COMPETITION TRIBUNAL
REPUBLIC OF SOUTH AFRICA
Case Number: 08/CR/B/May01
In the matter between:
The Competition Commission of Applicant
South Africa
and
Federal Mogul Aftermarket Southern Africa (Pty) Ltd 1st Respondent
Federal Mogul Friction Products (Pty) Ltd 2nd Respondent
T & N Holdings Ltd 3rd
Respondent
T & N Friction products (Pty) Ltd 4th Respondent
Reasons for the Competition Tribunal’s Decision
Joinder application
1. The Competition Commission instituted a complaint referral against the
first respondent for allegedly violating section 5(2) of the Act. The
Commission now seeks to join the second to fourth respondents as
respondents in the complaint referral.
2. The second to fourth respondents have challenged this on the basis that
the Tribunal is not competent to make such an order and, even if it is,
whether it is appropriate in the circumstances of this matter 1.
1 We will refer to the second to the fourth respondents as the “respondents” hereafter as the first
respondent did not oppose the application.
1
3. In November 1999 PD Wholesalers lodged a complaint with the
Commission. The Commission investigated the complaint and on 7
February filed a Complaint referral against the first respondent.
4. The Commission has had correspondence from the first respondent and
later from the respondents’ attorney disputing whether the correct entity,
that is, the entity which had dealings with the complainant, has been cited
in these proceedings. The Commission alleges that it has been given
inconsistent information in this correspondence and for this reason
decided to join the respondents who are allegedly, together with the first
respondent, all firms within the Federal Mogul group of companies .2 The
details are unnecessary to go into because the respondents concede that
the Commission would have been entitled to have them joined had this
been a matter for the High Court. The dispute relates then not to the
merits of the application, but whether it is procedurally competent.
5. The Commission first relies on Tribunal Rule 45(1) for our authority to join
the respondents. That rule states:
The Tribunal, or the assigned member, as the case may be, may
combine any number of persons, whether jointly, jointly and
severally, separately, or in the alternative, as parties in the same
proceedings, if their respective rights to relief depend on the
determination of substantially the same question of law or facts.
6. The respondents argue that Rule 45(1) is limited to a joinder of plaintiffs or
complainants and point to the language in the sub rule which we have
highlighted above which suggests the rule is limited to persons seeking
relief i.e. complainants, and not persons against whom relief is sought i.e.
persons in the position of the respondents.
7. The Commission whilst not conceding the point nevertheless indicated
7. The Commission whilst not conceding the point nevertheless indicated
that it would rely in the alternative on Rule 55(1)(b) of the Rules. Rule
55(1) states:
55(1) If, in the course of proceedings, a person is uncertain as to
the practice and procedure to be followed, the member of the
Tribunal presiding over a matter–
(a) may give directions on how to proceed; and
(b) for that purpose, if a question arises as to the practice or procedure to be
2 See Affidavit of Lindelani Sikitha paragraphs 6.2 6.4
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followed in cases not provided for by these Rules, the member may have regard
to the High Court Rules.
8. The Commission relying on this rule asked us to invoke Rule 10(3) of the
High Court rules which states:
Several defendants may be sued in one action either jointly, jointly
and severally, separately or in the alternative, whenever the
question arising between them or any of them and the plaintiff or
any of the plaintiffs depends upon the determination of substantially
the same question of law or fact which, if such defendants were
sued separately, would arise in each separate action.
9. Both the Commission and respondents were in agreement that Tribunal
Rule 45(1) is the analogue of Rule 10(1) of the High Court Rules(HCR) 3
and that HCR 10(3) cited above has no analogue in the Tribunal
Rules(TR). The Commission states that TR 55(1)(b) entitles us to invoke
this rule of the High Court and that the circumstances of this case make it
just and convenient for us to do so. 4
10. The respondents also rely on both HCR 10(3) and TR Rule 55(1)(b) but
come to the opposite conclusion. They point out that HCR 10(3) is the
Rule for the joinder of defendants whilst HCR rule 10(1) and its analogue
TR 45(1) are about the joinder of plaintiffs. Since from their similarity in
language it appears that the drafters of the Tribunal Rules must have had
regard to the content of the HCR, their election to adopt the rule for
plaintiff joinder and not the rule for defendant joinder was an intentional
choice. For this reason it is not possible to invoke HCR 10(3) through the
door of TR 55(1)(b) as that Rule can only be invoked in relation to a matter
the TR rules do not provide for. Here the TR rules provide for joinder and
have intentionally limited the application of joinder to joinder of plaintiffs.
