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[2016] ZACT 51
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Grant v Schoemansville Oewer Klub (IR202DEC15) [2016] ZACT 51; [2017] 1 CPLR 190 (CT) (11 July 2016)
COMPETITION
TRIBUNAL OF SOUTH AFRICA
Case
No: IR202Dec15
In
the matter between:
JG
GRANT
Applicant
And
SCHOEMANSVILLE
OEWER
KLUB
Respondent
Panel
: Yasmin Carrim (Presiding Member)
Andiswa Ndoni (Tribunal
Member)
Mondo Mazwai (Tribunal
Member)
Heard
on
:
08 June 2016
Order
issued on
:
11 July 2016
Reasons
issued on
:
11July 2016
Decision
and order
Introduction
[1]
On 15 December 2015, an interim relief application was filed by Mr
Jeremy Gordon Grant ("the applicant") with the
Competition
Tribunal of South Africa ("the Tribunal") against the
respondent, the Schoemansville Dewer Klub ("the
club").
[2]
The applicant owns and operates a charter boat for hire on the
Hartbeespoort Dam ("the Dam"), with a capacity of 14
passengers. The club consists of approximately 375 members who either
own property at the Dam, or are tenants of a property at
the Dam. The
applicant is also a member of the club. He operates his business at
the permission of the club, at a monthly fee,
on the south-eastern
bank of the Dam.
[3]
On 11 November 2015, the applicant lodged a complaint with the
Competition Commission ("the Commission"). In the
complaint, the applicant alleged that Mr Jack Seale ("Mr
Seale"), allegedly the owner of a commercial boat hiring
business
in competition with the applicant and other boat operators,
was engaging in exclusionary conduct by using his unfounded claim to
rights in respect of the Oewer area of the Dam, as a ploy to
eliminate competitors in the boat hiring business on the Dam. The
applicant alleged that Mr Seale was putting undue pressure on the
Oewer Klub, through the threat of litigation, and that the club
had,
as a consequence, cancelled the agreements with the applicant and
other boat operators.
[4]
The applicant seeks an interdict preventing the club from terminating
the oral agreement in terms of which he was allowed to
operate his
business, thereby restoring the
status
ante
quo
to use the south-eastern bank of the Dam and
the facilities of the club for his customers.
Factual
Background
[5]
It appears that at an Annual General Meeting ("AGM") held
by members of the club, along with Mr Seale who, as mentioned,
owns a
portion of land at the Dam and also operates a boat hiring business
in competition with other boat charter businesses, a
resolution was
adopted in terms of which the club members voted against permitting
the applicant and others from operating a boat
hiring/cruise business
on the dam. At this meeting it was decided that the oral agreement
entered into between the applicant and
the club in September 2014 be
terminated.
[6]
In terms of the oral agreement the applicant was permitted to dock
his boat on the south-eastern bank of the Dam. His customers
were
permitted to access the bank by the payment of a gate fee of R20 to
the club. If the customers wished to stay longer at the
club and
utilise the club's facilities they could do so on a further payment
of R50.
[7]
The applicant together with another cruise company Harties Online
were notified that subsequent to the decision of the
AGM they
were no longer permitted to operate a boat hiring/cruise business on
the south-eastern bank of the dam. Another operator,
Toro Ya Me, was
however permitted to continue using the premises of the club. This,
as we later discuss, became a subsequent basis
for a change in the
applicant's case.
[8]
It appears from the papers filed by the applicant that although the
application is against the club, the person behind the termination
of
the oral agreement is Mr Seale, who owns a portion of land at the Dam
and also runs a boat hiring business as well as an animal
and snake
park. Mr Seale seems to be a much larger business than the applicant.
Mr Seale apparently addressed a letter to the club
submitting that as
per the instruction of the Department of Water and Sanitation,
commercial boat hiring services (i.e. like that
of the applicant),
was no longer permitted at the foreshore of the Dam. The applicant
submits that Mr Seale is under the impression
that through his
ownership of Ontspan and the Transvaal Yacht Club, he also has a
right to dictate what takes place on the piece
of land where the
applicant operates its business.
[9]
It is not necessary, for purposes of this application, for us to
explore in depth the basis of the dispute between Mr Seale
and the
applicant. Suffice to say that it appears that Mr Seale's claims are
based on the fact that when the land around the Dam
was acquired from
the Schoeman family by the government of the Union of South Africa,
in or about 1925, paragraph 4 of a resolution
by the Cabinet of the
Union of South Africa recorded in a minute, dated 11 September
1925 and published in the government
gazette on 30 July 1926, made
provision for owners of certain portions of land around the Dam to be
utilised for commercial boat
hire operations. In Mr Seale's view only
he, by virtue of his acquisition and ownership of the relevant
portion of the land around
the Dam, enjoys the right to launch such
boats. The applicant disagrees and has obtained legal advice in
support of his contention.
