About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Competition Tribunal
SAFLII
>>
Databases
>>
South Africa: Competition Tribunal
>>
2015
>>
[2015] ZACT 19
|
|
Invensys PLC and Others v Protea Automaton Solutions (Pty) Limited, In Re: Protea Automaton Solutions (Pty) Limited v Invensys PLC and Others (019315) [2015] ZACT 19 (12 March 2015)
COMPETITION
TRIBUNAL OF SOUTH AFRICA
Case No: 019315
In the matter
between:
INVENSYS
PLC
............................................................................................................
First
Applicant
INVENSYS SYTEMS
(UK)
LIMITED
...................................................................
Second
Applicant
EUROTHERM
LIMITED
..........................................................................................
Third
Applicant
and
PROTEA AUTOMATION
SOLUTIONS (PTY)
LIMITED
.........................................
Respondent
In
re
The Complaint
referral between:
PROTEA
AUTOMATION SOLUTIONS (PTY)
LIMITED
............................................
Applicant
and
INVENSYS
PLC
........................................................................................................
First
Respondent
INVENSYS
SYTEMS (UK)
LIMITED
...............................................................
Second
Respondent
EUROTHERM
LIMITED
......................................................................................
Third
Respondent
EOH
HOLDINGS
LIMITED
................................................................................
Fourth
Respondent
EOH
MTHOMBO (PTY)
LIMITED
.......................................................................
Fifth
Respondent
Panel: Yasmin Carrim
(Presiding Member)
Andiswa Ndoni
(Tribunal Member)
Fiona Tregenna
(Tribunal Member)
Heard on: 12
February 2015
Order issued on: 12
March 2015
Reasons issued on :
12 March 2015
Decision and
Order: Dismissal Application
Introduction
[1]
On 12 February 2015 the Competition Tribunal (“Tribunal”)
heard a dismissal application brought by the First to
Third
applicants in relation to the complaint referral and interim relief
application brought by the Respondent, Protea Automation
Solutions
(Pty) Ltd (“Protea”).
1
Background
[2] For ease of
convenience the Applicants are referred to as “Invensys”
or “Invensys Group” and the Respondent
as “Protea”.
The matter between the parties has a long and convoluted history. For
the sake of brevity we deal only
with the salient facts relevant for
purposes of this application.
[3]
Subsequent to the issuance of a certificate of non-referral by the
Competition Commission (“the Commission”) on
20 March
2013, Protea referred its complaint (“the referral”) to
the Tribunal in terms of s51(1) of the Competition
Act 89 of 1998
(“the Act”).
2
In its referral Protea alleges that the Invensys Group and the Fourth
to Fifth Respondents (“EOH Holdings and EOH Mthombo”)
contravened various provisions of the Act namely sections 4, 5(1),
8(a), 8(c), 8(d)(i), 8(d)(ii), 8(d)(iii), 8(d)(v) and 9(1).
[4] The Invensys
Group of companies is responsible for the management of sales and
distribution of components used in industrial
automation and control
systems worldwide which componentry is produced by entities within
the Invensys Group. Eurotherm Limited
(“Eurotherm”),
which also falls within the Invensys Group of companies, manufactures
control and automation componentry
branded under the Eurotherm brand.
These automation systems are utilised in the provision of industrial
solutions and distributed
internationally.
[5] Protea is part
of the Protëa Group of companies which markets, installs and
maintains certain equipment in the oil and
gas, pharmaceutical, food
and beverage, and power utility sectors throughout Sub-Saharan
Africa. The Protea Group is also an electronic
communications
solutions provider, focusing on broadcast, multimedia, communications
and measurement solutions for the telecommunications,
military and
regulatory sectors.
[6]
From 1947 until very recently, Protea was the sole supplier of
Eurotherm and Foxboro products in South Africa. Its business,
conducted under an exclusive distribution arrangement with invensys,
included the marketing, selling, distribution, installation,
maintenance and upgrading of these products for end-users as well as
providing related technical support services. While the arrangement
persisted over a long period of time the agreement itself was not an
evergreen contract but was renewed periodically.
