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COMPETITION TRIBUNAL OF SOUTH AFRICA
Case No: 73/CR/Oct09
In the matter between:
The Competition Commission Applicant
and
Telkom SA Ltd Respondent
and
In the matter between:
Telkom SA Ltd Applicant
and
The Competition Commission Respondent
Panel: Yasmin Carrim (Presiding Member)
A Wessels (Tribunal Member)
T Madima (Tribunal Member)
Heard on: 25 January 2013
Order issued on: 13 February 2013
Reasons issued on: 13 February 2013
Reasons for Decision and Order
Introduction
1. In these applications Telkom and the Competition Commission (“Commission”) are
both seeking orders compelling further and better d iscovery. The Commission and
Telkom SA Limited (“Telkom’) are parties to a compl aint referral by the Commission
against Telkom. The Commission’s complaint deals wi th Telkom’s alleged abuse of
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its dominance in various product markets concerning wholesale internet access
between 2004 and 2009.
Background
2. The Commission referred the complaint against Te lkom to the Tribunal on 26
October 2009 and pleadings closed on 16 March 2012. During a pre-hearing
conference held in early 2012 a time-table was agre ed to by the parties for
discovery, interlocutory applications and the filin g of witness statements and expert
witness reports. The matter was set down for hearin g before the Tribunal from 18
June to 5 July 2013.
3. The discovery hearing was initially set down for 19 November 2012 but was
eventually postponed to 25 January 2013 by agreemen t of the parties. The
Commission’s application was argued first and Telkom’s second.
Commission’s application
4. After the Commission presented its case, the mat ter was adjourned to allow the
parties an opportunity to explore a possible agreement. On resumption both Telkom
and the Commission submitted that they had arrived at settlement as follows:
“Telkom undertakes to conduct a search for and to p rovide to the Commission by
18 February 2013, all such documents in its possess ion as it may find, and which
fall under items 1,10,11,12,17 (wholesale market on ly) and 23 of the Commission’s
request for discovery, and in relation only to the following markets:
1.1 the market for the provision of ADSL-based whol esale IP network
services for Internet access for the purpose of ret ail supply of Internet
access;
1.2 the market for the retail supply of ADSL-based Internet access to
large business customers (i.e. corporate customers) (except for item 17).”
5. The Commission indicated further that in relatio n to items listed under paragraph
2.27 of Exhibit 1 Category 1: Relevance it intended sending a letter Telkom
indicating which of those were still in issue and w ould approach the Tribunal only if
the parties were unable to arrive at a resolution.
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6. We confirm the settlement and the undertakings g iven by Telkom as an order of this
Tribunal. This then deals with the Commission’s app lication and we turn to consider
Telkom’s application.
Telkom’s application
7. The documents listed in Schedules RA1 and RA2 ar e documents that were sought
by Telkom from the Commission.
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8. The background to this application is that the C ommission in its discovery affidavit
claimed these documents as falling within the ambit of Rule 14(1)(d) of the ‘Rules for
the Conduct of Proceedings in the Competition Commi ssion’ or in the alternative
were subject to litigation privilege. At that stag e of the proceedings Telkom
indicated that it intended to argue that Rule 14(1) (d) was ultra vires .2 Telkom filed a
request for categories of these documents (reproduc ed in schedules RA1 and RA2)
which formed the basis of this application. The ap plication was initially set down for
19 November 2012 but the parties indicated that the y were not ready to proceed
then. The hearing on 19 November 2012 was converted into a pre-hearing.