[10]
The applicant submits that Mr Seale's actions are aimed at
eliminating any form of competition against his boat hiring business
in the area. It seems the applicant is not the only one who has
suffered loss of income as a result of the letter from Mr Seale,
two
other operators have also had to cease operations.
The
Hearing
[11]
Prior
to
the hearing
the
Tribunal
made
various
unsuccessful attempts (via emails
and
telephonically)
to
obtain
an
answering
affidavit
from the
respondent
so
that
the
matter
could
be dealt
with
as
expeditiously
as possible,
without
success.
The Tribunal therefore
decided to
issue a summons
[1]
in
preparation
for
the
matter to
be
heard.
The
notice
of
set
down was
served
on
the
respondent
via
the
sheriff
to inform
him
that
the
matter
would
be
heard on 08 June
2016.
[12]
At
the
hearing the
Tribunal
had to
consider
the
preliminary
issue of
whether
to
permit
the
club
a
further
opportunity
to
file
answering
papers.
The
club
was
represented
by
Mr
Graeme
Anthony
Peplar
("Mr
Peplar")
who
accepted
that while
the
club
had
not
filed
an
answer
to
the
application
they
were
willing
to make
submissions
to
the
Tribunal
on the
merits of
the
application.
The
Tribunal
decided
that
it was
in the
interest
of justice
that the
matter
proceeded given
that this
was
an
application
for
interim
relief
pending
an
investigation
by the
Commission
and was
of some
urgency to
the
applicant.
[2]
[13]
In his submission, the applicant informed us that as of 19
December 2015, with the assistance of the Department of Tourism
("DT") his business, Sunshine Cruises, was able to trade
again on the Dam. However the trading conditions were different
in
the sense that the club was now discriminating against it by making
it pay R60 more for the gate fee than Toro Ya Me, which
is one of its
competitors run by Ms Derna van Vuuren ("Ms van Vuuren").
The applicant now sought an order from
the Tribunal
that he should be given access to the
premises of the club on the same terms and
conditions as those
offered to Toro Ya Me.
[14]
Mr Peplar, the Chairperson of the club, addressed the Tribunal on
behalf of the club. Mr Peplar informed us that the reason
he did not
file an answering affidavit was due to the fact that he was still
awaiting a pending application between the club and
the Department of
Water Affairs ("DWA"). Mr Peplar submitted that the
application concerns Mr Seale's business rights
over the water
surface of the Dam, flowing from his purchase of the property years
ago.
[15]
He explained that at a meeting held on 22 December 2015, called by
the North West Provincial Tourism Association, which was
held after
the termination notices were issued on 5 December 2015 the club
decided to allow commercial pleasure boat operators
who had confirmed
pre-bookings for visitors prior to 6 December 2015, to pay the fees
as they had done in the past. The rate for
new bookings, which the
club would only permit with effect from 15 January 2016, would be R70
per day visitor.
[16]
Mr Peplar
confirmed
that
boat
operators,
the
applicant
included,
are
currently
being allowed
to
operate
at the
Dam
pending the
outcome
of the
engagement
with
the
DWA.
When
asked
whether
this
commitment
had
been
given
to
the
applicant
in writing,
Mr
Peplar
said
that
it was
reflected
in the
minutes
of
the meeting
of 22
December
2015.He
indicated
that
he was
willing
to
provide
this undertaking
to
the
Tribunal
and
would
not
oppose
it
being
made
an
order
of this
Tribunal.
[3]
[17]
On the
issue of
Toro
Ya
Me being
charged a
different
gate
fee
to
the
applicant,
Mr
Peplar
advised
that
a
written
agreement
between
the
club
and Toro
Ya
Me
exists
which
provides
for
a
different
framework.
He
referred
the
Tribunal
to
a
copy
of the
agreement
which
reflected
that
Ms van
Vuuren
was to
build, at
her own
cost, a lapa and
ablution
facilities for
her
customers
on the
premises
of
the
club.
[4]
For the
duration
of
the
contract
of
5
years
she
would
pay a
monthly
amount
of
R1500
and
R10 for
each
customer.
He also
handed up
a
copy
of
the
email
in which
the
club
had
cancelled
the
contract
following
the
resolution
of
the
AGM.
[5]
The
termination
letter
reflected
that
Toro
Ya Me was
given
a
12 months'
notice
period.
Mr
Peplar
confirmed
that
Toro
Ya
Me would
be required
to
pay
a
R70
gate
fee
like
the
rest of the
other
boat
operators
once the
existing
contract
terminated
in
December
2016.