3
[7]
During 2010, Invensys notified Protea that it intended to re-arrange
its business model and would terminate its exclusive distribution
agreement and that it sought to increase its footprint in the region
through a number of partners. This process involved engagement
between Invensys and Protea, on the one hand and invensys and EOH
Mthombo
4
The
objective of this engagement was for Invensys to find the appropriate
partner for its future business strategy for South
Africa and
neighbouring countries. Both EOH Mthombo and Protea were invited to
make presentations to Invensys on their future growth
strategy for
the Invensys products in the region. Invensys ultimately concluded an
exclusive agreement with EOH Mthombo. EOH Mthombo
is the current sole
and exclusive distributor of Foxboro and Eurotherm products and
services in South Africa. However, Invensys
seeks to retain certain
customers in South Africa exclusively for itself by virtue of clause
5.4 of the distribution agreement
concluded between Invensys and EOH
Mthombo (herein referred to as the “representation agreement”).
Protea, who still
provides support services to the customers it has
serviced to date, is now only able to access Foxboro and Eurotherm
products from
EOH Mthombo and cannot do so directly from Invensys.
[8]
This re-arrangement by Invensys sparked a flurry of legal actions on
the part of Protea, one of which was the lodging of a complaint
to
the Competition Commission, and subsequently, a referral under s51(1)
to the Tribunal.
5
[9] The gravamen of
Protea's referral is that these arrangements, as between Invensys and
EOH Mthombo, on the one hand, and between
EOH Mthombo and itself, on
the other, has an on-going effect of substantially preventing or
lessening competition by contravening
sections 4
,
5
(1),
8
(a),
8
(c),
8
(d)(i),
8
(d)(ii),
8
(d)(iii),
8
(d)(v) and
9
(1) of the
Competition
Act.
Dismissal
Application
[10]
This application emanates from a supplementary affidavit filed by
Protea, after the Tribunal directed it to amend its complaint
referral by way of a supplementary affidavit. The direction by the
Tribunal was at the instance of an exception application brought
by
Invensys in 2014. In that application Invensys had sought dismissal
of the referral as a remedy on the basis that Protea’s
case in
its founding affidavit was vague and embarrassing despite the fact
that it had had ample opportunity to clarify over the
last few years.
After hearing the exception the Tribunal upheld the application but
granted Protea an opportunity to clarify its
case by the filing of a
supplementary affidavit.
6
[11] Protea was
required to file its supplementary affidavit within ten business days
of the date of the Tribunal order. Protea
failed to comply with this
and only filed its supplementary affidavit thirty three days later.
[12] The Applicants
filed this dismissal application on the basis that the supplementary
affidavit (SA) filed by Protea, failed
to comply with the Tribunal’s
direction and that the Tribunal lacked jurisdiction in respect of
Protea’s complaint
now being brought under
s4(1)(b)(ii)
,
because the conduct upon which Protea now relied upon for its
4(1)(b)(ii) case had not been filed with the Commission first as
was
required under the
Competition Act.
Failure
to comply
with Tribunal order
[13]
In our order dated 13 August 2014 (the “exception order”),
which is attached hereto, we ordered that-
“
The
Supplementary
Founding Affidavit must set out clear and concise statements of the
material facts upon which Protea relies for its
claims with
sufficient particularity to enable the other parties to reply
thereto”
7
[14] The Tribunal
went further and provided detailed guidance on the kind of
information it required from Protea so as to render
its pleadings
adequate and accordingly clarify the case it sought to bring. In
paragraphs 4.2 - 4.4 inclusive, the Tribunal required
Protea to
provide without limitation -
a. "in
respect of section 4 of the Competition Act 89 of 1998 ("the
Act"), to provide material facts pertaining to
the nature of the
alleged horizontal relationship between Invensys and EOH Mthombo
(Pty) Ltd ("EOH"); the manner in which
section 4 has been
contravened; the relevant product market in which this contravention
took place; and the manner and extent that
this alleged contravention
has on competition in any relevant market or markets;
b. in respect of
section 5 of the Act, the nature of the alleged vertical relationship
between Invensys and EOH; the manner in which
section 5 the Act has
been contravened by this relationship; the relevant product market in
which this contravention has taken
place; and the manner and extent
the contravention has affected competition in any relevant market or
markets; and
c.
