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[2016] ZACT 71
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South African Medical Association v Council for Medical Schemes, South African Medical Association v Council for Medical Schemes, South African Medical Association v Council for Medical Schemes; In re: Council for Medical Schemes v South African Paediatric Association and Another; In re: Council for Medical Schemes v Society for Cardiothoracic Surgeons of South Africa and Another (CRP065Jul13/PIL001Apr16, CRP065JUl13/EXC263Mar16, CRP066Jul13/EXC262MAr16, CRP066Jul13/AME023May16, CRP065Jul13/AME022May16) [2016] ZACT 71; [2016] 2 CPLR 1027 (CT) (15 September 2016)

COMPETITION
TRIBUNAL  OF SOUTH AFRICA
Case
No: CRP065Jul13/PIL001Apr16
In
the
In Limine
application
matter between:
SOUTH
AFRICAN MEDICAL
ASSOCIATION

Applicant
and
COUNCIL
FOR MEDICAL
SCHEMES

Respondent
and
Case
No's: CRP065Jul13/EXC263Mar1 6, CRP066Jul 13/EXC262Mar16
In
the Exception applications between:
SOUTH
AFRICAN MEDICAL
ASSOCIATION

Applicant
and
COUNCIL
FOR MEDICAL
SCHEMES

Respondent
and
Case
No's: CRP066Jul
1
3/AME023May16,
CRP065Jul13
1
AME022May16
In
the Amendment applications matter between:
SOUTH
AFRICAN MEDICAL
ASSOCIATION

Applicant
and
COUNCIL
FOR MEDICAL
SCHEMES

Respondent
In
Re:
The
Complaint referral between:
COUNCIL
FOR MEDICAL
SCHEMES

Applicant
and
SOUTH
AFRICAN PAEDIATRIC ASSOCIATION

First  Respondent
SOUTH
AFRICAN MEDICAL ASSOCIATION

Second  Respondent
and
In
Re:
The
Complaint referral between:
COUNCIL FOR
MEDICAL
SCHEMES

Applicant
and
SOCIETY
FOR CARDIOTHORACIC SURGEONS OF                            First

Respondent
SOUTH
AFRICA
SOUTH
AFRICAN MEDICAL ASSOCIATION

Second  Respondent
Panel

: Norman Manoim (Presiding Member) Anton Roskam (Tribunal Member)
Yasmin Carrim (Tribunal Member)
Heard
on