TR 55(1) cannot be used to invoke the intended omission.
TR 55(1) cannot be used to invoke the intended omission.
11. They then seek to find authority in the Act for the logic of this omission.
They point us to section 51(3) of the Act, which requires the Chairperson
of the Tribunal to publish each referral made to the Tribunal in the gazette.
Section 51(4) goes on to state that the notice must include:
3 Mistakenly, as we point out below in paragraph 19.
4 It is worth noting that the authority of the court to order joinder once proceedings have
commenced is not made in terms of this rule but the common law. (See Erasmus, Superior Court
Practice, pg B195 and S.A.Steel Equipment( Pty) Ltd and Others v Lurelk(Pty)Ltd 1951(4) SA
167(T) where it was held that the court has inherent jurisdiction to add a defendant in an action
that has already commenced in order to ensure that persons interested in the subject matter of
the dispute and whose rights may be affected by the judgement are before the Court.)
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(a) the name of the respondent; and
(b) the nature of the conduct that is the subject of the referral.
12. The object of this provision, they go on to argue, is to ensure that
members of the public are aware of the complaint and hence would have
an opportunity if they so wished to present information relevant to the
matter to the Tribunal.
13. It is for this reason, they argue that the Tribunal Rules do not provide for a
joinder of respondents for if they did, it would deprive the respondents
subsequently joined of their right to have the public notified of the
complaint against them.
14. This is a most ambitious argument. It is difficult to conceive that the
drafters of the rules intentionally omitted a requirement to allow joinder of
respondents because of a requirement of public notice of a complaint in
the Government Gazette. As we observed in Botash5 the purpose of the
notice is to inform the public of the gist of the dispute. It would be absurd
to read the notice as a manacle that would make any subsequent
alteration to its terms in the subsequent proceedings a nullity. The rights of
existent litigants would thus be subordinated to the rights of hypothetical
informants with all the procedural chaos and inconvenience that would
entail.
15. That this could not have been the intention of the drafters of the Rules of
the Tribunal becomes clear on further examination. If the content of the
statutory notice is immutable then the rules should not allow any other
change. On this basis if a party wished to amend its cause of action it
would not be allowed to do so because of the language in section 51(4)(b)
cited above. The notice recall is not limited to the items referred to in
section 51(4) and thus if it included the name of the complainant and an
section 51(4) and thus if it included the name of the complainant and an
additional complainant joined suit that too should on this argument not be
allowed. Nor should the Tribunal rules allow for any subsequent alteration
in the complaint referral. Yet they do. Rule 18 provides for amendment to
form CT 1. It is on this form that a cause of action is described.
Furthermore TR 47 allows for the intervention of parties. It does not limit
this intervention to complainants or respondents but contemplates both.
There is no difference to the third party who might read the gazette as to
whether a respondent is joined by way of TR 45 as an intervenor or as
5 Competition Tribunal Case No: 49/CR/Apr00 of 27 March 2001: “The purpose of the notice is to
alert third parties to the broad parameters of a dispute so they can make further enquiries if they
so wish.”
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one joined as the Commission seeks. If the respondents’ interpretation is
correct there should be no intervention rule as subsequent intervention
may superannuate the notice in the gazette.
16. It is more likely that the purpose of the notice is to alert parties who might
wish to apply to be joined as complainants or respondents in a matter lest
their rights be affected without them being party to the proceedings. If this
is the case the notice provision seems to suggest that rather than narrow
the ambit of joinder as the respondents argue, on the contrary we should
widen it. 6
17. It is therefore unlikely that the drafters omitted the joinder of respondents
in deference to the notice procedure in section 55(3).
18. Nor is it by any means clear that the drafters of the Rules, in providing for
the joinder of complainants and not respondents intentionally omitted the
joinder of respondents. The respondents invoke the maxim of expressio
unius est exclusio alterius ( the inclusion of one means the exclusion of
the other) to support this proposition. They add that the intention to
exclude is supported by the manner in which the High Court rule has been
selectively replicated – the choice of 10(1) and not 10(3) seems to confirm
the intention to select was no mere oversight.
