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[2008] ZACAC 3
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Clover Industries Limited and Another v Competition Commission and Others; Ladismith Cheese (Pty) Ltd v Competition Commission of South Africa and Others (81/CAC/Jul08) [2008] ZACAC 3 (12 November 2008)
IN
THE COMPETITION APPEAL COURT OF SOUTH AFRICA
CAC
CASE NO.: 78/CAC/Jul08
CT CASE NO.: 103/CR/Dec06
In
the matter between :
CLOVER
INDUSTRIES LIMITED FIRST APPELLANT
CLOVER
SA (PTY) LIMITED SECOND APPELLANT
and
THE
COMPETITION COMMISSION FIRST RESPONDENT
PARMALAT
(PTY) LIMITED SECOND RESPONDENT
LADISMITH
CHEESE (PTY) LIMITED THIRD RESPONDENT
WOODLANDS
DAIRY (PTY) LIMITED FOURTH RESPONDENT
LANCEWOOD
(PTY) LIMITED FIFTH RESPONDENT
NESTLÉ
SA (PTY) LIMITED SIXTH RESPONDENT
MILKWOOD
DAIRY (PTY) LIMITED SEVENTH RESPONDENT
AND
CAC
CASE NO.: 81/CAC/Jul08
TRIBUNAL
CASE NO.: 103/CR/Dec06
LADISMITH
CHEESE (PTY) LTD APPELLANT
and
THE
COMPETITION COMMISSION OF SA FIRST RESPONDENT
CLOVER
INDUSTRIES LIMITED SECOND RESPONDENT
CLOVER
SA (PTY) LTD THIRD RESPONDENT
PARMALAT
(PTY) LTD FOURTH RESPONDENT
WOODLANDS
DAIRY (PTY) LIMITED FIFTH RESPONDENT
LANCEWOOD
(PTY) LIMITED SIXTH RESPONDENT
NESTLÉ
SA (PTY) LIMITED SEVENTH RESPONDENT
MILKWOOD
DAIRY (PTY) LIMITED EIGHTH RESPONDENT
JUDGMENT
DELIVERED
ON : 12 November 2008
Patel
JA:
INTRODUCTION
[1]
On the 19th September 2007, we heard an appeal from Clover Industries
Limited (first appellant), Clover SA (Pty) Limited (second
appellant)
and Ladismith Cheese (Pty) Limited (third appellant). I shall refer
to all three parties collectively as the appellants.
When I refer to
the first and second appellants, I shall collectively refer to them
as Clover. The third appellant will be referred
to as Ladismith. I
refer to the other respondents where necessary by their abbreviated
names as cited in these proceedings.
[2]
The appellants appealed against the dismissal by the Competition
Tribunal (“Tribunal) of their first
in limine
point.
Clover also brought a review application challenging the dismissal by
the Tribunal of these
in limine
points. I shall further advert
to these
in limine
points herein below. Both the appeal and
the review applications were dismissed with costs, such costs to
include costs of two counsel
where two counsel were employed. The
court undertook to furnish reasons for the dismissal later. These are
the reasons.
[3]
On 7 December 2006, the First Respondent, the Competition Commission
(“the Commission”) referred the following complaints
about alleged prohibited practices to the Tribunal in terms of
Section 50 of the Competition Act 89 of 1998 (‘the Act”),
namely :
(a)
Price fixing through information exchange in contravention of Section
4(1)(b)(i) of the Act.
(b)
Clover, Parmalat, Woodlands and Nestle are party to milk and exchange
and supply agreements which constitute contravention
of Section
4(1)(b)(i) or Section 4(1)(a) of the Act.
(c)
Clover and Parmalat are party to exclusive supply agreements with
milk producers which constitute a contravention of Section
8 (d) (i)
, Section 8 (c) or Section 5(1) of the Act.
(d)
Woodlands and Milkwood engaged in fixing of retail prices and market
allocation in contravention of Section 4 (1)(b)(i) or
Section 4 (1)
(b) (ii) of the Act.
