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Unilever South Africa (Pty) Ltd v Competition Commission; In Re: Competition Commission v Unilever South Africa (Pty) Ltd and Another (CR223Mar171STR245Jan19; CR223Mar17) [2019] ZACT 37 (26 June 2019)

80 Reportability
Competition Law
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Brief Summary

Competition Law — Leniency Application — Disclosure — Unilever sought to strike out its corporate leniency application from the trial bundle on grounds of negotiation privilege and confidentiality — Competition Commission included the application in the trial bundle despite Unilever's objections — Tribunal finding that the leniency application is protected by negotiation privilege and should not be disclosed in the proceedings — Application to strike out granted.

Comprehensive Summary

Summary of Judgment


1. Introduction


These were interlocutory proceedings before the Competition Tribunal of South Africa arising during trial preparation in a pending complaint referral for alleged cartel conduct. The immediate question was whether the Competition Commission could include, in the trial bundle intended to serve as evidentiary material at the hearing, Unilever South Africa (Pty) Ltd’s corporate leniency policy (CLP) application (described in the reasons as a “leniency application”).


The parties to the interlocutory application were Unilever South Africa (Pty) Ltd (as applicant in the strike-out application) and the Competition Commission (as respondent). The interlocutory dispute arose within the main referral proceedings in which the Commission was the referring party and Unilever South Africa (Pty) Ltd and Sime Darby Hudson Knight (Pty) Ltd were cited as first and second respondents respectively.


Procedurally, the Commission had referred the complaint to the Tribunal on 1 March 2017, alleging conduct contravening section 4(1)(b)(ii) of the Competition Act 89 of 1998 (market division). During trial bundle preparation for a hearing set down to commence in early February 2019, the Commission unilaterally included Unilever’s CLP/leniency application in the bundle. Unilever objected, the issue was ventilated at a pre-hearing conference on 22 January 2019, written submissions were directed, and the matter was argued on 4 February 2019. On that date, the Tribunal granted Unilever’s strike-out application and later issued reasons on 26 June 2019.


The general subject-matter of the dispute concerned the admissibility and inclusion of a failed leniency application as evidence in enforcement proceedings against the very party that had made the application, raising issues of without prejudice / settlement (negotiation) privilege, confidentiality, and the functioning of the Commission’s corporate leniency policy in cartel enforcement.


2. Material Facts


It was common cause that on 4 April 2014 Unilever, through its then legal representatives, submitted a marker application to the Commission under the Commission’s corporate leniency policy. The Commission informed Unilever that it was first through the door and granted Unilever marker status. Following this, Unilever submitted its leniency application on 30 May 2014, proposing to provide the Commission with full and frank disclosure and ongoing cooperation in exchange for leniency in respect of certain agreements with Sime Darby Hudson Knight (Pty) Ltd. The Commission ultimately denied Unilever leniency.


In the main complaint referral, the Commission alleged that during the period 2004 to 2013 Unilever and Sime Darby had entered into an agreement or arrangement to divide markets by allocating specific types of goods and customers, contrary to section 4(1)(b)(ii). The respondents operated as manufacturers and suppliers of bakery and cooking products. The Commission sought an administrative penalty of 10% of Unilever’s turnover. Sime Darby was not pursued for relief in the referral because it had concluded a consent agreement with the Commission admitting the allegations and agreeing to pay R35 million, which consent agreement had been confirmed as a Tribunal order on 20 July 2016. Unilever denied the allegations in the complaint referral.


The material factual trigger for the interlocutory dispute was that, during preparation of the indexed and paginated trial bundle, Unilever was alerted that the Commission intended to include Unilever’s leniency application and attachments. At the pre-hearing, the Commission persisted. The Commission’s representative acknowledged that, even though the information in the leniency application was subject to litigation privilege, the Commission regarded that privilege as being in its hands and stated it had decided not to assert it.


Unilever objected to the inclusion on the basis that the leniency application constituted without prejudice settlement discussions (also described as negotiation privilege / settlement privilege) between it and the Commission, and that privilege was not solely for the Commission to waive because Unilever, as the party who put up the document, also held the privilege. Unilever also relied on a confidentiality claim (stating that a CC7 form had been filed) and invoked section 44(2) of the Competition Act as obliging the Commission to treat claimed confidential information as confidential until waiver or a Tribunal determination.


