MICHAEL
HENRY O’FARRELL NO First
Defendant
DAVID
VIVIAN HOTZ NO
Second Defendant
BRIAN
GEORGE GARDINER NO Third
Defendant
MICHAEL
HENRY O’FARRELL
Fourth Defendant
JUDGMENT
GORVEN
J
[1]
The
overriding purpose of the Competition Act 89 of 1998 (the Act) is to
promote and maintain competition.
[1]
It has two main focus areas. The first serves to exclude those
practices which are inimical to competition and which are referred
to
in the Act as prohibited practices. The second concerns mergers.
[2]
A prohibited practice is defined to mean a practice prohibited in
terms of Chapter 2. For this purpose, the Act establishes three
specialist bodies; the Competition Commission (the Commission), the
Competition Tribunal (the Tribunal) and the Competition Appeal
Court
(the CAC).These specialist bodies are the only ones entitled to deal
with determining whether conduct complained of amounts
to a
prohibited practice under the Act. The functions of the Tribunal are
set out in s 27 of the Act. Those relating to prohibited
practices
[3]
provide that the
Tribunal may:
‘
(a)
adjudicate on any conduct prohibited in terms of Chapter 2, to
determine whether prohibited
conduct has occurred, and, if so, to
impose any remedy provided for in
this Act
…
and
(d)
make any ruling or order necessary or incidental
to the performance
of its functions in terms of
this Act
.’
[2]
The present two matters
are closely related. The first concerns an
exception taken by the plaintiff to the counterclaim entered by the
defendant company
(the company). The second concerns an application
by the defendants, who are trustees of theNambithaTrust (the trust),
to amend
their counterclaim.This is opposed on the basis that the
counterclaimwouldbe excipiableif it were amended as is proposed. The
parties
agree that if the proposed amended counterclaim would be
excipiable, the application for amendment should be dismissed with
costs.
The averments in the counterclaim and proposed amended
counterclaim are, for present purposes, identical. It was therefore
agreed
by the parties that the two matters should have the same
outcome. They were argued together and it was also agreed that only
one
judgment should be prepared.I shall deal with the pleadings in
the exception matter and refer to the parties as the plaintiff and
the defendant respectively.
[3]
In each matter the plaintiff
sues for goods sold and
deliveredpursuant to a written contract;in the first instance to the
company and in the second instance
to the trust. Apart from the
parties, the terms of the contracts are identical as is the balance
of the pleadings for present purposes.
The parties agree that clause
11.5 of the contracts precludes the defendant from staying the action
instituted by the plaintiff
pending the adjudication of any
counterclaim of the defendant. They also agreethat clause 19
precludes the defendant from bringing
any claim for damages against
the plaintiff. I will assume this to be the case for the purpose of
the exception without making
any finding to this effect.It is not in
issue that the goods in question were in fact sold and delivered. The
plea raises certain
defences unrelated to the exception which need
not be dealt with.
[4]
The counterclaimalleges
that the plaintiff engaged inthree kinds of
practices prohibited under the Act (the three issues). It goes on to
allege that, in
termsof s 58(1)(a)(vi) of the Act, the Tribunal
has the power to declare the whole or any part of an agreement void
and that
it would be appropriate that it should do so in respect of
clauses 11.5 and 19 of the contracts (the impugned clauses). It
alleges
that the three issues and the binding effect or invalidity of
the impugned clausesare ‘competition issues’ and will
require the court hearing the action to refer them to the Tribunal in
terms of s 65(2)(b) of the Act.
[5]
The prayersto the counterclaim
are as follows:
‘
A.
An order referring the competition issues to the Competition Tribunal
for determination prior
to the determination of any other issues
between the parties;
B.
An order postponing the determination of the Plaintiff’s claim
against the Defendant
and the counterclaim against the Plaintiff
until the Competition Tribunal has completed its determination of the
competition issues
and all appeal or review processes relating
thereto have been finally exhausted;
C.
An order directing the Plaintiff to provide the Defendant with a
statement and debatement
of the account of the Defendant with the
Plaintiff for the period from 31 January 2010 to 31 October
2011…;
D.