(e)
Clover and Woodlands engaged in direct or indirect fixing of prices
or trading conditions through price and volume arrangements
in
contravention of Section 4 (1)(b)(i) of the Act.
(f)
Clover, Parmalat and Woodlands engaged in a surplus milk removal
scheme in contravention of Section 4 (1)(b)(i) of the Act.
[4]
Before the Tribunal, Clover raised three points
in
limine
in respect to
complaints 1, 2, 3 and 5 whilst Ladismith made common cause with
Clover on the first point
in
limine
. All three
in
limine
points were
argued before and dismissed by the Tribunal.
THE
APPEAL - THE FIRST POINT
IN
LIMINE
[5]
The appellants contended before the Tribunal as they did before us,
that the complaint underlying the complaint referral in
this matter
was submitted to the Competition Commission (the “Commission”)
as a complaint in terms of Section 49B (2)
of the Act by way of a
letter from a dairy farmer, a Mrs Malherbe which embodied the
complaint received by the Commission on or
about 10 June 2004.
According to the appellants’ such complaint was required to be
investigated within one year, the time
period stipulated in Section
50 (1) of the Act. On expiry of the one year period
,
the
Commission must be regarded as having issued a notice of non-referral
of such complaint in terms of Section 50 (5) of the Act.
Accordingly,
the Commission was not lawfully entitled to refer the complaints
embodied in Malherbe’s letter to the Tribunal
for
determination. In essence the appellants argued that the Commission
referred the complaint outside the time frames provided
for in the
Act and as a result the matter has prescribed.
[6]
The Commission, whilst denying that they received any letter directly
from Mrs Malherbe, argued that, at best, Malherbe’s
letter was
a mere catalyst for a full investigation initiated by the Commission
into the milk industry in South Africa. In other
words contrary to
the contentions that the Commission acted in terms of Section 49B(2),
the Commission had ‘self initiated’
an investigation in
terms of Section 49B (1) and hence and in terms of Section 50 (1) the
Commission was not time barred.
RELEVANT
LEGISLATIVE PROVISIONS
7
.1.
In section 1 (1) (iv)
complainant
is defined to mean a
person who has submitted a complaint in terms of section 49B (2) (b).
7.2.
Section 49B – Initiating a complaint
(1)
The commissioner may initiate a complaint against an alleged
prohibited practice
.
(2)
Any person may –
(a)
submit information concerning an
alleged
prohibited
practice
to the Competition Commission, in any manner or form; or
(b)
submit a complaint against an alleged
prohibited
practice
to the
Competition Commission in the
prescribed
form.
(3)
Upon initiating or receiving a complaint in terms of this section,
the Commissioner must direct an inspector to investigate
the
complaint as quickly as practicable.
(4)
At any time during an investigation, the Commissioner may designate
one or more persons to assist the inspector.
7.3.
Section 50 – Outcome of complaint
(1)
At any time after initiating a complaint, the Competition Commission
may refer the complaint to the Competition Tribunal.
(2)
Within one year after a complaint was submitted to it, the
Commissioner must –
(a)
subject to subsection (3), refer the complaint to the Competition
Tribunal, if it determines that a
prohibited practice
has been
established; or
(b)
in any other case, issue a notice of non-referral to the
complainant
in the
prescribed
form.
(3)
When the Competition Commission refers a complaint to the Competition
Tribunal in terms of subsection (2) (a), it –
(a)
may –
(i)
refer all the particulars of the complaint as submitted by the
complainant
;
(ii)
refer only some of the particulars of the complaint as submitted by
the
complainant
; or
(iii)
add particulars to the complaint as submitted by the
complainant
;
and
(b)
must issue a notice of non-referral as contemplated in subsection (2)
(b) in respect of any particulars of the complaint not
referred to
the Competition Tribunal.