9. At the pre-hearing the parties agreed that the C ommission would draw up a detailed
list of the documents it claimed to be restricted u nder Rule 14(1)(d) or were subject
to litigation privilege and Telkom would be afforde d an opportunity to object if it so
wished. 3 The Commission filed its Supplementary Answering A ffidavit on 8 January
2013, para 6 of which listed the 12 categories of d ocuments that it regarded as
restricted or privileged. In that affidavit the Com mission also stated that it has no
other documents in its possession (as suggested by Telkom in its request
reproduced in RA1 and RA2) that fell within the res tricted class of information and
set out the steps it had taken to search for these documents. 4 In paras 17 – 22 the
Commission explains that it conducted searches for third party information
requested by Telkom by contacting them and provided an account for information
requested by Telkom by contacting them and provided an account for information
belonging to Gillwald & Esselaar, Verizon, Internet Solutions, MWeb, ICASA and
Genesis Analytics. By way of summary the third part y information requested by
1 These schedules appear on p 364 of Telkom’s discovery record and should be read with a letter dated 21
January 2013, on p 468 of the record, in which Telkom indicates the documents it will be persisting with at this
Tribunal hearing.
2 Telkom FA p 109 of the record.
3 See Minutes of Meeting between the Commission and Telkom – 19 November 2012.
4 See para 13 onwards at page 449 of the record.
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Telkom was not in the possession of the Commission but could be provided
(Gillwald) or only some or none could be located by either the Commission or the
third party and/or had to be sought by Telkom from the third party (Verizon, Internet
Solutions, MWeb, ICASA and Genesis Analytics).
10. In response to this affidavit Telkom wrote an email on 18 January 2013 stating that it
“denies that there is any basis in fact or in law fo r such assertions .” This was a
general comment and there was no indication from Te lkom that it found the
description of any of the categories of documents o r information provided by the
Commission as inadequate or vague.
11. The documents at paras 6.1 – 6.12 of the supple mentary affidavit have been
grouped together and are listed in the Commission’s heads at paras 13.1 – 13.6.
They include internal reports and comments by the e xternal economists/advisors of
the Commission, reports to its EXCO, opinions and a dvice by third parties and
internal emails and opinions by its investigation team, all relating to the case referred
to the Tribunal as follows -
11.1. “Competition Commission Enforcement and Exemp tions Final Report and appendices
dated May 2009. This is a report as contemplated in Rule 14(1)(d)(i)(bb), read with (ii) and
(iii).
11.2. Comments by Genesis Analytics dated 3 March 2 009, or given at any other time, on
the report in paragraph 6.1 above.
11.3. Comments by Genesis Analytics dated 5 May 200 9 on the report in paragraph 6.1
above. All comments by Genesis Analytics referred t o above constitute opinion, advice,
report or recommendation prepared for the Commissio n as contemplated in Rule
14(1)(d)(i)(bb), read with (ii) and (iii).
11.4. Peer Review of Telkom cases by Massimo Motta relating to complaints in the present
complaint referral.
11.5. Peer Review on the revised Report on the Telk om cases by Massimo Motta relating
to the complaints in the present complaint referral . Both peer reviews constitute opinion,
to the complaints in the present complaint referral . Both peer reviews constitute opinion,
advice, report or recommendation prepared for the C ommission as contemplated in Rule
14(1)(d)(i)(bb), read with (ii) and (iii).
11.6. A written note prepared by Bill Melody for th e Commission relating to the complaints
that are the subject matter of the present complaint referral.
11.7. High Speed Circuit Price Benchmarking Report prepared by Teligen for the
Commission relating to the complaints that are the subject matter of the present complaint
referral. Both the written note by Melody and the H igh Speed Circuit Price Benchmarking
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report constitute opinion, advice, report or recomm endation prepared for the Commission as
contemplated in Rule 14(1)(d)(i)(bb), read with (ii) and (iii).
11.8. E-mail communications between various members of the Commission’s investigating
team relating to the complaints that are the subjec t matter of the present complaint referral,
as well as the report in paragraph 6.1 above.
11.9. E-mail communications between the various mem bers of the Commission’s
investigating team and the experts consulted during the investigation related to the
complaints that are the subject matter of the prese nt complaint referral, as well as the report
in paragraph 6.1 above.
11.10. Memorandum to the Commission’s Executive Com mittee related to the complaints
that are the subject matter of the present complain t referral, as well as the report in
paragraph 6.1 above.
11.11. Commission’s internal presentation on the complaint s that form the subject matter of
the present complaint referral. The email communica tions, the memorandum and internal
presentation constitute internal communications, op inion, advice, report or recommendation
as contemplated in Rule 14(1)(d)(i)(aa) and (bb), a s well as containing accounts of
consultations and discussions as contemplated in (cc), read with (ii) and (iii).