: 13 June 2016
Order
issued on
: 15 August 2016
Reasons
issued on        : 15 August 2016
Consolidated
Decisions and Orders for Applications under case numbers:
CRP065Jul13IPIL001Apr16
(In
Limine
application), CRP065Jul131EXC263Mar16, CRP066Jul
13/EXC262Mar16 (exception applications) and CRP066Jul13/AME023May16,
CRP065Jul
13/AME022May16 (amendment  applications)
Introduction
[1]
On 13 June 2016 the Competition Tribunal ("Tribunal") heard
five interlocutory applications between two health sector
entities,
namely the Council for Medical Schemes ("CMS") and the
South African Medical Association ("SAMA").
[2]
CMS is a
juristic
person
established
in terms of
s3 of the
Medical
Schemes Act
[1]
("MSA").
CMS
was
established
as
a
regulatory
authority
to
inter
alia,
control
and
co-ordinate
the
functioning
of
medical
schemes
in
a
manner
that
is
complementary
with the
national
health
policy.
[3]
SAMA
is a
non-profit
organisation
incorporated
and
registered
in terms
of the
company
laws
of
the
Republic
of
South
Africa.
SAMA
represents
all
medical
practitioners
registered
to practise
as medical practitioners
in
terms of
the Health
Professional Act
("HPA").
[2]
[4]
The
five
applications
related to
two complaints that CMS referred to the Tribunal in 2013 under s51(1)
of the
Competition
Act
[3]
("the Act")
following
a
non-referral
by the
Commission
("the
referrals"). The
referrals
concern billing guidelines
that were
approved
by SAMA
in 2009.
[5]
The
first
referral relates
to
the
insertion
in
the
Doctors' Billing
Manual
of
a
descriptor medical tariff, which was
adopted and
published by
SAMA
and
endorsed
by
the
South
African
Paediatric
Association
("SAPA").
[4]
This
decision
had the
effect of including
an
additional
category
of
neonates,
thereby
entitling
neonatologists
or
paediatricians
to
bill
an
extra
50%
to
the
tariff
payable
for
neonates
requiring
intensive
care.
[5]
CMS
alleges
that
this
conduct
amounts
to
directly or
indirectly
fixing a
purchase or
selling
price
or any
other
trading condition
in
contravention
of
s4(1)(b)(i)
of the Act.
[6]
The
second
referral
is
in
relation to
billing
guidelines
that
were
determined
by the
Society
for
Cardiothoracic
Surgeons of
South
Africa
("SOCTSA"),
[6]
and circulated to
all
cardiothoracic
surgeons
in South
Africa
in
2009. The guidelines were
then
approved
by SOCTSA
and
SAMA
in 2010.
[7]
CMS
submits
that
this
conduct
by
SAMA
and
SOCTSA
is
an
agreement
between
parties
in a
horizontal
relationship
and
involves
directly
or
indirectly
fixing
a
purchase
or selling
price
or
any other
trading
condition,
thus
in
contravention
of s4(1
)(b)(i) of
the
Act.
[8]
[7]
The referrals were filed on 04 July 2013. Prior to that the CMS had
lodged its complaints with the Commission in terms of s498(2)
on 21
May 2012. The Commission issued notices of non-referral in respect of
both complaints on 31 May 2013. In its notices of non-referral
the
Commission stated that while it had formed the view that  there
was a likely contravention of s 4(1)(b)(i) of the Act,
it had
nevertheless non-referred the complaints because the issues raised in
CMS's complaints were the subject of a wider investigation
in the
Commission's upcoming Health Market Inquiry ("Health Inquiry").
The Commission concluded that if CMS wished, it
could pursue its
rights in terms of s51(1) of Act, which it promptly pursued.
[8]
In response
SAMA
had
raised a
number of
preliminary
objections to  the referrals
in the
High Court.
On the
basis of
this, SAMA
had
requested
a
stay of proceedings
which
stay
was
granted
by the
Tribunal.
[9]
The
Tribunal's
decision
was
overturned
by the
Competition
Appeal
Court
("CAC")
on
appeal
by
CMS on
19
December
2014.
[10]
The
matters
were
accordingly
due
to
proceed
in the
Tribunal.
[9]
At a pre-hearing held on 2 March 2016 SAMA indicated to the Tribunal
that it intended filing two exception applications to the
referrals
as well as an
In Limine
application in relation to CMS's
competence to refer the complaints under the Competition  Act
and  the  MSA.
CMS  advised  that  it
intended  filing  two amendment applications in
response to the exceptions.
[10]
These five applications were heard on 13 June 2016 and are the
subject of this decision. For the sake of convenience we have
decided
to address all of them in the same set of reasons.
In
Limine
Application
[11]
In this application, SAMA challenges the validity of the referrals on
the basis that -
[11.1]
It is not competent for CMS in terms of its own legislation namely
s7, 8 and
12
of the
MSA to
enforce
competition
matters;
[11]
[11.2]
It is not competent for the CMS, another regulatory body, to enforce
competition matters under the Competition Act because
the legislative
framework envisages that enforcement should be the prerogative of the
Commission. Another organ of state could
not enforce the Competition
Act because the legislature had allocated that function to the
Commission. Hence the word "person"
in section 49B(2)(b)
cannot be said to include an organ of state or a regulatory body such
as the CMS;
[11.3]
CMS was in
breach
of
the
Memorandum of
Agreement
("MOA'')
entered
into
between
CMS
and the
Commission;
[12]
[11.4]
The Commission's notices of non-referral were invalid because the
Commission had expressed a
prima
facie
view
that the conduct was a  likely  contravention  of
s4(1 )(b)(i)  of the Act  and  ought
to  have
referred the matter to the Tribunal, conversely despite non-referring
the complaint the Commission indicated that
it would continue
investigating the subject matter of the complaints in its Market
Inquiry. Also related to this issue, SAMA sought
from the Tribunal
clarity about the validity of CMS's persistence with its complaint
referrals before the Tribunal, given that
the Commission is
conducting a Market Inquiry which is investigating the very issues
raised by CMS in its complaint referrals.
[12]
We deal with the latter two grounds of objection first.
Invalid
referral and MOA
[13]
The
Commission's
notices
of
non-referral
in
respect
of
both
complaints
were issued
in
one
document
on
31
May
2013
("the
notice").
In
paragraph
4.1
of the
notice
the
Commission
indeed
expressed
the
view
that
the
conduct
complained
of
by CMS
in both
complaints
gave
rise to
a
likely
contravention
of
s4(1)(b)(i)
of the Act.
However
in the
subsequent
paragraphs
the
Commission
goes
on to
explain that
it is
embarking
on a
Healthcare
Market
Inquiry
primarily focused
on
the
rising
costs
of
healthcare
in
South
Africa
and
that
the
determination
and
use of
tariff
guidelines
by
healthcare
providers
will
be
considered in that
inquiry.
In
light
of