(4)
In a particular case –
(a)
the Competition Commission and the
complainant
may agree to extend
the period allowed in subsection (2); or (b) on application by the
Competition Commission made before the
end of the period
contemplated in paragraph (a), the Competition Tribunal may extend
that period.
(5)
If the Competition Commission has not referred a complaint to the
Competition Tribunal, or issued a notice of nonreferral,
within the
time contemplated in subsection (2), or the extended period
contemplated in subsection (4), the Commission must be
regarded as
having issued a notice of non-referral on the expiry of the relevant
period.
[8]
In my view, on the first point
in
limine
, the Tribunal
has meticulously analysed the legislative framework within which the
complaint is located. Similarly the Tribunal’s
finding that Mrs
Malherbe had no intention to be a complainant in terms of Section
49B(2)(b)
,
based
as it is on a detailed analysis of the so-called complaint
,
and the circumstances
under which it was received by the Commission cannot be faulted. The
Tribunal’s conclusion is consistent
with both the letter and
the spirit of Section 49B and Section 50 of the Act. The Tribunal has
set out the letter in full together
with a translation in English. I
am in agreement with the Tribunal that the Malherbe letter
constituted nothing more than the submission
of information and
therefore the time frames referred to in Section 50 (2) do not apply.
The Tribunal was correct in coming to
the conclusion to which it did
without relying on the supplementary affidavits wherein the intention
of Mrs Malherbe is set out.
I similarly do not find it necessary to
decide on the admissibility of the further affidavits on which the
Commission relies for
its contention that Mrs Malherbe did not wish
to be a complainant in terms of the Act.
[9]
Clover has classified the letter written by Mrs Malherbe to the
Commission as a complaint in terms of Section 49B (2) on the
basis
that Section 49B of the Act contained as it is in Part C (“Complaint
Procedures”) of Chapter 5 (“Investigation
and
Adjudication Procedures”) of the Act which is headed
“initiating a complaint”. In my view these provisions
of
the Act are designed to enable information alternatively complaints
of uncompetitive behaviour to be investigated by the appropriate
authorities and where a case is found to be present to be referred to
the Tribunal for determination. It cannot be gainsaid that
Section
49B is the only provision in the Act which gives imprimatur for the
process of investigation consequent upon a complaint
to be commenced
by the Commission alternatively the commission itself initiating a
complaint against an alleged prohibited practice.
[10]
Thus
,
as
far as the first
in
limine
point is
concerned, the issue is whether what was submitted to the Commission
by Mrs Malherbe when she accused the milk processors
of
“kartelvorming”, constituted an allegation of a
prohibited practice and whether the Commission was obliged to
investigate
and in so doing bring the investigation process to a
conclusion within one year. The further issue is whether any
information of
any prohibited practice necessarily translates not
only into an obligation on the part of the Commission to investigate
the matter
but to do so within one year.
[11]
In my view
¸
Clover’s
submission that the only difference between subsection (a) and (b) of
Section 49 (B) (2) is that subsection (a) provides
for an informal
manner of making a complaint to the Commission (in any manner or
form) whereas subsection (b) provides a formal
manner for doing so in
the prescribed form is not consistent with the overall scheme and
purpose of the Act. I am mindful of the
fact that this Court in
Glaxo
Wellcome (Pty) Limited and Others v National Association of
Pharmaceutical Wholesalers and Others
Case
No 15/CAC/Feb 02 stated that:
“Section
49B provides for the initiating of a complaint. This may be done in
any manner or form or in the prescribed
form. The wording of
Section 49B is worth noting in that it is not prescriptive as
to how a complaint may be initiated. This
theme runs throughout the
complaint procedures, the object being to enable complaints to
be lodged without the need for procedures
that are too technical
and/or formalistic.”
