COMPETITION TRIBUNAL OF SOUTH AFRICA
Case No.: 45/CR/May06
In the matter between:
Sasol Chemical Industries (Pty) Ltd Applicant
And
The Competition Commission First Respondent
Yara (South Africa) (Pty) Ltd Second Respondent
African Explosives and Chemical Industries Ltd Third Respondent
Profert (Pty) Ltd Fourth Respondent
In re
The Competition Commission of South Africa Applicant
And
Sasol Chemical Industries (Pty) Ltd First Respondent
Yara (South Africa) (Pty) Ltd Second Respondent
African Explosives and Chemical Industries Ltd Third Respondent
Panel : D Lewis (Presiding Member), Y Carrim (Tribunal
Member), and U Bhoola (Tribunal Member)
Heard on : 14 March 2008
Decided on : 28 March 2008
Reasons Issued: 02 June 2008
REASONS: DISMISSAL APPLICATION
1. On 6 March 2008 Sasol Chemical Industries (Pty) Ltd (“Sasol”) filed an application in terms
of which it requested the Tribunal to dismiss a complaint that had been referred to it by the
Competition Commission (“Commission”).
1
2. On 3 August 2004, Profert (Pty) Ltd (“Profert”) filed a complaint with the Commission
alleging that Sasol had engaged in price discrimination in violation of section 9 of the
Competition Act, which discrimination had led to financial losses for it. 1 The Commission
conducted an investigation in terms of section 49B of the Competition Act 89 of 1998
(“Competition Act”) and referred the complaint to the Tribunal on 25 May 2006. In the
referral, known as the Profert complaint, the Commission alleged that Sasol, Yara (Kynoch)
and AECI had engaged in anticompetitive conduct. The Commission alleged violations of
sections 4, 8 and 9 of the Competition Act. Profert, while having lodged a complaint with the
Commission which formed the basis of the referral, is not a party to complaint referred to the
Commission (“the main matter”).
3. In its application Sasol sought the following relief–
3.1. In the first instance it sought a dismissal of the complaint. If the Tribunal was minded to
grant such a dismissal then Sasol sought an order of costs against Profert alternatively
the Commission.
3.2.In the alternative, and if the tribunal was not minded to grant a dismissal of the
complaint then Sasol sought an order of costs occasioned by the postponement of the
matter, against Profert. 2
4. The application was held on 14 March 2008. On 28 March 2008 the Tribunal dismissed
Sasol’s application in its entirety, granting none of the relief sought by it. These are the
reasons for that decision.
Background to the application
5. In order to fully understand the source of this application we need to traverse the long and
complicated sequence of events leading up to it. The Profert complaint was set down for
hearing by the Tribunal at a prehearing held on 2 August 2007. At that prehearing a
timetable was agreed to by the parties which inter alia provided for dates on which discovery
affidavits and witness statements would be filed. The matter was set down for hearing from
1 See the Profert complaint in general and para 5.11 specifically, the complaint is
annexed as annexure AN1 to Sasol’s founding affidavit in this application.
2 See founding affidavit paragraphs 13.1 and 13.2.
2
3 to 17 March 2008. Of relevance to this application are the dates agreed to by the parties
for the filing of discovery affidavits and witness statements. It was envisaged that the
Commission would file its discovery affidavit on 28 September 2007 and Sasol on 19
October 2007. The parties could then request further discovery on 2 November 2007 and
respond thereto by 16 November 2007. The timetable also envisaged that any interlocutory
applications between the parties would be heard by the Tribunal on 26 November 2007. At
that time, upon enquiry from the Tribunal, the respondents indicated that they had no issues
for determination by the Tribunal. 3 By all accounts preparations for trial were on track and
the parties had substantially complied with the timetable. However the Commission only
filed its request for further and better discovery on 26 November 2007 and Sasol on 17
January 2008.