in respect of
section 8 and 9 of the Act
,
the relevant
product and geographic market or markets in which it is alleged that
Invensys is dominant; the basis of competition
in those product and
geographic markets; the basis upon which the alleged dominance of
Invensys is computed; Invensys' and its
competitors' relative market
share; the manner in which Invensys is alleged to have exercised its
market power; the manner in which
Invensys has contravened sections 8
and 9 of the Act; and the manner and extent that these contraventions
have affected competition
in any relevant market or markets
"
[15]
In its answering affidavit to this dismissal application Protea
expressly withdrew its complaint in respect of sections 8(a),
8d(ii)
and 9 of the Act. While this withdrawal certainly contributes to some
clarification of Protea’s case, the tendering
of this
withdrawal more than three years later and after lodging a number of
complaints to the Commission, referrals to this Tribunal
and interim
relief applications
and
after
it had been afforded a further opportunity by this Tribunal in the
exception order suggests that Protea has not adequately
applied
itself to clarifying the case it wishes to advance. This is further
borne out by the remainder of the SA, which in our
view fails to
comply with the exception order. (We accept that Protea has made out
a case for joinder of Invensys PLC)
Section 4 case
[16]
In paragraphs 20.2 of the SA the conduct now being relied upon by
Protea for contraventions of section 4(1)(b)(ii), 5(1) and
section
8(d)(i) of the Act
8
appears not to have been the subject of the complaint lodged with the
Commission. In its complaint lodged with the Commission,
Protea
alleged that the Representation Agreement between Invensys and EOH
Mthombo contravened sections 4(1 )(a), 4(1 )(b), 5(1),
8(a), 8(c),
8(d)(1), (ii), (iii), and (v) and 9(1) of the Act. In the SA Protea
now alleges that a “Customer-First Agreement
(CFA) between EOH
and Invensys and/or Invensys UK in terms of which Invensys pic and/or
Invensys UK is/are to provide MEPs to end
users constitutes a market
allocation within the territory in contravention of section
4(1)(b)(ii)”. The terms of this agreement
as alleged by Protea
to be in contravention of the Act had not been previously raised with
the Commission nor was it raised in
Protea’s referral to this
Tribunal. In
Glaxo
9
the
CAC held that a referral by a private complainant may not include
claims about anti-competitive conduct that had not been previously
lodged with the Commission. The CAC made it clear that the Act
required that the complaint referred to the Tribunal must be
“substantially
the same”
10
as the conduct complained of with the Commission. In other words a
complainant must first lodge a complaint with the Commission
and may
only refer
substantially
the same
complaint
under section 51(1) after the Commission has been afforded an
opportunity to investigate the conduct alleged to be a contravention
of the Act and only after it has issued a certificate of
non-referral. A complainant is not permitted to keep a part of the
complaint
in its pocket.
11
The
terms
of
the CFA which are the subject of Protea’s complaint, were never
referred to the Commission by Protea and have not been
the subject of
investigation by the Commission. Protea argued that a reference to a
Customer-First agreement could be found in
the Representation
Agreement that had been the subject of the Commission’s
investigation. However a passing reference in
the Representation
Agreement does not equate to a complaint by a complainant of the
conduct
as
articulated in the terms of an agreement. It is clear from the SA
that the terms of the Customer First Agreement are somewhat
different
to those of the Representation Agreement. The terms of the CFA have
not yet been referred to the Commission by Protea
in either of its
complaints to the Commission. It is also apparent from the reasons
for non-referral given by the Commission in
both complaints that the
terms of this agreement were not investigated by it. Accordingly the
Tribunal has no jurisdiction to consider
the Protea’s case
under sections 4(1 )(b)(ii), 5(1) and 8(d)(ii) based on the terms of
the CFA.
[17] The SA provides
no details as required by our order in respect of the alleged
contraventions of section 4(1)(a), 4(1)(b)(i)
or 4(1)(b)(iii). In
other words the sum total of Protea’s case under section 4 now
relies upon conduct that had not been
previously referred to the
Commission and in respect of which the Tribunal lacks jurisdiction.
The case under
section 5(1)
[18]
Protea has consistently alleged that the vertical arrangement between
Invensys and EOH is in contravention of section 5(1)
of the Act and
that Protea has been excluded from “the market”. In our
exception order we required Protea to clearly
set out its case by
providing details of “the
nature
of the alleged vertical relationship between Invensys and EOH; the
manner in which section 5 the Act has been contravened
by this
relationship; the relevant product market in which this contravention
has taken place; and the manner and extent the contravention
has
affected competition in any relevant market or markets”.