11.12. Various documents relating to calculations undertak en by the Commission’s
investigating team which were used as inputs into t he Commission’s report in paragraph 6.1
above. This related to market share calculations, a ssessment of various providers’ pricing,
assessment of margin squeeze on the various service s, assessment of excessive pricing on
the relevant services/products and cost models. The se fall within the ambit of Rule
(14)(1)(d)(i)(aa), (bb) and/or (cc), read with (ii) and (iii).”
[Note that in these reasons we will refer to these documents as: the documents
listed in paras 6.1 – 6.12, as referred to in the C ommission’s supplementary
answering affidavit].
answering affidavit].
12. At the hearing of the matter Telkom accepted th at Rule 14(1)(d) was in vires.
However it submitted that the rule only applied to proceedings at the Commission
and had no application in the Tribunal’s proceeding s (“the non-application
argument”). Telkom further argued that Rule 14(1)(d ) was unconstitutional in that it
was inconsistent with PAIA. 5 The documents did not enjoy protection from disclosure
under litigation privilege as argued by the Commiss ion. In any event even if they did
fall under 14(1)(d) or were privileged the Commission’s affidavit was defective in that
it did not set out sufficient detail to indicate th at the documents listed were “ internal
communications ”. This also demonstrated that the Commission had n ot properly
applied its mind (and was therefore irrational) to which documents actually fell within
5Promotion of Access to Information Act, Act no. 3 of 2000.
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the ambit of Rule 14(1)(d). On this basis they sh ould be handed over. Finally
Telkom submitted that it needed to see those docume nts in the interest of fair
administrative justice.
13. Telkom did not persist with its request for third party information at this hearing .
14. While a multitude of reasons were offered up by Telkom as to why we ought to
compel discovery of these documents, the central pl ank of its argument, was the
non-application argument. As indicated by Mr Marit z on behalf of Telkom, in
response to the Commission’s submission that the CA C in Computicket (Pty) Ltd v
The Competition Commission of South Africa, CAC Cas e No: 118/CAC/Apr12 had
accepted that documents such as those sought in thi s application enjoyed the
protection of rule 14(1)(d) -
“We are arguing another point. We are saying it does n’t apply. Everyone has been
wrong up to now, because they didn’t take the point and Mr Gauntlett in the
Computicket decision, it is important, he made the concession that it is subject to
Rule 14 and, with respect, we submit he was wrong to have made the concession. He
shouldn’t have conceded the limitation, but it is s omething which is going to have to
be decided. Sometime some court at some level is go ing to be asked to decide the
question .” 6
Non-application of Rule 14(1)(d)
15. Part 3 of the Commission’s Rules regulates acce ss to Commission records. Two
rules apply in relation to this, namely, Rule 14 wh ich lists the 5 classes of
information that are restricted and Rule 15 which s ets out the categories of persons
who may inspect or copy the Commission’s records in the case of non-restricted and
restricted information. Rule 14(1)(c)(i) deals with information that is restricted by
operation of time and becomes unrestricted once cer tain events occur. Documents
in rule 14(1)(d) are restricted by their nature.
16. Rule 14(1)(d) states as follows:
6T108 line 11.
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“14. Restricted information
(1) For purpose of this Part, the following five classes of information are restricted:
(a)...
(b) ....
(c) ...
(d) A document –
(i) that contains –
(aa) an internal communication between officials of the Competition
Commission, or between one or more such officials a nd their
advisors;
(bb) an opinion, advice, report or recommendation o btained or
prepared by or for the Competition Commission;
(cc) an account of a consultation, discussion or de liberation that has
occurred, including, but not limited to, minutes of a meeting, for the
purpose of assisting to formulate a policy or take a decision in the
exercise of a power or performance of a duty confer red or imposed
on the Commission by law; or
(ii) the disclosure of which could reasonably be ex pected to frustrate the
deliberative process of the Competition Commission by inhibiting the candid
–
(aa) communication of an opinion, advice, report or recommendation;
or
(bb) conduct of a consultation, discussion or deliberation; or
(iii) the disclosure of which could, by premature d isclosure of a policy or
contemplated policy, reasonably be expected to frus trate the success of that
policy.
