About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Competition Tribunal
SAFLII
>>
Databases
>>
South Africa: Competition Tribunal
>>
2013
>>
[2013] ZACT 92
|
|
South African Local Government Association and Another v Competition Commission and Others (017194 - 017269, 017319-017376, 017384) [2013] ZACT 92; [2013] 2 CPLR 585 (CT) (19 September 2013)
COMPETITION
TRIBUNAL OF SOUTH AFRICA
Case
No’s: 017194 - 017269, 017319-017376,
017384
In
the matter between:
South
African Local Government Association 1st Applicant
Gauteng
Provincial Government 2nd Applicant
And
The
Competition Commission 1st Respondent
Murray
& Roberts Ltd 2nd Respondent
WBHO
Construction (Pty) Ltd 3rd Respondent
Stefanutti
Stocks Holdings Ltd 4th Respondent
Aveng
(Africa) Ltd 5th Respondent
Basil
Read Holdings (Pty) Ltd 6th Respondent
Haw
& Inglis Civil Engineering (Pty) Ltd 7th Respondent
Giuricich
Bros Construction (Pty) Ltd 8th Respondent
Vlaming
(Pty) Ltd 9th Respondent
G
Liviero & Son Building (Pty) Ltd 10th Respondent
Panel
Norman
Manoim (Presiding Member),
Yasmin
Carrim (Tribunal Member)
Takalani
Madima (Tribunal Member)
Heard
on
17
July 2013
Order
issued on
17
July 2013
Reasons
issued on
19
September 2013
Reasons
for Decision and Order
Introduction
1.
This is an opposed application brought by the South African Local
Government Association (“SALGA”) and the Gauteng
Provincial Government (the “Province”), (together
referred to as the “applicants”)to intervene in nine
consent order applications brought by the Competition Commission
(“Commission”) in respect of firms in the construction
industry in terms of section 49D of the Competition Act, Act 89 of
1998, (the “Act”). They are:
Murray
& Roberts Ltd
WBHO
Construction (Pty) Ltd
Stefanutti
Stocks Holdings Ltd
Aveng
(Africa) Ltd
Basil
Read Holdings (Pty) Ltd
Haw
& Inglis Civil Engineering (Pty) Ltd
Giuricich
Bros Construction (Pty) Ltd
Vlaming
(Pty) Ltd
G
Liviero & Son Building (Pty) Ltd
2.
Note that during this process the Commission also submitted six other
consent agreements concluded with construction firms for
approval,
but the applicants do not seek to intervene in respect of those.
3.
SALGA was the first to file its applications to intervene, on the 9th
of July 2013. Although constituting separate applications
in respect
of each of the nine consent agreements, they all involved the same
material allegations. Three days later the Province
did the same,
bringing similar, but slightly more elaborate applications. Then on
15 July SALGA filed amended papers in respect
of its nine
applications, the effect of which was to bring its set of papers in
line with those of the Province. Both applicants
are represented by
the same attorney and counsel. It is thus appropriate to consider the
eighteen separate applications holistically,
as they raise identical
legal and factual issues, insofar as they may be material to our
decision. This was also the approach adopted
by the applicants and
all the respondents in this matter.
4.
The relief the applicants seek is divided into two parts. In terms of
Part A, which is the form of relief we were asked to consider
first,
the applicants sought:
1)
To
be
admitted as intervenors in the respective consent proceedings;
2)
Access to the record of any investigation of the Commission
undertaken before the conclusion of the respective settlement
agreements,
including all the documents submitted by the respective
respondents to the Commission;
3)
Leave to supplement their (meaning the applicants) applications;
4)
To be granted directions for the hearing of relief sought in terms of
Part B.
5.
In terms of Part B they then sought the following orders:
1)
An order declaring that the particular consent agreement was not
appropriate in terms of the Act;
2)
Refusing to confirm the settlement agreement as a consent agreement
in terms of section 49(2)(c) of the Act.
6.