The
case is however distinguishable in that irrespective of the manner
and the language in which the complaint served before the
Commission,
the party who completed the document was clearly intent on being a
complainant and hence a party to the litigation
. The Tribunal was
correct when it stated:
“However,
our tolerance of informality as to the manner in which a particular
complaint is articulated does not extend
to interpreting every
articulation of a grievance, every submission of information,
as tantamount to the initiation of a
complaint as contemplated by
Section 49(B)(2 (b)”.
At
best Mrs Malherbe’s letter can only be interpreted as an
articulation of a grievance alternatively a submission of
information.
[12]
I am in agreement with the Tribunal that “a ‘complaint’
is a juristic act necessary to bring alleged anti-competitive
conduct
within the ambit of the statute’s formal procedures with
Sections 49 and 50 being the first steps on the process”.
To
this end the legislature has defined a ‘complainant’ to
mean a person who has submitted a complaint in terms of
Section 49B
(2) (b). We therefore do not need to search for a dictionary
definition of the word complainant save to say that the
definition of
a ‘complaint’ must be given a contextual meaning and not
just an ordinary grammatical interpretation
whereby every expression
of dissatisfaction by a member of the public would be considered a
complaint. Not only did Mrs Malherbe
not use any prescribed form but
she disavowed any intention of being a complainant. In an e-mail
dated 4 December 2004, to Mr Liebenberg
of the Commission, Mrs
Malherbe stated that she did not want her identity to be revealed.
She clearly wanted to remain anonymous.
Exhibit “B”
supports the conclusion that she did not submit a ‘complaint’
which meets the requirements
of Section 49B(2)(b) as opposed to the
mere submission of ‘information’ as contemplated by
Section 49(2)(a). To hold
otherwise would stifle the very purpose of
the Act in that it will inhibit persons who perceive a behaviour or
practice to be a
violation of the Act from laying information before
the Commission in fear of being brought into litigation when the
information
is supplied merely for the purpose of initiating and
investigating a complaint. To hold otherwise will also disallow the
Commission
from entertaining information accompanied by a request for
anonymity.
[13]
Further Clover’s and Ladismith’s argument must fail since
the legislature has used different words in Section 49B
(2) (a) and
(b). In subsection (a) the legislature is concerned with the
submission of information whereas in subsection (b) reference
is made
to the submission of a complaint in the prescribed form. The
difference in language in these two subsections taken together
with
the definition of complainant can have no other plausible meaning
than that employed by the Tribunal. The legislature intended
the
complainant not only to control the initiation but, by using the
prescribed or any other form, would not only enjoin the Commission
to
investigate a complaint but if found to be a violation of the Act
would allow a complainant to be a party to any litigation.
This
interpretation is consistent with the accepted canons of
interpretation, namely:
“It
is a general rule in the construction of a statute that a deliberate
change of expression is prima facie taken to
import a change of
intention”. (See
Barrett NO v Macquet
1947 (2) SA 1001
(A)
at 1012;
Port Elizabeth Municipal Council v Port Elizabeth
Electric Tramway Company Limited
1947 (2) SA 1269
(A) at
1279).
The
Tribunal was accordingly correct in dismissing the first point
in
limine
. The appeal on the first
in limine
point must thus
fail.
THE
REVIEW APPLICATION
[14]
I now turn to the review application brought by Clover arising from
the dismissal by the Tribunal of the second and third
in limine
points. These
in limine
points relate to the conditioned
leniency granted to Clover by the Commission. In brief, the
Commission granted Clover immunity
for its involvement in the milk
balancing scheme (which forms the basis of complaint six) and denied
Clover immunity for the surplus
removal scheme (which is the basis of
complaint three). In terms of the conditioned leniency agreement
Clover is obliged to co-operate
with the Commission in the
investigation and prosecution of complaint 6 against the respondents
who have been cited in these proceedings.
I might mention that Clover
also pinned its colours to the mast of the review boat apropos the
first
in limine
point in case it lost the appeal on this
point.
