COMPETITION TRIBUNAL
REPUBLIC OF SOUTH AFRICA
Case No: 51/IR/Apr00
In the matter between:
PAPERCOR CC Applicant
and
FINWOOD PAPERS (PTY) LTD First Respondent
NAMPAK PRODUCTS LTD t/a PETERS
& SPICERS respectively Second Respondent
ARJO WIGGINS MERCHANTS SA LTD t/a
HADDONSSTAR & FIRST PAPER HOUSE Third Respondent
PAPERLINK (PTY) LIMITED Fourth Respondent
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REASONS AND ORDER
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BACKGROUND
1. This interim relief application was set down for hearing on 11 October
2000 with the consent of all the parties. On the day of the hearing we were
advised by Mr. Kahn, the applicant’s attorney that he was applying for a
postponement. Firstly the applicant wanted to make an application to join
two other parties to the proceedings and secondly he had briefed counsel to
appear for him on the day and he had been advised only on the morning of
the hearing that his counsel was ill and could not appear for him.
2. The respondents all opposed the application and said they would be
prejudiced by any further postponement even if costs were tendered. Most
importantly they wanted to argue a point in limine that the application was
defective. If the point in limine was successful it would lead to the
dismissal of the application. The joinder of further respondents would not
cure this defect and it made sense to settle this point now. Some of the
respondents had alerted the applicant to this point in their answering
papers and had mentioned that they wanted to take the point at the pre
hearing conference on 28 August 2000. The respondents, who had filed
their heads of argument before the applicant, had also dealt with this point
fully in their heads. The applicant neither dealt with the point in its
replying affidavits nor more significantly in its heads of argument. We
decided to hear argument on the point in limine, as any further delay in the
proceedings would prejudice the respondents. Furthermore the point
seemed unanswerable and the applicant had thus far failed to indicate that
it had any answer to it. As Mr. Kahn, who had drawn the papers, would in
any event still represent the applicant we agreed to hear the point in limine
although we gave Mr. Kahn an opportunity to consult his counsel and to
prepare argument on the point. Two other interlocutory applications were
before us. The one, to condone the late filing of the first respondent’s
answering affidavit was not opposed and we granted condonation. The
other, which had been brought by the first respondent, to require the
applicant to provide security for its costs was withdrawn.
THE POINT IN LIMINE
3. The facts upon which the point in limine is based are common cause. On
20 April 2000 the applicant filed an application with the Tribunal, for
interim relief in terms of section 59 of Act 89 of 1998. The applicant
served a copy of the application on the Commission on the same day. A
complaint against the respondents was only lodged with the Commission
on 18 May 2000, approximately a month after the interim relief application
was filed with us. The Commission accepted the complaint in terms of
section 44 read together with Rule 17(2), of its rules, on 8 June 2000. The
section 44 read together with Rule 17(2), of its rules, on 8 June 2000. The
Commissioner has never initiated a complaint against the respondents in
the manner contemplated in section 44.
4. The relevant provisions of section 59, in terms of which the application
was filed, reads as follows:
“59. Interim relief
(1) At anytime 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…
2) an interim order in terms of this section must not extend
beyond the earlier of
(a) the conclusion of a hearing into the alleged
prohibited practice ; or
(b) the date that is six months after the date of issue of
the interim order.”
5. In turn section 44 provides as follows:
“44. Initiating a complaint
A complaint against a prohibited practice by a firm may be
initiated by the Commissioner, or submitted to the
Competition Commission by any person in the prescribed
manner.”
6. The respondents argued that because the applicant had filed an interim
relief application with us before it had lodged a complaint in respect of
those practices with the Commission a jurisdictional precondition for
granting of interim relief had not been satisfied. It is an established
principle of our law that where the exercise of a statutory power depends
on the existence of a certain condition, the power cannot be validly
exercised in the absence of that condition. In the SA Defence and Aid
Fund case1 the High Court stated:
“Upon a proper construction of the legislation concerned, a
jurisdictional fact may fall into one or other of two broad
categories. It may consist of a fact, or state of affairs, which,
objectively speaking, must have existed before the statutory power
could validly be exercised. In such a case, the objective existence of
the jurisdictional fact as a prelude to the exercise of that power in
a particular case is justiciable in a court of law. If the court finds
that objectively the facts did not exist, it may then declare invalid
the purported exercise of the power…”
7. We find that the submission of a complaint in the manner prescribed by
the Commission Rules is a prerequisite for an application for interim relief.
Until a person has submitted a complaint they are not a person “referred
to in section 44” , hence for the purpose of section 59 competent to apply
for an interim order. The fact that subsequent to the institution of these
for an interim order. The fact that subsequent to the institution of these
proceedings the applicant had submitted its complaint does not help
validate what already is a nullity. This is not mere formalism. A remedy
cannot be “interim” if the very procedure to which it is ancillary has not
yet been invoked. The logic of section 59(2) further strengthens this
1 SA Defence and Aid Fund v Minister of Justice 1967 [1] SA 31 (C)
interpretation. It would make no sense to speak of the “conclusion of a
hearing into an alleged prohibitive practice” in the context of the duration
of an interim order if the complaint of that prohibited practice had not been
submitted prior the application being launched. Any other interpretation
would allow an applicant to opportunistically delay the date for the
conclusion of a hearing into the prohibited practice by submitting a
complaint late. 2Furthermore since we are a creature of statute we have no
inherent jurisdiction to hear an application for interim relief that does not
conform to the strictures of our enabling statute.