19. However the source of TR 45(1) appears to be not HCR 10(1), but Rule
22(1) of the Labour Court’s rules which states:
The court may join any number of persons, whether jointly, jointly and
severally, separately, or in the alternative, as parties in proceedings, if
the right to relief depends on the determination of substantially the same
question of law or facts.
20. The remainder of Labour Court Rule 22 with some deletions seems to be
the source of the other sub rules in Rule 45. Significantly it too omits a sub
rule equivalent to rule 10(3). This means we should be most wary of
rule equivalent to rule 10(3). This means we should be most wary of
relying on any presumption of a conscious omission by the drafters in this
respect.
21. As Kellaway has observed in discussing the maxim expressio unius :
“The South African courts have also held that it must be absolutely
clear that the legislative intention was to exclude the other thing,
6 It is also a notion consistent with why the High Courts order joinder of defendants in actions that
have already commenced. See footnote 4 above.
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person, remedy or mode of procedure, or a persons rights as the
case may be.” 7
22. The rule seems more likely to be an abridgement than an omission and in
this context Tribunal Rule 55 acknowledges that there will be gaps in the
Tribunal rules presumably because it was not appropriate to burden them
with the extent of a set of Rules as long as that of the High Court. There is
no policy reason to exclude a joinder of respondents in the Tribunal’s
procedures and, on the contrary it seems that to omit such a procedure
would create hardship , inconvenience and inefficiency. If a complainant in
any circumstance that would otherwise be appropriate to order joinder,
had to initiate a new Complaint Referral and then apply for consolidation,
we would be plagued by interminable procedural applications which would
assist no party be they complainants or respondents.
23. In pursuing this line Counsel for the respondents was forced to argue that
it is never competent to join respondents in the same referral even at the
Referral stage. 8 This appears at odds with the objects of the Act, which in
certain instance expressly contemplates a plurality of respondents. If one
had a complaint of collusion against several firms for price fixing in terms
of section 4(1)(b) would all the parties to the cartel have to be the object of
separate complaint referrals? 9If two parties are the subject of an
exclusive agreement in violation of section 5(1) would they too, if both the
subject of the same complaint, feature in separate referrals? 10Such a
possibility seems patently absurd.
24. What seems to be clear from the Act is that the legislature did not want to
burden the Tribunal within the strictures of judicial formalism. In section
27(1)(d) the Tribunal in the context of the description of its functions is
given the discretion to:
“make any ruling or order necessary or incidental to the
“make any ruling or order necessary or incidental to the
performance of its functions in terms of this Act.”
25. In section 52(2) it is stated that the Tribunal:
7 See E.A. Kellaway Principles of Interpretation Butterworths (1995).
8 The reason is that having argued for the intentional omission of HCR 10(3), the rule that makes
it competent to join defendants generally in the High Court, he was forced to argue that it could
therefore never be competent to have more than one respondent in a Complaint Referral. What
the complainant would have to do, he argues, is to apply for a consolidation of the proceedings
later using TR 45(1) .
9 See section 4(1) of the Act, which refers to an agreement or concerted practice between “firms”.
10 See section 5(1) which refers to “parties”.
6
“(a) must conduct its hearings in public, as expeditiously as
possible, and in accordance with the principles of natural justice;
and
(b) may conduct its hearings informally or in an inquisitorial
manner.” (Our emphasis)
26. Most significantly in section 55(1) a residual procedural discretion is given
to the member presiding at a hearing:
“Subject to the Tribunal’s rules of procedure, the Tribunal member
presiding at a hearing may determine any matter of procedure for that
hearing with due regard to the circumstances of the case, and the
requirements of section 52(2).”
27. Section 58(1)(c) and TR 55(3) both give the Tribunal the power to
condone on good cause shown any noncompliance with its Rules.