The Commission, Basil Read, WBHO Construction, Stefanutti Stocks,
Murray and Roberts and Aveng opposed the applications to intervene.
The respondents, variously, defended the appropriateness of the
agreements, whilst some also challenged the
locus
standi
of the applicants to bring this type of application, the nature of
relief sought in Part A and the lateness of the applications.
Background
7.
In order to understand the issues we have to decide, it is necessary
to provide some background as to how the consent agreements,
which
are now before us, came into being.
8.
On 10 February 2009, the Commission initiated a complaint concerning
alleged collusive tendering in the construction of the World
Cup
soccer stadia for the 2010 Soccer World Cup.
1
Following this the Commission received several applications for
immunity in terms of its Corporate Leniency Policy (“CLP”)
which related to collusive tendering in respect of construction
projects, across different sectors of the economy, which extended
beyond the scope of the February 2009 complaint
9.
It soon became apparent to the Commission that bid rigging was rife
in the construction industry, involving many of the same
firms and
over the same period. In light of these revelations the Commission
decided to take an unusual step. In February 2011,
it invited
competitors in the industry to come forward and to engage in
settlement talks with it.
10.
The Invitation took the form of a policy document which was sent to
prominent firms in the industry.
2
11.
The document is lengthy and need not be repeated in any length here.
The essential elements are that it constituted an offer
to firms to
settle with the Commission, on the terms of consent orders, which
would later become consent agreements that would
be referred to the
Tribunal. The document sets out what steps the firms would have to
comply with in order to be eligible for consideration,
what
information would have to be supplied and how penalties would be
calculated.
12.
Two issues require specific mention. The Commission indicated that
its CLP would apply to firms that requested leniency. This
effectively means that the first firm to apply for leniency in
respect of a project would receive provisional immunity from being
prosecuted. Secondly, the Commission indicated how it would approach
projects which a firm accepting the invitation had not disclosed.
The
Commission stated that if it became aware that an applicant had
omitted projects in its application, it would, depending on
the
reasons given for the omission, decide to include the omitted project
as part of the consent agreement, request further information
or
reject the application in its entirety.
3
As it happened, the Commission was able to ascertain evidence of
several projects from some applicants that other firms, which
were
implicated, had omitted. Indeed part of the strategy of the
Invitation appears to have been to achieve just that - by putting
pressure on a large number of firms, who, while in the process of
attempting to obtain leniency for themselves, implicated other
firms.
13.
The process, despite its name
4
,
took some time before it reached the stage when the Commission was in
a position to apply for the approval of the fifteen consent
agreements. This is not to say that the process was unsuccessful.
5
On the contrary, as a result of the process the Commission eventually
reached settlements with 15 firms in respect of 140 projects.
14.On
24 June 2013 the Commission applied to the Tribunal to have the
consent agreements approved. All the matters were set down
for
hearing on 17 and 18 July 2013 and the Tribunal invited interested
parties to make submissions at the hearing.
15.
The Tribunal decided to have all the agreements considered at the
same time since firstly, they were the fruit of the same process,
namely the Invitation, and secondly, the agreements themselves,
whilst implicating different respondents, took the same form and
frequently overlapped in respect of projects alleged to have been the
subject of collusive activities.
16.
On 15 July, the Tribunal, following enquiries from a number of the
respondents, directed that the applicants would be given
an
opportunity at the hearing, to make a short submission on why the
relief they sought, was relevant to the question of whether
the
consent orders in question, should be approved by the Tribunal; and
whether the applicants had
locus
standi
in
relation to the relief they sought. It also gave directions as to
how the proceedings would be conducted.
The
intervention application
17.
The applicants seek permission to intervene in terms of sec
53(1)(a)(iv) of the Act.
18.