The Tribunal treated as material that the Commission did not contend that Unilever had acted mala fide in the leniency process, nor did the Commission establish that Unilever’s litigation stance was inconsistent with the leniency application in a way that would justify use of the document against it. The Commission’s case was, in essence, that a CLP application is an investigative tool rather than a settlement negotiation, and that the Commission should therefore be permitted to include it in the evidentiary record of the prosecution.


3. Legal Issues


The central legal question was whether the Commission could disclose and include Unilever’s failed CLP/leniency application in the trial bundle for use as evidence against Unilever in the complaint referral proceedings.


This question primarily concerned the application of legal principles to the facts: whether a CLP application should be treated as without prejudice / settlement (negotiation) privileged and therefore protected from disclosure and evidentiary use, and whether the Commission had shown a sufficient factual or legal basis to overcome such protection in the circumstances of this case.


A subsidiary issue concerned the Commission’s argument relating to privilege and disclosure in prior case law, including whether the Commission’s position was affected by the approach to privilege discussed in Continental Tyres South Africa (Pty) Ltd and Others v Competition Commission (156/CAC/Nov17 & 157/CAC/Nov17). There was also an associated confidentiality issue raised by Unilever under section 44(2) of the Competition Act, although the Tribunal’s dispositive reasoning focused on the without prejudice character of CLP engagements and the absence of a demonstrated basis for disclosure.


4. Court’s Reasoning


The Tribunal located the dispute within the broader, “widely understood” role of the corporate leniency policy as a key enforcement instrument in cartel detection and prosecution. It accepted as context that the CLP works by offering leniency or immunity, in whole or in part, to a firm in exchange for full and frank disclosure about cartel conduct, and that successful applicants commonly assist the Commission in proceedings against other alleged cartelists.


The Commission sought to distinguish between a CLP process (as an investigatory tool) and settlement negotiations, contending that settlement or consent negotiations arise only later, after leniency is refused. The Tribunal stated that even if one accepted, purely for argument’s sake, that there is a conceptual separation between seeking leniency and later settlement negotiations, the distinction did not assist the Commission for without prejudice purposes. The Tribunal reasoned that the operative question is not how the Commission labels the engagement, but rather the nature of the engagement and why it is protected. Without prejudice engagements are treated as such because of their character and function, not because a party attaches a label to them.


On the Tribunal’s analysis, a leniency application is “in the nature of” without prejudice engagements between the Commission and the applicant. In such an application, the applicant provides information and may make admissions in the hope of obtaining immunity from prosecution. The Tribunal emphasised that the CLP process depends on two “gear levers”: assurances of confidentiality and some protection from disclosure. It considered that without such assurances it would be difficult to see why an applicant would provide bona fide admissions and information if, in the event leniency were refused, those materials could later be deployed against it in contested litigation.


The Tribunal further noted that, historically, the Commission had often sought to protect leniency applications from disclosure in order to avoid compromising its cartel enforcement capacity. In the Tribunal’s view, permitting the Commission “without more” to use the contents of an unsuccessful leniency application against the applicant in prosecution would create a severe chilling effect on the functioning and success of the CLP, and would run contrary to the public interest.


In addressing the circumstances that might justify a different outcome, the Tribunal stated that it would have been a different matter if Unilever had acted mala fide, or if Unilever’s answering affidavit in the referral proceedings stood in material conflict with what it had said in the leniency application. However, the Commission had not made out such a case on the facts placed before the Tribunal. On this footing, the Tribunal concluded that the Commission had not established a sufficient factual or legal basis for disclosure and inclusion of the leniency application in the trial bundle.


The Tribunal therefore held that Unilever’s strike-out application had to succeed, because the Commission could not justify using the without prejudice contents of the leniency application as evidence against Unilever in the pending litigation.


5. Outcome and Relief


The Tribunal granted Unilever’s strike-out application and ordered that Unilever’s CLP/leniency application be struck out (excluded) from the trial bundle intended for use as evidence in the complaint referral proceedings.


The order recorded that reasons would follow, which were subsequently issued on 26 June 2019. The order (as reproduced in the judgment material) did not record any separate or additional order as to costs.


Cases Cited


AGS Frasers International (Pty) Ltd v Competition Commission (CR025May15).


Clover Industries Limited and Another v Competition Commission and Others (81/CAC/Jul08), and the Competition Tribunal decision (103/CR/Dec06).