[19]
What we find instead, by reading through the SA, is a number of
possible markets, without any clarity as to which of these
are
relevant for purposes of its section 5(1) case. For example there is
seemingly the broad market for the supply of
all
Invensys
products, including the Foxboro I/A series products and services,
12
then a market for only the supply of Foxboro I/A series products,
13
a market for the supply of MEPs which are a bundle of services
provided to customers under the Customer First agreements ,
14
then a possible market for the supply of technical support
services,
15
possible markets consisting of a combination of any of the above
16
and then a downstream “resellers” market for resale of
Invensys products including the Foxboro I/A series products.
17
[20]
The geographic market is as described in paragraph 13 of the SA
“
the
Territory, which comprises in the Republic of South Africa, Lesotho,
Swaziland, Botswana, Namibia, Zimbabwe, Malawi, Mozambique
and
Mauritius".
[21]
As far as the manner in which it has been excluded and in which
relevant market, the SA provides scant detail. Instead we see
again a
broad formulation in paragraph 33 that the agreements referred to in
paragraph 27
“
have
had the effect of eliminating competition in the relevant market’.
And
further in paragraph 34 “
PAS
has accordingly been excluded from the relevant market
’
.
[22]
Apart from the fact that a reasonable reading of the SA does not help
us to identify “the relevant market(s)” in
which the
contravention has taken place and the manner and extent the
contravention has affected competition in those markets,
the
reference to the agreements in paragraph 27 now includes an
additional
agreement,
namely the Customer First Agreement the terms of which we have
earlier pointed out was never the subject of a complaint
lodged with
the Commission.
The case under
sections 8(d)(iii) and 8(c)
[23]
Under section 8 the exception order required Protea to provide
details about
inter
alia
-
“
the markets
in which it is alleged that Invensys is dominant; the basis of
competition in those product and geographic markets;
the basis upon
which the alleged dominance of Invensys is computed; Invensys’
and its competitors’ relative market
share; the manner in which
Invensys is alleged to have exercised its market power”.
[24] As indicated
earlier Protea, in response to the dismissal application expressly
abandoned its case under section 8(a), section
8(d)(ii) and section 9
of the Act. Seemingly it still persisted with a case under section
8(d)(iii) and 8(c) as stated in its Notice
of Motion in the complaint
referral. However the SA itself makes out no case under section
8(d)(iii) whatsoever. No details are
given about how 8(d)(iii) which
deals with tying and bundling, applies to any arrangement between
Invensys and EOH and/or Protea.
In any event Protea’s case
under sections 8(d)(iii) or 8(c) would suffer from the same
deficiencies identified previously
in its complaint referral which
deficiencies the SA was meant to address. In paragraph 35 of the SA
under the heading “Contraventions
of section 8 and 9 of the
Act”, the previous paragraphs 13 to 34 are repeated. These
paragraphs as discussed above, raise
the prospect of several possible
relevant markets, include conduct that had not been previously
referred to the Commission (the
terms of the Customer First
Agreement) and do not assist in identifying in which relevant market
(s) competition has been harmed
and the extent to which Protea has
been excluded. As it stands, a reasonable reader of the supplementary
affidavit would be none
the wiser about the relevant market in which
Invensys or EOH are dominant, the basis of the computation of market
shares in these
markets and the manner in which market power was
abused.
[25] Protea argued
that the SA must be read together with the founding affidavit.
However this is what was sought to be avoided
by the exception order.
Moreover by referring back to the founding affidavit for
clarification of the SA simply begs the question.
Protea was afforded
an opportunity to file a supplementary affidavit in order to clarify
a case precisely because its case as contained
in its founding
affidavit of the complaint referral was vague and incoherent. It does
not help to require the respondents (in the
main matter) or the
Tribunal to now refer to a vague prior document in order to
understand a subsequent document which was meant
precisely to clarify
the first.
Conclusion
[26] In conclusion
we find that the supplementary affidavit does not adequately clarify
or make any more coherent the case that
Protea wishes to advance
against Invensys and EOH Mthombo. What is apparent from a reading of
the supplementary affidavit, read
in context of the history of the
matter, is that there are some grievances on the part of Protea from
losing what was until now
an exclusive arrangement between it and
Invensys, but there is still a great degree of un-clarity about the
possible relevant markets
in which either Invensys or EOH Mthombo is
dominant or in which Protea has been excluded for purposes of
competition law, the nature
and manner of that exclusion and about
the horizontal arrangements that constitute a contravention of
section 4
of the
Competition Act.
