COMPETITION TRIBUNAL OF SOUTH AFRICA
Case No: 21/CR/Mar11
In the matter between
THE NEW RECLAMATION GROUP (PROPRIETARY) LIMITED Applicant
and
GERHARDUS JOHANNES JACOBS Respondent
In regard to the complaint referral proceedings between:
GERHARDUS JOHANNES JACOBS Applicant
and
THE NEW RECLAMATION GROUP (PROPRIETARY) LIMITED Respondent
__________________________________________________________________________________
Panel : Takalani Madima (Presiding Member),
Andreas Wessels(TribunalMember)
Andiswa Ndoni (Tribunal Member)
Heard on : 05 July 2011
Order issued on : 05 September 2011
Reasons issued on : 05 September 2011
Reasons for Decision and Order
Introduction
1]This is an application by the New Reclamation Group (Pty) Ltd (“Reclam”) to set
aside, alternatively, to strike out a complaint referral lodged on 25 March 2011 by Mr
Gerhardus Johannes Jacobs (“the complainant / Mr Jacobs”) with the Competition
Tribunal (“the Tribunal”).
2]In his 18 November 2010 complaint referral to the Competition Commission, (“the
Commission”) Mr Jacobs had alleged that Reclam had acquired control over Golden
Metals which operated as a scrap metal merchant from premises across the road
from his business. Mr Jacobs claimed that the purchase or acquisition of Golden
Metals enabled Reclam to abuse its dominance and market power in the scrap metal
market by manipulating and controlling purchase prices.
3]The Commission investigated the complaint under section 8(c) and (d)(i) of the
Competition Act, 89 of 1998, as amended, (“the Act”) and found that the allegations
failed to sustain a contravention of the aforementioned section of the Act. More
specifically the Commission found that Reclam had not acquired control over Golden
Metals, but had only occupied the premises previously occupied by Golden Metals by
virtue of a lease agreement with the owners of the premises.
4]The Commission’s investigations found further that Reclam commenced business at
the premises at the end of September / early October 2010 and being new in the
area, offered promotional prices. Reclam occupied the rented premises for two
months, stopped trading and then vacated the premises in December 2010. The
Commission found further that even if the alleged conduct constituted an abuse of
dominance, a period of two months would not be sufficient to allow for any
exclusionary effect giving rise to a substantial lessening of competition 1. The
Commission thereupon issued a certificate of Non-Referral on 24 February 20112.
Commission thereupon issued a certificate of Non-Referral on 24 February 20112.
5]The Commission accordingly advised Mr Jacobs to, should he so wish, directly refer
his complaint to the Tribunal in terms of section 51(1) of the Act. This Mr Jacobs duly
did on 25 March 2011. The relief that he seeks is that (a) the Tribunal must consider
the complaint and refer it back to the Commission for a proper and thorough
1 . Pleadings Bundle, Annexure “F”, page 22
2 . See CT1(2) Form re: Referral of Complaint by Complainant.
3
investigation and to obtain relevant evidence, (b) compensation for financial
damages and (c) appropriate order to costs 3. I wish to point out that these
proceedings are not about Mr Jacobs’ complaint.
Background
6]The Applicant is Reclam, a private company incorporated and registered in terms of
the Companies Act, No 61 of 1973 with its principal place of business at Reclam
Building, 263 Oxford Road, Illovo, Johannesburg. The Applicant is the Respondent in
the complaint referral proceedings brought against it by the Respondent in these
proceedings. The applicant is represented by Adv D. Unterhalter SC.
7]The Respondent is Mr Jacobs, a male person trading as Champs for Scrap with his
principal place of business at 41 Brown Road, Newlands, Johannesburg. The
Respondent is the Applicant in the complaint referral proceedings referred to above.
Mr Jacobs elected to represent himself in these proceedings citing a lack of funds as
the reason he did not have a legal representative.
8]Mr Jacobs claims to have conducted his business in the Newlands area since 1994
and from his current address since 1999. His competitors in the scrap metal business
were the Barkhuizens, a husband and wife team who conducted a similar business
known as Golden Metals. The Barkhuizen’s business was situated across the road
from Mr Jacobs’. There were approximately thirteen other small scrap metal
merchants, known as “bucket shops” competing in the same market in the Newlands
area.