Competition Commission v Sime Darby Hudson Knight (Pty) Ltd (C0247Mar16).


Competition Commission of South Africa v Arcelormittal South Africa (Pty) Ltd and Others 2013 (5) SA 538 (SCA).


Continental Tyres South Africa (Pty) Ltd and Others v Competition Commission (156/CAC/Nov17 & 157/CAC/Nov17).


Gcabashe v Nene 1975 (3) SA 912D.


Lynn & Main Incorporated v Naidoo and Another 2006 (1) SA 59 (N).


Milward v Glaser 1950 (3) SA 547.


Naidoo v Marine & Trade Insurance Co Ltd 1978 (3) SA 666 (A).


Legislation Cited


Competition Act 89 of 1998 (as amended), including section 4(1)(b)(ii) and section 44(2).


Rules of Court Cited


No rules of court were cited in the reasons provided.


Held


The Tribunal held that Unilever’s CLP/leniency application was to be treated as being in the nature of without prejudice engagements between the Commission and Unilever, and the Commission had not established a factual or legal basis to disclose or include that leniency application in the trial bundle to be used as evidence against Unilever in the pending complaint referral. The strike-out application was accordingly granted and the leniency application was excluded from the trial record.


LEGAL PRINCIPLES


Without prejudice (negotiation/settlement) protection depends on the nature and purpose of the engagement rather than how it is labelled, and it may extend to processes that function as attempts to reach an accommodation in exchange for candid disclosure.


A corporate leniency process operates on assurances of confidentiality and protection from disclosure, and permitting admissions or information provided in a bona fide leniency application to be used against an unsuccessful applicant in subsequent prosecution may undermine the efficacy of the leniency regime and create a chilling effect inconsistent with the public interest.


Absent a demonstrated factual basis such as mala fides or a material inconsistency justifying reliance on the leniency content, the Commission is not entitled simply to deploy the contents of an unsuccessful leniency application as evidence against the applicant in pending litigation.

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[2019] ZACT 37
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Unilever South Africa (Pty) Ltd v Competition Commission; In Re: Competition Commission v Unilever South Africa (Pty) Ltd and Another (CR223Mar171STR245Jan19; CR223Mar17) [2019] ZACT 37 (26 June 2019)

COMPETITION
TRIBUNAL OF SOUTH AFRICA
Case
No.: CR223Mar171STR245Jan19
In
the matter between:
Unilever
South Africa (Pty)
Ltd                                                                           Applicant
And
Competition
Commission                                                                               Respondent
Case
No.: CR223Mar17
In
re
complaint referral between:
Competition
Commission                                                                                    Applicant
And
Unilever
South Africa (Pty)
Ltd                                                              First

Respondent
Sime
Darby Hudson Knight (Pty)
Ltd                                               Second

Respondent
Panel:
Y Carrim (Presiding Member)
:
M Mazwai (Tribunal Member)
:
AW Wessels (Tribunal Member)
Heard
on: 04 February 2019
Decided
on: 04 February 2019
Reasons
issued on  : 26 June 2019
REASONS
FOR DECISION
Introduction
1.
In these interlocutory
proceedings, we were called to decide whether or not the Competition
Commission ("Commission")
could include Unilever's
[1]
corporate leniency application ("leniency application")
into the trial bundle to be used as evidence against Unilever
in the
complaint referral proceeding. This dispute emanated in the course of
trial preparation when the Commission unilaterally
included a copy of
the leniency application in the trial bundle thereby triggering this
application, which we have referred to
as a 'strike out' application.
The application was heard on 4 February 2019. The usual formalities
applicable to a matter of this
nature were dispensed with by
agreement with the parties in the interests of expedition and to
avoid any undue delay in the hearing
of the complaint referral.
[2]
2.
On 4 February 2019, we granted Unilever's strike out
application and issued our order to that effect which we attach as
'Annexure
A' to these reasons. Our reasons for our decision are set
out below.
Complaint
Referral
3.
On 1 March 2017, the
Commission referred a complaint to the Tribunal against Unilever and
Sime Darby Hudson Knight (Pty) Ltd ("Sime
Darby") in which
it alleged that the respondents from the period 2004 - 2013, entered
into an agreement alternatively an arrangement
to divide markets by
allocating specific types of goods and customers in contravention of
section 4(1)(b)(ii) of the Act.
[3]
The respondents are manufacturers and suppliers of bakery and cooking
products.
4.
The Commission seeks an
administrative penalty of 10% of Unilever's turnover for engaging in
the alleged prohibited practice. No
relief is sought against Sime
Darby in the main matter as it concluded a consent agreement with the
Commission wherein it admitted
to the abovementioned allegations and
agreed to pay an administrative penalty of R35 million. The consent
agreement was confirmed
and made on order of this Tribunal on 20 July
2016.
[4]
Unilever has denied these allegations.
Unilever's
CLP Application
5.
It is common cause that on 4 April 2014 Unilever, through its
legal representatives at the time, submitted a marker application to