this
the
Commission
had
decided
not to
investigate the matter any further
and was of
the view that the complaint
should be
non-referred
in the
public
interest.
[13]
[14]
SAMA's
submission was that the Commission's
non-referral
was
not
valid
if
the Commission
had
come
to
the
conclusion
that
a
prohibited
practice
had
occurred.
It argued
that
the
Commission
ought
to
have
referred
the
complaint
to the Tribunal
as
required
by s
50(2)(a)
of the Act.
A
referral
under s
50(2)(a)
was
peremptory
by the
use of
the
word
"must"
if the
Commission
had
determined
that
a
prohibited
practice
has been
established.
[14]
In
other words
it was
not open to
the
Commission
to
non-refer
on any other grounds
once it had
determined that a prohibited
practice
had been
established.
Conversely
once
it
had non-referred the complaints
it was
not open to
the Commission to continue investigating
them.
[15]
These
arguments
might
have
had
some
validity
had
they
been
made
in the
context of a review application
in terms of
s27(1)(c) of the Act. As
it stands
the
Commission's
decision
to
non-refer
was
not
challenged
by SAMA
at
the
time
and accordingly
remains
binding
and valid.
It is trite
law, as
established
by the
Constitutional
Court in
MEG for
Health
[15]
that a party seeking to contend that an administrative
action is
invalid
must
formally
seek in
the form of
a review application, for the decision to
be set
aside.
[16]
SAMA
made no
attempt to review
the
Commission's
decision
to
non-refer
and
the
notices
remain
valid
until
set aside
by this
Tribunal
under s
27(1)(c)
or
a relevant
court.
[17]
[16]
The
last
issue
namely SAMA
"requiring
clarity"
from the
Tribunal
about
CMS's
persistence
in
referring
the
complaints despite
the
existence of
the Market
Inquiry is
not a
proper
legal
basis of
challenge.
In any
event,
the
Tribunal
has already
considered this
matter
in its stay
decision and did not grant the stay on that basis.
[18]
We note
that
the Market
Inquiry
is
still
underway and likely
to
endure for
a considerable
length of
time.
Moreover,
as explained
by
the
Commission
in
paragraphs
4.2
and
4.3
of
its notice
of
non-referral,
the
Inquiry is
not
concerned
with
the
specific
effect
of
the
SAPA
and
SOCTSA
billing codes
on
consumers
but
is
concerned
with
the
rising
costs of
healthcare
and the
"the
determination
and
use of
tariff
guidelines
by
healthcare
providers"
in general.
The fact
that there
is
an
Inquiry
underway in
the
rising
costs of healthcare
in general
ought
not to
be
a
basis for
delaying
the
enforcement
of specific
allegations
of
anti-competitive
conduct
and
the
addressing
of
the possible
harm to
consumers
due to
contraventions
of the Act.
[19]
[17]
The
third
basis
of
challenge
namely
that
the
referrals
by CMS
were
in breach
of
the
MOA
between
it
and
the
Commission
also has
no
merit.
In
the
first
instance
SAMA
could
not
support
this
contention
by
reference
to
any
specific
provision
of the
MOA that
had
allegedly
been
breached.
More
importantly
the MOA
between the
CMS
and the
Commission
was
not
in
existence
at the time
that
the
referrals
were
made
and
hence
CMS's
rights
to
enforce
competition
matters could
not
have
been
influenced
or
affected
by a
non-existent
MOA.
In any
event
the CMS
does not
enjoy
concurrent
jurisdiction
to regulate
competition
matters
under
the
MSA,
as
does
a
regulatory
body
such
as
the
Independent
Communications
Authority
of
South
Africa
("ICASA"),
which
enjoys
competition
jurisdiction
under
the
Electronic
Communications
Act ("ECA").
[20]
If the
CMS
wishes
to
enforce
competition
matters
on
behalf
of
its
beneficiaries
it can only
do
so
in terms
of the
Competition
Act
and
through the agencies
established
thereunder.
[18]
Which brings us to consider the next relevant issue namely whether
the CMS enjoys the right, as any other person, to enforce
competition
matters in the framework of the Competition Act.
Ultra
vires the Competition Act
[19]
The
central
plank
of
SAMA's
argument
is that
the
legislature,
in adopting
the
Competition
Act
the
legislature
delegated
the
enforcement
of
the
Act
to
the
Commission.
It argues
that
another
organ of state
cannot
'usurp'
that
function. The
referral
by
the
CMS,
as
an
organ
of
state,
to
the
Tribunal
was
therefore
"ultra
vires"
under
the
Competition
Act.
[21]
When it
was pointed
out
that
this
would
exclude
state
owned
entities
that
compete
in
commercial
markets
with
private entities such as the SAA
and
SABC,
[22]
SAMA
amended
its
argument
so
as to
exclude "organs of state that did not perform regulatory
functions".
SAMA
conceded
however
that the
CMS
could
provide
information
to the
Commission
but it itself could
not enforce
a complaint
through
a
self-referral.
[20]
Section 49B(2) provides that -
"Any
person may -
(a)
submit  information  concerning  an  alleged
prohibited  practice
to  the Competition
Commission, in any manner or form; or
(b)
submit  a  complaint  against  an  alleged
prohibited
practice
to
the Competition Commission, in the
prescribed
form.
[21]
The
word
"person"
is
not
defined
in
the
Act.
However,
in
s1(1)(iv)
the
word
"complainant"
is defined
to
mean
"a
person who
has
submitted
a
complaint
in terms
of
s49B(2)".
The word
"person"
appears
in a
number of
other
provisions
of
the
Act.
[23]
There
is
nothing
in the
Act
which
suggests
that
the
word
person
in any of
these sections
is
different from the person contemplated
in
s49B(2)(a) or (b). Nor is there any provision
in the Act
which suggests that the word
person in
49B2(a)
should
be
interpreted
differently
from
the
person
contemplated
in 49B(2)(b
).
Nor are
there
any
other
provisions
in the Act
which
suggest
that
a
contextual
interpretation
of "person"
in
s49B(2)(b)
should
be given
the meaning argued
by SAMA,
namely to
exclude
regulatory
bodies such
as CMS. The only provisions
that
expressly
contain
a
reference
to a
"regulatory
authority" are s21(1)(h),(i)
and
(j)
but
these
provisions
relate
to
the
functions
of
the
Commission
to
negotiate
agreements
with
other
regulatory
authorities, participate
in
the
proceedings
of
any
regulatory
authority
and advise
and receive
advice from
any
regulatory authority.
These
provisions
cannot
be
extrapolated to exclude the participation of any other regulatory
authority
in the
proceedings
of the
Commission
or the
Tribunal.
We
agree with
the
CMS that in
the
Competition
Act,
no such
preclusion
could
be found
and that
the
words
"any person" in s49B(2) should
be given
its ordinary
meaning
namely to
include any
natural or juristic
person.
[22]
Moreover, it would be erroneous to assume that the intention of the
Act was to prevent organs of the state or regulatory authorities

