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[2001] ZACAC 5
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Schering (Pty) Ltd and Others v New United Pharmaceutical Distributors (Pty) Ltd. [formerly Mainstreet 2 (Pty) Ltd] and Others [2001] ZACAC 5; [2001] ZACAC 5 (30 November 2001)
IN
THE COMPETITION APPEAL COURT OF SOUTH AFRICA
CASE
NO.: 11/CAC/AUG01
In
the matter between:
SCHERING
[PTY] LTD. FIRST APPELLANT
MSD
[PTY] LTD. SECOND APPELLANT
NOVARTIS
SA [PTY] LTD. THIRD APPELLANT
ROCHE
PRODUCTS [PTY] LTD. FOURTH APPELLANT
BOEHRINGER-INGELHEM
PHARMACEUTICALS
[PTY] LTD. FIFTH APPELLANT
BRISTOL
MYERS SQUIBB [PTY] LTD. SIXTH APPELLANT
ABBOTT
LABORATORIES SA [PTY] LTD. SEVENTH APPELLANT
BAYER
[PTY] LTD. EIGHTH APPELLANT
ELI
LILLY SA [PTY] LTD. NINTH APPELLANT
WYETH
SA [PTY] LTD. TENTH APPELLANT
AVENTIS
PHARMA [PTY] LTD. ELEVENTH APPELLANT
INTERNATIONAL
HEALTHCARE
DISTRIBUTORS
[PTY] LTD. TWELFTH APPELLANT
SANOFI-SYNTHELOBO
[PTY] LTD. THIRTEENTH APPELANT
And
NEW
UNITED PHARMACEUTICAL
DISTRIBUTORS
[PTY] LTD.
[formerly
MAINSTREET 2 [PTY] LTD.] FIRST RESPONDENT
NATAL
WHOLESALE CHEMISTS [PTY]
T/a
ALPHA PHARM DURBAN SECOND RESPONDENT
MIDLANDS
WHOLESALE CHEMISTS
[PTY]
LTD. t/a ALPHA PHARM
PIETERMARITZBURG THIRD
RESPONDENT
EAST
CAPE PHARMACEUTICALS LTD.
T/a
ALPHA PHARM EASTERN CAPE FOURTH RESPONDENT
FREE
STATE BUYING ASSOCIATION
LTD.
t/a ALPHA PHARM BLOEMFONTEIN
[KEMCO] FIFTH
RESPONDENT
PHARMED
PHARMACEUTICALS LTD. SIXTH RESPONDENT
AGM
PHARMACEUTICALS LTD.
T/a
DOCMED SEVENTH RESPONDENT
LâETANGS
WHOLESALE CHEMISTS
T/a
LâETANGS EIGHTH RESPONDENT
RESEPKOR
[PTY] LTD. t/a RESKOR
PHARMACEUTICAL
WHOLESALERS NINTH RESPONDENT
THE
COMPETITION COMMISSION TENTH RESPONDENT
JUDGEMENT
JALI
J.A.
INTRODUCTION:
Appellants
applied to the Competition Tribunal [âthe Tribunalâ] for the
dismissal of an application for interim relief brought
on a
conditional basis by first to ninth respondents in terms of
Section
59
of the
Competition Act 89 of 1998
[âthe Actâ].
The
application for dismissal was refused by the Tribunal and it is
against this decision that the appellants have approached this
Court.
THE
BACKGROUND
On
the 11
th
October 1999, the Respondents lodged a complaint, in terms of
Section
44
of the Act with the Competition Commission against the Appellants.
The Appellants are manufacturers in the pharmaceutical industry
and
the Respondents are wholesalers and distributors in the same
industry. The 12
th
Appellant is a distribution agent wholly owned by the Appellants
other than the 13
th
Appellant. In the said complaint it was alleged that the Appellants
were participating in prohibited practices in contravention of
Sections 4
,
5
,
8
and
9
of the Act.
On
the 20
th
December 1999, the Respondents lodged their application for interim
relief in terms of
Section 59[1]
of the Act. [âthe First Interim
Relief Applicationâ.]
