National Association of Pharmaceutical Wholesalers and Others v Glaxo Wellcome (Pty) Ltd and Others (29/CAC/Jul03) [2005] ZACAC 2; [2005] 1 CPLR 102 (CAC) (18 February 2005)

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[2005] ZACAC 2
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National Association of Pharmaceutical Wholesalers and Others v Glaxo Wellcome (Pty) Ltd and Others (29/CAC/Jul03) [2005] ZACAC 2; [2005] 1 CPLR 102 (CAC) (18 February 2005)

THE COMPETITION APPEAL
COURT
OF SOUTH AFRICA
CAC
CASE NO: 29/CAC/JUL03
In
the matter between :
National
Association of Pharmaceutical Wholesalers
1
st
Appellant
Natal
Wholesale Chemists (Proprietary) Limited
t/a
Alpha Pharm Durban
2
nd
Appellant
Midlands
Wholesale Chemists (Proprietary) Limited
t/1
Alpha Pharm Pietermaritzburg
3rd
Appellant
East
Cape Pharmaceuticals Limited
t/a
Alpha Pharm Eastern Cape
4
th
Appellant
Free
State Buying Association Limited
t/a
Alpha Pharm Bloemfontein (Kemco)
5
th
Appellant
Pharmed
Pharmaceuticals Limited
6
th
Appellant
L’Etangs
Wholesale Chemist CC t/a L’Etangs
7
th
Appellant
Resepkor
(Pty) Limited
t/a
Reskor Pharmaceuticals Wholesalers
8
th
Appellant
Mainstreet
2 (Pty) Ltd
t/a
New United Pharmaceutical Distributors
9
th
Appellant
and
Glaxo
Wellcome (Pty) Ltd
1
st
Respondent
Pfizer
Laboratories (Pty) Ltd
2
nd
Respondent
Pharmacare
Limited
3
rd
Respondent
Smithkline
Beecham Pharmaceuticals (Pty) Ltd
4th
Respondent
Warner
Lambert SA (Pty) Limited
5
th
Respondent
Synergistic
Alliance Investments (Pty) Limited
6
th
Respondent
Kinesis
Logistics (Pty) Limited
(formerly
Druggists Distributors (Pty) Ltd)
7
th
Respondent
_______________________________________________________
J U D G M E N T
_______________________________________________________
PATEL, AJA
[1] This is an appeal
from a decision of the Competition Tribunal (‘Lewis Tribunal’)
refusing the appellants certain interim relief
against the
respondents. The appellants also apply for condonation for their
failure to file the appeal record timeously. The respondents
have
counter-appealed against the Lewis Tribunal’s refusal to
accommodate in the costs order an order requiring the appellants
to
pay qualifying fees of all experts used by the respondents in the
preparation of their opposing papers.
[2]
The appellants are wholesalers of pharmaceuticals products
manufactured by the first to the fifth respondents. They will
hereinafter
be referred to as ‘the wholesalers’. At the time of
the hearing of the matter, the eighth appellant was in the process of
being
liquidated. The liquidators of the eighth appellant indicated
that they did not wish to proceed with the appeal.
[3] The
first, second, fourth and fifth respondents are multinational
manufacturers of ethical and patented pharmaceutical products.
The
third respondent, Aspen Pharmacare, is a South African producer of
generic pharmaceutical products. By the time this appeal
was heard
the first and fourth respondents had merged to form Glaxo Smith Kline
(‘GSK’) and the second and fifth respondents
had merged to form
the Pfizer Pharmaceutical Group (‘Pfizer’). There are therefore
three manufacturer parties to this application,
namely, GSK, Pfizer
and Aspen Pharmacare. This was also the position when the Lewis
Tribunal heard the matter. These respondents
will be collectively
referred to as the ‘manufacturers’.
[4] When
the appeal was called before us, counsel for the manufacturers
indicated that the application for condonation for the non
compliance
with rule 19 of the rules of this Court was opposed on two grounds .