other than the Commission from enforcing complaints under s51(1).
Indeed given the complexity of competition law matters, it might
be
preferable in some instances for a regulatory body such as the CMS,
with its expertise of its sector and the necessary resources
to lodge
and enforce complaints on behalf of its beneficiaries. In our view,
in order to promote the objects of the Competition
Act and interests
of consumers in particular, the participation of such regulatory
bodies ought to be encouraged rather than curtailed.
[23]
The
case
law
relied
upon
by
SAMA
is
distinguished.
[24]
In those
cases
the
distinction
that
was being
considered
was
between
the
Commission
as
complainant
and
private
complainants.
[24]
This then leaves us to consider the last challenge put up by SAMA to
the
vires
of
the
CMS
under the
MSA.
[25]
Ultra
vires the MSA
[25]
SAMA argued that the CMS was acting
ultra
vires
of its own legislation, the MSA, in persisting with a private
complaint. The CMS is a creature of statute and the provisions of the

MSA did not entitle it enforce the Competition Act in our
proceedings. Section 7 of the MSA limited the CMS to protect the
interests
of beneficiaries of medical schemes
vis-a-vis
the
schemes themselves and not against health service providers at large.
[26]
Section 7 of the MSA provides as follows:
"The
functions of the Council shall be to-
(a)
protect
the interests
of the
members
at all
times;
(b)
control and coordinate
the functioning
of
medical
schemes in
a
manner
that
is
complementary
with the national health policy;
(c)
make
recommendations  to
the
Minister
on
criteria
for
the measurement
of quality
and
outcomes
of the relevant health services provided
for by medical
schemes,
and such
other
services as
the
Council may from time to time determine;
(d)
investigate
complaints and settle disputes in
relation
to the affairs of medical schemes
as
provided
for in this Act;
(e)
collect
and disseminate
information
about private
health care;
(
f ) make rules, not inconsistent with the provisions of this Act for
the purpose of the
performance
of its functions and the exercise of its powers''.
[27]
CMS submitted that s7 of the MSA, which provided CMS with the
function of protecting the interests of its members which are