[15]
In its review application, Clover seeks to review and set aside the
Tribunal’s decision insofar as it relates to the
dismissal of
the second and third
in limine
points but also seeks an order
from this Court dismissing the complaint referral, alternatively
directing that the referral of the
third and fifth complaints may not
proceed as against Clover. Further in the alternative Clover seeks an
order remitting the matter
back to the Tribunal subject to
appropriate directions as to the further hearing of the matter.
[16]
Clover seeks this relief pursuant not only to this Court’s
power to review and set aside the Tribunal’s decision,
but also
pursuant to this Court’s jurisdiction to review the process
before the Tribunal and to determine whether an action
taken or
proposed to be taken by the Commission or the Tribunal is within
their respective jurisdictions as provided by Section
62 (2) (a) of
the Act. Clover also enjoins us in the exercise of our review powers
to determine any constitutional matter arising
in terms of Section
62(2)(b) of the Act. In essence, Clover submits that as a result of
the Tribunal’s dismissal of Clover’s
in limine
points,
the process before the Tribunal was procedurally and substantively
unfair and would result in both the Commission and the
Tribunal
acting beyond their jurisdiction. Clover accordingly brings the
review application in terms of Section 37 and Section
62 (2) of the
Act read with Section 33 of the Constitution of the Republic of South
Africa Act 108 of 1996 (“the Constitution”)
and Section 6
of the Promotion of Administrative Justice Act (No. 3 of 2006)
(“PAJA”) as well as where applicable,
the common law.
[17]
I do not propose to deal with the first
in
limine
point since as
I am of the view that for the reasons canvassed above, the appeal and
the review on the first
in
limine
point must
fail. I am satisfied that the dismissal of the first
in
limine
point was not
in terms of Section 6 (2) (1) of PAJA “materially influenced by
an error of law” or for that matter the
dismissal by the
Tribunal is reviewable on the further grounds set out in Section 6
(2). The Tribunal’s dismissal of the
first
in
limine
point was not
only rational and justifiable in terms of the reasons given by the
Tribunal but the Tribunal’s interpretation
of the word
“complaint” in Section 49 (2) (b) of the Act is correct.
[18]
I therefore will focus on the second and third
in
limine
points. As
pointed out earlier Clover’s second and third
in
limine
points is
based on a corporate leniency agreement concluded between the
Commission and Clover on 3 February 2006 (“the CLP
agreement”).
[19]
I set out in brief the background to the CLP agreement. Following
upon investigations launched by the Commission into Clover’s
practices as a processor of milk and milk products, Clover applied to
the Commission for corporate leniency in a written application
dated
21 October 2005. This application, in essence, was based on a
detailed statement by Mr Robert Wasseloo, the then Chief Executive
Officer of the second applicant. This leniency was sought for
Clover’s role in participating in a milk balancing scheme over
the past few years before the CLP agreement. On further information
being provided, the Commission granted Clover conditional immunity
on
20 December 2005. The document containing the terms and conditions of
the conditional immunity is found as Annexure “HR3”
of
the papers.
[20]
It is necessary to set out in full the essential provision of the CLP
agreement.
“1.
It is confirmed that upon formal acceptance of the terms and
conditions set out in this document, Clover will be granted
conditional immunity from prosecution before the Competition
Tribunal for its involvement in cartel activities concerning the
collusion with other role players in the milk industry regarding
‘surplus removal’ of milk, that resulted in price
fixing
in contravention of
Section 4(1)(b)
of the
Competition Act (Act
89 of
1998, as amended).
2.
It is further recorded that the application by Clover for immunity
regarding its internal prohibition on producers not to off
sell ‘c
– quota’ milk was unsuccessful and will still form part
of the original investigation as a possible
abuse of dominance by
Clover.
3.
The conditional immunity will be granted to Clover subject to all the
provisions, requirements and conditions of the Commission’s
Corporate Leniency Policy (CLP), as well as the specific conditions
set out below. By formally accepting the terms and conditions
set out
herein, Clover acknowledges that it is familiar with the contents of
the CLP.
4.