[27] Protea argued
that it ought to be granted a further opportunity to clarify its
case. But this was precisely what it was required
to do in its
supplementary affidavit
[28]
In any event Protea has had a number of opportunities to clarify its
competition law case through the multitude of applications
it has
initiated in this forum since 2011. It first lodged a complaint with
the Commission in April 2011 and an Interim Relief
application with
this Tribunal in April 2011 (IR1). After receiving the certificate of
nonreferral from the Commission which clearly
sets out the reasons
why the Commission concluded that there was no harm to competition,
Protea lodged a complaint referral under
s51
(1) with the Tribunal
(CR1). Thereafter it withdrew both the IR1 and the CR1 without a
tender of costs.
18
Thereafter, Protea lodged another complaint with the Commission which
again was non-referred together with reasons therefor by
the
Commission. Protea then with the benefit of the Commission’s
assessments of its complaints lodged another complaint referral
under
s51(1)
(the current referral) and still yet another interim relief
application (IR2). The respondents in the withdrawn applications were
put to great effort and cost and were, ultimately after incurring yet
more costs of an application, granted their wasted costs
by this
Tribunal.
19
Notably Protea has not, as at the time of the hearing of this matter,
taken any further steps in the IR2 application, which presumably
was
brought by it because of some urgency, and that application still
stands
20
[29] It also took
the unusual step of filing an exception to EOH Holdings Limited and
EOH Mthombo (Pty) Limited's answering affidavit
in the main complaint
referral (Fourth and Fifth Respondents in the main complaint
referral).
[30] Throughout this
process Protea was at all times assisted by legal representatives.
[31] Protea was
granted yet a further opportunity to clarify its case by this
Tribunal in the exception application and it has failed
to do so.
[32] In light of all
of the above, fairness dictates that Protea not be granted yet
another opportunity to clarify its anti-trust
case. To grant it a
further opportunity to once again file additional papers would only
contribute to a further protraction of
these proceedings, which have
already been protracted by Protea’s own conduct, and would not
be in the interests of any of
the parties or the public interest
Order
[33] Accordingly we
make the following order -
a. The application
under case number 019984 (the complaint referral) is hereby
dismissed.
b. Protea is to pay
the costs of Invensys in the dismissal application under case number
019315.
12 March 2015
Date
Ms YASMIN CARRIM
Ms
Andiswa Ndoni
and
Prof. Fiona Tregenna
concurring.
Tribunal
Researcher:
Caroline
Sserufusa
For
the 1
st
- 3
rd
Applicants: Adv A Gotz instructed by Assheton-Smith Incorporated
For
the Respondent: Adv MJ Engelbrecht Instructed by Duncan Okes Inc
COMPETITION
TRIBUNAL OF SOUTH AFRICA
Case No: 019315
In the matter
between:
INVENSYS
PLC
....................................................................................................
First
Applicant
INVENSYS SYTEMS
(UK)
LIMITED
...........................................................
Second
Applicant
EUROTHERM
LIMITED
..................................................................................
Third
Applicant
and
PROTEA AUTOMATION
SOLUTIONS (PTY) LIMITED
...................................
Respondent
In
re
The Complaint
referral between:
PROTEA AUTOMATION
SOLUTIONS (PTY)
LIMITED
.........................................
Applicant
and
INVENSYS
PLC
......................................................................................................
First
Respondent
INVENSYS SYTEMS
(UK)
LIMITED
.............................................................
Second
Respondent
EUROTHERM
LIMITED
....................................................................................
Third
Respondent
EOH HOLDINGS
LIMITED
.............................................................................
Fourth
Respondent
EOH MTHOMBO (PTY)
LIMITED
....................................................................
Fifth
Respondent
Panel: Yasmin
Carrim (Presiding Member)
Anton Roskam
(Tribunal Member)
Fiona Tregenna
(Tribunal Member)
Heard on: 05
August 2014
Order issued on :
13 August 2014
ORDER: EXCEPTION
APPLICATION
Having
heard the parties in the above matter, the Competition Tribunal makes
the orders set out below. For ease of convenience the
Applicants are
referred to as “Invensys” and the Respondent as "Protea
”.
1.
Those points
in dmine
brought
by Invensys in paragraph 46 of its answering affidavit (which are in
the nature of exceptions to the pleadings of Protea)
are upheld.