(e) .....”
17. Rule 14(1)(d) should be read disjunctively and not cumulatively with sub-rules
(1)(d)(ii) and (iii) by the presence of the word “or” (underlined in text above).
18. Mr Maritz argued that documents or information that had been submitted to the
Commission and which attracted the protection of Ru le 14(1)(d) enjoyed such
protection only during the Commission’s proceedings . The fact that access to
documents might be restricted in Commission proceed ings does not render them
restricted for purposes of Tribunal proceedings because section 52 of the Act states
that the Tribunal must conduct its hearing subject to its Rules in every matter. Since
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there is nothing in the Tribunal’s Rules or in the Act which limits Telkom’s right to
discovery, documents contemplated in the Commission’s proceedings by Rule
14(1)(d) are not restricted for purposes of Tribunal proceedings. Because the
Tribunal must conduct its proceedings in accordance with the principles of natural
justice Telkom is entitled to access all informatio n which may assist it in presenting
its case.
19. At the heart of this argument is a misconstruct ion of the status of Rule 14(1)(d).
Rule 14(1)(d) is not a practice or custom of the Co mmission but has been
promulgated by the Minister of Trade & Industry (at that time) in regulations as
empowered by section 78 of the Competition Act. Th us it has the status of
subordinate legislation and is of general applicati on. This Tribunal, the Competition
Appeal Court, other Courts and any person, not only a respondent in complaint
proceedings, who seeks access to the Commission’s record, is bound by it. Rule 14
and 15 read together establish an access regime pec uliar to the system of
Competition Law enforcement by the three agencies n amely the Commission, the
Tribunal and the Competition Appeal Court, as desig ned by the legislature in the
Competition Act. The access regime reflects the st ructure of the enforcement
system of investigation, adjudication and appeal. C ertain documents generated
during the Commission’s investigation, by their nat ure, are deemed to be restricted
by Rule 14(1)(d). Rule 15 (1)(b) contemplates that access to those documents can
be obtained by any person, not only respondents in complaint proceedings, by an
order of the Tribunal (the adjudicative agency) or the Court 7 (the Competition Appeal
Court) or can be released by the Commission itself in certain limited circumstances
(Rule 15(2)).
20. To accept Telkom’s argument that Rule 14(1)(d) suddenly becomes inoperable
because it does not appear in the rules of the Trib unal or in the rules of the CAC
because it does not appear in the rules of the Trib unal or in the rules of the CAC
would seriously undermine enforcement of the Compet ition Act. Taken to its
extreme it could jettison centuries’ old jurisprude nce relating to documents claimed
to be privileged in litigation proceedings. This is not to say that the documents
claimed by the Commission are privileged (we discus s this issue later) but consider
the following hypothetical situation from the persp ective of a similar application
brought by the Commission: In these proceedings the Commission seeks access to
communications between Telkom and its economic and/ or legal experts, Telkom
7 “Court” means the Competition Appeal Court as defined in section 3(4)(h).
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claims litigation privilege over these. On Telkom’ s non-application argument the
Commission would be entitled to argue that because the Tribunal’s rules do not
provide for any claims of litigation privilege by p arties in its proceedings, Telkom’s
claims cannot be sustained and it must be ordered t o hand over documents which
would otherwise enjoy the protection of privilege in a high court.
21. We find Telkom’s non-application argument to be without any merit whatsoever.
Telkom’s counsel unusually announced at the hearing that if we were against them
on this point the matter might be taken on appeal. Whilst Telkom is fully entitled to
pursue its rights as a litigant it would be most un fortunate if the hearing of the
matter was delayed to decide this point as an interlocutory matter.