6. The Commission filed three factual witness statements on 14 December 2007 which
indicated that the Commission’s witnesses would be three directors of Profert. In its
founding affidavit Sasol seems to suggest that it was these factual witness statements which
led it to seek discovery of further documentation. 4 Sasol sought discovery from the
Commission of relevant documents on 17 January 2008 5 but was met with the response, on
31 January 2008 that the Commission was not in possession thereof. 6 In the meantime, at
the instance of Sasol, the Tribunal had issued a subpoena duces tecum (“the subpoena”) on
Profert, requiring Profert to deliver a number of documents listed therein. 7 The subpoena
was issued on 16 January 2008, and was served on Profert on 17 January 2008 and not
after the Commission had indicated that it was not in possession of those documents. 8 The
after the Commission had indicated that it was not in possession of those documents. 8 The
list of documents requested from the Commission in Sasol’s request were identical to those
requested from Profert in the subpoena. The subpoena was addressed to Mr Abraham van
der Walt, the chairman of the Profert Board and required him to deliver to WWB 9 the
documents listed therein by no later than 31 January 2008. The subpoena also stated that if
3 See correspondence from Sasol dated 23 November 2007 addressed to Mr Ngobeni at the Tribunal.
4 See founding affidavit 17.2.
5 See date of Sasol’s Request for further and better discovery.
6 See Commission’s response dated 31 January 2008.
7 Annexure A of the subpoena
8 See paragraph 3.2 of Sasol’s answering affidavit to Profert’s challenge of the Tribunal summons/subpoena of 13
February 2008.
9 Webber Wentzel Bowens, legal representatives for Sasol.
3
Van der Walt wished to challenge the subpoena he ought to do so by 24 January 2008.
Profert indicated that it would challenge the Tribunal’s subpoena and filed an application to
this effect on 13 February 2008. 10
7. On 14 February 2008, the parties to the Profert complaint appeared before the Tribunal in
order to address a number of other interlocutory matters. Profert’s challenge to the
subpoena was set down on the same day. 11 Prior to the commencement of the hearing
WWB and Lampen Attorneys came to an agreement in order to pare down the issues to be
determined by the Tribunal.
8. Mr Puckrin SC, appearing on behalf of Profert, explained that Profert’s primary concern with
the subpoena was that it was overbroad and that the documents requested amounted to a
discovery type application, rather than a request for a witness to produce specified
documents, and would run into some hundreds of thousands of pages. Profert
nevertheless sought not to be obstructive and confirmed that an agreement between the
parties, some of the details of which still required to be finalized, had been concluded, and
asked the Tribunal to make a decision only in respect of those items on which the parties
had not reached agreement. He listed the disputed matters, with reference to annexure A of
the subpoena, which required a decision from the Tribunal. 12 Mr Puckrin offered to submit
the list of agreed items to the Tribunal. When asked whether Profert still intended to pursue
its challenge of the subpoena Mr Puckrin’s response suggested that this was no longer the
case.13 No list was filed and the Tribunal issued its order in relation to those items it had
been asked to determine. 14
9. Profert then refused to comply with the Tribunal’s order and filed an application in the
Competition Appeal Court (“CAC”) in which it sought to review the order. Sasol on the other
Competition Appeal Court (“CAC”) in which it sought to review the order. Sasol on the other
hand, had approached the Competition Appeal Court to declare Profert in contempt of the
Tribunal’s order which prompted Profert to file an application for a stay of the Tribunal’s
10 It appears that the parties engaged in correspondence over this period. Sasol alleges that Profert had agreed to
comply with the terms of the subpoena. Profert disputes this. Founding affidavit para 18.7. See Profert’s affidavit,
paragraph 21.
11 Which are not relevant for purposes of these reasons.
12 See transcript pages to 110125.
13 See transcript page 125.
14 See Tribunal Order dated 15 February 2008 and transcript page 125.
4
order.15 On 28 February 2008, Profert withdrew its application at the CAC and the parties
came to an agreement in terms of which Profert handed over a DVDROM containing further
information that was sought by Sasol.
10. Sasol’s legal representatives then approached the Tribunal seeking a postponement of the
hearing on the basis that they had been given a large amount of documentation by Profert at
the last minute and required additional time to look through these. The Tribunal granted the
postponement and convened a prehearing on 3 March 2008. At that prehearing Sasol’s
legal advisors indicated that they intended to seek costs of the postponement against
Profert and might lodge such an application with the Tribunal. Profert was present at that
hearing. There was also a suggestion by Sasol that it was considering an application to
dismiss the Profert complaint. The Tribunal issued its directions stating that Sasol’s
application for costs against Profert, if filed, would be heard on 14 March 2008, together with
a number of other interlocutory matters.