2. Protea must
amend its complaint referral under case number 016584, by filing a
Supplementary Founding Affidavit within 10 business
days of the date
of this order,
3. The
Supplementary Founding Affidavit must set out clear and concise
statements of the material facts upon which Protea relies
for its
claims with sufficient particularity to enable the other parties to
reply thereto;
4. Without
limiting the generality of paragraph 3 the Supplementary Founding
Affidavit must set out the following:
4.1. the basis
for the joinder of Invensys PLC as a Respondent to the main matter;
4.2. in respect
of section 4 of the Competition Act 89 of 1998 (“the Act”):
4.2.1. the nature
of the aileged horizontal relationship between Invensys and EOH
Mthombo (Pty) Ltd (“EOH");
4.2.2. the manner
in which section 4 has been contravened;
4.2.3. the
relevant product market in which this contravention took place;
4.2.4. the manner
and extent that this alleged contravention has on competition in any
relevant market or markets;
4.3. in respect
of section 5 of the Act
4.3.1. the nature
of the alleged vertical relationship between Invensys and EOH;
4.3.2. the manner
in which section 5 the Act has been contravened by this relationship;
4.3.3. the
relevant product market in which this contravention has taken place;
and
4.3.4. the manner
and extent the contravention has affected competition in any relevant
market or markets; and
4.4. In respect
of section 8 and 9 of the Act
4.4.1. the
relevant product and geographic market or markets in which it is
alleged that Invensys is dominant;
4.4.2. the basis
of competition in those product and geographic markets;
4.4.3. the basis
upon which the alleged dominance of Invensys is computed;
4.4.4. Invensys’
and its competitors’ relative market share; .
4.4.5. the manner
in which invensys is alleged to have exercised its market power;
4.4.6. the manner
in which Invensys has contravened sections 8 and 9 of the Act; and
4.4.7. the manner
and extent that these contraventions have affected competition in
any. relevant market or markets.
5. invensys and
any other respondent must file its Supplementary Answering Affidavit,
if any, within 10 business days of Protea
having filed its
Supplementary Founding Affidavit.
6. Protea must
file its Supplementary Replying Affidavit, if any, within five
business days of receiving any Supplementary Answering
Affidavit.
7. Protea must
pay invensys's costs in respect of the points in limine, such costs
to include the cost of one counsel
13 August 2014
Date
Ms YASMIN CARRIM
Mr Anton Roskam
and Prof. Fiona Tregenna concurring.
Tribunal
Researcher: Caroline Sserufusa
For the 1
st
-3
rd
Applicants: Adv A Gotz instructed by Craig Smith
Incorporated
For the
Respondent: Adv MJ Engelbrecht instructed by Duncan Okes Inc
1
The
matter was referred to the Tribunal on 24 April 2013 in terms of
section 51(1) of the Competition Act,1998.
2
Protea
lodged the complaint with the Competition Commission on 12 September
2012.
3
See
pages 14-15 of Protea's founding affidavit to the main complaint
referral.
4
EOH
Holdings Limited and EOH Mthombo (Pty) Limited form part of the EOH
group of companies. Although EOH are respondents in the
main matter,
they were not parties to the current exception application that was
brought before the Tribunal
5
Legal
action is still pending between the parties in the High Court.
6
See
the Order dated 13 August 2014.
7
See
Paragraph 3 of the Tribunal's Order dated 13 August 2014.
8
Subsequently
withdrawn
9
Glaxo
Wellcome v National Association of Pharmaceutical Wholesalers
15/CAC/Feb02.
10
Ibid
at paragraph 33.
11
Supra
at footnote 9, paragraph 38.
12
See
paragraph 12.3 and 13 of the supplementary founding affidavit.
13
See
paragraph 15 of the supplementary founding affidavit.
14
See
paragraph 29 and 37.1 of the supplementary founding affidavit.
15
See
paragraph 12.3.2 of the supplementary founding affidavit.
16
See
paragraph 12.1.2 and 12.5 of the supplementary founding affidavit.
17
See
paragraph 25 and 33.1 of the supplementary founding affidavit.
18
It
had done so without a tender of costs which were then pursued in
cases number 015297.
19
See
Invensys
PLC & Others
vs.
Protea
Technology (Pty) Ltd & Others, Case no: 015297; EOH Holdings
Limited & Others vs. Protea Automation Solutions
(Pty) Ltd, Case
no: 018275.
20
Invensys
had also asked for the dismissal of this application. However at the
hearing both parties were of the view that this might
be better dealt
with by a Notice of Withdrawal with a tender of costs.