An order adjusting the account of the Defendant with the Plaintiff in
accordance with
the outcome of the statement and debatement so as to
apply the most favourable prices and rebates to the account of the
Defendant
with the Plaintiff;
E.
Costs of suit.’
It
is, in essence, the relief sought in prayers A and B which gives rise
to the exception. It is accepted that unless the case is
made out for
the Tribunal to declare the impugned clauses to be void, no cause of
action is disclosed in the counterclaim and the
exception should be
upheld.
[6]
Since this
is an exception, the plaintiff must persuade me that, on every
interpretation which the counterclaim can reasonably bear,
no cause
of action is disclosed.
[4]
I am
to takeas true the averments pleaded by the defendant and to assess
whether they disclose a cause of action.
[5]
Neither
party was able to refer me to any authority concerning the
interpretation of the sections in question. I found few cases
which
deal witheither s 58(1)(a)(vi) or s 65(2) of the Act.
[6]
It is therefore necessary to interpret them without much guidance
from previous cases. The approach to interpreting documents was
clarified recently in the following
dictum
:
[7]
‘
The
present state of the law can be expressed as follows: Interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into existence.
Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary
rules of grammar and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material
known to those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the
light of all these
factors. The process is objective, not subjective. A sensible meaning
is to be preferred to one that leads to
insensible or unbusinesslike
results or undermines the apparent purpose of the document…
The “inevitable point of
departure is the language of the
provision itself”, read in context and having regard to the
purpose of the provision and
the background to the preparation and
production of the document.’
At
para 19 the learned judge continued:
‘
.
. . from the outset one considers the context and the language
together, with neither predominating over the other.’
[7]
It is against this roughly
sketched backdrop that the sections relied
upon by the defendant must be interpreted. The initial one to
consider is s 65(2).
This section reads as follows:
‘
(2)
If, in any action in a
civil court
, a party raises an issue
concerning conduct that is prohibited in terms of
this Act
,
that court must not consider that issue on its merits, and-
(a)
if the issue raised is one in respect of which the Competition
Tribunal or Competition Appeal Court has made an order, the court
must apply the determination of the Tribunal or the Competition
Appeal Court to the issue; or
(b)
otherwise, the court must refer that issue to the Tribunal to be
considered on its merits,
if the court is satisfied that-
(i) the
issue has not been raised in a frivolous or vexatious manner; and
(ii) the
resolution of that issue is required to determine the final outcome
of the action.’
This section ousts the
jurisdiction of a court to deal with the merits of an issue which has
been raised concerning a prohibited
practice. It is established law
that there is a presumption against an ouster of the jurisdiction of
a court.
[8]
Any provision
seeking to do so must make it clear that this is what is intended.
[9]
As was said by Solomon CJ:
‘
It
is a well recognised rule in the interpretation of statutes that, in
order to oust the jurisdiction of a court of law, it must
be clear
that such was the intention of the Legislature.’
[10]
Ouster
clauses must, accordingly, be narrowly construed.
[11]
This is because an ouster is ‘a result that would deviate from
the general rule that judicial authority is vested in the
courts’.
[12]
[8]
Under s 65(2), an
ouster takes place if a certain kind of issue
is raised. The issue raised must be of ‘conduct which is
prohibited’.
This concept is nowhere defined. In the context of
the Act, and apart possibly from issues concerning mergers, it can
only mean
those prohibited practices specified in the Act. For the
ouster to apply, therefore, the issue raised must fall into one of
the
four categories of practices prohibited in Chapter 2. These are
restrictive horizontal practices (s 4), restrictive vertical
practices (s 5), abuse of dominance (s 8) and price
discrimination by a dominant firm (s 9). The merits of these
issues therefore cannot be dealt with by a court. The reason for this
is clear. The specialist bodies created by the Act are the
only ones
which may deal with the merits of issues concerning prohibited
practices. There is no lack of clarity in the ouster provision.
[9]
The rest of
s 65(2) does not constitute an ouster. It deals with the further
obligations of a court once the ouster has been
triggered. In other
words, it specifies how a court must deal with the prohibited
practice raised. Ifan order has been made by
the Tribunal or CAC in
relation to a prohibited practice,a court must apply that
determination.