9]On or about the morning of 6 September 2010 Mr Jacobs alleges to have noticed
Mrs Barkhuizen arrive at 68 Brown Road, the Golden Metals premises. Shortly
thereafter certain persons wearing the Reclam uniform arrived in a Reclam branded
mini truck at the Golden Metals premises. They erected a signboard with the name
“Reclam Cash for Scrap” which they placed at the entrance of the premises. The
“Reclam Cash for Scrap” which they placed at the entrance of the premises. The
signboard displayed the prices Reclam Cash for Scrap would pay for a variety of
scrap. With them were three employees of Golden Metals who were also wearing the
Reclam uniform. Mrs Barkhuizen left the premises soon thereafter.
10]During the course of that morning the Reclam people, according to Mr Jacobs,
conducted business from the premises, that is, from 68 Brown Road, and were
offering substantially higher rates than what Champs Cash for Scrap and other scrap
3 . CT1 (2) Notice dated 25 March 2011.
metal dealerships offered within the Newlands area4.
11]Upon contacting Mrs Barkhuizen, Mr Jacobs was informed that Golden Metals had
been sold to Reclam. This surprised Mr Jacobs as Mrs Barkhuizen had told him in
the past of approaches from Reclam but that she would never sell her business to
them as they were not offering her an acceptable price for it. Mr Jacobs was also not
aware that notice of “this immediate merger or acquisition” was given to the Commission, or
notice published in accordance with the provisions of section 34 of the Insolvency Act, No 24
of 1936, as amended 5”. He was of the view that “ this immediate merger or acquisition ”
should have been reported to the Commission as well as published in terms of the
Insolvency Act. According to Mr Jacobs, this was necessary because the transaction
would result in an overlap of activities of the merging parties with respect to sourcing
of scrap metal in the Newlands area.
12]Mr Jacobs’ further concern was that the merged entity would be able to exercise
market power in the downstream market of the bucket shop, and would be in a strong
position to foreclose downstream rivals, Champs Cash for Scrap in particular and
thus lessen competition as the competitors would be unable to match what Reclam
was offering to scrap sellers.
13]In a letter dated 18 October 2010 Mr Jacobs’ attorneys informed Reclam, inter alia
that “ According to facts at our client’s disposal, your business activities at No 68 Brown
Road, Newlands, Johannesburg, constitute, inter alia, a prohibited practice as contemplated
in terms of the provisions of the Competition Act, Act No 89 of 1998 (as amended) and,
moreover, a contravention of the order made by the Competition Tribunal on 7 May 2008
under Case No.37/CR/Apr08 6”. In response Reclam stated that they were neither in
contravention of any of the provisions of the Act nor order of the Tribunal, and invited
Mr Jacobs’ attorneys to discuss any aspect thereof should they so wish7.
Mr Jacobs’ attorneys to discuss any aspect thereof should they so wish7.
14]A meeting was indeed held between Mr Stefan van den Berg who represented Mr
Jacobs, Mr Howard Frank, Mr Neil Davies and Mr Graham Wolf who represented
Reclam. Not much was achieved. Reclam’s position was that they were not guilty of
any wrongdoing and that they could open their business anywhere they desired.
15]According to Mr Jacobs, Reclam’s “ intermediate merger or acquisition with Golden
Metals, coupled with its abuse of dominance, manipulation or control of prices on the
4 . Jacobs’ Founding Affidavit, page 5
5 . Jacobs’ Founding Affidavit, page 6
6 . Jacobs’ Founding Affidavit, Annexure A, page 15
7 . Jacobs’ Founding Affidavit, Annexure B, page 16
5
purchasing of scrap metal made possible by their Market Power, was adversely affecting my
business. I could not and cannot possibly compete with the Respondent (whom is regarded
as a wholesaler in the market), who is offering wholesale prices for buying scrap metal from
sellers8”.
16]Mr Jacobs further complains that Reclam has the largest collection network in Sub-
Saharan Africa and the market power to control prices in the market and to exclude
competition, and that since their arrival at Golden Metals, his business has suffered
substantially.