11. Instead of filing an application for costs against Profert, Sasol filed this application seeking
relief against both Profert and the Commission. The Tribunal directed that this application
be heard on 14 March 2008. The Commission was able to respond promptly to Sasol’s
papers. Profert however challenged the basis for hearing it as a matter of urgency and did
not deal with the merits in its answering affidavit.
12. At the hearing of the matter, Mr Puckrin, on behalf of Profert argued that Sasol had not
made out a case for urgency and for dispensing with the Tribunal’s normal time frames.
Accordingly, he was entitled to argue the issue of urgency and to seek additional time to
respond to the merits of the dismissal application. After considering Mr Puckrin’s
submission, the Tribunal decided that as far as the issue of costs was concerned Profert
was well aware of the fact that the matter would be heard on 14 February 2008 and should
have been ready to argue the matter. As far as the application for dismissal was concerned
the Tribunal decided that it would hear the parties on that day but that if it was of the view
that its decision could prejudice Profert in any way, the Tribunal would reconvene a hearing
15 Lodging an appeal in the CAC does not automatically suspend the operation of a Tribunal order. At this point in
time the Tribunal had agreed, at Sasol’s request, to commence the hearing on 6 and not 3 March 2008, in order to
afford Sasol an opportunity to look through a first batch of documents that Profert had delivered to it on the basis of
the agreement reached on 14 February 2008.
5
to afford Profert an opportunity to deal with the merits. The matter proceeded with Profert
reserving its rights.
13. While the application had been served on Profert, Profert was not cited as a party in any of
the papers, with good reason. Profert after all is not a party to the proceedings before the
Tribunal.
14. Having sketched the background to this application, we turn now to consider the remedy
that is sought by Sasol.
Grounds for application
15. Sasol sought a dismissal of the complaint on three broad grounds namely the conduct of
Profert, the conduct of the Commission and the public interest.
16. In relation to Profert Sasol argued that Profert had abused the Tribunal’s proceedings and
on this basis the complaint should be dismissed. It was argued that Profert’s decision to
challenge the Tribunal’s subpoena and subsequently the Tribunal’s order amounted to bad
faith. Its opposition and reluctance showed that it had not lodged the complaint out of a
genuine desire to stop anticompetitive practices in the industry but merely as a ploy to
obtain more favourable pricing from Sasol. Furthermore Profert’s late compliance with the
subpoena and the Tribunal order compelled Sasol to seek a postponement of the trial.
Sasol had been prejudiced by this. On this basis the complaint referral should be dismissed
and Profert should be mulcted with costs either for the referral or for the postponement.
17.As far as the Commission’s culpability was concerned Sasol alleged inter alia that the
Commission had a duty to obtain all evidence from a complainant that was relevant to
whether or not the alleged conduct had an exclusionary effect, even if this included evidence
that was favourable to Sasol, and not only a duty to seek documents that were important for
it to mount its case. Sasol argued that the Commission had failed in this duty. Furthermore
it to mount its case. Sasol argued that the Commission had failed in this duty. Furthermore
the Commission had abrogated its statutory obligation of impartiality by not seeking
extensive discovery from Profert while having sought this from Sasol and by not pressing
Profert to comply with the subpoena and the Tribunal order. The Commission’s abstentious
posture had resulted in administrative inefficiency and a poorly planned litigation strategy
6
and Sasol’s rights had been infringed. 16
18.Sasol argued further that the merits of the matter were weak as evidenced by documents
obtained under the subpoena. The Commission should never have referred it. In support of
this argument, Sasol relied on two documents obtained from Profert and which it had
attached to its founding affidavit. 17
19. As far as the public interest is concerned, the core of the argument seems to be
that the public interest would not be harmed if this matter, given the litany of
problems surrounding it and listed above, was dismissed.
20. Before turning to consider the merits of these arguments, let us consider the nature of the
remedy that Sasol seeks.