[13]
This is
consistent with the purpose of the Act because that issue has been
decisively determined by one or both of the only bodies
entitled to
do so under the Act. Section 64 accords to judgments and orders
made under the Act the status of High Court orders.
That renders the
issue
res
judicata
.If
no order has been made, on the other hand, the section imposes an
obligation on a court to refer the issue in question to the
Tribunal
ifit is satisfied thateach of two further criteria has been met.
First, the issue must not have been raised in a frivolous
or
vexatious manner
[14]
and
secondly,it must be necessary to resolve the issue raisedin order to
determine the final outcome of the action.
[15]
If either of these criteria is not met, the issue does not require
determination at all. In this regard,the
dictum
in
Ansac
to the effect that the section ‘requires a civil court, when a
party raises an issue concerning conduct prohibited by the
Act, to
decline from considering it and to refer it to the relevant
competition authority’
[16]
is, with respect, too broadly stated.It is, of course, correct that a
court must decline to consider the issue but it is not correct
to say
that all issues which raise prohibited conduct must be referred. With
this in mind, I turn to consider the counterclaim.
[10]
As mentioned in paragraph 4 hereof, the counterclaim
raises the three
issues. They arerestrictive horizontal practices (s 4), an abuse
of dominance (s 8) and prohibited price
discrimination by a
dominant firm (s 9). The counterclaim seeks to add to these, as
‘competition issues’ to be
dealt with by the Tribunal,
‘the binding effect or invalidity of clauses 11.5 and 19 of the
contract’. Put at its lowest,
the pleading is ungainly because
the Act nowhere speaks of ‘competition issues’. The Act
is geared at the specialist
bodiesdetermining whether certain conduct
constitutes a prohibited practice. It is clear from s 65(2) that
it is only prohibited
practices under the Act which a court may not
consider on their merits. There is no ouster beyond that. It follows
ineluctably
that, since it is only in respect of prohibited practices
that a court’s jurisdiction is ousted, the impugned clauses are
not struck by the ouster in s 65(2). Even if, contrary to what I have
found, ‘conduct that is prohibited in terms of
this Act
’
is not limited to prohibited practices as defined, it is clear that
the provisions of the impugned clauses are nowhere prohibited
in the
Act. They cannot, therefore, be included as conduct hit by the
ouster. It follows that, in the present action, the trial
court would
not be precluded from dealing with the merits of the ‘binding
effect or invalidity of clauses 11.5 and 19 of
the contract’.
[11]
It is equally clear that s 65(2)(b) does not provide
a basis for
a court to refer the impugned clauses to the Tribunal. This section
requires a court to refer ‘that issue’
to the Tribunal.
This refers back to an issue concerning a prohibited practice. Thus,
only issues concerning prohibited practices
can be referred to the
Tribunal under this section. I have shown that the impugned clauses
do not fit within any of the categories
specified as prohibited
practices in Chapter 2 of the Act. Therefore, not only will the
jurisdiction of the trial court not be
ousted from considering the
merits of the impugned clauses, but the issues raised concerning
those clauses cannot be referredto
the Tribunal under this section.
The only issues which are susceptible of referral are the three
issues. Because the counterclaim
seeks to have the trial court refer
the impugned clauses to the Tribunal as well as the three issues, the
counterclaim does not
disclose a cause of action for that aspect of
the prayer. The exception must therefore be upheld, even if only on
this limited
basis.
[12]
It is nevertheless necessary to deal with other aspects
of the
counterclaim. I have found that the court is precluded from dealing
with the merits of the three issues. I turn to consider
whether the
three issues qualify to be referred to the Tribunal by the trial
court. It must be established, therefore, whether
the provisions of
s 65(2)(b) will oblige the trial court to refer the three issues
to the Tribunal. If they do not, the counterclaim
does not disclose a
cause of action. The trial court will have to be satisfied that both
of the two criteria referred to in s 65(2)(b)
are met before it
is obliged to refer the three issues to the Tribunal. The criterion
referred to in s 65(2)(b)(i) is met
by pleading that the three
issues have not been raised in a frivolous or vexatious manner. This
is a question of fact and, because
this is an exception, the
averment, taken as it must be at face value, suffices. It remains,
then, to consider whether the criterion
referred to in s 65(2)(b)(ii)
is met. This requires the trial court to be satisfied that an issue
raised concerning a prohibited
practice requires resolution in order
to determine the final outcome of the action.