[18]
At the hearing Mr Peplar provided the following undertakings:
[18.1]
Any member of the public can access the club at the present
gate fee.
[18.2]
Any paid up member of the club can launch his boat at the club
at his own risk. The management of the club will
not be held
responsible for any incidents that may arise from privately operated
boats nor will it be regarded as having authorised
the launch of such
boats on the Dam.
If
it emerges that commercial rights on the Dam are not restricted to Mr
Seale following the DWA's decision, and the club obtains
this in
writing from the DWA, then the club will enter into negotiations in
good faith with the current boat operators.
[19]
In addition to this Mr Peplar submitted
that he had no difficulty
with
his undertakings being made an Order of this Tribunal.
Our
assessment
[20]
Both the applicant and the respondent confirmed that the
applicant had been able to get his business up and running again.
It
was also common cause that while the club had terminated the oral
agreement on 05 December 2015 it had reversed that decision
on 22
December 2015. The applicant confirmed that he had been able to run
his business since then.
[21]
It was clear that by the time that the matter was set down for
hearing that the relief sought by the applicant on the papers,
namely
that the club be prevented from denying him access to the
south-eastern bank of the Dam, was moot. The club had already
granted
him access on 19 December 2015. Had this application been heard in
early December, there may have been a basis to grant
interim relief
of the type sought by the applicant on the papers.
[22]
In his
papers the
applicant
also
sought
compensation
from the
club for
loss of
income.
However
we
consider
such
a
claim
for
damages
to
follow
on
from
a final
determination
of
a
contravention
of
the
Act
by
the
respondent
[6]
and
not
appropriate
or
competent
relief
in an
interim
relief application.
[23]
In relation to the now alleged price discrimination conduct, the
applicant sought to press a section 9(1) case against the
club
without any papers being filed with the Tribunal and served on the
club. In fairness to the respondent this new alleged case
of price
discrimination cannot be entertained by the Tribunal. In addition to
this, it is not clear whether the new allegation
of price
discrimination has been lodged with the Commission for investigation
which raises a jurisdictional question of whether
it is within our
competence to hear it.
Conclusion
[24]
For all the above reasons, we conclude that the applicant's interim
relief application should be dismissed on the grounds that
the relief
sought by him is moot. In relation to his new price discrimination
allegation, we cannot decide it, as there is no formal
application
before us, nor is there enough evidence placed before us to
support the allegations made by the applicant that
the respondent has
engaged in prohibited price discrimination in contravention of
section 9(1) of the Act.
Costs
[25]
Normally in an interim relief application costs ordinarily follow the
outcome of the case. However the facts of this case are
different. Mr
Peplar, on behalf of the Oewer Klub, could have simply filed an
answering affidavit, alternatively provided the Tribunal
with a
letter containing his aforesaid undertakings which would have
obviated the need for this hearing and the incurring
of
unnecessary costs by the applicant. Given the respondent's lack of
co operation and the consequential undue delays
that were
visited upon this matter we find that it appropriate that the
respondent pay the applicant's costs on a party and party
scale.
ORDER
1.
The applicant's interim relief application under case
number IR202Dec15 is hereby dismissed.
2.
The respondent, the Oewer Klub, will grant access to any member of
the public on payment of the prevailing
gate fee.
3.
The Oewer Klub will ensure that any paid up member of the club can
launch his boat at the Oewer Klub provided
that the management of the
club will not be held responsible for any harm caused to any person,
whether a member of the club or
a member of the pubic, that may arise
from the operation of privately operated boats, nor will the club be
regarded as having authorised
the launch of such boats on the Dam.
4.
If it is ascertained in future that commercial rights on the Dam are
not restricted to Mr Seale, following
the DWA's decision, and the
club obtains this in writing from the DWA, then the club will enter
into negotiations in good faith
with the current boat operators at
the Dam.
5.
The Oewer Klub is to pay the costs of the applicant on a party- party
scale.
11
July 2016
Date
__________________________
Ms
Yasmin Carrim
Ms
Andiswa Ndoni and Ms Mondo Mazwai concurring.
Tribunal
Researcher: Caroline
Sserufusa
For
the applicant: Mr
Jeremy Gordon Grant
on his behalf
For
the respondent: Mr
Anthony Graeme Peplar on his behalf
[1]
Tribunal Rule
47
[2]
The Tribunal
explained
the
procedure
to the
representatives
of the
club.
[3]
See Transcript at page 45.
[4]
See Annexure E6 of the applicant's
founding
papers.
[5]
See Exhibit 1, as well as page 36 of the Transcript.
[6]
See
in
this
regard
s65(6)
and
s49D(4)
of the Act