Unconstitutionality argument
22. We understood Telkom’s argument to suggest that Rule 14(1)(d) is unconstitutional
because it exceeds the grounds of exclusion set out in s44 of PAIA. However it
seems that the argument is made at a somewhat lower level namely that Rule
14(1)(d) should be interpreted in the spirit of PAI A. It was pointed out correctly by
the Commission’s counsel that the Tribunal has no j urisdiction to decide the
constitutionality or otherwise of a provision of th e Act. Nevertheless we note that
while Rule 14(1)(d) sets out the circumstances in w hich documents may be
restricted with greater detail than that contained in section 44, the language of and
the substantive grounds for restriction contained i n Rule 14(1)(d) reflect those in
section 44 of PAIA. The underlying policy governing both Rule 14(1)(d) and section
44 is to promote the free exchange of ideas and com munications between officials
of a public body intra se or with their advisors, the disclosure of which co uld
reasonably be expected to frustrate the deliberativ e process of a public body. In
other words, even if Rule 14(1)(d) had not been pro mulgated, the Commission like
other words, even if Rule 14(1)(d) had not been pro mulgated, the Commission like
any other public body could rely equally on the pro visions of section 44 of PAIA to
resist production of its internal communications an d the types of documents
contemplated in Rule 14(1)(d). Indeed Rule 14(1)(e ) anticipates this in the catch-all
language of “ any other document to which a public body would be required to or
entitled to restrict access in terms of the Promotion of Access to Information Act .
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8CCR 14(1)(e).
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Disclosure in review proceedings
23. In argument, and in passing, Telkom put forward the proposition that the
Commission would in any event be obliged to disclose the documents sought by it in
review proceedings. For this reason Rule 14(1)(d) in complaint proceedings was
ineffective. Again this is a misconstruction of the applicable law. The Commission
is entitled to claim that documents are restricted under Rule 14(1)(d) or privileged
even in review proceedings as was recently confirme d by the CAC in Computicket
(Pty) Ltd v The Competition Commission of South Afr ica, CAC Case No:
118/CAC/Apr12 . The reliance by Telkom on the recent SCA decisio n of Democratic
Alliance v The Acting National Director of Public P rosecutions (288/11) [2012]
ZASCA 15 (20 March 2012) in which the court held that tapes in the possessio n of
the NPA should be handed over does not assist becau se that case concerned
information belonging to a third party and which wa s claimed to be confidential not
privileged.
24. This then leaves us to determine only two issues, whether the documents sought by
Telkom fall within the restricted information conte mplated in Rule 14(1)(d),
alternatively are the subject of litigation privilege and whether the refusal to disclose
these by the Commission would constitute a breach o f Telkom’s right to a fair
proceeding.
Do the documents fall within the ambit of Rule 14(1)(d)
25. Mr Maritz complained that the list provided by the Commission did not contain
sufficient detail as to allow a reader to conclude that the document fell within one of
the sub-sections of 14(1)(d). On this basis the Co mmission should be ordered to
hand over the documents. However when it was pointe d out to him that most of the
documents listed contained a description and in som e case dates and identities of
people, Mr Maritz focused his criticism to the item s in paras 6.8 and 6.9 which list
the Commission’s internal emails.
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the Commission’s internal emails.
9
9 See T57 line 3.
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26. A plain reading of the descriptions in paras 6. 1 - 6.7 of the Commission’s
supplementary affidavit shows that these all fall w ithin the ambit of Rule
14(1)(d)(bb). The Enforcement and Exemptions Final Report and appendices dated
May 2009 10 is a report described with sufficient particularit y for the reader to identify
what it is and on what date it was prepared and is a report prepared for the
Commission. It could also be viewed as an internal communication between officials
of the Commission. Likewise the comments by Genesi s Analytics, 11 economic
experts for the Commission, fall within “ opinion, advice, report or recommendation
prepared for the Commission ” of Rule 14(1)(d)(i)(bb). As do the peer reviews by
Professor Massimo Motta. 12 Mr Maritz complained that it could not be discern ed
from this description that Motta for example was an external advisor to the
Commission. This criticism is without any foundati on simply because the words
“peer review ” indicate that he is external to the Commission. The same level of
detail is given by the Commission in relation to Bi ll Melody’s notes and reports in
paras 6.5 and 6.7. The Commission by mentioning th e individuals and providing
additional details of the type of documents has giv en the reader more than sufficient
information about why the document in question woul d fall into the ambit of
14(1)(d)(i)(bb).