Clover shall provide the Commission with full and candid co-operation
in order for the Commission to be put in a position to
institute
proceedings in respect of the cartel activity against the other
participants. Such co-operation should be continuously
offered until
the Commission’s investigations are finalised and the
subsequent proceedings in the Tribunal are completed.
Failure to do
so may constitute grounds for the Commission to revoke the
conditional immunity.
5.
Clover must honestly provide the Commission with complete and
truthful disclosure of all evidence, information and documents
in its
possession or under its control relating to the cartel activity.
6.
Clover must provide full co-operation with regard to details of
former Clover employees who have knowledge of or are/were in
possession of documentation relating to the cartel activities.
Clover will request the employees to assist the Commission in
compiling a statement under oath, setting out their knowledge in this
regard and to testify in the Competition Tribunal if required.
7.
Clover must provide full co-operation with regards to details and
access to persons who are currently in Clover’s employ
and have
knowledge or are/were in possession of information and documentation
relating to the cartel activities. Clover will instruct
the employees
to assist the Commission in compiling a statement under oath, setting
out their knowledge in this regard and to
testify in the Competition
Tribunal if required.
8.
Clover must provide a statement of conduct by the CEO of Clover at
the relevant time and/or any other person most knowledgeable
with
regards to the cartel, under oath, setting out the background,
context and execution of the cartel as well as any other
contravention of the Act that Clover was at any point in any time
engaged in singly or complicit with other parties.” (emphasis
added)
[21]
On 7 December 2006, the Commission filed its complaint referral
against Clover and the other respondents in these proceedings.
It was
this referral which prompted the raising of the three
in limine
points. The first alternative of the second point rests on a
factual level. Clover contends that the conduct alleged in the third
complaint formed an integral and indivisible part of the surplus
removal scheme, which in turn forms the basis of the sixth complaint.
Clover contends that because the conduct underlying the third
complaint is “as a matter of fact” covered by the sixth
complaint, and Clover has been granted immunity in respect of the
sixth complaint, the third complaint should be dismissed against
Clover.
[22]
Clover further contends that since the second alternative is in
essence that because the conduct alleged in the third complaint
forms
part of the conduct alleged in the sixth complaint, that it would be
unfair and prejudicial for the Tribunal to adjudicate
the third
complaint against it in circumstances where Clover is obliged in
terms of the CLP agreement to assist in the prosecution
of the third
complaint against itself.
[23]
The third point
in
limine
deals with the
issue of fairness. It does overlap with the alternative to the second
point
in limine
,
but is broader. According to Clover, whether or not the conduct
underlying the third complaint is an indivisible part of the sixth
complaint, there is a factual overlap between the sixth complaint and
the third and fifth complaints. Clover thus argues that it
will be
unfair for it to be prosecuted for complaints three and five when it
is required to assist the Commission in respect of
the prosecution of
the sixth complaint. This would mean that in terms of the CLP
agreement, it would be required to act simultaneously
as accuser and
accused in the same factual matter and in the same hearing.
Accordingly, Clover would be prejudiced due to it being
deprived of
its right to put the Commission to the proof of its case and also
raise alleged difficulties regarding witnesses. These
difficulties in
the main would be that it would not be able to cross-examine
witnesses called by the Commission as it would conflict
with its duty
of co-operation and further that the Commission would have the
benefit of cross-examining witnesses from whom it
had the benefit of
co-operation from prior to the hearing.
[24]
Sans the question of fairness and for the points
in
limine
to succeed, it
is necessary to determine as a matter of fact that the conduct in the
third complaint is an indivisible and integral
part of the conduct
complained of in the sixth complaint and or in the alternative that
there is meaningful factual overlap between
the sixth complaint and
the third and fifth complaints.
[25]
In my view, this is a make weight argument on the part of Clover,
since even if there is factual overlap as constrained for
by Clover,
it cannot now complain of any lack of fairness because, after a
protracted negotiation and after being fully apprised
of the facts it
voluntarily entered into the CLP agreement and must now live with its
consequences.