This section states as follows:
53(1
)The following persons may participate in a hearing, in person of
through a representative, and may put questions to witnesses
and
inspect
any books, documents or items
presented
at the hearing:
(a)
if the hearing is in terms of Part C -
(i)
6
(iv)
any other person who has a
material
interest
in the hearing
,
unless,
in the opinion of the presiding member of the Competition Tribunal,
that
interest is adequately
represented
by another participant, but only to the
extent
required for the complainant’s interest to be
adequately
represented;
.
..
(O u r em ph as is).
Note:
the underlined portions are more fully discussed below.
19.
Three aspects of this provision are important for this decision.
Firstly, an applicant must demonstrate a ‘material
interest’
in the subject matter of the hearing. Secondly, the applicant needs
to demonstrate that its material interest
is not adequately
represented by another participant. In this case, given that the
Commission is the only participant which is
not a respondent, it
would mean demonstrating that the material interest was not
adequately represented by it.
7
Thirdly, even if an applicant crosses these two hurdles, this right
may be constrained in terms of the scope of participation
in
relation to what is required to represent its interest. In other
words, even if a participant in terms of this provision is
recognised, its procedural entitlement is not unlimited and can be
constrained by the presiding member to what is required.
20.
We go on to consider the applications in the light of this analysis
of section 53(1)(a)(iv).
21.
Neither of the applicants has suffered a direct financial loss as a
result of any of the contraventions contained in the consent
orders.
In the case of SALGA, its closest connection is that it is an
umbrella body for local authorities and local authorities
have
suffered direct financial loss, as a result of the admitted bid
rigging, in respect of the stadium tenders. In the case
of the
Province, the link is even less direct, and is alleged to be based
on its duty as an organ of state to deliver infrastructure,
in the
process of which it makes use of the services of construction firms,
such as the respondents. It contends that if such
services are
provided in contravention of the Act this has an adverse effect on
public funds.
8
22.
If the test in section 53(1)(a)(iv) were to be ‘
financial
interest
as opposed to
material
interest,
it might well be that neither would have
locus
standi
to qualify as having an interest. For instance, section 10(8), which
deals with rights to appeal exemption decisions, provides
for a test
of
substantial
financial interest.
However,
material
interest
is a wider notion than
financial
interest
and is often interpreted as meaning “important or essential”.
As such there is an argument that a public interest,
even though not
entailing a direct financial interest, is sufficient to constitute a
material interest. We will assume in the
applicants favour, without
deciding this point definitively, that they have, as public bodies
concerned, established a compelling
public and hence
material
interest,
taking into consideration the issue of
inter
alia,
public expenditure, specifically by local authorities, who in all
the impugned applications are alleged victims of bid rigging
by
construction firms which regularly tender for public service work.
9
23.
We now go on to consider the concerns that they raise with the
consent agreements to examine whether they have established
an
interest not adequately represented by the Commission.
24.
The applicants, in their paper, raise two concerns. In the first
place they argue that the penalties provided were too lenient
and
did not vindicate the public interest. Secondly, they argue that the
Commission erred by allowing firms to settle on the
same terms as
they settled for disclosed projects, in respect of projects that
were not disclosed to the Commission, in terms
of their applications
pursuant to the Invitation.
25.
However, both these concerns are ones addressed by the Commission
and in our view, adequately.
10
.
They therefore represent an interest already represented by another
participant in these proceedings, namely the Commission.
The fact
that the Commission did not represent the interest in the manner in
which the applicants might have preferred, does
not make their
interest one not adequately represented.
26.
The applicants spent much time arguing that they were not attempting
to usurp the function of the Commission as the guardian
of the
public interest in these matters. But as we go on to discuss below,
the two grounds for concern that they raise in their
papers go to
the heart of exactly what constitutes the Commission’s
function and what it considered when it entered into
this process.
What the applicants are in essence arguing is that they are not
confident that the Commission has extracted enough
from the
respondents in the form of penalties and if they only had access to
the record they would be able to demonstrate this.