[13]
Ignoring
for a moment the impugned clauses, prayers A and B of the
counterclaim simply pray for a referral of the three issues to
the
Tribunal. I was informed during argument that the defendant wants the
Tribunal to determine that the three issues are practices
prohibited
by the Act in the categories pleaded. Such a determination is
necessary to found a claim or claims for damages on the
part of the
defendant.
[17]
The impugned
clauses stand in the way of the defendant pursuing any such claims.
Unless and until they are declared to be void,
the defendant can
pursue no claims for the assessment of damages based on such a
determination by the Tribunal. None of this is
pleaded in the
counterclaim. All that is pleaded is that the Tribunal has the power
to declare them to be void and that it would
be appropriate for it to
do so. As is clear from what I have said above, any referral would be
limited to the three issues. For
the counterclaim to disclose a cause
of action, therefore, it must at the very least be competent for the
Tribunal to declare the
impugned clauses to be void as a consequence
of a referral of the three issues alone and without any referral of
the impugned clauses.
This brings into sharp focus the powers of the
Tribunal.
[14]
For the purposes of this aspect, I shall deal only with
the Tribunal
and not the CAC. This is because the CAC can make any order which the
Tribunal is empowered to make in any appeal
from, or review of, a
decision of the Tribunal. The Tribunal is a creature of statute whose
powers derive solely from the Act.
The relevant power relied on is
found in s 58(1)(a)(vi) which empowers the Tribunal to ‘make
an appropriate order in
relation to a
prohibited practice
,
including…declaring the whole or any part of an
agreement
to be void…’. For such an order to be competent, the
declaration that the impugned clauses are void must qualify as
an
order made ‘in relation to’ the three issues.If this were
not so, the Tribunal would be making an order on matters
unrelated to
prohibited practices. It is not empowered to do so. The power of the
Tribunal to make orders is not an unfettered
one. Such an order would
therefore be
ultra vires
the Act.
[15]
Making an order declaring an agreement or part of it
to be void is
clearly not to be done lightly. The Act does not in and of itself
render void any provisions of agreements. Section 65(1)
provides
as follows:
‘
Nothing
in
this Act
renders void a provision of an
agreement
that, in terms of
this Act
, is prohibited or may be declared
void, unless the Competition Tribunal or Competition Appeal Court
declares that provision to
be void.’
It
can be seen, therefore, that even provisions in agreements which are
prohibited must be declared to be void. They cannot simply
be
ignored. They are not, in law, void unless and until they are
declared to be so. This arises from the sanctity of contracts
and the
recognition that a declaration by the Tribunal intrudes on that
sanctity. The Act sanctions the intrusion as being necessary
to
achieve its purposes. It does so as a matter of public policy. The
power to make such a declaration is therefore one to be exercised
sparingly and is limited to clauses or agreements which are inimical
to the purposes of the Act. Section 65(1) envisages two
bases on
whichto declare provisions to be void. The first is where a provision
in an agreement is one which is prohibited by the
Act. This presents
no difficulty in interpretation. The second concerns provisions in
agreements which ‘may be declared void’.
Since the
impugned clauses do not fit into the first category, not being
prohibited by the Act, they must be held to fall into
the second
category before the Tribunal would be empowered to make such a
declaration.