beneficiaries of medical aid schemes ("the beneficiaries")
at all times, authorises the CMS to protect the interests
of its
beneficiaries in any number of ways.
[28]
This issue has already been considered by the CAC. In paragraph 27 of
CMS vs SAMA
the CAC expressed the view that s7 of the
MSA was a wide provision and could conceivably include price fixing
amongst health service
providers which would adversely affect the
interests of the beneficiaries:
[28.1]
"Section
7
of
the
Medical
Schemes
Act
provides that
one
of
the
functions
of
CMS
is lo
protect
the interests
of
the beneficiaries
at all
times. The
Tribunal,
in considering whether CMS'
conduct
is
ultra vires the Medical Schemes Act,
needed to consider
whether this point
has
any prospects
of
success
in
the
High
Court
without pre-empting any
decision
by
the High
Court.
In my
view, the ambit of
s7 is
extremely wide.
It
is
difficult
to
understand
how
allegations
of
price
fixing in contravention
of
s
4(1)(b)(i)
of the Act do not affect the
interest
of beneficiaries.
For
this reason,
there
is,
in my
view,
little prospect
of
success
of an application
for review
on an argument
that CMS
acted
outside
its
designated powers."
[29]
Based on the views expressed by the CAC, we need not address this
issue any further.
[30]
Accordingly we find that SAMA's points
in
limine
are
without merit and the application is dismissed.
Exception
& Amendment Applications
[31]
SAMA's exception applications are in relation to both the SAPA and
SOCTSA complaint referrals.
[32]
SAMA alleges that the referrals are vague and embarrassing and do not
disclose a cause of action in terms of s4(1)(b) because
CMS has
failed to identify --
[32.1]
how SAMA and SOCTSA/SAPA are in a horizontal relationship;
[32.2]
whether it relies on an agreement(oral /written), a decision or a
concerted practice; and
[32.3]
the
relevant
product
market
.
[26]
[33]
Furthermore, it challenged the relief sought against SAMA on the
basis that it was not supported by the alleged facts because
-
[33.1]
the referrals seem to suggest SOCTSA/SAPA published the billing
guidelines and not SAMA;
[33.2]
it
was not
clear which billing guide is being referred to and how SAMA was
part
of
the
determination
and
publication
if
it
is
only
accused
of
approving
the
billing
guideline;
[27]
and
[33.3]
the
relief
sought
was
copied
and
pasted from
the
complaint
lodged at
Commission
and was
not
competent
at the
Tribunal.
[28]
[34]
As far as CMS's allegation that SAMA was in
breach
of a consent order concluded
with the
Commission
and
confirmed
by the
Tribunal
in
2004,
[29]
CMS
could not
now
raise
this
allegation
because
this had
not
been
raised in
its
complaint to
the
Commission.
In
any
event SAMA
failed to
see how
such
alleged
breach was
relevant to
the
conduct
of
SOCTSA/SAPA.
[30]
[35]
SAMA concluded by submitting that requiring it to file an answering
affidavit to such a complaint referral, and waste resources
and
unnecessary time, would be unfair. The allegations are contradictory
and loosely formulated to such an extent that SAMA is
unable to
answer properly.
[36]
Instead of filing answers to the exception applications CMS took the
unusual step of filing an amendment application for each
referral in
which it sought to substitute the entire founding affidavit with a
'new' affidavit.
[37]
CMS requested that the Tribunal substitute the referral affidavits
with these new affidavits ("the  substitute affidavits")

which effectively sought to amend the referral in response to the
objections raised by SAMA.
[38]
It argued that amendments sought via the filing of the substitute
affidavits was to ensure that any uncertainty in its referrals
is
removed, therefore allowing for the merits of the matter to commence.
In the alternative, CMS submitted that should the Tribunal
not grant
the amendment applications as sought, the Tribunal should order the
CMS to bring a further amendment application to rectify
its
shortcomings of its self-referrals.
[39]
In response, SAMA opposed the amendment applications on a number of
grounds. First it argued that CMS' decision to file an
amendment
application in this manner was an irregular step and ought not to be
condoned by the Tribunal because it had not been
properly motivated
by CMS. SAMA submitted that although CMS relies on Tribunal Rule
18(1) for its decision to do so, that Tribunal
Rule 18(1) clearly
refers to an amendment in the form of a supplementary affidavit and
not the replacement or substitution of an
affidavit sought by the
CMS. In addition to this, CMS did not even attempt to explain to the
Tribunal why the Tribunal should exercise
its jurisdiction and allow
the amendment sought by CMS.
[40]
In any event, it was argued that CMS's substitute affidavits still
did not comply with the requirements under Tribunal Rule
15(1), as
SAMA still does not know what case is being brought against it The
substitute affidavits in CMS's amendment applications
still do not
plead with precision what exactly the allegations against SAMA are in
both the SAPA and SOCTSA referrals or what conduct
on the part of
SAMA was in breach of s4(1)(b). Furthermore, the alleged horizontal
relationship between SAMA and SAPA and SOCTSA
was not adequately
explained by CMS. Finally SAMA submitted that the relief sought by
CMS in its amendment applications is not
competent as it is vague,
embarrassing and very broad. For example, SAMA pointed out that CMS
uses terminology such as 'similar
conduct' by the respondents (i.e.
SAMA and SAPA/ SAMA and SOCTSA), when it is not explained what
similar conduct CMS is referring
to in its relief sought
[41]
Furthermore
it pointed
out the allegations
contained
in the
substitute
affidavits
differed
materially
from the
allegations
l
odged
by CMS with
the
Commission
in its
initial
complaints
lodged.
This
broadening
of
the
complaint
was
impermissible
for
a private
complainant
in terms
of the
principles
established
in
Glaxo,
[31]
commonly
referred to
as the "referral"
rule".
[42]
Lastly, SAMA submitted that because CMS chose not to file an
answering affidavit to SAMA's exception applications, both CMS's