They offer
nothing concrete to justify this criticism and indeed seem uncertain
that they would necessarily find this, even if
they obtained access
to the record. Participation rights conferred by the Act cannot be
used to allow outside parties to usurp
a function specifically
entrusted to the Commission, simply because they assert that they
could do a better job at vindicating
the public interest. The same
criticism can be levelled in respect of their second concern,
viz
the treatment of non-disclosed projects. As we go on to demonstrate
later, the Commission considered this issue specifically
and hence
again, this is not an interest not already adequately represented.
27.
We conclude that the applicants fail to make out a case for
locus
standi
as they have failed to demonstrate that their material interest is
not adequately represented by the Commission in these proceedings.
11
28.
However, rather than deciding this matter on this point alone, we
will still go on to consider whether they have made out
a case for
rights to a postponement, on the basis of a right to receive the
documents, sought in Part A. As we have observed,
even if a party is
admitted as a participant, it does not follow from the language of
section 53 (1)(a)(iv) that this entitles
it to all the rights an
ordinary litigant in a contested proceeding might enjoy. The
sub-section makes it clear that the right
of participation is a
relative one - i.e. it extends only so far as required for the
material interest to be adequately represented.
This entails an
examination of the right the applicant wishes to assert and its
nature to the proceeding in which it is sought
to assert it.
29.
Consent hearings differ markedly from complaint hearings; the latter
are akin to trial proceedings, where evidence is tendered
and
witnesses are led and cross-examined. The Act makes it clear in
section 49D(1) that in consent hearings, if the Commission
and
respondent have agreed on the terms of an appropriate order
“...the
Competition Tribunal, without hearing any evidence, may confirm that
agreement as a consent order...”
30.
The
chapeau
to section 53(1), which we underlined earlier, does admittedly refer
to a participant,
inter
alia,
having rights to documents. This might suggest that a participant,
once admitted, has rights to documents and that section 49(D)
and
section 53(1) are in conflict. However, a proper reading of section
53(1), which applies generally to all proceedings in
terms of the
Act, shows this right is expressly qualified by the words
presented
at the hearing
.”
The documents sought in this application have not beien presented at
the hearing. Nor is there any obligation on the
Commission and the
respondents to do so. The Tribunal only has the respective consent
agreements before it. Thus the provisions
of sections 49D and 53(1),
insofar as they relate to the hearing of consent agreements, are not
in conflict.
31.
In consent hearings, as noted, the Tribunal hears no evidence and
decides whether or not to approve an agreement on the basis
of the
application before it and the content of the agreement. As the
Competition Appeal Court (CAC) has held in the leading
case on the
subject,
Netcare:
_
“
Section
49D(i) envisages that the Tribunal “without hearing any
evidence
”
may
confirm the agreement. To my mind that appears to envisage that the
Tribunal will not embark on its own independent inquiry,
that is to
say, it will not hear the evidence of witnesses to determine the
suitability or otherwise of the agreement ”
12
32.
This limitation on proceedings means that even a complainant in a
matter would not be entitled to the record, if settled with
the
Commission by way of a consent agreement. Even less so would a
putative participant, such as one of the applicants, neither
of
which was a complainant in this matter. Thus as matter of law given
that these are consent order proceedings governed by section
49D of
the Act and for which there is no record before the Tribunal, the
applicants have no such right to claim the record. Once
they have no
right to claim the record, which was their basis for seeking the
postponement, there is no reason for the proceedings
to be
postponed. Indeed such a decision would have been highly prejudicial
to the respondents all of whom were ready for the
consent
applications to be heard.
33.
The applicants’ case therefore fails on this ground as well.
34.
The final issue we must consider is if the applicants retain some
residual right of participation and hence access to the
record to
prevent a consent agreement being confirmed that is “...
shockingly
inappropriate
”
35.
That test is the one enumerated in the same
Netcare
case as setting the standard on which the Tribunal might “interfere”
with a consent order. As the Court put it:
“
What
then are the circumstances under which the Tribunal can interfere?