The dismissal remedy
21. The remedy that Sasol seeks is akin to a permanent bar of prosecution in the criminal
context or permanently barring a civil action by a plaintiff against a defendant. It is usually
sought by a defendant prior to the merits of the matter being heard by a court and often on
the basis of an abuse of proceedings or an infringement of some or other trial related right.
Such a remedy is very seldom granted by courts and when granted is done so in the most
exceptional circumstances.
22.In the civil law context, our courts have held that such a remedy is a draconian order and will
not be lightly made. In Sanford v Haley NO 18 the High Court held that the court “will
exercise such power sparingly and only in the most exceptional circumstances because the
dismissal of an action seriously impacts on the constitutional and commonlaw right of a
plaintiff to have the dispute adjudicated in a court of law by means of a fair trial.” 19
23.In considering the possible circumstances in which such a remedy would be granted, our
courts have consistently required the conduct of a plaintiff to cross a very high threshold
courts have consistently required the conduct of a plaintiff to cross a very high threshold
16 This was not expanded upon. But we assume that Sasol at least meant its rights to a fair administrative action
and a fair trial.
17 Annexure “AN22” and “AN23”.
18 2004(3) SA 296 (C).
19 at paragraph 8.
7
before granting such an order. In Sanford, the court summarized the test as follows: “The
test is a stringent one. It is understandable that the relief will not be easily granted. It will
depend on the facts and circumstances of each case and on the basis of fairness to both
parties.” 20
24.This approach is echoed in English law. In the leading case of Allen v Sir Alfred Mc Alpine
& Sons Ltd [1968] 1 All ER 543 (CA), the court held that in order to succeed with an
application to have an action dismissed, the defendant was required to show that there was
an inordinate delay which was inexcusable and that the defendants are likely to be seriously
prejudiced by the delay” (Our emphasis). Furthermore the defendant’s previous conduct in
the action is always relevant. In that case, the court held that in any event such a power
should not be exercised without giving the plaintiff an opportunity to remedy his default.” 21
25.A similar approach can be found in the criminal context in which accused persons face the
prospect of losing their personal liberty, a far more serious matter than the prospect of a
mere monetary fine. In Sanderson v AG, Eastern Cape ,22 the Constitutional Court held
that a permanent stay of prosecution was a radical remedy, both philosophically and socio
politically and that barring the prosecution before the trial begins will seldom be warranted in
the absence of significant prejudice to the accused. 23 That matter concerned an allegation
by the accused that his constitutional right to a fair trial had been infringed. The Court
identified the three most important factors to take into account when considering whether a
dismissal is an appropriate remedy, namely the nature of the prejudice suffered by the
accused, the nature of the case and socalled systemic delays. In considering these factors,
accused, the nature of the case and socalled systemic delays. In considering these factors,
the court held that ordinarily and particularly where the prejudice alleged is not trial related a
court should have recourse to a range of appropriate remedies less radical than barring
prosecution, such as issuing a mandamus requiring the prosecution to commence the case
or a refusal to grant the prosecution a remand. Central to the court’s enquiry was whether
the accused had suffered actual and significant prejudice which could not be cured by any
other appropriate remedy.
20 at paragraph 9.
21 At 555 in fine556D.
22 1998 (2) SA 39 (CC).
23 See paragraph 38.
8
26.In Zanner v Director of Public Prosecutions, Johannesburg 24 the SCA states that this is a
drastic remedy which is granted sparingly and only for very compelling reasons. In that case
the appellant had alleged that his right to a fair trial had been infringed by a delay of ten
years on the part of the DPP in bringing murder charges against him. In the court’s view “ the
fact of a long delay cannot per se be regarded as an infringement of the right to a fair trial ”.