Firstly, that the wholesalers had failed to provide
a reasonable
explanation for their failure to comply with Rule 19 and more
pertinently that there were not reasonable prospects that
the appeal
would succeed. If the latter be the case then it would be
unnecessary to consider the explanation of the wholesalers
for their
failure to timeously comply with rule 19. In the circumstances the
Court proceeded to hear argument on the merits of the
appeal, in
order to determine both the application for condonation and, in the
event of its success, the appeal itself.
[5] I
proceed now to consider the merits. I do not propose to give a
detailed background to the dispute. The Lewis tribunal, in my
view,
has in its judgment dealt fully with the historical background and
with the nature of the wholesaling and pharmaceutical industry.
It
would serve no purpose in repeating the same. The dispute has its
genesis in a decision by the manufacturers to establish and
use an
exclusive distribution agency (‘EDA’) for the distribution of
their pharmaceutical products and to provide other logistical
services. To this end and in May 2000 the seventh respondent,
Druggist Distributors (Pty) Limited (‘DD’), was converted from
a
wholesaler into a company performing logistics services on behalf of
the manufacturers of pharmaceutical products. These logistics
services include not only the distribution of the drugs but also the
taking of orders and the collection of payment on behalf of
the
manufacturers. This is done for a fee agreed between each principal
and the EDA. The functions performed by the EDA are therefore,
save
for the distribution and sale of medicine, different from the
functions performed by the wholesalers.
[6] Upon its conversion
into a logistics service provider, the name of DD was changed to
Kinesis Logistics (Pty) Ltd (‘Kinesis’).
In May 2001, Kinesis
and its holding company, Synergistic Alliance Investments (Pty)
Limited (‘SAI’), the sixth respondent were
sold by the
manufacturers to Tibbeth & Britten (Pty) Ltd (‘T&B’), an
independent third party logistics provider. (Under
the circumstances,
why the sixth and seventh respondents remain parties to the dispute
is as enigmatic as are many other aspects
of this matter.) Before
the conversion of DD into Kinesis, the wholesalers (including DD
qua
wholesalers) purchased the manufacturers’ products at a discount of
17.5% of their list prices and then on-sold them to the retail
sector. The discount offered by the third respondent, Pharmacare,
was 10% and this has not changed.
[7] The gravamen of the
complaint of the wholesalers is that the use by the manufacturers of
an agent has and will impact negatively
on their businesses in that
there has been and will be a reduction in the historical discount
offered to them. It is not in dispute
that the appellants still
trade with the manufacturers and receive discounts on their
purchases. Stripped of all nuances in argument,
what the appellants
seek is a continuance of the
status
quo
and
an interdict preventing the manufacturers from dealing with an
exclusive distribution agency. The appellants have not joined
T &
B to the proceedings knowing well that sixth and seventh respondents
no longer exist and did not exist at the time the application
was
heard by the Lewis Tribunal. T & B has a substantial interest in
these proceedings and one would have thought that they
would have
been joined in the hearing before the Lewis Tribunal. I shall advert
to this aspect a little later.
[8] An interim interdict
is by its very nature a temporary and exceptional remedy which is
granted by a court before the rights of
the parties are fully
determined. Due caution has to be exercised in the grant of the
relief. Relief should only be granted if
a proper case is made out
(see Memory Institute SA CC t/a SA Memory Institute v Hansen and
Others 2004(2) SA 630 (SCA) at para 10).
It was common cause that
s59 of the Act, before it was amended by Act 39 of 2000 with effect
from 1 February 2001, applied as the
application in this matter was
brought before the amendment which substituted the current section
49C came into effect. Section 59
provided that the Tribunal “
may
grant”
an
interim order if :
(a) there is evidence that a
prohibited
practice
has occurred;
(b) an interim order is
reasonably necessary to –
(i) prevent
serious, irreparable damage to that person; or
(ii) to
prevent the purposes of this Act being frustrated;
(c) the
respondent
has been given a reasonable
opportunity to be heard, having regard to the urgency of the
proceedings; and
(d) the balance of
convenience favours the granting of the order.