28. The legislative policy emerging from all these provisions is clear – the
Tribunal is given a discretion in terms of its empowering statute to run its
proceedings as it deems fit subject to the observance of the core values
laid out in section 52(2) viz. expedition, informality and in accordance with
the dictates of natural justice. This legislative policy moreover vests in the
Tribunal a discretion to conduct its own proceedings in a manner that is
wholly consistent with the High Courts common law rationale for ordering
the joinder of defendants viz:
“… on the grounds of convenience, equity, the saving of costs and
the avoidance of a multiplicity of actions.” 11
29. This legislative intent is also consistent with the common law
understanding of an administrative tribunal’s powers. As Baxter puts it:
“Except where the legislation prescribes otherwise, administrative
bodies are at liberty to adopt whatever procedure is deemed
appropriate, provided this does not defeat the purpose of the
empowering legislation, and provided that it is fair.” 12
30. Thus, both the statute, the common law and the Rules give the Tribunal a
30. Thus, both the statute, the common law and the Rules give the Tribunal a
residual power to supplement its own rules of procedure in an appropriate
11 See Erasmus op cit. pg B 1 96 and the cases referred to in footnote 4 on that page.
12 See L. Baxter Administrative Law (1984) p. 545.
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manner.13 The power to order joinder in the circumstances of this case
seems an appropriate use of that power.
31. It remains for us to consider only one further argument of the respondents
and that is that the respondents have not been afforded the right to audi
alteram partem by the Commission prior to the complaint having been
referred.
32. The respondents argue that they have a right to a hearing by the
Commission before the referral is made. They argue that any respondent
joined after a complaint has been referred to the Tribunal by the
Commission would have been deprived of this right.
33. They rely for this proposition on the case of Seven Eleven v Simelane NO
and others a case recently decided in the Transvaal Provincial Division of
the High Court 14. Whilst this correctly reflects the approach taken in that
matter it appears the court in Seven Eleven was not referred to a recent
decision of the SCA in the Brenco case 15 which in examining the
investigative powers of the Board of Tariff and Trade comes to the
opposite conclusion. Prior to the Seven Eleven decision we had in the
matter of Novartis and others v Competition Commission and others 16
followed the Brenco approach and concluded that since the Commission
is an investigative body it does not in referring a complaint to the Tribunal
need to grant a respondent a hearing.
34. We do not need to resolve this confusing picture here, as it has no impact
on the issue of joinder. If the respondents are joined in this matter and the
point is good the respondents will still be entitled to rely on it, indeed that
would seem the appropriate moment to take it if they see fit to do so.
Moreover we have no idea if the respondents were denied a hearing in
the manner required by the Seven Eleven decision as this was not alleged
the manner required by the Seven Eleven decision as this was not alleged
in the respondents papers as it should have been and was argued only
from the Bar.
13 We do not read TR 55(1) in the limiting way contended for by the respondents. The two sub –
paragraphs must be read conjunctively and not disjunctively and thus the reference to the HCR’s
does not limit our discretion to only utilizing those procedures. Rather it commends us to use our
discretion to have “regard” to them so that we do not have to reinvent the wheel. Thus if the High
Court has a procedure at common law which it relies on to supplement lacunae in its own rules it
would seem perfectly permissible for us in terms of Rule 55(1) (read as a whole) to apply the
common law procedure if appropriate.
14 Case No: 20648/00.
15 Chairman: Board on Tariffs and Trade and Others v Brenco Incorporated and Others
(BRENCO) Supreme Court of Appeal Case No: 285/99.
16 Competition Tribunal Case No: 22/CR/B/Jun01 of 2 July 2001
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35. The denial of audi therefore is not relevant at this stage to the question of
whether the respondents can be joined to these proceedings.
36. In conclusion we are of the view that there is no impediment to the
Tribunal granting the order sought. It remains only to consider whether on
the facts of this case it is appropriate to do so. The respondents
conceded, correctly in our view, at the outset that if this matter was in the
High Court joinder would have been ordered. We agree, on the facts of
this matter where due to conflicting claims of the respondents the
Commission is uncertain who the appropriate respondent is they are
entitled to have them joined.
Costs
37. We have not heard argument as to whether a cost order for or against the
Commission is competent and we reserve our order on costs for this
reason.
Order
38. We accordingly make the following order:
1)That Federal Mogul Friction Products (Pty) Ltd, T & N Holdings Limited,
and T & N Friction Products (Pty) Ltd be joined as Second to Fourth
Respondents,respectively, in Complaint Referral No. 08/CR/Feb01;
2) The Commission will be given ten business days from the date of this
decision to serve an amended Complaint referral on the first to the fourth
respondents; and
3) the first to the fourth respondent shall have leave to file their answering
affidavits within the time period provided for in the Tribunal Rules, calculated
from the date of their being served with the amended complaint referral;
4) the costs of this application are reserved.
23 August 2001
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N.M. Manoim Date
Concurring: D. Lewis and D. Terblanche
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