27. Telkom could not provide any cogent argument w hy the documents listed under
para 6.12 did not fall within Rule 14(1)(d)(i)(aa), (bb) or (cc). Documents relating to
the Commission’s calculations undertaken by its inv estigating team that were used
as inputs patently fall within any of the provisio ns of any of sub-rules (aa), (bb) or
(cc). The Commission has provided sufficient infor mation – namely that the
documents relate to calculations done by the Commis sion’s investigating team
serving as inputs into the Commission’s reports and which relate to market shares,
serving as inputs into the Commission’s reports and which relate to market shares,
provider’s pricing, margin squeeze, etc – to justif y its claim. It is of no moment
which of the three categories in 14(1)(d)(i) they c ould fall into because they would
qualify under one or more of (aa), (bb) or (cc). What is of importance is that the
documents contain the type of information and commu nication of an internal nature
utilised by the Commission in the course of its investigation.
28. In paras 6.8 and 6.9 the Commission describes e mail communications between
various members of its investigating team (6.8) and email communications between
10 Para 6.1 of Commission’s SAA.
11 Para 6.2 & 6.3 of Commission’s SAA.
12 Para 6.4 & 6.5 of Commission’s SAA.
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various members of its investigating team and the experts consulted (6.9) during the
investigation related to the “ subject matter of the present complaint referral as well
as the report contemplated in 6.1 ”.
29. Telkom was highly critical of these items argui ng that the Commission by not
specifying who the various members of the teams or the experts were and the
general time frames in which these took place, had not made out a case on the
balance of probabilities, that the affidavit was de fective and for these reasons the
information ought to be handed up. Mr Maritz referr ed us to the applicable law and
commentary on motion proceedings and the sufficienc y of affidavits in pleadings.
Suffice to say that Telkom did not file a supplemen tary answering affidavit in
response to the Commission’s supplementary affidavi t. If we were to adopt the
approach urged upon us by Mr Maritz then the Commis sion’s affidavit, on oath,
would stand unchallenged. No basis whatsoever was e stablished by Telkom to
warrant us going behind the Commission’s descriptio n given on affidavit and we are
enjoined to accept it. However the standard by wh ich we assess an applicant’s
claim for discovery is fairness and not by the tech nical formalities of motion
proceedings in the high courts. 13 Formalities aside, there is no basis for Telkom’ s
contention. A plain reading of para 6.7 shows that it refers to a number of email
communications between members of the Commission’s investigating team
(identity) relating to the complaints that are the subject matter of the present
complaint (nature and time frames) as well as the r eport in para 6.1 (nature and
more specificity on time frame i.e. sometime before May 2009). This is sufficient
detail to conclude that the documents fall within t he ambit of Rule 14(1)(d)(i)(aa)
and/or (bb).
30. Of course more detailed descriptions by the Com mission would always be preferred
but in this instance we are concerned with sufficie ncy not completeness for
but in this instance we are concerned with sufficie ncy not completeness for
purposes of Rule 14(1)(d). For example the Commiss ion is likely to be in
possession of thousands of emails spanning years of investigative work. It would
not be in the public interest for us to require the Commission to provide us with
detailed descriptions of each of these. All that is required is a proper identification of
the nature of the document (e.g. report or email or minute) and what it relates to and
dates where possible. In any event, the appropriate remedy for failure by the
13 See Astral Operations and Elite Breeding Farms v The Competition Commission, Tribunal Case No:
74/CR/Jun08 dated 25 January 2010 and Pioneer Foods (Pty) Ltd v The Competition Commission, Tribunal Case
No: 15/CR/Feb07 and 50/CR/May08 dated 21 May 2009.