Whether there was unreasonable delay must be determined in the context of the particular
circumstances of each case, taking into account factors such as the length of delay, the
reason for the delay, whether the accused has suffered or is likely to suffer prejudice by
reason thereof. 25 Furthermore, the accused must show definite and not speculative
prejudice. Vague and conclusory allegations of prejudice resulting from the passage of time
and the absence of witnesses are insufficient to constitute a showing of actual prejudice. 26
In this case, despite the delay of ten years, the court dismissed the appeal on the basis that
the appellant had not shown any significant or actual trial related prejudice. 27
27. In summary, the remedy of dismissal is considered by our courts and courts elsewhere in
the world as draconian and far –reaching and one which could potentially deprive an
applicant of its right of access to courts. It is not merely an incidental remedy. It is not
easily granted by our courts, even in circumstances where accused persons face losing their
liberty or considerable delays in charges being brought against them or in the prosecution
thereof. Moreover the determination of whether there has been an abuse of proceedings or
infringements of fundamental rights of accused persons depends on the facts of each case,
but the test is a stringent one and a court will not easily arrive at a conclusion that its
proceedings have been abused without looking closely at the conduct complained of and
whether the defendant or accused as the case may be has suffered significant prejudice.
Furthermore the prejudice must be trial related and must be actual. Even if a court has
determined abuse or prejudice it must still exercise restraint in reaching for an order of
dismissal and must first look for other appropriate remedies.
Jurisdictional bar
24 [2006]SCA 56 RSA.
25 Paragraph 14.
26 See Zanner at para 16.
27 See paragraph 16 et seq.
9
28.The Competition Act does not expressly empower the Tribunal to grant an order of
dismissal. Sasol argues that such a power can be found in section 27(1)(d) of the
Competition Act 28 and that this Tribunal had previously conceived that it enjoyed such
powers in Schering (Pty) Ltd Others v New United Pharmaceutical Distributors (Pty) Ltd
(“Schering”).29 The Commission argues that the Tribunal is a creature of statute and unlike
the High Court does not enjoy inherent jurisdiction to grant such a draconian remedy.
29.In Schering the Tribunal left open the jurisdictional question of whether it could grant such
an order. It accepted for purposes of that matter that there may be circumstances in which
an abuse of the Tribunal’s procedures may justify refusing a complainant access to the
Tribunal but that it would reserve this remedy for abuses of an extraordinarily egregious
nature.30 We do not know whether the parties in that matter relied upon s27 (1) (d) as
Sasol does in this case as an enabling provision for granting this order.
30. In our view an initial reading of section 27(1) (d), read in its proper context does not confer
on the Tribunal such a power. We arrive at this conclusion by considering a textual analysis
of the relevant provisions of the Act, bearing in mind that this Tribunal is a creature of
statute.
31.Section 27(1) (d) provides: “ The Competition Tribunal may(d) make any ruling or order
necessary or incidental to the performance of its functions in terms of this Act .”
32. The language of sections 27(1)(a) and (b), while describing the Tribunal’s functions, is at
pains to limit the Tribunal’s powers only to those remedies provided for in the Act. The
powers contemplated in section 27(1) (d) are even further circumscribed and limited only to
powers contemplated in section 27(1) (d) are even further circumscribed and limited only to
powers incidental or necessary to the Tribunal performing any of its functions which are
described in the preceding subsections.
33.While the Tribunal has a wide discretion to conduct its own proceedings – and the exercise
of this discretion would certainly fall under the incidental powers granted by Section 27(1)(d)
28 Section 27(1) (d) states that the Competition Tribunal may make any ruling or
order necessary or incidental to the performance of its functions in terms of this Act.
29 05/IR/A/JUL01.
30 See paragraph 37. In that case the Tribunal did not grant an order of dismissal.
10
31 it does not follow that it has unlimited substantive powers. As a creature of statute, the
Tribunal does not enjoy inherent jurisdiction. Nor is it entitled to extend any of its substantive
powers beyond the four corners of the statute. Where powers incidental and necessary are
required for it to perform its functions, it must read such powers into its statute only by
necessary implication. 32 The power to permanently bar an applicant from approaching the
Tribunal is farreaching and draconian. It may affect an applicant’s right of access to this
Tribunal. It cannot be read into s27 (1) (d) which clearly deals only with incidental and
necessary powers.
34. The manner in which the Act deals with the Tribunal’s powers also suggests that the
legislature did not intend this Tribunal to enjoy such draconian powers. The Tribunal’s
powers and the orders that it can make are expressly set out in section 58. However the Act
does not merely list the orders that the Tribunal can make but goes further and outlines the
circumstances and the manner in which the Tribunal should exercise some of those powers.