complaint referrals should be dismissed entirely.
[43]
CMS denied that it was seeking to widen the scope of its referrals or
attempting to retract previous factual statements. Instead,
it
submitted that CMS brought its amendment applications so as to
expeditiously and comprehensively resolve the complaints in SAMA's

exception applications.
CMS's
case against SAMA
[44]
In both referrals the CMS alleges that s 4(1 )(b)(i) has been
contravened.
[45]
In relation
to SAPA
it
explains that the SAPA executive
committee
had adopted
the
SAMA
Modifier
0019
tariff
code.
Thereafter
SAMA
had
published
it
in the
Doctor's
Billing
Manual.
[32]
According
to the CMS
it is this
act
of
publication
by SAMA
that constitutes
"directly
or indirectly fixing
a
purchase or
selling
price or
any
other
trading condition",
as
contemplated
and
prohibited
by
s
4(1)(b)(i)
of
the Act.
[46]
Similarly
in
relation
to
SOCTSA it
is
alleged
that
the
billing
guidelines
were
adopted
by
the SOCTSA
executive
committee
[33]
and that
the
act
of publication
by
SAMA
of
the
SOCTSA
billing
guidelines
constituted a
contravention
of
s
4(1)(b)(i)
of the Act
because
it involved
"directly
or
indirectly
fixing
a
purchase
or selling
price or
any other trading
condition".
[34]
[47]
While describing the role of SAPA and SOCTSA in these alleged
contraventions of the Act, CMS only seeks relief against SAMA
and not
against SAPA and SOCTSA.
[48]
Section 4(1 )(b)(i) contemplates an agreement or concerted practice
of parties in a horizontal arrangement, or a decision by
an
association of firms, but the relationship between SAMA and
SAPA/SOCTSA is not explained adequately by CMS in its referrals
to
enable us to discern a nexus between these associations for purposes
of s 4( 1)(b). In the first instance it is unclear how
the mere act
of SAMA publishing the guidelines renders it liable for price fixing
under s 4(1)(b(i). On CMS's current formulation
of the complaint the
mere act of publication of the guidelines by any entity, whether it
be a newspaper or magazine, would constitute
a contravention of s 4(
1)(b)(i).
[49]
We are also not given insights into the nature of the relationship
between SAMA and SAPA/SOCTSA in order to assess whether
there are any
agreements or protocols in place between them which might be relevant
to the issue of billing guidelines, whether
SAMA has a role other
than the mere publication thereof in the making of the guidelines or
whether there are terms and conditions
of membership which might have
a bearing on the issue of billing guidelines and whether such
protocols or arrangements facilitate
a contravention of s4( 1)(b)(i).
Nor are there any details given as to how the adoption of a billing
guideline by one association
of specialist doctors, when published by
another association, would create liability for a contravention of s
4(1)(b)(i) only for
the latter association.
[50]
No explanation is provided as to why if SAMA and SAPA/SOCTSA are in a
horizontal relationship how it is that only SAMA is alleged
to have
contravened the Act.
[51]
It is evident from all of this that the alleged contravention by SAMA
of s4( 1)(b)(i) does indeed require some clarification
by CMS.
[52]
While
we
accept
that
the
CMS may
have
sought
to
address
the
objections
raised by SAMA
in the
exception applications
expeditiously,
we find
its
decision to
file
the
substitute
affidavits
in
response
thereto
irregular.
If it
accepts,
as
it
apparently
has
done
by
the filing
of
the
substitute affidavits,
that SAMA's
exceptions
have merit,
it ought to have filed an answer thereto and sought
leave to
file
supplementary
affidavits
in
order
to
provide
clarity
to
SAMA.
By
responding
in
general
with
a
comprehensive
new
affidavit
as opposed
to
addressing the specifics of the objections raised by SAMA, CMS has
not placed
SAMA
in a
position
to
assess
whether
an
adequate
answer
to
SAMA's
objections
has
been
provided.
Fairness
requires
that
CMS
provide
an
answer that
addresses
the
specific
objections
raised
by
SAMA
with
reference
to
the
paragraphs
in the
referral
affidavits
in order to
enable SAMA
to
understand
the
case
it has to meet.
[35]
[53]
We find that SAMA is entitled to sufficient particularity from CMS in
order to enable it to understand the case brought against
it under s
4(1)(b)(i). At the same time, dismissing the complaint on the basis
of CMS' irregular step or in response to SAMA's
exception
applications would not serve the public interest, particularly when
the irregularity is capable of being cured by the
filing of a
supplementary affidavit and an order of costs. Accordingly CMS is
provided with an opportunity to file a supplementary
affidavit in
each referral in specific response to the objections raised by SAMA
as set out in our order below.
Conclusion
[54]
The amendment applications by CMS in which it seeks to substitute its
referral affidavits with new affidavits is dismissed.
The exception
applications by SAMA are granted. CMS is however provided an
opportunity to amend its referral in response to SAMA"s

