About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Competition Tribunal
SAFLII
>>
Databases
>>
South Africa: Competition Tribunal
>>
2014
>>
[2014] ZACT 40
|
|
Independent Newspapers Pty Ltd and Others v El page; In Re: El Page v East Cape Property Guide and Another (017913) [2014] ZACT 40; [2014] 1 CPLR 315 (CT) (31 March 2014)
THE COMPETITION
TRIBUNAL OF SOUTH AFRICA
Case No: 017913
(017764)
In the dismissal
application of:
Independent Newspapers
Proprietary Limited
First
Applicant
Estates Agents Holding
Company Gauteng (Proprietary) Second
Applicant
Limited
PA Group
Third
Applicant
Home Finder
Johannesburg Proprietary Limited
Fourth
Applicant
and
EL
Page
Respondent
In complaint referral of:
EL Page
Complainant
and
East Cape Property
Guide
First
Respondent
Saturday Star Property
Guide
Second
Respondent
Panel:
Norman Manoim (Presiding Member)
Yasmin
Carrim (Tribunal Member)
Takaiani
Madima (Tribunal Member)
Heard
on
29 January 2014
Order issued on
31 March
2014
Reasons
issued on
31
March 2014
Decision and Order
Executive Summary
[1]
On
29 January 2014 the Competition Tribunal (“Tribunal”)
heard a dismissal application brought by the Applicants in
relation
to a complaint referred under section 51 of the Competition Act of
1998
[1]
(“the
Act”). The complaint referral was filed by the Respondent, Mr.
E L Page. Mr Page, the Applicant in the main matter,
was the sole
member of a Close Corporation in the Eastern Cape trading as Charter
Property Saies
[2]
(“Charter Properties”). He had. previously referred a
complaint under s51(1) on behalf of Charter Properties during
2007.
That complaint was eventually dismissed by this Tribunal on 8 March
2013. Thereafter Mr Page submitted a second complaint
to the
Commission in respect of which the Commission issued a certificate of
non-referral. He then directly referred the matter
to the Tribunal
under s51(1) in October 2013, alleging that the East Cape Property
Guide, Saturday Star Property Guide and ‘other
respondents’
had contravened various sections of the Act. It is this referral that
the Applicants ask us to dismiss, (“the
2013 referral”)
[2]
Mr Page is currently
not active in the estate agent industry and has not been so for the
past four years.
[3]
The Applicants are a
group of estate agents, who were the constituent members of an
unincorporated joint venture that owned and
published the Saturday
Star Property Guide (“SSPG”) until 01 July 2012. The SSPG
was a publication that provided a
platform for estate agents in the
wider Gauteng area to market and advertise properties that they were
mandated to sell by their
clients. SSPG has since dissolved and has
been replaced by a similar publication known as ‘Property’,
which is published
by Estate Agents Publishing Company (Pty) Ltd
(“EAP”).
[4]
The Applicants seek a
dismissal of the 2013 referral on a number of technical and
substantive grounds. In a nutshell they argue
that the conduct
complained of in these proceedings has prescribed under section 67(1)
because it is the same conduct
that
Charter had complained of in
2006.
Mr Page and Charter
Properties are the one and same legal entity and he had already
obtained interim relief (which he to date, has
not availed himself
of) and which conduct was the subject of a dismissal application
brought by the Eastern Cape Property Guide
(“ECPG”) to
the Tribunal on 14 October 2008 in case number: 014365. While the
Applicants had not been cited as respondents
in those previous
proceedings by Charter they were entitled to allege prescription in
terms of section 67(1) because the conduct
complained
of in the 2013 referral had already ceased more than three years ago.
They could also rely on res judicata under section
67(2)
because they were the constituent
members of SSPG (who had been cited as a respondent). The Tribunal
had already decided and dismissed
the complaint that had been
initiated by Charter in
2007.
[5]
They argue further
that given the history of this case they ought not to be subjected to
incurring further unnecessary costs in
defending SSPG or the ECPG and
the Applicants against unsubstantiated and vexatious allegations.
Furthermore Mr Page’s papers
contain fatal defects which cannot
be remedied by amendment and the matter should accordingly be
dismissed.
[6]
We have decided to
dismiss the main matter and set out the main grounds as follows.
[7]
The founding
affidavit in the complaint referral is in a large part
incomprehensible. It comprises a main affidavit which purports
to
summarise a series of individually particularised complaints. Each
individual complaint, at least as explained by Mr Page at
the
hearing, is then further particularised by a series of annexures to
the main affidavit. Thus to attempt to understand each
complaint one
has to read the main affidavit together with the relevant annexure.
This bizarre architecture to the complaint referral
has only added to
its confusing nature because it is unclear how to read the document
properly to understand what is alleged.
[8]
The referral can thus
be categorised as comprising allegations that can be understood and
those that are incomprehensible. Of the
latter no more need to be
said of that no respondent can be required to guess the mind of the
complainant in order to understand
the case against it. Despite
endeavouring to appreciate at the hearing what these complaints were
based on it became no clearer.