On
the 17
th
February 2000, the Competition Commission accepted the
Section 44
complaint in terms of
Rule 17[2]
of the old Commission Rules. On the
29
th
February 2000, the Appellants filed their Answering Affidavits to the
First Interim Relief Application.
On
the 15
th
March 2000, the Respondents requested an extension of time to file
the Replying Affidavit by the 30
th
April 2000 [âthe first requestâ]. On the 25
th
April 2000, the Respondents requested a further extension of time to
file their replying affidavit by the 19
th
June 2000 [âthe second requestâ]. The second Appellant agreed to
the first and second requests on the 21
st
April 2000 and 2
nd
May 2000 respectively.
On
the 2
nd
May 2000, the Respondents brought an application for extension of
time until the 19
th
June 2000, for the filing of the replying affidavit. This application
was opposed by nine of their remaining twelve Appellants. One
of them
subsequently withdrew its opposition. They filed opposing affidavits
and the last one was filed on the 31
st
May 2000. The application for extension of time was also set down for
the 31
st
May 2000 before the Competition Tribunal. As a result of the
premature set down of the hearing, the application was removed from
the roll. On the 6
th
June 2000, the Respondents withdrew the application for an extension
of time and advised the Appellants accordingly and the fact
that once
the replying affidavit was ready, an application for condonation for
the late filing of the replying affidavit would also
be filed. The
Appellants thereafter moved an application for costs against the
Respondents.
On
the 14
th
July 2000, the Appellants raised with the Respondents a
jurisdictional point that the Respondents lacked locus standi to file
the
first interim relief application because the complaint had not
been accepted by the Commission prior to the lodging of the first
interim relief application. On the 19
th
July 2000, the Respondents, replied to the Appellantsâ letter
raising the jurisdictional point which had been raised, they would
not be filing the replying affidavit. On the 20
th
July 2000, Attorney Cohen, acting for some of the Appellants, advised
the Respondentsâ Attorneys that he was applying for a date
of
hearing before the Tribunal to rule on the point in limine as to
whether or not the Respondentsâ application in terms of Section
59
was defective.
On
the 1
st
August 2000, the first Appellant filed an application to dismiss the
first interim relief application as the application had been
filed
prematurely. On the 23
rd
August 2000, a similar application was filed by the other Appellants.
The Respondents opposed these applications. The applications
were
argued before the Tribunal on the 15
th
November 2000.
On
the 29
th
November 2000, the Tribunal dismissed the first interim relief
application because the Respondents did not have a locus standi.
Furthermore,
although the Tribunal granted costs of the dismissal
application, it decided not to award costs of the first interim
relief application
and, instead, reserved the determination of those
costs for its decision on a renewed application for interim relief.
The Tribunal
gave the Respondents until the 31
st
January 2001, to file and serve a renewed interim relief application
[âthe November Orderâ].
On
or about the 14
th
December 2000, a notice to appeal the November Order was filed by the
Appellants. The appeal was in respect of the Costs Order. On
the 22
nd
December 2000, the Respondents cross appealed. Later, but for one,
Appellants did not pursue the appeal.
On
the 30
th
January 2001, the Respondents proceeded to lodge a second interim
relief application. It was conditional upon the dismissal of the
cross appeal.
On
the 23
rd
May 2001, the appeal was heard by this Court and judgement was
reserved. On the 14
th
June 2001, this Court dismissed the appeal and the cross appeal.
On
the 12
th
September 2001, the Appellants lodged another application with the
Tribunal. This application was for the dismissal of the second
interim relief application because the Appellants were of the view
that, firstly, the Second Interim Relief application amounted
to
abuse of the Court process and was dismissable because of the
Respondents inexcusable and unreasonable delay in proceeding with
the
application. Secondly, they contended that the second interim relief
application was not a competent application because it lacked
proper
foundation, as amongst other defects, it relied solely on affidavits
and allegations prepared in 1999. The Tribunal dismissed
this
application, with costs, which judgement now forms the subject matter
of this appeal.