[26]
In any event it is the Commission’s contention that the third
and sixth complaints are discrete contraventions of the
Act and the
Cquota scheme is not an integral and indivisible part of the Milk
Balancing Scheme. Without dealing in detail with
the nature of each
of the complaints, since the Tribunal has already done so in its well
reasoned judgment, the “significant
factual” overlap in
respect of the third and sixth complaints is disputed by the
Commission. I am in agreement with the Tribunal’s
finding that
the third, fifth and sixth complaints are separate and distinct
contraventions of the Act. I am further in agreement
with the
Tribunal that even if as Clover contends that the Milk Balance Scheme
and the C Milk Scheme are an integral part of the
same conduct, then
this is something that can only be decided upon after evidence has
been led on the two schemes. This can only
be appropriately decided
at the trial before the Tribunal.
[27]
In my view, it is simply not possible on the basis of the affidavits
and annexures before us for us to decide, in the absence
of any
evidence being led, to make the factual finding that Clover seeks to
make. The Tribunal is thus the proper forum.
[28]
In any event, the CLP agreement is conditional. Clause 4 read with
clause 12 of the CLP agreement are clear in statement. Clover
is
obliged to fully and honestly cooperate until such time as
proceedings in the Tribunal are completed, and any failure on
Clover’s
part may constitute grounds for the Commission to
revoke the conditional immunity.
[29]
I am in agreement with Counsel for the Commission in the review
application, that the factual issue must accordingly be decided
against Clover for the following reasons:
(i)
Firstly, there is a factual dispute on the papers which cannot be
resolved in Clover’s favour by virtue of the well
settled rules
for the resolution of factual disputes in motion proceedings. (See
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A);
(ii)
Secondly, the invitation by Clover to us to resolve the factual issue
is premature and, in any event, would impermissibly
usurp the powers
and functions of the Commission and Tribunal. (See
Bato Star
Fishing (Pty) Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC) para 48.
[30]
I now turn to the question of fairness. The Constitution in terms of
s 33(1) and s 34 guarantees the right to administrative
action that
is procedurally fair and further provides for disputes to be
adjudicated in a “fair public hearing” before
a court or
tribunal. Further section 3(1) of PAJA provides for procedural
fairness in respect of administrative action that materially
and
adversely affects the rights and legitimate expectations of persons.
It is obvious that proceedings before the Tribunal must
be
procedurally fair since s(1)(2)(a) of the Act provides that the Act
must be interpreted in a manner that is consistent with
the
Constitution.
[31]
Fairness must indeed be decided on the circumstances of each case.
(See s 3 (2) (a) of PAJA,
Metro Projects CC and Another v
Klerksdorp Local Municipality and Others
2004 (1) SA 16
(SCA)
para 13,
Minister of Environmental Affairs and Tourism and Another
v Scenematic Fourteen (Pty) Ltd
[2005] ZASCA 11
;
2005 (6) SA 182
(SCA) para 18 and
MEC, Department of Agriculture, Conservation and Environment and
Another v HTF Developers (Pty) Ltd
[2007] ZACC 25
;
2008 (2) SA 319
(CC) para 76).
[32]
In my view, the facts of this case do not render the circumstances
that Clover finds itself in to be unfair. The CLP agreement
makes it
quite clear precisely on what the Commission was prepared to grant
Clover conditional immunity and in respect of and what
would still
form part of the original investigation. It was with full knowledge
that the Commission still intended to investigate
a possible abuse of
dominance by Clover based on the sales of Cquota milk that Clover
entered into the CLP agreement. It is clear
form the CLP document
that the Commission regarded the conduct underlying the third
complaint as separate and distinct from the
conduct underlying the
sixth complaint. Clover no doubt was aware of this. Clover must have
been aware that it might well find
itself in a position of having to
cooperate with the Commission on one complaint referral and face
prosecution on another.