exception through the filing of supplementary affidavits in
accordance with our order set out below.
ORDER
1.
SAMA's
In
Limine
application filed under
case number CRP065Jul13/PIL001Apr16  is hereby dismissed.
2.
CMS's amendment applications filed under case numbers
CRP066Jul13/AME023May16 and CRP065Jul13/AME022May16 are
hereby
dismissed.
3.
SAMA's exception applications filed under case numbers
CRP065Jul13/EXC263Mar16, CRP066Jul13/EXC262Mar16 are
hereby granted.
3.1
CMS must file its supplementary affidavits in relation to its
referrals under case numbers CRP066Jul13 and CRP065Jul13
within 20
business days of this order.
3.2
The supplementary affidavits must clearly stipulate SAMA's
involvement by indicating the following:
3.2.1
the  nature  of  the  alleged  horizontal
relationship  between
SAMA and SAPA and between SAMA and
SOCTSA;
3.2.2
the    manner    in   which
s4(1 )(b)(i)
of  the  Act has been contravened
by SAMA; and
3.2.3
the  difference  in  liability  between  SAMA
and  SAPA
and between SAMA and SOCTSA.
4.
SAMA is required to file answering affidavits to the referrals read
together with the supplementary affidavits
contemplated in para 3
above within 20 business days of receipt thereof. CMS may if it so
wishes file replies to SAMA's answering
affidavits within 10 business
days of receipt thereof.
Costs
[55]
In relation to the
in Umine
application, SAMA is to pay
the costs of CMS on a party and party scale, such costs to include
the costs of two counsel.
[56]
In relation to the exception applications CMS is to pay for the costs
of SAMA on a party and party scale, such costs to include
the costs
of two counsel.
[57]
In relation to the amendment applications, there is no order as to
costs.
15
August 2016
Date
_______________________
Ms
Yasmin Carrim
Mr
Anton Roskam and Mr Norman Manoim concurring.
Tribunal
Researcher              :
Caroline Sserufusa
For
CMS                                 :

Mr S. Budlender and Mr J. Berger instructed by Norton Rose Fulbright
For
SAMA                               :

Mr S Symon, SC and Ms K.Turner instructed by Werksmans Attorneys
[1]
Act 131
of
1998.
[2]
Act 56 of 1974.
[3]
Act 89 of 1998.
[4]
SAPA
is
an
association
representing
paediatricians
and
neonatologists,
or
whose
members
are
paediatricians, registered to practise as such under the HPA and
compete with each other in providing specialist health care
services
that they are qualified to provide.
[5]
See page 101
of the
SAPA amendment application trial bundle.
[6]
SOCTSA
is
a
non-statutory
public
company
representing
cardiothoracic
surgeons
registered
to
practise as cardiothoracic surgeons in terms of the HPA. SOCTSA
describes itself as an official group of SAMA which aims to