The above requirements
are however not determinative and even where all these requirements
are present a court has a discretion to
refuse an interim interdict.
[9] The wholesalers have
not been expeditious in either bringing the application or proceeding
with it. On 7 June 2000 the wholesalers
lodged their complaint with
the Competition Commission in terms of the then section 44 of the
Competition Act 89 of 1998 (‘the
Act’). The wholesalers
simultaneously filed an application for interim relief with the
Competition Tribunal in terms of the then
applicable s59 of the Act.
On 28 August 2000 the tribunal (‘Terblanche Tribunal’) awarded
interim relief to the wholesalers
against the manufacturers in terms
of s4(1)(a) of the Act. The interim interdict granted ordered the
manufacturers to supply their
products directly to the wholesalers on
terms and conditions extant prior to the wholesalers resorting to the
use of DD as an EDA.
On 5 September 2001 this court reviewed and set
aside the decision of the Terblanche Tribunal on the ground, inter
alia, that the
order was vague, embarrassing and overbroad in
statement (See
Glaxo
Wellcome (Pty) Ltd v Terblance NO
[2001-2002]
CLPR 48 (CAC). This Court was also of the view that the relief
granted differed markedly from that sought before the Terblanche
Tribunal. Accordingly the manufacturers were prejudiced in that they
did not have a proper opportunity to meet the case and make
the
necessary representations.
[10] As
is evident from the affidavit of Roets filed on behalf of the
Respondents, a pre-hearing conference was held before Diane
Terblanche to determine the further procedural steps which had to be
followed in light of the above decision of this Court. The
wholesalers were given leave to file further supplementary affidavits
and the manufacturers, as they entitled, to file any further
answering affidavits subject to the parties complying with the
Competition Tribunal Rules. Further interlocutory skirmishes took
place between the parties with regards to confidentiality and the
filing of further affidavits. These are set out in the affidavit
of
Roets. I do not wish to delve further into tardiness of the
wholesalers in bringing the application for interim relief to a
finality
nor whether the manufacturers may have adopted dilatory
tactics save to state that approximately three years elapsed before
the matter
was reheard by the Lewis Tribunal and a decision given.
[11] The wholesalers were
domini
litis
and they could have expedited the hearing. They were not entitled to
adopt a
non
possumus
position with regards to the application on the merits. In this
time the merits of the wholesalers’ claim could have been properly
ventilated and a decision reached as to whether the manufacturers had
committed a prohibited practice. On this ground alone the
Lewis
Tribunal would have been entitled to dismiss the application. This
view is fortified when regard is had to the provisions
of section
59(2) and (3) of the Act before it was amended. These sub-sections
are now re-enacted as section 49C(5). The legislature
clearly
intended, and continues to intend, that interim orders should serve
only to ameliorate an urgent situation and to be of limited
duration.
To grant interim relief after such a long passage of time defeats
the very object of interim relief pendent elite.
[12] On
the papers the appellants have alleged contraventions of s4
(‘horizontal restrictive practice’), s5 (‘vertical restrictive
practice’) s8 (‘abuse of dominance’) and s9(‘price
discrimination’) of the Act. In the absence of any subsequent
amendment
to the notice of motion the answer as to what relief was
sought by the appellants must be found in the notice of motion filed
in
June 2000.
[13] The
relief sought by the appellants as evidenced by the Notice of Motion
is the following:
1. The Applicants are
hereby granted leave to bring the application as a matter of urgency
and to argue this matter on the same papers
as were filed by the
parties in Case Number 53 /IR/Apr00, which Application has been
withdrawn.
2.
The non-compliance with the time periods be and is hereby condoned.