They are vague, embarrassing and fail
to disclose a cause of action in law and fall to be dismissed.
[9]
Of the former i.e.
those that are comprehensible, they remain problematic for the
following reasons we summarise below as follows
-
9.1
The conduct
complained of in the 2013 referral was substantially the same conduct
that Mr Page had complained of in 2006 on behalf
of Charter
Properties, a separate legal entity, and for which Charter had
received interim relief by way of a settlement agreement
in 2007("the
2007 referral”). This conduct has already ceased more than
three years prior to the 2013 referral. Thus
the complaint in this
respect is not competent at all
in
terms of section 67(1) of the Act which states:
“
A
complaint in respect of a prohibited practice may not be initiated
more than three years after the practice has ceased”.
9.2
Moreover SSPG and
ECPG are still cited as respondents by Mr Page. Hence Mr Page has
referred substantially the same conduct as in
the 2007 referral
against the same respondents, SSPG and ECPG, which referral has
already been dismissed by us in November 2012.
Thus the complaint in
this respect is not competent against SSPG and ECPG in terms of
section 67(2) of the Act which states that:
“
A
complaint may not be referred to the Competition Tribunal against any
firm that has been a respondent in completed proceedings
before the
Tribunal under the same or another section of this Act relating
substantially to the same conduct.”
9.3
The public interest
requires us to not permit Mr Page from proceeding any further with
this matter.
Background
[10]
This matter has a
long and convoluted history. Since 2006, the Respondent (who we refer
to as Mr Page or Charter interchangeably)
has lodged various
complaints and procedural matters to both the Competition Commission
(“Commission”) and before this
Tribunal.
[11]
In January 2006, he
lodged a complaint under his business Charter Properties to the
Commission against ECPG, alleging that the refusal
by ECPG to publish
advertisements at reduced rates for estate agents such as Charter,
contravened the Act. Charter wanted to place
an advertisement in the
ECPG to the effect that it would only charge 3% commission as opposed
to the customary 7.5% commission
charged by other estate agents.
[12]
Following the
complaint lodged at the Commission, Charter Properties filed an
interim relief application to the Tribunal in March
2006, under
section 49C in order to obtain immediate access to ECPG. In this
application Charter amended its papers to join SSPG
as a respondent,
even though it had not cited SSPG as a respondent in the complaint
lodged at the Commission. This application
was heard on 19 January
2007 and on that day the parties arrived at an agreement in terms of
which the ECPG agreed to accept Charter’s
adverts on condition
these complied with the ASA rules. Thus Charter had obtained the
relief it had sought in its complaint at
that stage of the interim
relief proceedings already.
[13]
The Commission
completed its investigation into the complaint and
issued a notice of
non-referral. Charter then referred the complaint to the
Tribunal
in terms of section 51 of the Act. After a drawn out process that
complaint was eventually dismissed by this Tribunal on
8 March
2013.
[3]
[14]
Mr Page then
submitted a second complaint to the Commission on 5 March 2013 in his
own name. The Commission issued a certificate
of nonreferral on
8 August 2013. It is this complaint that constitutes the subject
matter of the 2013 referral and which the
Applicants seek to have
dismissed.
Current Application
[15]
The
founding affidavit of the 2013 referral was arranged in a bizarre
manner with different sections labelled as annexures. When
we peruse
these founding papers we find that the contents thereof
incomprehensible. Mr Page alleges that the Applicants are in
contravention of Chapter 3, S5(1), S7(a), S(1)(viii), S4(1)(b)(i),
S8(d)(i) and S(9)(c)(i) and (ii) of the Act. As was the case
with all
the papers filed by Mr Page in the last seven years, the founding
papers contain nothing more than legal jargon strung
together in
paragraphs
[4]
In his papers Mr Page refers to “other respondents”
frequently without identifying these. As it stands the founding
affidavit discloses no cause of action.
[16]
We
see a similar pattern in his opposition to the dismissal application
where words are strung together as follows:
“...dismissal
application is unfounded
,
un-procedural,
has no basis in law and, as a consequence, does not provide
compelling reason, or any reason at all, for a dismissal
as sought;
not as to pertain to the applicants therein, not as pertain to the
further non-complying respondents and not as pertain
to any part of
the main matter”
[5]
[17]
At
the hearing of the matter, the panel members attempted to obtain
clarity from Mr Page about the nature of his complaint and whether
there was anything new that he had not previously complained of in
the 2007 referral. Mr Page demonstrated an understanding of
the legal
processes and what the nature of the enquiry from the panel
constituted. While his argument at the beginning was peppered
with
legal jargon and references to the provisions of the Act, in his
responses to specific questions from the panel it became
clear that
the conduct he was complaining of in the 2013 referral was the same
that he had complained of previously. It seems that
all he wanted to
do now was to extend liability of the conduct to the constituent
members of the SSPG
[6]
When asked who the “other respondents” were Mr Page could
not identify these. Thus the 2013 referral filed by Mr Page
concerned
the same conduct and the same respondents as did the 2007 referral
brought by Charter Properties. That conduct has already
been the
subject of a dismissal in our decision of 2012. It is also the same
conduct that Charter had complained of in his interim
relief
application in 2006.