the Commission in terms of the Commission's corporate leniency policy
(CLP). Upon receipt of the marker application, Unilever was
informed
by the Commission that it was indeed first through the door, as per
the requirements of the CLP and that it had been granted
marker
status. Having secured such status, Unilever proceeded to submit its
leniency application on 30 May 2014 and proposed therein
that it
would provide the Commission with full and frank disclosure and
ongoing co-operation in exchange in respect of a number
of agreements
between Unilever and Sime Darby for the Commission to grant it
leniency. The Commission however denied Unilever leniency.
The
Strike Out Application
6.
During the preparation
of the indexed and paginated trial bundle for the hearing,
[5]
Unilever was alerted to the fact that the Commission sought to
include its leniency application and attachments thereto as part
of
the trial bundle. Unilever objected to it and the matter was placed
on the agenda for the pre-hearing conference, on 22 January
2019.
7.
During the pre-hearing,
the Commission persisted with the inclusion of Unilever's CLP
application into the trial bundle. Mr Ngobese,
on behalf of the
Commission, acknowledged that even though the information contained
in the leniency application was subject to
litigation privilege, that
privilege was in the hands of the Commission and in this case, the
Commission had decided not to assert
it.
[6]
8.
Mr Bhana, on behalf of
Unilever, objected to the inclusion of the leniency application on
the basis that these constituted "without
prejudice"
settlement discussions that took place between the Commission and
Unilever as evidenced by a letter dated 15 September
2016 from Baker
McKenzie.
[7]
The letter also pointed out to the Commission that Unilever's
leniency application was subject to negotiation privilege in the

hands of Unilever as it was the party that put up the document.
[8]
Mr Bhana submitted that should the Commission continue with its
approach in this matter, it would impact on a number of public
policy
issues.
[9]
9.
In an effort to fully
ventilate the issues, the parties were directed to file written
submissions on their respective points. The
matter was argued on 4
February 2019.
[10]
10.
At the hearing, Unilever
primarily argued that its leniency application was subject to
negotiation privilege (or settlement privilege)
and thus protected
from disclosure. It had pursued
bona
fide,
without prejudice
settlement discussions with the Commission where its
bona
tides
were never questioned
by the Commission and were in fact borne out by the fact that its
disclosure during the negotiations was comprehensive,
transparent and
frank. Settlement discussions in their very nature are without
prejudice and if the Commission were allowed to
rely on admissions
made therein it would chill the negotiation process as respondents
would not be comfortable to negotiate with
the Commission in the
event that negotiations were unsuccessful, such admissions would be
used against it.
[11]
With respect to the fundamental principle of negotiation privilege,
Unilever submitted that this lies not only in the hands of
the
Commission but also in the hands of Unilever. As such, the
negotiation privilege would persist until both parties had waived

it.
[12]
11.
Secondly, Unilever
argued that even if the Tribunal were to find that the leniency
application was not privileged, it is in any
case irrelevant and
carries no evidentiary value and therefore is inadmissible in the
Tribunal's proceedings.
[13]
In addition, it was argued that the leniency application was
irrelevant as it contained admissions of law and such admissions may