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Commission to mention parties to such email communi cations and dates thereof,
grouped in broad time-frames, is not that the docum ents should not enjoy the status
conferred upon them by Rule 14(1)(d)(i) but that the Commission should be required
to provide more detail. Telkom could have asked fo r more detail on 8 January 2013
but it elected not to. The Commission, in a spirit of co-operation and not wishing to
delay proceedings, has volunteered to provide furth er details should the Tribunal so
require. Given this undertaking by the Commission there is no need for us to decide
the issue in order to avoid any further disputes and delays.
31. Similarly descriptions in paras 6.9, 6.10 an d 6.11 all provide the reader with
sufficient information to garner that the documents described there are internal to
the Commission as contemplated in Rule 14(1)(d) and relate to the present
complaint referral.
32. Recall that Rule 14(1)(d) is to be read disjunc tively by the presence of the word “or”
at the end of sub-rule (d)(i)(cc) and at the end of sub-rule (d)(ii)(bb). At the same
time it is not inconceivable that a document being considered under 14(1)(d)(i) could
fall into more than one type of category contemplat ed in that sub-rule. For example
an account of a consultation could also contain in its text a summary of advice
received by the Commission from an expert in that c onsultation. However if a
document did not fall into any of the categories co ntemplated in sub-rule (1)(d)(i)
then the Commission is still entitled to claim it as restricted if its disclosure is likely to
lead to the frustration of the deliberative process of the Commission by inhibiting the
candid communication of opinions, advice, reports o r recommendations ((d)(ii)(aa))
or the conduct of a consultation, discussion or del iberation ((d)(ii)(bb)) or the
disclosure of which could by premature disclosure of a policy or contemplated policy,
disclosure of which could by premature disclosure of a policy or contemplated policy,
reasonably be expected to frustrate the success of that policy ((d)(iii)).
33. Sub-rules (d)(ii) and (iii) articulate the und erlying rationale for restricting documents
of the type contemplated in sub-rule (i). Public b odies and investigators, in order to
arrive at informed decisions, need to be able to ex press views and exchange
opinions in an environment that affords them the opportunity to do so with openness
and candour. Such exchanges ought not to be chilled by the threat that subsequent
disclosure thereof might be relied upon by a respon dent to advance its own case.
For example an investigator in the early stages of an investigation might hold the
view that a matter did not warrant referral to the Tribunal. After discussion with his
colleagues and advice prepared by experts, he might change his opinion and now is
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of the view that the matter should be referred. Conversely, he might continue to hold
his original view but with better information and m ore insight gained through
discussion and advice. In matters of the complexity of most abuse of dominance
cases it would not be unusual for an individual investigator to change his/her opinion
over time as he/she learns more about the case, has a better understanding of the
market(s) in question and of the competition issues . Apart from the fact that a
respondent is unlikely to gain any real benefit fro m viewing such an iteration of an
investigator’s views, free and candid exchanges such as these can only contribute to
the making of informed, and reasoned decisions by p ublic bodies and should be
encouraged and not frustrated. The documents liste d in 6.1 - 6.12 clearly fall within
those contemplated in sub-rule (ii).
34. Since we have found that the documents in quest ion all fall within the ambit of Rule
14(1)(d)(i) there is no need for us to decide wheth er they fall within the self-standing
ground contained in sub-rule (1)(d)(ii) or whether they are the subject of litigation
privilege. Suffice to say that the Tribunal has pre viously held that documents of the
type under consideration here are subject to litiga tion privilege. 14 While each case
must be decided on its own facts, at the level of p rinciple we see no reason why the
documents listed in paras 6.1- 6.12 relating to the present complaint referral would
not enjoy the protection afforded by litigation pri vilege. As we discussed earlier, if
we were to accept Telkom’s arguments that the opini ons of experts such as Prof
Motta on the merits or demerits of the Commission’s complaint referral against
Telkom are not subject to litigation privilege then we would also have to accept that
opinions sought by Telkom from its economic or lega l advisors on the merits or
demerits of the Commission’s case would not enjoy such protection.
demerits of the Commission’s case would not enjoy such protection.