[18]
In terms of section
67(1) it is not competent for any party to initiate a complaint in
respect of a prohibited practice more than
three years after the
practice has ceased. Once the conduct has ceased as contemplated in
section 67(1) the matter has prescribed
and cannot be initiated
against any
party that may
have been associated with that alleged conduct. Given that the
conduct complained of by Mr Page ceased as early as
2006 or during
2007 when Mr Page was granted interim relief, it is not competent for
Mr Page or any other person to initiate a
complaint in relation to
such conduct. On this basis Mr Page’s 2013 referral must be
dismissed.
[19]
Not only is the
conduct complained of by Mr Page the same as in the 2007 referral, so
are the respondents against whom the complaint
was lodged. As
conceded by Mr Page he still persists in alleging the same conduct on
the part of SSPG and ECPG, respondents in
respect of whom this
Tribunal has already dismissed the complaint in November 2012. In
terms of section 67(2) it is not competent
for Mr Page to refer a
complaint to the Tribunal against firms who have been respondents in
completed proceeding relating substantially
to the same conduct. On
this basis the complaint is also not competent and must be dismissed.
[20]
As far as the
incomprehensible founding affidavit filed by Mr Page goes, we agree
with the Applicants that affording Mr Page an
opportunity to cure the
defect by an amendment will not take the matter any further simply
because we have established that the
conduct complained of by Mr Page
is the same as that contained in the 2006 referral. That conduct has
already prescribed and the
merits of that complaint have already been
decided by the Tribunal in its dismissal decision of 12 November
2012.
[21]
What
also emerged during the course of these proceedings is that Mr Page
has still not made use of the relief he obtained in early
2007. He
also confirmed that he was not trading in the property market and had
no longer had knowledge of the recent practices
in the industry. He
once again conceded that his business model (as it was then)
[7]
was not understood by his clients who only sought to see their homes
advertised in the property pages of the SSPG and ECPG.
[22]
While it may be that
the technical grounds alleged by the Applicants support a dismissal
of the complaint referral, in our view
the referral also falls to be
dismissed on public interest grounds.
[23]
Since
2006, Mr Page has repeatedly lodged complaints against the SSPG and
ECPG and now the constituent members of the erstwhile
SSPG. These
complaints have been investigated by the Commission and have been
found to have no merit. Despite this, Mr Page has
persisted in his
private capacity in pursuing these complaints at the Tribunal
pursuant to a notice of non- referral as a complainant
in terms of
section 51(1).
[24]
At first the
Tribunal, observing that he was unrepresented, attempted to assist Mr
Page by referring him to legal representatives
who might act for him
pro bono.
Mr Page has not
been able to retain the services of any of them. While Mr Page may
not have any consideration for the inconvenience
caused by his
actions to the respondents (Applicants in this case) or the great
expense put to the agencies by his repeated filing
of substantially
the same complaint, he also lacks the ability to guard himself
against the risks of his own unmediated persistence,
namely running
the risk of an adverse costs order.
[25]
Moreover the fact
that he has still not utilised the relief he obtained in early 2007
and that he is no longer trading as an estate
agent leads us the
inevitable conclusion that the public interest cannot be advanced by
permitting Mr Page, an unrepresented private
person, to continue
utilising the provisions of the Competition Act in this manner More
so when the Commission after repeatedly
investigating his
allegations, found no merit therein.
[26]
While we hesitate in
reaching this conclusion we are inclined to give credence to the
possibility that the litigation by Charter
is simply vexatious and
levelled against the entire industry.
[27]
The application for
dismissal is accordingly granted.
ORDER
1.
The dismissal
application in case number 017193 is granted and the complaint
referral under case number 017764 is therefore dismissed.
2.
The Respondent is
liable to pay the costs of each of the Applicants on a party and
party scale such costs to include the costs of
one counsel.
31 March2014
DATE
Ms. YASMIN
CARRIM
Mr. Norman Manoim and
Dr. Takalani Madima concurring
Tribunal Researcher:
Caroline Sserufusa
For
the Applicants:
Adv Engelbrecht instructed by Cliffe Dekker
Hofmeyer
For
the Respondent;
Mr.
Eldrich Page on his behalf
[1]
Act No. 89 of 1998, as amended.
[2]
Amalgamated Real Estate Principals Group CC t/a Charter Property
Sales
[3]
See
Tribunal decision in
Amalgamated
Real Estate Principals Group CC t/a Charter Property Sales & The
Home Trader (Eastern Cape) (Pty) Ltd t/a East
Cape Property Guide
,
Case no: 015776
[4]
See pages 17-18 of the Mr Page’s Founding Affidavit in the
2013 complaint referral.
[5]
See para 21 page 13 of Mr. Page’s Heads of Argument.
[6]
See pages 28-29 of the Transcript.
[7]
Mr. Page’s business model involved advertising by word of
mouth, on notice boards and on the internet.