17]On 29 November 2010 Mr Jacobs made an application to the Tribunal for urgent
interim relief against Reclam, under case number 74/IR/Nov10. On the same day
Reclam’s attorneys wrote to Mr Jacobs and reiterated that Reclam was not in
contravention of the Act or the terms of the consent order. In the same letter, the
attorneys stated further that “ our client has for commercial reasons, unrelated to the
allegations set out in the complaint and interim relief proceedings, decided to cease doing
business from the premises situated at No 68 Brown Road, Newlands, Johannesburg with
effect from close of business on 30 November 2010 ....9”.
18]As already stated above the Commission issued a certificate of Non-Referral and
advised Mr Jacobs to refer the complaint to the Tribunal himself. Mr Jacobs was not
satisfied that the Commission had investigated his complaint against Reclam
properly, hence his 25 March 2011 self complaint referral to the Tribunal...
The relief that Mr Jacobs seeks
19]In his founding affidavit Mr Jacobs seeks the Tribunal to (a) consider his complaint
and (b) refer it back to the Commission for a proper and thorough investigation and to
obtain the relevant evidence against Reclam.
20]Mr Jacobs states further in the affidavit that in the event that the Tribunal does not
refer his complaint back to the Commission, and is of the view that there is enough
refer his complaint back to the Commission, and is of the view that there is enough
evidence that Reclam contravened the Act and the consent order, then the Tribunal
must find (a) that Reclam’s actions are anti-competitive and should take the
necessary steps to (b) make an appropriate compensation order against Reclam for
the financial damages suffered by himself during the three months of “ promotional”
period, and order Reclam to (c) desist from similar conduct in the future elsewhere in
the Republic. Lastly Reclam must be ordered to (d) pay appropriate costs in this
8 . Jacobs Founding Affidavit, page 7
9 . Jacobs Founding Affidavit, Annexure F, page 20
regard.
21] The above is the sum total of Mr Jacobs’ complaint against Reclam. This is the
complaint that the Commission declined to refer to the Tribunal. This is the complaint
that the Tribunal would be required to entertain as a self referral once set down. This
is the complaint referral against which Reclam has launched the instant proceedings
in limine to have the said complaint struck out, alternatively set aside.
Reclam’s application
22]In its notice of motion Reclam seeks the following relief
1. setting aside the Respondent’s complaint referral dated 25 March 2011, alternatively
striking out –
1.1. all or any of the facts pleaded in respect of the alleged merger between the
applicant and Golden Metals, in particular those facts pleaded in paragraphs 9, 13
and 22.1 to 22.3 of the respondent’s founding affidavit;
1.2. all or any of the facts pleaded in respect of the alleged breach of the Consent
Order under Tribunal case number 37/CR/Apr08, in particular those facts pleaded
in paragraphs 17 and 23 of the respondent’s founding affidavit;
1.3. any and all facts pleaded in support of the applicant’s alleged contravention of
sections 8(c) and 8 (d)(i) of the Competition Act No 89 of 1998;
1.4. the relief sought in the respondent’s form CT1(2) and paragraph 23 of the
respondent’s founding affidavit in respect of –
1.4.1 the referral of the complaint back to the Competition Commission for
reinvestigation;
1.4.2 the declaration that the applicant’s conduct is anti-competitive
1.4.3 the interlocutory relief to prevent the applicant “from similar [alleged]
conduct in the future elsewhere in the Republic”; and
1.4.4 the compensation for financial damages allegedly suffered by the
respondent
2. directing that the respondent pay the costs of this application; and
3. granting the applicant further and/or alternative relief.
7
23]Reclam’s attack on Mr Jacobs’ complaint referral is that it is objectionable and/or
excipiable on the basis that it is (a) vague and embarrassing and/or (b) does not
disclose a cause of action and/or (c) that the relief sought is jurisdictionally
incompetent10.
24]In paragraphs 9, 13 and 22.1 to 22.3 of his founding affidavit Mr Jacobs alleges that
the purchase of the Barkhuizen’s business by Reclam resulted in an intermediate
merger between Reclam and Golden Metals, and that Reclam never notified the
Commission of the intermediate merger.