3. The respondents are
hereby interdicted and restrained from converting the seventh
respondent from a full-line wholesaler to an
agency distributor.
4. The respondents are
ordered to terminate with immediate effect the exclusive agency
distribution agreement between the seventh
respondent and the first
to fifth respondents.
5. The Respondents are
hereby interdicted and restrained from inducing and/or allowing any
other pharmaceutical manufacturer/importer
to become a user or
participate in the exclusive agency distribution arrangement that
seventh respondent has with the first to fifth
respondents.
6. The respondents are
hereby interdicted and restrained from forming any new agency
distribution firm to distribute their products
on an exclusive and/or
discriminatory basis.
7. The respondents are
hereby interdicted and restrained from acquiring an interest in an
existing agency distribution firm, whether
it is solely or jointly
owned, or contracting with such firm or any of its parent firms, for
the purposes of distributing their products
on an exclusive and/or
discriminatory basis.
8. The respondents are
ordered to continue supplying their products to the applicants on
terms and conditions identical to those
given by the respondents to
DD.
9. The seventh
respondent is hereby ordered to remain an independent wholesaler in
the market that neither accepts from, nor grants
to, the first to
fifth respondents any commercial advantages that it does not accept
from, nor grant to, other pharmaceutical manufacturers
in equivalent
transactions.
10. The
respondents are hereby ordered:
10.1 to advise all
pharmacies, doctors or other purchasers that have been informed that
it is to commence business on 29 May 2000
as an agency distributor
that this will no longer be the position; and
10.2 not to make any
further representations to pharmacists doctors or other purchasers of
pharmaceutical products that DD will act
as agency distributor on
behalf of the first to fifth respondents.
11. The
First to Fifth Respondents are otherwise ordered to restore their
competitive relationships, inter se, to the status quo that
existed
prior to the establishment of SAI, by taking the following measures:
11.1 any
director of SAI who is also a director of any or more or all of the
First to Fifth Respondents, International Healthcare
Distributors
(Pty) Ltd, Merck(Pty) Ltd, Kite Logistics(Pty) Ltd or RTT Warehousing
(Pty) Ltd, trading as Pharmaceutical Healthcare
Distributors ( here
collectively referred to as “the competing companies”0 shall,
within ten days of the date on which this order
is granted, resign as
a director either of SAI or of any one or more or all of the
competing companies (as per his or her preference)
so as to ensure
that none of the SAI directors simultaneously hold directorships in
any of the competing companies; and/or
11.2 any
director of DD who is also a director of any one or more of all of
the aforesaid competing companies shall, within ten days
of the date
on which this order is granted, resign as a director either of DD or
of any one or more or all of the competing companies
(as per his or
her preference) so as to ensure that none of the DD directors
simultaneously hold directorships in any of the competing
companies;
and/or
11.3 the
First to Fifth Respondents shall rescind, and forbear from engaging
in, any and all joint decisions, policies and concerted
practices as
to prices, terms and conditions, delivery of products and all other
matters affecting their competitive relationships,
and they shall
refrain from any and all communications regarding the same; and/or
11.4 the
First to Fifth Respondents shall refrain from any and all contracts
and communications with hospitals, pharmacists and doctors
in the
name or on behalf of SAI or DD; and/or
11.5 the
First to Fifth Respondents shall refrain from engaging in any other
conduct which would otherwise lessen or prevent competition
between
them.
This interim relief
order shall remain in operation for the period stipulated in
Section 59(2) and shall remain in operation notwithstanding
any
Notice of Appeal against this order.
Granting the Applicants
such further and/or alternative relief as the tribunal deems
appropriate;
The Respondents are
ordered to pay the costs of this Application jointly and severally,
the one paying the others to be absolved.
[14] It is common cause
that the above unamended notice of motion remains the only clear
statement of the relief sought by the appellants.