always be withdrawn.
[14]
12.
Lastly, Unilever pointed
out that its leniency application was subject to a confidentiality
claim as a CC? Form in relation thereto
was duly filed. Section 44(2)
of the Act, it argued, obligates the Commission to treat as
confidential all information which has
been claimed as such until it
has been waived or the Tribunal has determined otherwise.
[15]
13.
The Commission disagreed
with Unilever's above propositions.
[16]
First, the Commission averred that the CLP is used as an
investigation tool, not a negotiation tool. The CLP expressly states
in terms of paragraph 6.1 that it is a compliance tool that serves as
an aid in cartel investigations.
[17]
It went on to argue that the CLP provides guidance to firms whom have
failed to obtain leniency as a result of failing to meet
the
requirements under the CLP. Our attention was drawn to paragraphs
9.1.3.2 and 9.1.3.3 of the CLP, which state that the Commission
may
choose to conclude a settlement or consent agreement with firms or
refer the matter to the Tribunal and seek a reduced fine
or the firm
can approach the Commission to engage in settlement of the matter.
From the reading of these paragraphs, the Commission
formed the view
that settlement or settlement negotiations may only follow once
immunity or leniency is
not
granted. On this reading,
it was argued, the application for CLP itself is not a negotiation
for settlement.
[18]
14.
Secondly, the Commission
noted that Unilever made a passing comment that in previous
instances, the Commission had resisted the
disclosure of CLP
applications and therefore could not comprehend why in this instance
the Commission chose to act differently.
[19]
The Commission found Unilever's point to be at direct odds with the
Competition Appeal Court's (CAC) approach in
Continental
Tyres South Africa (Pty) Ltd and Others v Competition Commission
[20]
where the court held that
when a claim of privilege is asserted by the Commission, it is
required to put up facts as to whether
litigation was considered
likely or not.
[21]
In the present circumstances, the Commission submitted, it did not
meet this requirement and therefore cannot withhold the disclosure
of
the CLP application.
[22]
As such, there was no basis for excluding Unilever's CLP from the
trial record.
Our
Analysis
15.
It is widely understood
that the CLP has been used as a tool by the Commission to aid the
detection of cartel conduct. The CLP has
been an extremely successful
tool in the hands of the Commission since it was first introduced in
2004 as witnessed by its enforcement
record in the bread, maize and
wheat milling, construction and furniture removal sectors to name a
few. The Commission through
its CLP holds out the promise of leniency
or immunity from prosecution, in whole or in part,
[23]
to a firm in exchange for frank and full disclosures about its own
and horizontal competitors' involvement in cartel conduct. The

granting of leniency is usually conditional upon the successful
applicant assisting the Commission in proceedings against the other

alleged cartel members.
16.
The Commission in this case makes a distinction between the
process of seeking leniency and a subsequent process of settlement
negotiations.
It labels its CLP as an "investigation" tool
that is different from settlement negotiations. Even if we were to
accept
for argument's sake the Commission's distinction between the
two, such distinction however cannot be validly made for purposes of

without prejudice considerations. After all, what is the purpose of
the CLP, as an
enforcement
mechanism, other than to arrive at
some form of settlement or accommodation (i.e. full or partial
immunity from prosecution) with
the leniency applicant in exchange
for a full and frank disclosure of
inter alia
the
modus
operandi
of the cartel and the individuals/firms involved? As an
enforcement mechanism it may serve to achieve different objectives
such
as the gathering of information much like other investigation
tools would do. But unlike other investigation tools such as a search

and seizure process, in the CLP the Commission holds out the promise
of leniency if all the CLP requirements are met.
17.
In any event nothing
turns on this distinction, simply because in our view a leniency
application is to be treated as being in the
nature of without
prejudice engagements between the Commission and the leniency
applicant. Without prejudice engagements are found
to be so because
of their nature and not because a party simply labels them as
such.
[24]
18.
In a leniency
application a firm seeks leniency and in so doing may provide
information and make admissions in the hope of being
granted immunity
from prosecution. The Commission by extending an invitation to an
applicant through the CLP provides assurance
of confidentiality and
some protection from disclosure. These two principles are the gear
levers that make the CLP process work
as effectively as it does. Was
it not the case, why would a party apply for leniency without the
assurance that any
bona fide
admissions made, or
information shared in that process would not be held against it were
the application to fail? The Commission
has in many cases sought to
protect leniency applications from disclosure precisely for this
reason namely that its cartel enforcement
ability would be seriously
compromised if it could not obtain information or evidence from a
leniency applicant and its witnesses.
[25]
19.
It would be a different matter if Unilever had somehow
conducted itself in a ma/a
fide
manner or that Unilever's
answering affidavit stands at odds with the information given by it
in the leniency application. But the
Commission has not made out such
a case. It simply seeks without more to use the without prejudice
contents of the leniency application
in the prosecution of the
unsuccessful leniency applicant. Such a stance were it to be accepted
would have a severe chilling effect
on the Commission's highly
successful CLP and would be contrary to the public interest.
Conclusion
20.
In view of the above, we found that the Commission had not
made out a factual or legal basis for the disclosure and inclusion of