[16]
The clear language of s 58(1)(a)(vi), read in the
context of the
legislation as a whole, is that the Tribunal deals only with
prohibited practices. The relationship between the
agreement
(orprovision) and a prohibited practice must therefore be a clear
one. The Tribunal is required to be circumspect in
making such a
declaration. The nub of the matter is to determine the nature and
extent of the relationshipwhich must exist between
the provision of
the agreement and the prohibited practice. An extreme example may
illustrate the point. A dominant firm may source
goods at a market
related rate by way of an agreement, which in no way offends the
Act,to purchase those goods. The dominant firm
thenmarkets and sells
those goods at a loss with the intention and likely outcome that a
competitor cannot sell its goods and goes
out of business. The
actions of the dominant firm amount to prohibited price
discrimination which is likely to have the effect
of substantially
preventing or lessening competition. This clearly contravenes
s 9(1)(a) of the Act. If the dominant firm
had not obtained the
goods by way of the agreement to purchase them, it could not have
engaged in the prohibited practice because
it would have had no goods
to sell at all. The agreement therefore enables and is related to the
prohibited practice.
[17]
Is the
Tribunal empowered to declare the agreement void by virtue of the
provisions of s 58(1)(a)(vi)? In
Mike’s
Chicken (Pty) Ltd & others v Astral Foods Limited &
another,
[18]
the
CAC held as follows:
‘
The
only power that the Tribunal has to “void” contracts is
derived from section 58(1)(
a
)(vi) of the Act, which permits
the Tribunal to make an appropriate order in relation to a
prohibited
practice,
including “declaring the whole or any part of an
agreement to be void”. The Tribunal can thus only “void”
a contract if it relates to a practice prohibited in terms of Chapter
2 of the Act (which concerns restrictive practices and the
abuse of a
dominant position). A contract that does not offend the Act (and more
particularly Chapter 2 thereof) is beyond the
scope of the Tribunal
to terminate.’
The
last sentence may perhaps be too broadly stated if it is understood
to mean that a contract must itself amount to a prohibited
practice
or have terms which do so. If, on the other hand, all that it means
is that the contract or its terms must not have any
relationship to a
prohibited practice, it does not really assist in dealing with the
nature and extent of that relationship. A
helpful approach to this
issue is articulated in the following
dictum
of the Tribunal with whose reasoning I respectfully agree:
[19]
‘
It
is significant that the power mentioned in
section
58(1)(
a
)(vi)
to declare an agreement or part thereof void is not a power in the
abstract but is constrained by being a power “in relation
to a
prohibited practice”. This means that it is not open to the
Tribunal to declare an agreement or part thereof to be void
unless
the agreement or relevant provision(s) thereof is an integral element
of the prohibited practice. Often there will be little
more than the
conclusion of an agreement and its implementation to constitute the
prohibited practice, and it then in most cases
will be struck down by
an order under one of the sections mentioned above (ie
sections
4
,
5
,
8
and
9
).
But it is conceivable that an agreement or part thereof may have a
secondary or ancillary role in the broader scheme of a prohibited
practice. An example of the latter would be an agreement between
parties who engage in a prohibited practice to conceal or destroy
evidence of the practice, or an agreement which seeks to extinguish a
firm’s rights of access to the forain which competition
disputes are resolved.’
[18]
The crisp issue is whether the fact that the impugned
clauses stand
in the way of a potential damages claim provides a close enough
relationship to the three issues so that it can be
said that a
declaration declaring them to be void relates to the three issues.
The impugned clauses are themselves not an integral
part of a
prohibited practice. It will be necessary, therefore, to conclude
that they serve secondary or ancillary roles in the
conduct
underlying the three issues or in some other way relate to them.
Whilst the examples referred to the Tribunal in that
dictum
do
not form a
numerus clausus
of all such secondary roles, it has
not been alleged by the defendant what the connection is. To my mind,
the impugned clauses
play no role at all in promoting or facilitating
any of the three issues. They do not operate to conceal evidence.
They do not
function to impede the right of the defendant to initiate
a complaint with the Commission concerning the three issues. To say
that
the voiding of the impugned clauses relates to the three issues
because the latter cannot found a claim in damages if they remain
intactstretches the notion of a relationship too far. I thus conceive
that the Tribunal has no power to declare the impugned clauses
to be
void. Any such order would be
ultra vires
the powers of the
Tribunal and would contravene the principle of legality. That being
so, the trial court could not be satisfied
that the three issues
require resolution in order to determine the outcome of the action.
The trial court would, therefore, not
be obliged by virtue of
s 65(2)(b) to refer the three issues to the Tribunal. This is a
further basis on which the counterclaim
is excipiable.