25]In its submission before the Tribunal Reclam stated that section 49B of the Act
envisages the referral of a complaint to the Tribunal, either by the Commission or by
a complainant in respect of a prohibited practice. A prohibited practice is defined as a
practice prohibited in terms of chapter 2 of the Act 11. Intermediate mergers
notifications to the Commission are governed by a separate chapter of the Act 12.
Reclam submitted further that the complaint procedure is not the appropriate
procedure in which to complain to the competition authorities of an alleged merger
that has been implemented without the requisite approval. Mr Unterhalter submitted
that it is for this reason that the Tribunal does not have the jurisdiction to entertain the
allegations. (my emphasis)
26]Reclam further stated that Mr Jacobs does not allege sufficient facts in his founding
affidavit to establish that an intermediate merger took place between Reclam and
Golden Metals. This paucity of sufficient facts renders the allegations vague and
embarrassing and do not sustain a cause of action. Mr Unterhalter submitted that
paragraphs 9, 13 and 22.1 to 22.3 of the respondent’s complaint referral be struck
out for the above stated reasons.
Breach of the Tribunal’s consent order.
27]With regard to the allegations relating to breach of the consent order, Reclam
27]With regard to the allegations relating to breach of the consent order, Reclam
submitted that section 49B of the Act does not envisage a complaint to the
competition authorities of a breach of a consent order made by the Tribunal. It was
again submitted that the Tribunal lacked the jurisdiction to entertain these allegations.
Further that Mr Jacobs lacked the locus standi to litigate with regard to the consent
order because he was not a complainant or informant in respect of the complaints
10 . Davies Founding Affidavit, page 9
11 . Section 1(xxiv) of Act No.89 of 1998
12 . Chapter 3 and in particular sections 11, 12, 12A, 13A, 13B, 14 and 15-18 of the Act.
which gave rise to the consent order, and therefore not a party affected thereby.
28]Mr Unterhalter submitted that paragraphs 17 and 23 of Mr Jacobs founding affidavit
do not allege sufficient facts to establish that Reclam breached the consent order.
These allegation are accordingly vague and embarrassing and do not sustain a
cause of action and should accordingly be struck out, it was submitted.
29]Reclam submitted further that the relief sought by Mr Jacobs in the CT1 (2) form and
in his founding affidavit that the Tribunal should refer the matter back to the
Commission for re-investigation is not competent as the Tribunal lacks jurisdiction to
do so. The same applies to the request for an order regarding compensation of
alleged financial damages. Such an order was beyond the jurisdiction of the
Tribunal13, so it was submitted.
30]Reclam submitted that a further relief sought by Mr Jacobs 14 where he asks the
Tribunal to declare that the applicant’s conduct is uncompetitive and for “ an
appropriate order to prevent [the applicant] from similar conduct in the future elsewhere in the
Republic” has not been set out in the CT1(2) form. This relief has therefore not been
set out in the complaint referral. Mr Unterhalter submitted that it is for that reason that
paragraph 23 should be struck out.
Abuse of dominance allegations.
31]With regard to the abuse of dominance allegations Reclam submitted that Mr Jacobs’
founding affidavit did not allege sufficient facts to sustain an exclusionary act
complaint as contemplated in section 8(c) and 8(d)(i) of the Act. This because the
founding affidavit does not comply with Tribunal Rule 15(2).
32]Rule 15(2) provides, inter alia that a complaint referral must be supported by an
affidavit setting out a concise statement of the grounds of the complaint and the
material facts or the points of law relevant to the complaint and relied on by the
Commission or complainant, as the case may be.
Commission or complainant, as the case may be.
33]Reclam submitted that Mr Jacobs did not allege the requisite material facts that are
necessary to sustain an allegation of an abuse of dominance, namely and inter alia,
the relevant market. In his founding affidavit Mr Jacobs refers to “ the Newlands scrap
metal market” and “the downstream market of the Bucket Shops”. Reclam submitted that it
was not clear which market Jacobs relied on or what the respective markets entailed.