THE
APPEAL
At
the appeal hearing, it was common cause amongst the parties that
firstly, after its investigation, the Commission had determined
that
prohibited practices had been established in respect of Sections 4,
5, 8 and 9 of the Act and that the complaint was referred
to the
Tribunal on the 2
nd
May 2001.The Appellants have launched proceedings in both the
Tribunal and the High Court to stop the Commissionâs referral of
the complaint to the Tribunal.
Secondly,
on 8
th
June 2000, the Respondents referred another complaint of prohibited
practice which had been allegedly committed by members of the
Strategic Alliance Investments [Pty] Ltd. [âSAIâ] exclusive
distribution arrangement. This complaint was lodged in terms of
Section
44 of the Act. Subsequently, the Respondents had also lodged
an interim relief application in terms of Section 59 of the Act
against
the SAI Respondents. On the 9
th
June 2000, the SAI Respondents brought an urgent application in the
Transvaal Provincial Division of the High Court under case no.
14580/2000, to prevent the hearing of the interim relief application
before the Tribunal. The matter was argued in the afternoon
and
evening of the 9
th
June 2000. From the 9
th
to the 11
th
June 2000, supplementary affidavits were exchanged by the parties. On
the 13
th
June 2000, the High Court delivered its decision in which the SAI
Respondentsâ application was dismissed.
The
Respondents, who were applicants in the SAI matter had to file their
replying affidavits on the 13
th
July 2000. The Section 59 interim application in the SAI matter was
scheduled for hearing on the 15
th
June 2000. The matter was eventually postponed to the 25
th
July 2000, due to non-availability of panel members. On the 22
nd
June 2000, the SAI Respondents filed a notice of application for
leave to appeal against the High Court decision. On the 25
th
to the 27
th
July 2000, the Section 59 application was heard by the Tribunal. On
the 28
th
August 2000, the Tribunal decision in the SAI interim relief
application was delivered by the Tribunal.
Mr
Unterhalter, who appeared together with Mr Wilson, submitted that
there was a delay in the lodging of the second interim relief
application and the second interim relief application had no
foundation. Thus, viewed holistically, respondentsâ conduct
amounted
to an abuse of the Court process. Mr Unterhalter submitted
that it was an established principle of our law that a Court of law,
including
this particular Court, is entitled to protect itself and
others against abuse of its processes. This is the principle which
underlies
the Courtâs readiness to intervene where there is an
abuse of its processes.
In
STANDARD CREDIT
CORPORATION V BESTER AND OTHERS 1987[1] SA [W] at 820A-B
the Court described the
abuse of the Court process as:
â
In
general terms, however, an abuse of the process of the court can be
said to take place when its procedure is used by a litigant
for a
purpose for which it was not intended or designed, to the prejudice
or potential prejudice of the other party to the proceedings.â
In
BEINASH V WIXLEY 1997[3]
SA 721 [SCA] AT 734F-G,
Mahomed C J, succinctly set out the applicable legal principle as
follows:
â
What
does constitute an abuse of process of the Court is a matter which
needs to be determined by the circumstances of each case.
There can
be no all-encompassing definition of the concept of âabuse of
processâ. It can be said in general terms, however, that
an abuse
of process takes place where the procedures permitted by the rules of
court to facilitate the pursuit of the truth are used
for purposes
extraneous to that objective.â
The dictum in
BEINASH
V WIXLEY
,
was
cited with approval in
HART
AND ANOTHER V NELSON 2000[4] SA 368 [ECD] AT 374H-375E, BRUMMER V
GORFIL BROS. INVESTMENTS [PTY] LTD 1999 [3] SA 389 [SCA].
It
is clear from these judgements that, in deciding whether there was an
abuse of the Court process, consideration must be given to
all the
facts of the particular matter; in particular, whether there was any
delay or an ulterior motive by the Respondents in the
manner in which
they handled this matter.
The
application, which is the subject matter of this appeal, is the
second interim relief application. The application was based upon
the
provisions of Section 59 [1] of the Act. Section 59 [1] provides:
â
At
any time, whether or not a hearing has commenced into an alleged
prohibited practice, a person referred to in Section 44 may apply
to
the Competition Tribunal for an interim order in respect of that
alleged practice, and the Tribunal may grant such 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.â
The
person referred to in Section 44 will be a person who has lodged a
complaint against a prohibited practice. In this case it is
the
Respondents who have lodged the complaint against the Appellants.