Unfairness to Telkom if documents not disclosed
35. Telkom argued that even if we held that the doc uments fell within the ambit of Rule
14(1)(d) a failure by the Commission to disclose th ese to Telkom would result in
unfair proceedings. By this we assume that Telkom meant that it would be
prejudiced in some way. We have previously held tha t such a claim for discovery is
the weakest since the internal reports, recommendat ions and views of the
Commission’s investigators, officials and advisors remain simply those – opinions.
The Tribunal is only concerned with the evidence th at is put up by the Commission
14 See Computicket (Pty) Ltd v The Competition Commission Tribunal, Case No: 20/CR/Apr10 dated 22 March
2012.
15
in our proceedings and not the opinions of its inve stigators or its advisors. 15 We
cannot see how Telkom, who on the basis of fairness , is entitled to receive all the
underlying information, data and methodologies reli ed upon by the Commission to
arrive at its opinions, will be prejudiced by not s eeing the views of the Commission’s
internal investigators or advisors.
36. The only submission in support of this “unfair ness” put up by Telkom, relying on a
criminal trial analogy, was that the Commission mig ht have in its possession some
exculpatory information which it was not disclosing and/or suppressing under the
guise of a Rule 14(1)(d) or litigation privilege claim.
37. While we have often used the word “prosecutor” and “prosecutions” to distinguish
the investigative function from the enforcement rol e of the Commission, the
proceedings in the Tribunal are not equivalent to c riminal proceedings. The
enforcement of anti-competitive conduct involves as sessing a set of complex facts
against a backdrop of market dynamics through the l ens of economic effects and
arriving at conclusions on a balance of probabilities. Nevertheless if expert opinions
or email communications between the Commission’s investigators contain facts that
are exculpatory these are likely to have been disclosed elsewhere in the documents
that the Commission is obliged to discover or are w ithin the respondent’s own
knowledge. The opinion of an expert or an individual Commission investiga tor is
itself of no value even if it seeks to make out an argument that favours Telkom. In
any event one cannot claim access to documents othe rwise privileged on the basis
that they may reveal exculpatory evidence otherwise the shield of privilege would
always fall away. If a party states under oath that it has disclosed all non privileged
evidence in its possession an opposing party cannot go behind it on a fishing trip
without a basis for doing so. Mere speculation is i nsufficient to demand disclosure
without a basis for doing so. Mere speculation is i nsufficient to demand disclosure
and cry unfairness.
38. Moreover the evidence in this matter is yet to be filed in the form of factual and
expert witness statements. If the Commission fails to provide Telkom with the
underlying information that it relies upon to advan ce its case then Telkom might
have some cause for complaint.
15 Expert economists that appear before us interpret evidence in a particular light and we often find that, they
differ in their interpretation thereof to such an extent that we are faced with polarity of views rather than
different shades of grey. See also our discussion in Astral Operations Ltd an d Elite Breeding Firms v The
Competition Commission, Tribunal Case No: 74/CR/Jun08 dated 25 January 2010.
16
39. We find that the non-disclosure of the document s listed in paras 6.1 - 6.12 is
unlikely to result in any prejudice to Telkom and w ill not lead to any unfairness in
proceedings.
Conclusion
40. We are satisfied that all the documents listed in paras 6.1 - 6.12 fall within the ambit
of Rule 14(1)(d)(i)(aa) and/or (bb) and/or (cc). T hese documents contain internal
deliberations of the Commission’s investigation tea m alternatively reports,
communications between its investigators and opinio ns, advice and
recommendations of the Commission’s internal offici als or its experts prepared for
the Commission in relation to the present complaint referral. The non-disclosure of
these documents will not result in any unfairness to Telkom.
41. Telkom’s application is dismissed.
42. There is no order as to costs.
13 February 2013
Y Carrim Date
A Wessels and T Madima concurring
Tribunal Researcher
: Rietsie Badenhorst
For Telkom
: NGD Maritz SC assisted by S Stein and PMP Ngcongo , instructed by
Mothle Jooma Sabdia
For the Competition Commission
: NH Maenetje SC instructed by Gildenhuys Lessing
Malatji Inc