13 . Davies Founding Affidavit, paragraphs 27-28, page 15
14 . This is set out in paragraph 23 of Jacobs’, founding affidavit
9
The founding affidavit also did not allege any market shares and/or players in order
to establish Reclam’s dominance or market power as alleged. The founding affidavit
further did not state facts in order to establish that Reclam’s alleged conduct
constituted an exclusionary act as contemplated in section 8(c) of the Act, or any
facts to establish that Reclam induced customers not to deal with Mr Jacobs as
contemplated in section 8(d)(i) of the Act.
34]Mr Unterhalter submitted that the founding affidavit was vague and embarrassing and
lacked averments necessary to sustain a cause of action.
35]Section 8(c) of the Act provides that:
It is prohibited for a dominant firm to –
(c) engage in an exclusionary act, other than an act listed in paragraph (d), if the anti-
competitive effect of that act outweighs its technological efficiency or other pro-
competitive gain.
36]For a claim to be sustainable in terms of section 8(c) of the Act, the complainant or
applicant must prove that the respondent(s) is a dominant firm in a particular relevant
market. A dominant firm is described in the Act as being dominant if
a) It has at least 45% of that market
b) It has at least 35%, but less than 45% of that market, unless it can show that it
does not have market power; or
c) It has less than 35% of that market, but has market power15.
37]Section 8(d)(i) provides that it is prohibited for a dominant firm to –
d) Engage in any of the following exclusionary acts, unless the firm concerned can
show technological, efficiency or other pro-competitive gains which outweigh the
anti-competitive effect of its act -
i) Requiring or inducing a supplier or customer to not deal with a
competititor.
38]It does not seem that Mr Jacobs has been able to demonstrate in his papers the
satisfactory compliance with the requisites of sections 7 and 8 of the Act.
15 . Section 7 of Act 89 of 1998.
The orders that the Tribunal may competently grant.
39]Section 58(1) of the Act provides for the orders that the Tribunal may make -
“...the Competition Tribunal may -
a) Make an appropriate order in relation to a prohibited practice, including
i) Interdicting any prohibited practice;
ii) Ordering a party to supply or distribute goods or services to another party
on terms reasonably required to end a prohibited practice;
iii) Imposing an administrative penalty, in terms of section 59, with or without
the addition of any other order in terms of this section;
iv) Ordering divestiture, subject to section 60
v) Declaring conduct of a firm to be a prohibited practice in terms of this Act,
for the purposes of section 65;
vi) Declaring the whole or any part of an agreement to be void;
vii) Ordering access to an essential facility on terms reasonably required.
b) Confirm a consent agreement in terms of section 49D as an order of the Tribunal;
or
c) Subject to sections 13(6) and 14(2), condone, on good cause shown, any non-
compliance of
i) The Competition Commission or Competition Tribunal rules; or
ii) A time limit set out in this Act”.
Is the Tribunal competent to grant the kind of relief sought by Mr Jacobs?
40]The Tribunal is an administrative body with powers to make certain orders. This
power however does not extend beyond what is expressly set out in an empowering
statute, in this case, the Act. These powers of the Tribunal are provided for in section
58(1) of the Act.
41]The first relief sought by Mr Jacobs set out in the CT1(2) form is an order for the
Tribunal to consider the complaint and refer this complaint back to the Commission
11
for a proper and thorough investigation and to obtain relevant evidence. Mr Jacobs in
his submission stated that “ When I said refer something back to the Commission, it is not
for a re-investigation, but for the Commission to go and get certain information, which they
are capable of. They’ve got the rights to search and seizure. They can do things which I as a
private person can’t do...16”
42]I have not considered Mr Jacobs’ complaint referral because that is not what the
instant proceedings are about. I considered Mr Jacobs’ case on the merits. The
instant proceedings relate only to the points in limine raised by the applicant. It is
those points in limine that I am concerned with. Even if I had considered the merits of
Mr Jacobs complaint referral in these proceedings, I still would not have been in a
position to grant him the relief he seeks because the Tribunal does not have the
power to refer an abuse of dominance complaint back to the Commission as
requested. I take my cue from the provisions of section 58(1) with regard to the
orders that the Tribunal can make. Referral of the complaint back to the Commission
for re-investigation or getting certain information in this regard, is not one of them.