/As
indicated
above it is not a mere rubberstamp. It is not a court of appeal in
the sense that it can embark on a re-hearing of the
matter and
substitute its own views for that of the Commission. The Tribunal of
course plays a most important role in the Competition
hierarchy. In
exercising its discretion whether to approve a consent order it must
obviously be satisfied that the objectives
of the Competition Act,
together with the public interest, are served by the agreement.
An
agreement which imposes an inordinately low penalty
for
a serious contravention will obviously bring the objects of the
Competition
Act into disrepute and will be against public policy. It
seems
to me that the true inquiry before the Tribunal in this context is
whether
the agreement is a rational one, whether it meets the
objectives
set out above and is not so shockingly inappropriate that it
will
bring the Competition authorities into disrepute. As indicated the
Tribunal
cannot hear any evidence but it can surely make such
inguiries
at the hearing as it deem fit in order to satisfy itself that the
abovementioned
objectives are properly met
If thereafter the Tribunal forms the view that it ought not to
approve the agreement for various reasons, particularly those
not
canvassed during the consent hearing, in my opinion, the dictates of
natural justice require that it apprise the parties
of its
difficulties and afford them an opportunity to deal with
same.”
13
(Our emphasis.)
36.
In order to succeed with their prayers in Part A, the applicants
would have to show that access to the documents sought, should
form
part of the inquiry that the Tribunal may make in order to decide
whether or not the order was shockingly inappropriate.
37.
This is a very generous reading of the above passage in the
applicants favour. But let us assume that it may be correct.
38.
However, in order to succeed in persuading the Tribunal to do so,
the applicants should make out the basis for such a case
in their
papers that the agreements are shockingly inappropriate. Recall that
the two objections were that the penalties were
too low and that the
Commission had allowed parties to settle on the same principles of
leniency on the projects that were not
disclosed.
39.
Penalties
too low:
Although
contending that the penalties are too low, the applicants conceded
that they had no difficulty with the terms of the
Invitation and the
methodology set out therein for the calculation of the penalty.
40.
This means that the applicants, had to lay before the Tribunal,
additional facts to substantiate this contention, which did
not
relate to the methodology set out in the invitation. In other words,
the applicants had to show that it was not the Invitation
itself
which was either irrational or shockingly inappropriate, but the
manner in which it was applied by the Commission in the
course of
concluding the agreements.
41.
SALGA in its replying affidavit in one of the applications stated
that it believed:
that
the total fines imposed on WBHO are not appropriate. The fines are
disproportionately small when regard is had to the harm
to the
public interest as a result of the conduct of WBHO. ”
14
42.
But the mere assertion that a penalty is “disproportionately
small” is not sufficient to substantiate a contention
that
they are shockingly inappropriate. The applicants argue that they
need access to the record in order to be able to do so.
But this is
to get things back to front. One cannot make allegations without
foundation and then seek access to documents later
to make it.
Indeed it was not clear from the founding papers what documents they
thought might be in the record, which would,
if revealed for
inspection, possibly substantiate their point.
15
43.
As opposed to the case advanced by the applicants, the Commission
has given a satisfactory account of how it approached the
penalties.
The Commission concedes that the penalties are lower than might
otherwise have been the case had the firms not settled,
but that
does not make the level of the penalties inappropriate. The test is
not whether the penalties are low in relation to
what the maximum
might have been imposed under the Act, but whether they are too low
in relation to a penalty that was appropriate
to the circumstances
of the case. The Commission argued persuasively why the factors it
took into account as mitigating the respondents
conduct, including
co-operation and the information supplied to the Commission to
assist its investigation, justified a lower
penalty. These are
relevant factors that the Commission is entitled to take into
account in terms of the Act and there is nothing
inappropriate in
the manner in which they arrived at the penalties agreed on.
16
44.
Thus even on this most benign of approaches to the applicants’
case - that assumes they have
locus
standi
and a possible right to seek documents-they fail.
17
45.