The relief sought
above is in the nature of prohibitory and mandatory interdicts which
were to remain in force for period stipulated
in section 59(2) of the
Act as it existed before amendment by the
Competition Second
Amendment Act 39 of 2000
. The manufacturers for the reasons advanced
in their answering affidavit timeously informed the appellants that
the relief sought
was incompetent. Despite an undertaking by the
wholesalers to amend the notice of motion, the same was not
proceeded with.
[15] The
grant by the Terblanche Tribunal of the order was at least in letter
inconsistent with the notice of motion and the fact
that it was
subsequently set aside by this Court would have made the wholesalers
aware of the need to define the relief sought with
precision so that
the manufacturers would be alive to the case which they had to meet.
The manufacturers supplementary affidavit
deposed to by Randell
pertinently raised the question as to what relief was being claimed
in light of the EDA already being in operation
(Supplementary
answering affidavit para 4.1 and 4.2, volume 15, page B884).
[16] No
amendments were forthcoming from the appellants despite an
undertaking to do so. On the final day of argument the wholesalers
application for leave to amend the relief to include the prayer that
the manufacturers be ordered “to supply their products to
the
claimants (wholesalers) on terms and conditions relating to discount
structures identical to those that apply to transactions
between them
and the claimants immediately before the conversation of DD to a
joint exclusive distribution agency for their products”
was
refused. The Lewis Tribunal in effect and in my view correctly
refused them the amendment since it was brought on the eve of
the
closure of the case and just as argument was being finalised. The
grant of an amendment at such a late stage would have prejudiced
the
wholesalers. No appeal was filed against the Tribunal’s decision
not to permit the amendment and accordingly the wholesalers
must
stand or fall by the relief sought by them in the notice of motion.
[17] The
appellants were content to place reliance on prayer 13 of the notice
of motion and leave it to the tribunal to grant whatever
relief the
tribunal deemed appropriate (Supplementary replying affidavit
para10.2, volume 19, page B21920). Any prejudice suffered
by the
manufacturers could according to the wholesalers be overcome by the
manufacturers being given an opportunity to address the
tribunal
(Supplementary replying affidavit para 710, volume 19, page B2513).
No clear indication was given by the wholesalers as
to what further
and alternative relief they would be relying on. Whatever alleged
hurdle stood in their way in precisely defining
the relief they
sought could have been overcome when they filed their supplementary
rejoinder more than a year after the answering
affidavits were
served. The wholesalers in adopting this position appear to have
lost sight of the decision reviewing and setting
aside the decision
of the Terblance Tribunal.
[18] The
conduct of this litigation by the wholesalers on this aspect can only
be described as cavalier in the extreme. The wholesalers
have not
effectively gainsaid the manufacturer’s submission that in light of
the disappearance of the sixth an seventh respondents
and the advent
of T&B the relief foreshadowed in paragraphs 3 to 11 is
incompetent and moribund. Before I consider whether the
wholesalers
can rely on the omnibus prayer contained in prayer 13, I shall very
briefly advert to whether prayers 3 to 11 of the
original notice of
motion afford the wholesalers any relief. This exercise is necessary
because the wholesalers on the papers before
us have equivocated as
to whether they have abandoned the relief contained in these
paragraphs.
PRAYER 3
[19] This prayer seeks an
order restraining the manufacturers from converting Kinesis from a
full-line wholesaler to an agency distributor.
This prayer is clearly
incompetent since the conversion that is sought to be interdicted not
only occurred before the Lewis Tribunal
heard the matter but T&B
an independent EDA was already in existence. It is settled law that
an interdict cannot be remedy for
past invasion of rights (see
Phillip
Morris Inc v Marlboro Shirt Co S A Ltd
1991
(2) SA 720(A)
735B).
PRAYER 4
[20] This prayer seeks an
order requiring the manufacturers to terminate with immediate effect
the exclusive agency agreements with
Kinesis an entity with which the
manufacturers had no dealing at the time the Lewis Tribunal heard the
matter. If anything T&B
had to be joined in the proceedings if
this prayer was to have any meaning. In any event the grant of such
any order would have
had final effect before the merits could have
been determined. Such final relief at an interim level is not
envisaged by the Act.