Accordingly, the Respondents in this matter had the necessary
locus
standi file the interim relief application. It is apparent from the
provisions of the Act, that the Respondents are entitled
to file an
interim relief application at any time after lodging a complaint with
the Commission. Accordingly, there is no time limit
in which the
interim relief application is to be filed. I am of the view however
that, it has to be lodged within a reasonable time,
particularly in
view of the nature of the prohibited practice in respect of which the
interim relief is being sought.
I
agree with Mr Unterhalterâs submission that the interim relief
order sought by the Respondents is at common law an extraordinary
remedy within the discretion of the Court. [see
ERIKSEN
MOTORS [WELKOM] LTD. V PROTEA MOTORS, WARRENTON AND ANOTHER 1973 [3]
SA 685 [A] AT 691 C].
Accordingly, the interim relief under the Act, should be interpreted
narrowly. Interim relief is a special remedy which grants relief
in
the case of immediate or threatening harm. It is granted between the
time of the order and the final determination of the dispute
between
the parties in order to avoid undue prejudice while proceedings are
pending. Thus undue delay is inconsistent with the essential
attributes of the remedy of interim relief. In this regard, Mr
Unterhalter referred to the decisions in
JUTA
& CO. V LEGAL AND FINANCIAL PUBLISHING CO. [PTY] LTD. 1969 [4] SA
443 [C] AT 445B; CHOPRA V AVALON CINEMAS SA [PTY] LTD.
AND ANOTHER
1974 [1] SA 469 [D] AT 472 C AND MCILONGO N O V MINISTER OF LAW AND
ORDER AND OTHERS 1990 [4] SA 181 [E] AT 185H-I.
I am in full agreement with the principles enunciated in all of these
judgements. However it is not for this court to decide whether
the
requirements of Section 59[1] are met by the Respondentsâ interim
relief application. This court will have to consider the
facts in
this case to consider whether there has been a delay which can be
classified as an abuse of the Court process.
I
did not understand Mr Unterhalter to have complained about the first
interim relief application. That application was lodged timeously,
even though it had its own problems in that it was in fact lodged
prematurely, if one considers the provisions of the Act and the
findings of the Tribunal. My understanding of Mr Unterhalterâs
argument was that his main complaint concerned the delay in the
filing of the replying affidavit by the Respondents or, the failure
to file the replying affidavit by the Respondents at all in this
matter.
The
fact that the Respondents proceeded with an application for an
extension of time, which was eventually abandoned when it was opposed
by some of the Appellants is, in my view, also not an indication of
the fact that they did not intend to proceed with application
of the
interim relief. I do not consider that it was necessary for them to
proceed with an application for an extension of time,
at that stage
of the proceedings. The fact that they chose to proceed with an
application for an extension of time may have been
as a result of
being improperly advised, as the same result would have been achieved
by applying for condonation at a later stage
when the replying
affidavit was being filed. This was what they eventually resolved to
do. Be that as it may, it is also not an indication
of the abuse of
the Court process, as defined in the judgements cited above. In fact,
it fortifies the Respondents position that
they intended to proceed
with this particular application.
Mr
Unterhalter also submitted that the fact that the Respondents chose
to litigate on all fronts was another cause of the delay in
that they
pursued the SAI matter instead of finalizing this particular
application. Mr Unterhalter may be correct in theory. However,
practically a litigant would use the same legal team where the issues
overlapped unless such litigant has sufficient resources to
employ
another legal team which would firstly have to familiarize itself
with the facts of the matter.
Turning
to the jurisdictional point, which was raised and, eventually,
decided in favour of the Appellants, it is apparent from the
correspondence which was exchanged between the parties that this
point was raised for the first time on 14
th
July 2000. Furthermore, on the 20
th
July 2000, Attorney Cohen indicated that he was going to apply to the
Tribunal to decide the jurisdictional point. However, an application
was eventually lodged on the 1
st
August 2000, to dismiss the first interim application. Mr Unterhalter
submitted that the Respondents should have withdrawn that premature
interim relief application instead of defending same up to the appeal
stage. I disagree. Firstly, the Respondents took a different
view of
the interpretation, which is to be given to Section 44 of the Act.