[33]
Clover was at liberty to challenge the restricted immunity that the
Commission was prepared to offer to it. Despite being represented
by
a strong legal team it did not do so. Any potential prejudice that
Clover will suffer can be overcome by Clover renewing its
application
at the trial for a separation of the relevant complaints. This option
is still available to Clover at the trial. Therefore,
and at least at
this stage, the alleged prejudice which Clover contends it will
suffer in having to “act as accuser and accused”
is at
best speculative and hypothetical. Without being uncharitable or
cynical what Clover is seeking to do is to take all the
benefits from
the CLP agreement while at the same time use the agreement as a
shield to prevent it from having to deal with the
other complaints.
[34]
I am in agreement with the Tribunal’s finding that: “At
this point in time preparations are still at an early stage
with
witness statements yet to be filed. In our view it would be premature
for us to determine questions of fairness at this stage
of the
proceedings. It is only at a later stage that the prejudice that
Clover would suffer can be fully ascertained and be effectively
dealt
with.” Clover is at liberty to take whatever steps it is later
advised to take at the trial in order to overcome any
prejudice which
may be occasioned to it. The remaining in limine points therefore
also fall to be dismissed.
[35]
It is for the above reasons that the appeal and the review
application was dismissed with the appropriate order for costs
.
PATEL
JA
DAVIS
JP AND MAILULA JA concurred.
DATE
OF HEARING: 19 September 2008
DATE
OF JUDGMENT: 12 November 2008
1
st
-2
nd
Appellants:
CLOVER INDUSTRIES LIMITED and CLOVER SA
(PTY)
LIMITED
Attorneys:
Lezel KRAAMWINKEL of ROESTOFF, VENTER & KRUSE
(TEL:
(012) 460 0987 & FAX: (012) 460 9140)
Counsel:
M. J. D. WALLIS SC, W. J. PRETORIUS and J. WILSON
1
st
Respondents:
THE COMPETITION COMMISSION
Attorneys:
MJ Husain / Cindy Bezuidenhout of KNOWLES HUSAIN
LINSAY
INC
Counsel
in the
Review:
GJ Marcus SC and T Dalrymple
Counsel
in the
Appeal:
Rafik Bhana SC and A J Coetzee
2
nd
Respondents:
PARMALAT (PTY) LIMITED
24
Attorneys:
R MARCUS of CLIFFE DEKKER ATTORNEYS (Tel: 021-481
6335
& Fax: 021-481 9512)
Counsel:
Owen Rodgers SC
3
rd
Respondents:
LADISMITH CHEESE (PTY) LIMITED
Attorneys:
PETRA KRUSCHE of CLIFFE DEKKER ATTORNEYS (Tel:
021-481
6335 & Fax: 021-481 9512)
Counsel:
MJ Engelbrecht
4
th
Respondents:
WOODLANDS DAIRY (PTY) LIMITED
Attorneys:
SK GOUGH of RUSHMERE NOACH ATTORNEYS
(Tel:
041-585 7788 & Fax: 041-585 3517)
Counsel:
JJ Gauntlett SC and RG Buchanan SC
5
th
Respondents:
LANCEWOOD (PTY) LIMITED
Attorneys:
WILLIE VAN BREDA of RAUBENHEIMERS ATTORNEYS
(Tel:
(044) 873 2043 & Fax: (044) 874 4516)
6
th
Respondents:
NESTLÉ SA (PTY) LIMITED
Attorneys:
DEREK LOTTER / RUDOLPH LABUSCHAGNE of
BOWMAN
GILFILLAN INC (Tel: 011-669 9357/9327 &
Fax:
011-669 9001
7
th
Respondents:
MILKWOOD DAIRY (PTY) LIMITED
Attorneys:
DEREK LOTTER / RUDOLPH LABUSCHAGNE of
BOWMAN
GILFILLAN INC (Tel: 011-669 9357/9327 &
Fax:
011-669 9001