43]Mr Unterhalter in his submission stated that not only is the Tribunal not empowered
to refer the complaint back to the Commission, the Commission itself is functus officio
in that it has already made a decision regarding Mr Jacobs’ complaint, and can
therefore not self-correct its earlier decision.
44]Mr Jacobs’ alternative relief that he seeks is that in the event that the Tribunal does
not refer his complaint back to the Commission, and is of the view that there is
enough evidence that Reclam contravened the Act and the consent order , then the
Tribunal must find (a) that Reclam’s actions are anti-competitive and should take the
necessary steps to (b) make an appropriate compensation order against Reclam for
necessary steps to (b) make an appropriate compensation order against Reclam for
the financial damages suffered by himself during the three months of “ promotional”
period, and order Reclam to (c) desist from similar conduct in the future elsewhere in
the Republic. Lastly Reclam must be ordered to (d) pay appropriate costs in this
regard. (my emphasis)
45]I am again not inclined to grant Mr Jacobs the above relief because I hold no view
that there is enough evidence that Reclam contravened the Act and consent order because
the Tribunal has not heard any evidence in this regard. As already stated above,
these proceedings are not about the merits of Mr Jacobs’ complaint referral. In any
event, Mr Jacobs conceded that “ The case for the abuse of dominance – maybe my case
16 . Record page 36, line 18.
was not stated clearly with facts of exactly what 45% is, how many billion around it is to say
okay 45% is 450 000 from a billion .... 17” I am sure there is a case of dominance to be made
out18. Mr Jacobs submitted that he wanted to be afforded a further opportunity to
amend or fix 19 his complaint referral ...” so that the dispute between me and The
Reclamation Group could be properly ventilated in getting to the core of the
problem20”.
46]On being questioned whether he had an answer to the application by Reclam, and
whether he conceded all the points made in limine, Mr Jacobs stated that he did not
concede to all the points in limine save for the one on the merger and on the consent
order21. He submitted that the other points were for evidence.
47]The problem with Mr Jacobs' argument is that for him to be allowed to lead evidence
at the Tribunal, he needs to first ensure that his complaint referral is properly before
the Tribunal. He submitted that he was busy “ penal-beating this to get my complaint
ready to be before the Tribunal22. This therefore suggests that Mr Jacobs agrees with
the proposition that his complaint referral is not properly before the Tribunal in its
current form23.
48]I am inclined to agree with Mr Unterhalter that the points he has raised in limine
should be upheld. Mr Jacobs has submitted that he required a further opportunity to
amend or supplement his complaint referral. This would be his second request to so
amend or supplement. This request on its own is an admission by Mr Jacobs that he
has not made out a proper case that is ripe to be heard by the Tribunal at this stage.
As pleaded currently, Reclam does not have a case to answer.
Costs.
49]Mr Unterhalter submitted that Mr Jacobs has brought an unwinnable case before the
Tribunal without the benefit of legal representation. A case without any merit. Mr
Jacobs was requested to withdraw it by the Respondent but he did not 24. Mr
Jacobs was requested to withdraw it by the Respondent but he did not 24. Mr
Unterhalter submitted further that if the Respondent succeeded, they should be
awarded costs25 for the reasons stated above.
17 . Record page 36, line 8
18 . Record page 38, line 1
19 . Record page 38, line 14
20 . Record page 39, line9
21 . Record page 41, line 6 – 8 and page 42, line 11
22 . Record page 41, line 14
23 . Record page 43, line 7
24 . Record page 34, line 4
25 . Record page 44, line 20
13
50]I find that Mr Jacobs is not, contrary to what he claims, litigating in the public interest.
He is litigating in his own interest. Mr Unterhalter submitted that it is the Commission
that litigates in the public interest. The Commission in this matter has provided its
views on the merits of this case and communicated them to Mr Jacobs. Mr Jacobs
ignored the Commission’s views and insisted on self referring a defective complaint
to the Tribunal.
51]Mr Jacobs submitted that no cost order be made against him, and if costs were to be
considered, these should be costs in the cause or in his words “ costs in the matter as it
is running26”. I do not agree.
52]The Tribunal has in the past considered the issue of the awarding of costs against
litigants such as in the instant proceedings. I have considered the concerns for
fairness and in particular the fact that Mr Jacobs is not schooled in the law and has a
rudimentary grasp of the law governing competition.