An order temporarily suspending the operation
of the exclusive agency agreement may, however, have been competent.
PRAYER 5
[21] This prayer seeks an
order restraining the manufacturers from inducing and/or allowing any
other pharmaceutical manufacturer
to participate in the EDA
arrangement that Kinesis has with the manufacturers. The prayer has
to stand or fall with prayer 4. For
the reasons mentioned above this
prayer is equally incompetent. Moreover this prayer affects rights
of third parties who were not
before the Lewis Tribunal or this
Court.
PRAYER 6 & 7
[22] Both these prayers
are overbroad in their provenance. Prayer 6 which seeks to interdict
the manufacturers from forming any new
agency firm “to distribute
their products on an exclusive and/or discriminatory basis” does
not accommodate the
de
facto
existence
of T&B. Prayer 7 has a similar deficiency. In any event the
papers do not support these prayers.
PRAYER 8
[23] This requires
respondents to continue supplying their products to the wholesalers
“on terms and conditions identical to DD”
The relationship
between the manufacturers and the wholesalers is one of purchase and
sale. The relationship and the breadth of
service offered by an EDA
bears no comparison to warrant identical treatment. DD in any event
does not exist. The papers do not
justify the substitution of T&B
with DD. The relief foreshadowed in this prayer appears to be
anti-competitive, difficult to
implement and further imposes
contractual obligation on the manufacturers which may be difficult
for this court to supervise. In
arriving at this conclusion I have
no regard to the
Medicines and Related Substances Control Amendment
Act of 1997
which has introduced a single-exit price which would in
any event make prayer 8 difficult to enforce.
PRAYERS 9, 10 &
11
[24] These prayers are
incompetent since as adverted to earlier there exists a new reality
and the conduct sought to be interdicted
has already occurred. In
particular the relief sought in prayer 11 is not borne out by the
papers.
[25] In
the premises I agree wholeheartedly with counsel for the
manufacturers that the relief in paragraphs 3 to 11 is moribund.
[26] Can the wholesalers
rely on the
clausule
salutare
or
the omnibus prayer as it is often referred to ask for the amended
relief which was refused by the Lewis Tribunal? As pointed out
earlier, the refusal by the Lewis Tribunal to grant the amendment on
the pen-ultimate day of the hearing is not on appeal before
us. In
any event the extent to which a tribunal or court can grant amended
relief under the
clausule
salutare
is
as observed by Van Reenen J in
Combustion
Technology (Pty) Ltd v Technoburn (Pty)Ltd
2003 (1) SA 265
(C) para [11] ‘not devoid of difficulty’. Para
11 of the judgment dealing with a
clausule
salutare
is
worthy of repetition:
“
Isaacs
Beck’s Theory and
Principles of Pleading in Civil Actions
5
th
ed at 61 says that it ‘cannot be precisely indicated’, whilst
Erasmus
et al Supreme Court
Practice
at B1-130A content
themselves with that it ‘will not assist a plaintiff who seeks
relief of quite a different nature from that
asked for in the
summons’. It is not possible to distil generally applicable
criteria from the decided cases in which the ambit
of a prayer of
that nature (the so-called
clausule
salutare)
has been
considered. (See
Trustees
of the Orange River Land and Asbestos Co v King and Others
6 HCG 260;
Colonial
Treasurer v Senekal Municipality
1910
OPD 7
;
Queensland Insurance
Co Ltd v Banque Commerciale Africaine
1946
AD 272
at 286; Rooibokoord Sitrus (Edms) Bpk v Louw’s Creek Sitrus
Koőperatiewe Maatskappy Bpk
1964 (3) SA 601
(T) at 608A;
Luzon
Investments (Pty) Ltd v Strand Municipality and Another
1990 (1) SA 213
(C) at 229G-230B.) Berman
J in
Port Nolloth
Municipality v Xhalisa and Others; Luwalala and Others v Port Nolloth
Municipality
1991 (3) SA 98
(C) at 112 D-F provided the following, in my respectful view,
instructive exposition thereof:
‘
Such
a prayer can be invoked to justify or entitle a party to an order in
terms other than that set out in the notice of motion (or
summons or
declaration) where that order is clearly indicated in the founding
(and other) affidavits (or in the pleadings) and is
established by
satisfactory evidence on the papers (or is given), cf
Trustees
of the Orange River Land and Asbestos Co v King and Others
6
HCG 260 at 296-7. Relief under this prayer cannot be granted which
is substantially different to that specifically claimed, unless
the
basis therefor has been fully canvassed, viz the party against whom
such relief is to be granted has been fully apprised that
relief in
this particular form is being sought and has had the fullest
opportunity of dealing with the claim for relief being pressed
under
the head of “further and/or alternative relief””.