The second basis for the applicants’ criticism of the consent
agreements is admittedly more specific than the first.
Here the
applicants argue that the Commission has failed to follow its own
Invitation, in that it has accepted settlements in
respect of
projects that were not disclosed, as part of the invitation and has
thus treated disclosed and non-disclosed projects
in a similar way,
when in terms of the Invitation they should not have done so. It is
correct that in several of the agreements
under consideration, the
Commission has accepted non-disclosed projects as constituting part
of the settlement agreements and
treated them similarly for the
purpose of settlement. However, this does not constitute irrational
conduct or render the agreements
shockingly inappropriate. This is
because the contentions of the applicants are wrong both at the
level of principle and as a
matter of fact.
46.
At the level of principle the Invitation constitutes an offer. There
is nothing to suggest that the Commission is bound by
the terms of
its initial offer to negotiate. Indeed the whole nature of the
consent agreement presupposes a negotiation between
the Commission
and the respondent. The fact that the Commission may have moved from
an initial starting position is not a matter
for impugning the
order. The test is whether the agreement finally arrived at is
appropriate, not whether the Commission moved
from an initial
starting position to a final position that might be more favourable
to a respondent. Indeed to hold otherwise
would make the consent
order process impossible.
47.
But secondly, the applicants are wrong on the facts. The Invitation
makes it clear that the Commission will include non-disclosed
projects as part of the fast-track process, if a proper reason has
been given for their nondisclosure. The Commission has
addressed this pertinently and states that in each case it sought
explanations from the relevant respondents and found them to
be
satisfactory. In most cases it appears the firms’ present
managements did not have knowledge of the activities that
were not
disclosed because relevant people were no longer employed by them;
in others, firms said they would agree to accept
the Commission’s
contentions that their firms had been involved in projects they were
not aware of, and hence did not disclose,
in order just to settle.
18
48.
Thus there is no basis to this allegation as it is based on a
misconstruction of the Invitation and the facts.
49.
In fact contrary to the assertions made by the respondents, the
Commission has conducted an admirably fair, transparent and
rational
process, properly balancing the public interest in the enforcement
of the Act, with the rights of the respondents to
have mitigating
circumstances concerning their conduct taken into account.
Conclusion
50.
We thus find that no basis has been advanced to grant the relief
sought and in summary, it fails because the applicants:
1)
have not made out a right to participate in terms of section
53(1)(a)(iv) because they have no distinctive interest not already
represented by the Commission; and
2)
Even if they had a right to participate, they have no right to the
documents sought in Part A and without such right, they
have no
basis to seek a postponement; and alternatively
3)
Even if, as a matter of law, such a right to the documents sought,
might in certain instances be granted, if it could be shown
that the
agreements were shockingly inappropriate, on the facts of this case,
no such basis has been made out.
4)
Since Part A of the application fails, Part B, which is contingent
on the granting of Part A, also fails.
The
applications are therefore dismissed. We make ho order as to costs.
Norman
Manoim
19
September2013
DATE
Yasmin
Carrim and Takalani Madima concurring.
Tribunal
Researcher: Rietsie Badenhorst
For
the Applicants: Hamilton Maenetje S.C. and by Tembeka Ngcukaitobi
instructed by Ngcebetsha Madlanga Attorneys
For
the Commission: David Unterhalter S.C., Gcobani Ngcangisa and
Pumulani Ngcongo instructed by the Commission.
For
Aveng Africa: Arnold Subel S.C. and Jerome Wilson instructed by
Cliffe Dekker Hofmeyr Incorporated
For
Basil Read: Michelle le Roux, instructed by Fasken Martineau
For
Stefanutti Stocks: Mike van der Nest S.C. instructed by Webber
Wentzel
For
WBHO: Max du Plessis and Andreas Coutsoudis instructed by Nortons
Incorporated
For
Murray and Roberts: Bowman and Gilfillan
6
1
Collusive
tendering is a horizontal prohibited practice in terms of section
4(l)(b)(iii) of the Act and for which an administrative
penalty is
competent in terms of section 59(l)(a) of up to 10% of the offending
firms annual turnover in the Republic during
the firms’
preceding financial year.