represent the interests of cardiothoracic surgeons in South Africa,
to promote the practice of Cardiothoracic Surgery and develop
good
relations with their societies in South Africa abroad.
[7]
See
page
90 of the
SOCTSA
amendment
application
trial
bundle.
[8]
I
See
page 86 of the SOCTSA amendment application trial bundle.
[9]
The Tribunal
issued
its
decision
to
stay CMS's
referrals
in
December
2014.
See
Tribunal
decision
in
Council
for
Medical
Schemes
vs
South African
Medical
Association;  case
number:
CRP065Jul13/STA009Apr14.
[10]
See
Competition
Appeal
Court
decision
in
Council
for
Medical
Schemes
&
Others
vs
South African Medical
Association
&
Others:
case number; 133/CA
C
!Dec14.
[11]
These provisions of MSA are the empowering provisions for CMS, which
stipulate inter alia the functions of CMS as a regulatory
body.
[12]
Prior to CMS's complaint referrals, CMS and the Commission had
entered into an MOA in 2012, to address
issues
of
co-operative
governance,
managing
areas
of
concurrent
jurisdiction
as
well
as
providing for the exchange of information and the protection of
confidential information.
[13]
Paragraphs
4,2
-
4,3
and
5
of
the
Commission's
notice
of
non-referrals
at
page
182
of
the
SAPA
amendment
application trial bundle.
[14]
See s50(2)(a) of the Act.
[15]
See
MEG
for
Health,
Eastern
Cape
and
Another
v
Kirland
Investments
(Ply)
Ltd
tla
Eye
&
Lazer
Institute
2014
(3)
SA 481
(CC)
at paragraph
82-83.
[16]
Ibid
[17]
See also
Oudekraal
Estates
(Ply)
Ltd
v
The
City of
Cape
Town
and
others
(2
5
1
08)
{2009} ZASCA
85
(3 September
2009);
Seale
v
Van Rooyen
NO
and others; Provincial
Government,
North
Wes
t
province
v
Van
Rooyen
NO
and
Others
{2008} ZASCA
28;
2008
(4)
SA 43
(SCA) at paragraph 14; and
Norgold
Investments  (Ply)
Ltd
v
Minister
of
Minerals
and
Energy
of
the
Republic
of
South
Africa
and
Others
[2011]
ZASCA 49
; {2011}
3 All SA 610
(SCA) at paragraph 46.
[18]
See Tribunal
decision
in
Council
for
Medical
Schemes
vs
South
African
Medical
Association;  case number:  CRP065Jul13/STA009Apr14,  at
paragraph  29.
[19]
The
CAC
in
paragraphs
37-38
of its
decision
in
CMS
vs SAMA
expressed
the
view that
granting
a stay
in
circumstances
where
harm to
consumers
would
continue
due to
contraventions
of the Act
was undesirable.
The Act
required
the
Tribunal
to deal
expeditiously
with
alleged
anti-competitive
conduct in
the
interests
of
consumers.
[20]
Act
36
of 2005.
[21]
The argument
that
this would
offend
s239(b)(ii)
of the
Constitution which
precluded
different spheres of
government
has
no
relevance
whatsoever
because
the
CMS
was
not "a
sphere
of
government"
as
contemplated
in that
section.
[22]
SAA
is
the
South
African
Airways
and the
SABC
is the
South African
Broadcasting
Corporation.
[23]
See for
example
s 44, s45,
s47, s48,
s49,
s49A, s53
of the
Competition
Act.
[24]
See for
example
Supreme
Court of
Appeal
(SCA")
decision
in
Competition
Commission
v
Yara
(SA) (Ply)
Ltd
and
Others;
case
number:
2013
96)
SA
404
(SCA)
at
para
3,
Glaxo
Welcome
(Pty)
Ltd
v
National
Association
of
Pharmaceutical
Wholesalers
15/CA
C
!Feb02
(21
October
2002;
and
Netstar
(Ply) Ltd
v
Competition
Commission
2011
(3)
SA
171
(GAG) paragraph
26.
[25]
Many other ancillary
Constitutional
arguments
were
put by
counsel on behalf of SAMA
but we do
not consider
any of
these
having
merit.
[26]
See
paragraphs
24-25 of
SAMA's
founding
affidavit
in the
SAPA
exception
application
and
paragraphs
23-24
in the
SOCTSA
exception
application.
[27]
See SAMA's founding affidavit in the SAPA exception application, and
paragraph 56 of SAMA's founding affidavit in
the SOCTSA
exception application.
[28]
See
paragraphs
61-72
of SAMA's
founding
affidavit
in the
SAPA
exception
application,
and
paragraphs
50-59
of
SAMA's
founding
affidavit
in the
SOCTSA
exception
application.
[29]
The
Competition
Commission
and
The
South African
Medical
Association
&
Other;
case
number;
23/CR/Apr04.
[30]
See
paragraphs
82-88 of
SAMA's
founding
affidavit
in the
SAPA
exception
application,
and
paragraphs 60-65
of
SAMA's
founding
affidavit
in the
SOCTSA
exception
application.
[31]
Glaxo
Welcome
(Ply)
Ltd
v
National Association
of
Pharmaceutical  Wholesalers
15/CAC/Feb02
(21
October 2002;
and
Netstar
(Ply)
Ltd
v
Competition
Commission
2011
(3) SA
171 (CAC).
[32]
See page 101 of the SAPA amendment application trial bundle.
[33]
See
page
91 Of the SOCTSA
amendment
application
trial
bundle.
[34]
See paragraphs 9, 26 and 31 of CMS's new affidavit in the SOCTSA
amendment application trial bundle.
[35]
See
Rooibos
Ltd
v
the
Competition
Commission:
case
number:
129/CR/DecOB,
at paragraph
8
page 4.
This
Tribunal has correctly emphasized in the
Rooibos
decision
that fairness is not a one way street tested
only
by
the
impact
of
an
approach
on
respondents.
All
parties
have
a
right
to
fairness
in
conducting their case. What fairness
dictates
at another
point in
time in proceedings in the matter is again a question of context.
See also in general the Tribunal's approach to exceptions
in
Competition
Commission
&
Others
v
American
Natural
Soda
Ash
Corp
CHG
Global
(Ply)
Ltd
&
Another,
case number; 49/CR/Apr00
and
National
Association
of
Pharmaceutical
Wholesalers
&
Others
v
Glaxo
Wei/come
(Ply)
Limited
&
Others;
case number;
45//CR/Jul01.