Notably sections 59 and 60 provide guidelines to the Tribunal as to how and when it should
exercise its powers to impose administrative penalties and divestiture orders. Imposing
administrative penalties can hardly be seen as more draconian than an order of dismissal.
Yet the Act is at pains to provide for it expressly and then to provide guidelines for its
exercise. An order of divestiture could be considered to be farreaching but arguably far
less draconian than a dismissal. Again the Act stipulates when and how this Tribunal should
impose it. If the legislature had intended that the Tribunal enjoy the power to grant a
draconian remedy such as dismissal, we would have expected the legislature to have
provided for it, expressly in the Act, and to deal with it at least in the same manner as it has
dealt with administrative penalties and orders of divestiture in sections 59 and 60.
35.In our view the matter falls to be dismissed on this basis alone. Section 27(1)(d), a section
which permits this Tribunal to make orders, only incidental and necessary, to the
performance of its functions, cannot be read to confer upon us the power to grant a far
reaching and draconian remedy, which if granted, will permanently bar the Commission or a
complainant from access to this Tribunal. Such a power is not incidental or to be read in by
31 See Sections 52 - 55 and the rule 55 of the Tribunal
32 See Devenish in Interpretation of Statutes Juta 1992 at 113 para 8 and Moodley v Minister of Education
and Culture, House of Delegates 1989 (3) SA 221 (A) 233E
11
necessary implication but is dispositive of a matter, 33 and may affect a litigant’s
constitutional right to access to this Tribunal and to fair administrative justice. Nor does
section 58 and the sections following it, which deal with this Tribunal’s powers and the
orders it can make in some detail, provide for such a remedy.
36. But let us assume for purposes of argument that we do enjoy such powers and consider
whether the circumstances of this case warrant such a drastic remedy as dismissal bearing
in mind that the test is a stringent one.
Profert’s and Commission’s Conduct
37.In this case, while Profert is a complainant and had ‘invoked’ the provisions of the
Competition Act by lodging a complaint with the Commission, 34 it is not a party to the
proceedings before us either as an intervenor or an applicant in terms of section 51(1).
38. The mere lodging of a complaint with the Commission by a person does not
make that person a party to the proceedings before the Tribunal. Once a
complaint has been lodged, the Commission, after conducting an investigation,
may exercise its discretion to either refer the matter to the Tribunal or to issue a
certificate of non-referral. When it refers a complaint to the Tribunal, it is the
Commission, not the complainant that becomes a party to the proceedings
before the Tribunal. The Commission acts in the public interest and not in the
narrow interests of a complainant. 35 Complainants do not enjoy an automatic right to
participate in such proceedings. They may be permitted, at the discretion of the Tribunal, to
intervene in a matter, 36 or may participate as witnesses in a matter.
39. Profert has not referred the matter to the Tribunal and nor has it been granted intervention.
There is no principle in law that permits this Tribunal to have regard to the conduct of
Profert, a nonparty to the proceedings before us. There may be exceptional circumstances
33 In other words it ‘decides’ the main matter in favour of the respondent on grounds other than the merits. Another
difference between this case and Schering is that an order of dismissal in that case would not have resulted in the
complainant being permanently barred from prosecuting the main matter.
34 As described in applicant’s founding affidavit para 26.1.
35 Simelane and Others NNO v Seven Eleven Corporation SA (Pty) Ltd and Another 2003 (3) SA 64 (“Simelane”).
36 See s53 of the Act.
12
in which the conduct of a non party could be attributed to a party, such as in a case where a
court pierces the corporate veil and looks at the conduct of the shareholder of the party
before it. But this is not such a case. The Commission acts independently and in the public
interest and not as a representative or agent of the complainant.
40. Even if we are to assume, for arguments sake, that such a principle exists, in our view
Profert’s conduct, while worthy of criticism from this Tribunal, does not warrant a dismissal of
the complaint.