[27] The above
requirements are not fulfilled by the papers before us. Thus prayer
13 for “further and/or alternative relief”
cannot be a
carte-blanche for parties to claim whatever relief they deem
appropriate and to seek the same at the hearing of the matter
or for
a court
mero
motu
to
grant whatever relief it considers appropriate in circumstances as in
this case where the wholesalers were given an ample opportunity
to
pin their colours to the mast in order for the manufacturers to
properly respond to the relief sought. They are in circumstances
the
authors of their own misfortune. This appeal falls to be dismissed
on this further ground.
[28] It
is therefore unnecessary to consider the further merits of the appeal
save to say that but for the extravagant language at
times, no fault
in general can be found in the Lewis Tribunal’s reasoning on the
merits of the appeal and in particular against
the Tribunal’s
finding that the balance of convenience does not favour the
wholesalers in the grant of any interim relief.
[29] I
need however to advert to two further matters in order to arrive at
an appropriate order for costs. On the wholesalers own
version there
was no basis for the relief sought against Pharmacare since they at
all times have had competitive access to their
products. Pharmacare
at all time applied the 10% discount structure to the wholesalers and
this dispensation continued with the
advent of the EDA dispensation.
Nor, on the papers, is there even a scintilla of evidence to show
that Pharmacare had threatened
a deviation from this dispensation or
had threatened to treat the wholesalers any differently from the
EDA. The Lewis Tribunal,
in my view, correctly found that the claim
against Pharmacare was baseless and inappropriate. An appropriate
costs order is warranted
under the circumstances. In my view
Pharmcare is entitled to a special costs order on an attorney and
client scale.
[30] Having
taken into account the circumstances of the appellants’ non
compliance with
rule 19
and the merits of the appeal, I am of the
view as there are no real prospects of success the granting of
condonation would not be
warranted.
[31] The
manufacturers have cross-appealed against the Lewis Tribunal’s
failure to include in the costs order an order to include
the
qualifying fees of experts used by the manufacturers in preparing
their papers in opposition to this application. No reasons
are given
by the Lewis Tribunal. However, the costs order granted by the Lewis
Tribunal, in my view, is correct since the wholesalers
would be
required to utilize the evidence tendered by these experts in the
main application. Either the Tribunal or, if necessary,
this court
would then be in a better position to rule an appropriate order with
regards to the qualifying fees of the experts. The
cross-appeal is
dismissed with costs.
[32] In
the premises the application for condonation is accordingly refused
with costs, the latter to include the respondent’s costs
in
relation to the appeal save that the appellants are ordered to pay
the third Respondent’s (Pharmacare Limited) costs of appeal
on an
attorney and own client basis. The eighth appellant, in liquidation,
is exempted from paying the costs occasioned by the hearing
of this
application.
_________________________
PATEL
A.J.A.
JALI
et SELIKOWITZ J.J.A. concurring