[19]
The plaintiff relied primarily on a simple point in
argument.
Section 65(2)(b)(ii) provides that a court mustbe satisfied that
the resolution of the issue concerning a prohibited
practice ‘is
required to determine the final outcome of the action’.The
plaintiff submitted that the words ‘the
action’must be
construed to refer only to the claim brought by the plaintiff. The
counterclaim should, it says, be disregarded.
This submission rests
on the proposition that a counterclaim must be distinguished from a
claim in convention. It is a separate
action. The reference in the
section is in the singular. The resolution of a counterclaim is not
necessary for the determination
of an action brought against a
defendant. Both the common law and the Rules provide for the two to
be dealt with together only
as a matter of convenience. When they are
dealt with together they do not constitute a single action. The claim
and the counterclaim
remain two separate and distinct actions.
Separate judgments must be given on each. The plaintiff submits, and
the defendant accepts,
that none of the issues raised in the
counterclaim in the present matter has any bearing on the claim of
the plaintiff for goods
sold and delivered. In addition, clause 11.5
is only a bar to the claim and counterclaim being dealt with
together. There is nothing
to prevent the defendant from lodging a
complaint with the Commission. The three issues can be declared to
amount to prohibited
practices. The defendant can attempt to persuade
the Tribunal to declare clause 19 to be void, thus opening the way
for a subsequent
damages action by the defendant against the
plaintiff.
[20]
It seems to me that there is considerable force in this
line of
reasoning. If there is a defence to the action, it stands or falls in
determining the action without reference to any counterclaim.
The
submission is lent more force in the present matter for the following
reasons. Clause 11.5 prevents the very relief sought
in the
counterclaim, viz. the pending of the claim in convention until the
three issues are determined by the Tribunal. Clause 11.5
has not
yet been set aside and, according to s 65(1), must be given
effect to until declared void. The only basis to refuse
to give
effect to it would be if it is alleged to be a prohibited practice
which would bring it within the ambit of s 65(2).
This has not
been done. The trial court will not be able torefuse to give effect
to it on the basis of the counterclaim. To allow
prayers A and B of
the counterclaim would be to ignore the provisions of clause 11.5
without it having been declared to be void.
In the light of this
reasoning and the language and purpose of the section under
consideration, it seems to me that ‘the
action’ does
refer to the claim without including any counterclaim. If that is the
case, it cannot be held that the resolution
of the three issues is
necessary for the final determination of the action.
[21]
Even if the
Tribunal has the power to declare the impugned clauses to be void,
there are difficulties with the counterclaim. It
would be necessary
to plead that the Tribunal would do so. A basis should be alleged in
the counterclaim that the Tribunal will
declare the three issues to
be practices prohibited under the Act. Such a declaration cannot be
assumed to be the result of a referral
of the three issues. A
declaration is only one of the orders the Tribunal may make in
relation to prohibited practices.
[20]
It may interdict them.
[21]
It
may order the plaintiff to supply or distribute goods to the
defendant on terms reasonably required to end the prohibited
practices.
[22]
It may impose
an administrative penalty in terms of s 59.
[23]
It
has not been pleaded that a declaration is likely to result from the
desired referral. In addition to the declaration concerning
the three
issues, it is necessary topleadthat the Tribunal will declare the
impugned clauses to be void and the basis why it will
do so. This has
likewise not been done. It should further be pleaded that, once
certification has taken place and once the two
clauses have been
declared void, the defendant will have a claim for damages and the
basis for such a claim. This was not done.
Without these aspects
being pleaded, the counterclaim simply requires a referral to the
Tribunal without foreshadowing any relief
arising from the referral.
A simple referral does not remotely impinge on the action or require
resolution absent at least these
aspects. Even on this basis, it is
my view that the counterclaim does not make out a case that the
issues raised require resolution
for the final determination of the
action. As a result, no case has been made out that the trial court
would refer the three issues
to the Tribunal.For all of these
reasons, therefore, the counterclaim fails to disclose a cause of
action and the exception must
be upheld.
[22]
In the result, the following order issues:
A.