2
The
document was dated 1 February 2011 and entitled “Invitation to
Firms in the Construction Industry to engage in Settlement
of
Contraventions of the Competition Act” (hereafter referred to
as the ‘Invitation’).
3
Paragraph
45 of the Invitation.
4
It
was referred to as the ‘fast track settlement process’.
5
In
reaction to this invitation 21 firms in the construction industry
filed applications with the Commission. These applications
covered
300 rigged projects worth an estimated R47 billion. Of these 300
projects, 160 had been rigged more than three years
prior to the
Invitation and thus in the Commission’s view the prohibited
practice had prescribed because of the provisions
of section 67(1)
of the Act. Of the 21 firms that applied for settlement, 18 fi
rms
were liable to settle, as three qualified for conditional leniency
and were not implicated in any further projects. Subsequent
to its
investigation, the Commission negotiated consent agreements with 15
construction firms. The three remaining firms that
did not accept
the Commission’s offer to settle were Group 5, Construction ID
and Power Construction.
6
Those
omitted include the Commission, the respondent and the complainant
7
Typically
in past cases this has occurred when an applicant to intervene seeks
different relief from the Commission or seeks to
rely on different
provisions of the Act to those relied on by the Commission -
expressed differently, a different theory of harm
based on the same
facts. This has usually occurred in complaint proceedings and not
consent order proceedings. See by way of
example the approach taken
in
Barnes
Fencing (Pty) Ltd
v
Iscor
Limited
08/CR7Jan07 paragraph 39.
8
See
by way of example paragraphs 33-34 of the Province’s founding
affidavit in the application to intervene in the consent
agreement
with Basil Read Holdings.
9
SALGA
represents the interests of all municipalities, a legal right which
is recognised by the Organised Local Government Act.
Since SALGA is
the sole representative of local government it alleges it has a
constitutional mandate to protect the interests
of local government
and to enable local government to fulfil its developmental role.
10
These
issues are discussed further when we deal with the request for
documents below.
11
One
of the respondents argued a farther point of
locus
standi
in terms of section 53(l)(a)(iv)and asserted that as neither
applicant was a
complainant
in this matter - it is common cause that all the complaints were
initiated by the Commission - there was no interest of a
complainant
to be recognised and that on this basis as well, the applicants must
fail. The reference to
complainant
in 53(l)(a)(iv) is confusing as the rights of a
complainant
are already dealt with in similar terms in sub-paragraph (ii) and it
seems that (iv) is intended to address the position of a
party who
may have a material interest but is not a
complainant
otherwise (iv) would be redundant a repetition of (ii)(bb) or
nonsensical. We need not decide this point, however, given our
findings and we will assume that this reference to complainant was a
drafting error and was meant to be a reference to the “...any
other person”. This interpretation also makes more sense given
the logic of the provision.
12
See
Netcare
Hospital Group
v
Manoim
N.O.
75/CAC/April 08 paragraph 26, hereafter referred to as
Netcare.
13
lj
Net
care
supra paragraph. 29.
14
See
paragraph. 6 of replying affidavit in WBHO matter.
15
In
argument, counsel for the applicants suggested that the base
turnover should be provided. The base turnover is the affected
turnover of the respective respondents on which the Commission has
calculated the penalties. Counsel did not suggest that there
was any
error in the Commissions’ calculation — it just seemed
to be suggested as a possible justification for their
document
request. Although, these amounts did not appear in the consent
agreements they were, on request of the Tribunal, provided
by the
Commission. On inspection by us the penalties settled upon have been
correctly calculated.
16
See
section 59(3) for a list of these factors.
17
Note,
as explained earlier, we have held above that they have neither
locus
standi
nor even if they did, a right to the record.
18
For
instance this was the approach of Aveng.