Unilever's leniency application in the trial bundle as evidence in
pending litigation against it. We were thus of the view that

Unilever's application to strike out must succeed, as reflected in
our order attached to these reasons.
________________________
Presiding
Member
Ms
Yasmin Carrim
26
June 2019
Date
Concurring:
Ms Mondo Mazwai and Mr Andreas Wessels
Tribunal
Case Manager: Ndumiso Ndlovu
For
Unilever: R Bhana SC instructed by Baker McKenzie
For
the Commission: K Modise
COMPETITION
TRIBUNAL OF SOUTH AFRICA
Case
No.: CR223Mar17/STR245Jan19
In
the matter between:
Unilever
South Africa (Pty)
Ltd
Applicant
And
Competition
Commission
Respondent
Case
No.: CR223Mar17
In
re
complaint referral between:
Competition
Commission
Applicant
And
Unilever
South Africa (Pty)
Ltd
First
Respondent
Sime
Darby Hudson Knight (Pty)
Ltd
Second
Respondent
Panel:
Y Carrim (Presiding Member)
:
M Mazwai (Tribunal Member)
:
AW Wessels (Tribunal Member)
Heard
on: 04 February 2019
Decided
on: 04 February 2019
ORDER
In
terms of Unilever's application to Strike Out Unilever's CLP
application in the trial bundle, the Tribunal orders as follows:
1. The Strike Out application is
hereby granted.
2. Reasons will follow in due course.
_____________________
Presiding
Member
Ms
Yasmin Carrim
04
February 2019
Date
Concurring:
Ms Mondo Mazwai and Mr Andreas Wessels
[1]
Unilever South Africa (Pty) Ltd.
[2]
See our direction of 22 January 2019.
[3]
Act No. 89 of 1998, as amended.
[4]
Competition Commission v Sime Darby Hudson Knight (Pty) Ltd
(C0247Mar16).
[5]
Hearing was set to commence from 4 - 8 February 2019.
[6]
Pre-hearing (PH) transcript {T), page (pg.) 22, line (I) 52-56. It
was not clear whether the Commission was waiving its privilege
or
merely not asserting it.
[7]
PH T, pg. 23-24.
[8]
PH T, pg. 25-26.
[9]
PH T, pg. 26, I 530-538.
[10]
In addition to the strike out application, the Commission had sought
a postponement of the main matter as it wished to consider

discovered documents that were filed by Unilever with the Commission
and Tribunal on 16 January 2019. In addition, the Commission
also
wished to file an expert report Unilever objected as it was of the
view that the Commission ought to have filed an expert
report as the
agreed timetable made provision for such filing, and the Commission
elected not to. During the same pre-hearing
of 22 January 2019, we
directed that both parties make submissions on postponement. On 30
January 2019, we issued our order granting
the Commission the
postponement as sought.
[11]
AGS Frasers International (Pty) Ltd v Competition Commission
(CR025May15) para 40-42.
[12]
Unilever's written submissions para 32.
[13]
Ibid para 35.
[14]
Ibid para 36.
[15]
Ibid para 38.
[16]
Commission's submissions para 2.12-2.13.
[17]
Ibid para 2.14.
[18]
Ibid para 2.16.
[19]
Ibid para 2.18.
[20]
156/CAC/Nov17 & 157/CAC/Nov17.
[21]
Continental Tyres para 21.
[22]
Commission's submissions para 2.20.
[23]
See Clover Industries Limited and Another v Competition Commission
and Others (81/CAC/Jul08) and the Tribunal's decision
(103/CR/Dec06).
[24]
Zeffert, pg. 703, drawing from Milward v Glaser
1950 (3) SA 547
,
Gcabashe v Nene
1975 (3) SA 912D
at 914E, Lynn & Main
Incorporated v Naidoo and Another2006 (1) SA 59 (N). See also Naidoo
v Marine & Trade Insurance
Co Ltd 1978 (3) SA 666 (A).
[25]
See Competition Commission of South Africa v Arcelormittal South
Africa (Pty) Ltd and Others
2013 (5) SA 538
(SCA). See also
Continental Tyres supra note 20.

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