41. In general a witness does not enjoy the same duties as a party to the
proceedings before the Tribunal. Nor is a witness for the Commission or a
complainant duty bound to assist a respondent in advancing its case. However,
a witness is required to co-operate with the Tribunal as contemplated in section
56 and to comply with a summons and the orders of the Tribunal. He or she is
further required to tell the truth and to answer to the best of their ability. A
failure to do any of the above could constitute an offence in terms of the Act and
for which he or she could be prosecuted and could be fined to a maximum of
R500 000 or imprisonment for a period not exceeding 10 years.37
42.Apart from complying with their statutory duties described above, one would have expected
Mr Van der Walt and the directors of Profert, given that they are officers of the complainant,
to actively promote their company’s interests and assist the Tribunal in its truth seeking
function. Quite unpredictably, they instead chose to put all their efforts –probably at
considerable cost to Profert 38 into resisting the subpoena. Profert’s decision to review the
Tribunal order after agreeing to drop its initial challenge to the subpoena also remains
opaque.39 While we cannot ascertain Profert’s real motives for putting up this desperate
opaque.39 While we cannot ascertain Profert’s real motives for putting up this desperate
fight we do take into account that it ultimately did comply with both the provisions of the
subpoena and the Tribunal order, even if only after it faced contempt proceedings against it.
43.Sasol’s arguments in relation to the culpability of the Commission are without any merit.
37 See sections 69-75.
38 In the form of legal fees and management time spent on preparing the
applications.
39 See transcript 14 February 2008 page 125 where Mr Puckrin is asked by the
Chair whether they persist with their challenge to the subpoena.
13
When the Commission investigates a complaint in terms of section 21(1)(c), it is required to
determine whether a prohibited practice has been committed on the basis of the evidence
gathered by it, and having done that, to refer the matter to the Tribunal. Once the
Commission has exercised its discretion to refer a complaint to the Tribunal the role of the
Commission is akin to that of a prosecutor in a criminal matter. It is under no duty to seek
evidence from complainants or witnesses to advance the respondent’s case. All it is
required to do is to provide a respondent with the “gist” of the matter, to comply with the
rules for trial and to lead evidence in support of its own case before this Tribunal. 40 If in the
course of its investigations it comes across evidence that goes against its case it would be
obliged to disclose this to the respondents and to the Tribunal in the course of discovery.
The Commission is an independent agent acting in the public interest. The Tribunal will not
easily interfere with the Commission’s exercise of its discretion to investigate complaints or
to plan its legal strategy. However, if the Commission’s strategy, its preparation for trial and
evidencegathering is poor, it runs the risk of losing its case before the Tribunal.
44.Moreover, while some suggestions were made through innuendo and argument, no
evidence was led by Sasol to suggest that the Commission had acted in bad faith and not
independently of the complainant. 41 However one would certainly have expected the
Commission to show more enthusiasm 42 in ensuring that Profert complied with the
subpoena and the Tribunal order. The Commission after all, as the custodian of the Act, has
a greater interest in ensuring compliance with its provisions by all concerned. However, a
mere lack of enthusiasm does not constitute abuse or bad faith.
mere lack of enthusiasm does not constitute abuse or bad faith.
45.As far as the weak merits are concerned, we cannot determine this issue on the basis of a
handful of documents placed before us, the context of which is unknown and which have not
been subjected to examination and crossexamination by witnesses. If the case against
Sasol is weak, the Commission runs the risk of losing it. While Sasol may be put to the
inconvenience of defending the allegations made against it by the Commission, it is not
40 See Simelane paragraph 22
41 See transcript page 47 where Mr Unterhalter, on behalf of Sasol states that they
are not alleging bad faith on the part of the Commission.
42 Rather than a mere shrugging of its shoulders and telling Profert to provide all
relevant documentation.
14
prejudiced in any way, by the mere referral of a weak case against it. 43 The appropriate
remedy, in this instance, is not to permanently bar the Commission from prosecuting this
matter but to allow the matter to go to trial.
46. As far as the issue of prejudice goes, the only prejudice, if at all that Sasol may have
suffered by Profert’s reluctance and late compliance, is a postponement of the matter. We
deal with this issue later.
47. The application for dismissal is therefore not granted.
48. Since costs against the Commission and Profert for the referral were sought only if the
dismissal was granted, there is no need for us to deal with that issue. We turn now to deal
with the application for the wasted costs of the postponement against Profert.