This position was clearly explained in their letter of
the 19
th
July 2000. They were of a different opinion and consequently, they
elected to defend the application to dismiss. They were entitled
to
defend the said application. They may have been found to have been
wrong eventually by the Tribunal, however, they were still
acting
within their right and one cannot fault them for doing so. In any
event, it was a new act and it had not been interpreted
by the
Tribunal or this Court. There was no case law from the Tribunal or
this Court to guide them as to the interpretation to be
given to the
relevant provisions of the Act. Secondly, I am of the view that
defending the said application is, once again, an indication
of their
determination to pursue the application of the interim relief. In the
premises, I cannot draw the inference, which Mr Unterhalter
has asked
this Court to draw that it was an attempt to delay this matter
further. Such an inference is not supported by any proven
facts.
Resolving this matter may have taken longer than expected, as the
Tribunal delivered its judgement on the 29
th
November 2000. However, this could not have been what was anticipated
by the parties when the application was moved on the 1
st
August 2000.
Be
that as it may, its judgement, the Tribunal made a finding that the
application was of a purely âtechnicalâ nature and could
not have
been avoided. I cannot state this fact any better than the Tribunal
has stated it. It is clear from the approach of the
Appellants that
with regard to this particular point they were the
dominus
litis
and any delay which
might have occurred to the application for interim relief as a result
of this intervening application, must be
placed at the door of the
Appellants as opposed to the respondents. The matter is complicated
further by the fact that after the
Tribunal had delivered its
November Order/judgement, it was the Appellants who lodged an appeal
against the decision of the Tribunal.
It was this appeal which was
eventually finalized on the 14
th
June 2001. In the circumstances, for the period 1
st
August 200 to the 14
th
June 2001, I am of the view that the Respondents are not to blame for
any delay which might have occurred during that period for
the
reasons which I have already stated simply put it was the Appellants
who were
dominus litis
.
The Respondents were merely defending the application with the sole
intention of protecting their rights as the withdrawal of the
interim
relief application, has its own consequences in the form of legal
costs to be incurred.
Even
if I am incorrect in my finding with regard to the fact that for the
period 1
st
August 2000 to the 14
th
June 2001, the Respondents cannot be blamed for the delay in the
finalisation of the matter for the period 30
th
March 2001 to the 14 June 2001. The matter was originally set down
for the 30
th
March 2001 and due to the non-availability of the members of this
Court, the appeal could not be heard on that day. It was eventually
heard on the 23
rd
March 2001. The Respondents determination to have this matter
finalized, is also shown by the fact that on the 30
th
January 2001, the second interim relief application was filed. This
was done prior to the finalisation of the appeal, which had been
lodged in respect of the first interim relief application. This is
not consistent with the view taken by the Appellants that Respondents
never intended to pursue the interim relief application.
The
Appellants also blamed the Respondents for failing to have either the
appeal or the cross appeal in respect of the first interim
relief
application decided on an urgent or ex parte basis before this Court.
I have my difficulties with this submission for the
reason that
firstly, it was the Appellants who lodged the appeal and the
Respondents merely cross-appealed. Secondly, even if I were
to find
that the Respondents should have attempted to have the appeal and
cross appeal decided on an urgent or expedited basis, I
do not
understand why the Appellants did not do so. There is no evidence to
indicate that the Appellants did try to have the application
decided
on an expedited basis. Lastly, to me that is not an indication of an
abuse of the Court process. No such inference can be
drawn from these
facts.
Mr
Unterhalter submitted that the launching of the second interim relief
application by the Respondents was not bona fide in that
the only
reason for lodging the said application was to avoid the adverse cost
implication that would have followed the withdrawal
of the 1999
application or failure to launch an interim relief application on or
before the 31
st
January 2001. In this regard he seeks to regain support from the fact
that the Respondents used the same affidavit as had been employed
in
the first interim relief application, save for an additional
affidavit which was filed by a Mr Kevin Michael Vyvyan-day in support
of the second interim relief application.