8. The applicant sought to rely on the provisions of section 52(2)(d) to justify
why we should hear this matter. Section 52(2)(d) enjoins us to conduct our
hearings in accordance with the principles of natural justice. The applicant
argued that the approach adopted by the respondents to these proceedings
is unduly technical. They argued that effect of the order sought by the
respondents is that the applicant would be denied an opportunity to be
heard, and that such a result is contrary to the principles of natural justice.
9. This argument cannot succeed. The Tribunal is a creature of statute, its
powers emanate exclusively from its enabling statute. A prior
jurisdictional condition necessary for the Tribunal to exercise its powers in
terms of section 59 has not occurred. These powers can therefore not be
exercised, irrespective of the provisions section 52(2)(d). Section 52(2)(d)
deals with matters that are properly before us, we cannot apply the
principles of natural justice to a matter that we have no authority to hear.
Furthermore, we do not understand how an appeal to the principles of
natural justice can clothe an invalid juristic act with the cloak of legality.
natural justice can clothe an invalid juristic act with the cloak of legality.
A dismissal of the application in these circumstances does not amount to a
denial of the applicant’s right to be heard, we are refusing to hear an
application that we are not entitled to hear. The applicant will be heard
once it has put its case properly before us. The only possible bearing that
the principles of natural justice have on the present proceeding is that the
applicant is entitled to be heard on the matter of whether a prior
jurisdictional fact exists 3. This hearing has been accorded to the applicant.
10. The applicant further argued that the substance of the application filed
with us and served on the Commission on 20 April 2000 was similar to
that of the complaint subsequently lodged on 18 May 2000, the two
documents differed only in form. The applicant argued that since the
Commission was in possession of the interim relief application from the
day it was filed with the Tribunal, an investigation could have been
2 An interim order prevails until the conclusion of the hearing or a period of six months whichever is
the earlier. If an applicant considered that a hearing was capable of being concluded within six months
of an interim order being granted and that it might not prevail at a hearing , the applicant could extend
the life of an interim relief order to the full six months by lodging its complaint some time after the
interim relief application was proceeded with to ensure that the conclusion of the hearing took place
after six months had elapsed .
3 See Beukes v DirectorGeneral, Department of Manpower and others 1993(1) SA 19 (C).
commenced then. Since no new information emanated from the complaint
subsequently lodged with it, the service of the Notice of Motion on the
Commission constituted the submission of a complaint to the Commission
and hence sufficient compliance with the formalities of section 44.
11. We reject this argument for two reasons. Firstly, the filing of an
application and the lodging of a complaint are different procedures,
triggering separate processes before different bodies. When accepted by
the Commission a complaint results in the Commission launching an
investigation. On the other hand, an interim relief application is solely a
Tribunal procedure and is brought by Notice of Motion addressed to the
Tribunal. The Commission is not obliged to be a party to these
proceedings even though the application must be served on it. 4 Even
though the subject matter underpinning these two procedures might be
identical, they initiate distinct procedures addressed to separate bodies
with different consequences. Since interim relief is consequent on the
existence of a complaint that is being investigated by the Commission it
follows that an interim relief application can only be made by a person
whose complaint has been accepted by the Commission and is the subject
of an investigation. The application served on the Commission by the
applicant on 20 April 2000 does not constitute a complaint in terms of
section 44 and was not accepted as such by the Commission. The applicant
lodged the complaint on 18 May 2000 and it was accepted by the
Commission on 8 June 2000 . In our view it was only after the latter date
that the applicant was entitled to apply for interim relief. 5
12. Secondly, section 44 requires that the complaint be submitted to the
12. Secondly, section 44 requires that the complaint be submitted to the
Commission in the “prescribed manner”. In terms of Commission Rule
17(1) a party (other than the Commissioner) wishing to lodge a complaint
must fill in Commission Form CC1. The applicant did not fill in this form
on 20 April 2000 the application served on the Commission could
therefore not amount to a complaint in terms of section 44, regardless of
the applicant’s intention.
13. We find that the application is not properly before us and make the
following order –
the application is dismissed with costs, such costs to be awarded to
each respondent on a party and party basis and to include the fees of an
additional representative, provided the additional representative’s fees
do not exceed one half of those of the first representative.
4 See Rule 28(2) of the Tribunal Rules.
5 A claim for interim relief must be brought by a claimant. A claimant is someone whose complaint
has been accepted by the Commission. See Rule 28(1) of the Tribunal Rules read with Rule 18(3) of
the Commission Rules.
___________________ 20 October 2000
Norman Manoim Date
Concurring: U. Bhoola; C. Qunta