53]I have also taken into account the fact that Mr Jacobs has compelled the respondent
to appear before the Tribunal to answer to spurious allegations. I find it not
acceptable and in bad taste for a litigant to compel another litigant to come to the
Tribunal when that litigant has a weak or no case at all. The respondent litigant is
compelled to appear before the Tribunal to answer whatever is thrown at it. Failure to
so appear could result in a default order against such respondent.
54]It does not avail Mr Jacobs that he is not schooled in the law of competition when the
applicant argued that Mr Jacobs’ pleadings are excipiable. It should equally not avail
Mr Jacobs that the applicant’s legal representative has more knowledge than him on
the law in this regard. It should further not avail Mr Jacobs that the applicant has lots
of money to appoint good counsel to fight their case. I find no merit in such
arguments. Mr Jacobs took the risk when he launched these proceedings with the
arguments. Mr Jacobs took the risk when he launched these proceedings with the
Tribunal, and in all fairness to Reclam, Mr Jacobs should pay the costs, because his
matter has been defeated.
Order.
55]In the circumstances I make the following order:
1) Paragraphs 9, 13 and 22.1 to 22.3 of the respondent’s founding affidavit of the
complaint referral against the applicant to the Competition Tribunal on or about
26 . Record page 43, line 17
25 March 2011 are struck out on the grounds that they are excipiable and do not
sustain a cause of action;
2) Paragraphs 17 and 23 of the respondent’s founding affidavit of the complaint
referral are struck out on the grounds that they are excipiable and do not sustain
a cause of action;
3) Any and all pleaded facts in support of the applicant’s alleged contravention of
sections 8(c) and 8(d)(i) of the Competition Act No 89 of 1998 are struck out on
the grounds that they are excipiable and do not sustain a cause of action;
4) The relief sought by respondent with regard to the referral of the complaint back
to the Competition Commission for re-investigation is struck out;
5) The declaration that the applicant’s conduct is anti-competitive is struck out;
6) The interdictory relief to prevent the applicant “ from similar [alleged] conduct in
the future elsewhere in the Republic” is struck out;
7) The relief sought with regard to the compensation for financial damages
allegedly suffered by the respondent is struck out; and
8) Respondent to pay applicant’s costs on a party and party scale.
____________________ 31 August 2011
Takalani Madima DATE
Andiswa Ndoni and Andreas Wessels concurring:
[1] As per Ndoni and Wessels, we concur with the decision, but for the sake of clarity
and further guidance to Mr Jacobs we add the following:
[2] In regard to paragraph 42 of the reasons we point out that the Tribunal has
inquisitorial powers in terms of the Act and therefore in certain circumstances can
request additional information from the Commission. However, this is not relevant in
this particular case since the Commission, after investigating the matter, has issued a
certificate of non-referral and has provided reasons for its decision to the
15
complainant, Mr Jacobs.
[3] In regard to the interdictory relief sought by Mr Jacobs we point out that he has
conceded that the alleged abuse of dominance conduct complained of has in fact
stopped. There is therefore no ongoing threat of harm in this case and the issue is
moot.
[4] In regard to the issue of financial damages allegedly suffered by Mr Jacobs, the
Tribunal does not have the jurisdiction under the Act to grant compensatory orders of
damages. In terms of section 65 of the Act, read with section 58(1)(v), Mr Jacobs
would have to approach a civil court to claim financial damages.
[5] We urge Mr Jacobs to seek legal and economic advice, pro bono if possible, in
regard to his case. In order for Reclam to have contravened section 8 of the Act, it
would have to be found that it is a dominant firm in the relevant market(s) in question.
Furthermore, since it is common cause between the parties that the alleged abuse of
dominance conduct had a total duration of less than three months it would have to be
shown that the conduct in question - despite its limited duration - had an anti-
competitive effect.
05 September 2011
Andiswa Ndoni and Andreas Wessels DATE
Tribunal Researcher: Mr T Ngilande
For the Applicant: Adv D Unterhalter SC
Instructed by Werksmans
For the Respondent: Mr H Jacobs (on his own)