Mr
Unterhalter further submitted that in the November order the Tribunal
contemplated that the Respondents were to âfile and serve
a renewed
application by not later than the 31
st
January 2001â. According to him this was interpreted by this Court
in the 14
th
June 2001 judgement to mean that the âmain application will be
resuscitated by a fresh application brought by the Respondentsâ.
Thus the use of the old affidavits was not in accordance with what
was contemplated by the Tribunal and the interpretation given
to the
November order by this Court.
I
fail to understand how it could be said that the Respondents were not
bona fide in lodging the second interim application. It is
clear that
it was their intention to proceed with the interim relief
application. I cannot see it as merely an attempt to avoid the
payment of costs, which would have followed in the event of them
failing to file same by that time. Obviously, if they had failed
to
file the second interim relief Application by the 31
st
January 2001, they would have incurred costs. Why should they incur
costs if they still intended to proceed with the interim relief
application? In any event, the question of costs has not disappeared.
The question of costs will still have to be decided by the
Court
which will hear the main application. The main application would be
heard as soon as all the parties have filed the necessary
pleadings,
which need to be filed. The finalisation of the main application is
currently delayed by the appellants failure to file
an answering
affidavit to the second interim relief application. Instead of filing
an answering affidavit to the second interim relief
application, they
moved this application.
Mr
Unterhalter also submitted that this Court in exercising its
supervisory function over the Commission and the Tribunal, should
ensure compliance with the rules of the Tribunal and the Commission.
In this regard, he referred to the use of the 1999 affidavits
by the
Respondents.
This
Court does not take kindly to dilatory actions or an abuse of its
rules. However, in this case, it is clear that not only was
a new
founding affidavit which was signed on the 29
th
January 2001, by Mr Vyvyan-Day on behalf of the Respondents Boards of
Directors adopted a new resolution in terms of which they directed
Mr
Vyvyan-Day to lodge a new Section 59 application against the
Appellants and also to sign the necessary affidavits. In deposing
to
the affidavits, he clearly made reference to the fact that the âterms
of the interim relief order in the new Notice of Motion
are identical
to those contained in the Notice of Motion in the dismissed Section
59 application.â Furthermore, he made reference
to the fact that
âthe founding Affidavit that supports the new Section 59
application is exactly the same one that which supported
the
dismissed Section 59 applicationâ and is annexed to the Affidavit
marked âKVD 3â. In the founding affidavit he then went
on to
confirm all the changes which the Court was to note which had
occurred, namely the liquidation of AGM Pharmaceuticals Ltd.
t/a
Docmed, the change of name of the first Respondent, the formation of
another distribution company which has led to a new section
44
complaint and another Section 59 application against the SAI
initiative and the correction of the name of the Sixth Appellant
who
had been incorrectly cited in the dismissed first interim relief
application.
Mr
Unterhalter was of the view that the affidavit was defective in that
it failed to stipulate that the circumstances had not changed.
To put
it differently, it behoved respondents to state what circumstances
which prevailed in 1999, still prevailed in 2001 when the
second
interim relief application was lodged. I agree with Mr Unterhalter
that this would have been the most eloquent way of putting
it. That
would have placed this issue beyond any doubt. However, I do not
consider that the matter in which the Respondents stated
these facts
fails to comply with the legal requirements for them to obtain the
interim relief.
The
deponent of the Respondentsâ affidavit sets out what changes have
occurred after the launching of the first interim relief application.
By implication, whatever has not been stated or mentioned as having
changed remains the same because read together with Mr Vyvyan-Dayâs
affidavit, the original affidavit constitutes its case for the second
application. Furthermore, in reading the affidavit, it was
clearly
stated that the harm, which the Respondents were suffering â will
continue on a daily basis unless interim relief is granted.â
Interim relief has not been granted as the first application was
dismissed for the Respondents lack of locus standi. If interim relief
has not been granted then, the position has not altered, and harm
which they are suffering continues.
In
the light of the aforegoing, I disagree that the second interim
relief application constituted the perpetuation of the first interim
relief application which sought to ventilate stale issues that were
not prosecuted with reasonable expedition and unreasonable delays.