Costs against Profert for postponement
49.The applicant states that the reasons why this Tribunal should order Profert to pay the costs
of the postponement are “ the same as the reasons that have been set out above in the
context of the dismissal relief ”.44 In other words, the same conduct of Profert, as we have
briefly outlined above, is good enough to justify either a dismissal of the complaint or a mere
award of costs.
50. The general principle in our law is that courts do not impose costs on persons who are not
party to a suit. The policy underlying this principle is selfevident. If a court for example
mulcted witnesses with costs incurred by parties to a suit, no witness will ever come forward
to assist in the court in its administration of justice, nor will persons who have been harmed
by the unlawful conduct of others seek the protection of our legal system.
51.Where costs are awarded in a matter, they usually follow the suit and are awarded on a
partyparty scale. 45 The Competition Act deviates from this common law principle in
43 See Sanderson v Attorney General, Eastern Cape at paragraph 41 where the court said: “One is therefore not
so much concerned with the prejudice flowing from the charges and the publicity they initially generated, but with the
aggravation of that prejudice ascribable to the delay. (i.e. the conduct forming the basis of the dismissal application)”
44 Heads of Argument, paragraph 61.
45 There are times when a court may impose costs on a more punitive scale such
as attorney-client costs or costs de bonis propis . But this is done as an exception. See AC Cillers, Law
of Cost s Third Edition 1997.
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respect of proceedings before this Tribunal. Section 57(1) provides that each party
participating in a hearing must bear its own costs. This principle is qualified by section 57(2)
which provides that where a complaint has been referred to it in terms of section 51(1), the
Tribunal may award costs against the complainant and the respondent in either of the
situations contemplated in 57(2) (a) and (b). These are the only two circumstances in which
the Tribunal is empowered to impose costs.
52. Sasol submits that the Tribunal enjoys a residual power to impose costs against Profert for
the postponement of the matter and such residual power can be found in the selfsame
s27(1)(d). We disagree with this. The matter of costs is expressly provided for in section 57
of the Act, both at the general and the specific level.
53.But even if were to assume that s27(1)(d) does indeed confer upon us the power to impose
costs beyond the circumstances contemplated in s57(2), it can never grant us the power to
impose costs on an entity that is not a party to our proceedings and is at best a prospective
witness to the proceedings. As Mr Puckrin observes, Sasol asks this Tribunal to do what
even the High Court, with inherent jurisdiction, cannot do. 46
54. Nonetheless, Sasol has not persuaded us, jurisdictional bar aside, that the facts of this case
warrant a costs order against Profert. Sasol was aware as early as 28 September 2007 and
as late as 16 November 2007, through the exchange of discovery affidavits, the nature and
extent of the documents in the Commission’s possession. Having already obtained a sense
of what the Commission had in its possession, it waited until 16 January 2008 to issue a
subpoena on Profert and a request for further discovery on the Commission. In that
subpoena Sasol sought documents that possibly ran into hundreds of thousands of pages.
subpoena Sasol sought documents that possibly ran into hundreds of thousands of pages.
Even if Profert had chosen not to challenge the Tribunal’s subpoena and had delivered the
vast majority of documents within a reasonable time of the subpoena, it is highly likely, given
the large number of documents, that Sasol and/or the Commission would have required time
to sift through these and to possibly file amended witness statements. The likelihood of
Sasol seeking a postponement of the matter was very high, irrespective of Profert’s late
compliance. So even if we assume that Profert’s reluctance played some part in the
postponement of the matter, Sasol’s own conduct, in serving the subpoena and discovery
46 See transcript page 78.
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request of such a large volume of documents late in the day, contributed to the matter
being postponed. Indeed, the postponement seems to have granted Sasol with an
opportunity to better prepare for trial on the basis of the documents obtained under
subpoena, which, on Sasol’s own version, advance its case and weakens the Commission’s.
The application for costs against Profert is accordingly dismissed.
______________________ 02 June 2008
Y Carrim Date
Concurring: D Lewis and U Bhoola
Tribunal Researcher : J Ngobeni
For the Commission : Adv MSM Brassey SC with Adv MJ Engelbrecht instructed by
Cheadle Thompson & Haysom Inc
For the Applicant : Adv DN Unterhalter SC with Adv A Cockrell instructed by
Webber Wentzel Bowens
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