In case 689/2013:
a. The
exception is upheld with costs.
b. The
defendant is given leave to file an amended counterclaim within 1
month.
B.
In case 13794/2011:
The
application to amend the counterclaim is dismissed with costs.
DATE
OF HEARING: 15August 2013
DATE
OF JUDGMENT: 15October 2013
FOR
THE EXCIPIENT/
PLAINTIFF: J
C King SC, instructed by Edward Nathan Sonnenbergs Inc.
FOR
THE RESPONDENT/
DEFENDANTS: K
J Van Huyssteen, instructed by Fluxmans Inc. locally represented by
Atkinson, Turner & De Wet.
[1]
Section 2, which reads as follows:
‘
The
purpose of
this Act
is to promote and maintain competition in
the Republic in order-
(a)
to promote the efficiency, adaptability
and development of the
economy;
(b)
to provide consumers with competitive prices and product choices;
(c)
to promote employment and advance the social and economic
welfare of South Africans;
(d)
to expand opportunities for South African participation in world
markets and recognise the role of foreign competition in the
Republic;
(e)
to ensure that small and medium-sized enterprises have an
equitable opportunity to participate in the economy; and
(f)
to promote a greater spread of ownership, in particular to
increase the ownership stakes of historically disadvantaged
persons.’
The
italicised words are rendered thus in the Act in this and the
further quotes from it.
[2]
Since this judgment concerns only prohibited practices, I shall omit
all further mention of the application of the Act to mergers.
[3]
Sections 27(1)(a) and (d).
[4]
Lewis
v Oneanate (Pty) Ltd& another
[1992] ZASCA 174
;
1992
(4) SA 811
(A) at 817F.
[5]
Oceana
Consolidated Co Ltd v The Government
1907 TS 786
at 788.
[6]
One
such case,
Seagram
Africa (Pty) Ltd v Stellenbosch Farmers’ Winery Group Ltd &
others
2001 (2) SA 1129
(C), dealt primarily with mergers.The applicant
sought an interdict arising from what it alleged was a merger. The
alternative
relief was for a referral to the Tribunal of the issue
as to whether or not a merger had taken place.The court held that,
as
regards the interdict, its jurisdiction was ousted. It dealt with
the question of ouster having specific reference to s 65(3)of
the Act which has since been deleted by s 15 of Act 39 of 2000.
Another case is
American
Natural Soda Corporation & another v Competition Commission &
others
2003 (5) SA 633
(CAC) (
Ansac
).
This case will be referred to below.
[7]
Per
Wallis JA in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) para 18 (references omitted).
[8]
Lenz
Township Co (Pty) Ltd v Lorentz NO & andere
1961 (2) SA 450
(A) at 455B-D.
[9]
R
v Padsha
1923 AD 281
at 304.
[10]
De
Wet v Deetlefs
1928 AD 286
at 290.
[11]
Women
’
s
Legal Trust v President of the Republic of South Africa and Others
2009 (6) SA 94
(CC) at para 11;
Von
Abo v President of the Republic of South Africa
2009
(5) SA 345
(CC);
2009 (10) BCLR 1052
(CC) at para 33; and
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1998] ZACC 21
;
1999 (2) SA 14
(CC);
1999 (2) BCLR 175
(CC) at para 25.
[12]
Minister
of Police & others v Premier of the Western Cape& others
2013 [ZACC] 33 at para 20; Section 165(1) of the Constitution.
[13]
Sections 65(2)(a) and 65(6)(a) deal with this eventuality.
[14]
Section 65(2)(b)(i).
[15]
Section 65(2)(b)(ii).
[16]
Ansac
,
fn 3, per Malan AJA at 642F-G.
[17]
Sections
65(6) and (9).
[18]
[2004]
1 CPLR 40
(CAC) para 15.
[19]
Gogga
Tracking Solutions (Pty) Ltd v Vodacom Service Provider (Pty) Ltd
[2010]
1 CPLR 115
(CT)para 45.
[20]
It is provided for in s 58(1)(a)(v).
[21]
Section 58(1)(a)(i).
[22]
Section 58(1)(a)(ii).
[23]
Section 58(1)(a)(iii). This may be done with or without the addition
of any other order.