The
Appellants have not filed any affidavit to challenge the allegations
which have been raised by the Respondents in the papers before
Court
as set out in the second interim relief Application. Instead the
Appellants have chosen to file an affidavit which has been
deposed to
by their legal representative in support of this application. In
their affidavits their representatives challenged the
veracity of the
allegations raised in the Respondentsâ affidavits. I have my doubts
about this approach. Legal representatives
are not necessarily the
best people to testify about the practices of their clients unless
they had set out circumstances from which
the Court would be
justified in coming to the conclusion that the facts of the case were
within their personal knowledge. They can
testify about procedural
issues which are referred to in the affidavits and which occurred
whilst they were handling the matters.
It is a known fact that in
application proceedings, affidavits constitute both the pleadings and
the evidence [see
RADEBE
& OTHERS VS EASTERN TRANSVAAL DEVELOPMENT BOARD 1988[2] SA 785
[A] AT 793C-G]
.
In
the premises, this Court cannot attach too much weight to the
challenges to the Affidavit of Mr Vyvyan-Day, with regard to the
Appellants practices which are contained in the Appellantsâ
Affidavits.
Mr
Unterhalter further submitted that the second interim relief
application was a conditional application and the Respondent was not
entitled to unilaterally impose such a condition in moving the
application. It was an abuse of the Court process and for this reason
the said application should also be dismissed. Mr Nelson denied that
it was improper for the Respondents to impose such a condition.
He
contended that it was conditional upon the dismissal of the appeal
and I came into effect as soon as the appeal was dismissed
on the
14
th
June 2001.
I
have difficulty with this submission. It clearly shows the attitude
of Appellants in this matter. If the Respondents had not filed
the
conditional application as they did, what would have been the case if
the cross-appeal had succeeded? They would have been left
with two
interim relief applications one of which had to be with drawn. In
doing so, they would have had to incur further costs as
the
withdrawal would have invited a costs order against them. However, in
my view this was the most appropriate manner of dealing
with the
situation in which they found themselves. Furthermore, when this
Court enquired from Mr Unterhalter as to what prejudice
was caused to
the Appellants by the conditional application, which was before them.
Once again, I have difficulty in accepting this
submission. I think
sight has been lost of the fact that they have never filed an
answering affidavit in response to the second interim
relief
Application. It is clear that no prejudice has been caused. In fact,
instead of causing prejudice, it avoided prejudice, which
might have
been caused to the parties if the application had not been filed
timeously. As I have already indicated, the question
of costs in
respect of the first interim relief application has not âdied a
natural deathâ because it will still have to be dealt
with when the
main application is being argued.
Mr
Nelson relied on a passage in Laws of South Africa Vol. 3, [para. 10]
to contend that a party can file a conditional counter-claim
in
proceedings. I agree that there is such a provision. However, that
relates to a counterclaim and there is provision for this in
the High
Court Rules [see Rule 24[4] of the High Court Rules]. However, if one
considers the fact that there is provision in the
High Court Rules,
it clearly shows that this must be an acceptable procedure in our
Courts, even though there is no such provision
in the Competition
Appeal Court Rules or Competition Tribunal Rules. If rules do not
cater for a particular situation, this Court
has a discretion to
allow such a procedure if no prejudice can be demonstrated. [See
NCOWENI V BEZUIDENHOUT
1927 CPD 130]
. Rules
of Court are for the convenience of Court and they are not to stand
in the way of the Court in its endeavour to fulfil the
purposes of
this Act or the Courtâs pursuit of justice. Undue formalism in
procedural matters is always to be avoided.
For
the reasons set out above, I am of the view that there was no
behaviour on the side of the Respondents which overstepped the
threshold
of legitimacy and which would have justified this Court in
holding that there was an abuse of the Court process.
The
Respondents raised a number of points, on the basis of which they
were resisting this appeal. In the light of the conclusion,
which I
have reached, I do not intend dealing with those other points.
In
the light of the aforegoing, the appeal is dismissed with costs, such
costs to include the costs incurred upon the employment of
two
Counsel
JALI
J.A.
DAVIS
J.P. and MAILULA A.J.A. concurring.
18