competitiontribunal
SOUTH AFRICA
COMPETITION TRIBUNAL OF SOUTH AFRICA
Case No.: CR172Sep17/0TH1990ct18
In the matter between:
Competition Commission Applicant
And
Beefcor (Pty) Ltd
Cape Fruit Processors (Pty) Ltd
First Respondent
Second Respondent
Panel
Heard on
Decided on
Reasons issued on
Introduction & background
: Yasmin Carrim (Presiding Member)
: Andiswa Ndoni (Tribunal Member)
: Anton Roskam (Tribunal Member)
: 3 June 2019
: 17 October 2019
: 17 October 2019
REASONS FOR DECISION
[1] On 3 June 2019, the Competition Tribunal ('Tribunal") was tasked to determine
whether or not the Competition Commission ("Commission") should be allowed to
reinstate its complaint referral ("the complaint) against Beefcor (Ply) Ltd ("Beefcor")
and Cape Fruit Processors {Ply) Ltd ("CFP") after it had withdrawn it on 27 June
2018.
[2] The Commission then attempted to reinstate the same complaint ("withdrawn
complaint") under a new case number1 but was compelled to bring this application
pursuant to a direction given by the Tribunal and objections raised by the
respondents.
1 CR178Sep18.
1
[3] The Commission's essential argument in support of reinstatement was that its
withdrawal merely amounted to a "removal from the Tribunal roll" and accordingly
it was entitled to re-enrol the matter.
[4] In summary the respondents' arguments in opposition are that the withdrawal had
the effect of a settlement of the /is between the parties and amounted to completed
proceedings under section 67(2) of the Competition Act 89 of 1998 ("the Act").
Hence the matter was res judicata and could not be referred to the Tribunal.
[5] In our view the Commission has not made out a case to support reinstatement of
the withdrawn complaint.
[6] Our decision necessarily warrants a discussion of the relevant events leading up
to the withdrawal and this application in some detail.
Events leading up to the withdrawal
[7] On 12 September 2017, the Commission initiated a complaint in terms of section
49B(1) of the Act alleging that the respondents concluded an agreement to not
compete in the market for the processing of wet peels and citrus peel pulp that are
used as inputs in the production of livestock feed. The Commission alleges that
this conduct amounts to a division of markets or allocation of customers in
contravention of section 4(1)(b)(ii) of the Act. On 13 September 2017, one day
after initiating its complaint, the Commission referred the matter to the Tribunal.
[8] The hearing of the matter was set down to commence on 2 - 4 July 2018.
[9] On 26 June 2018, a few days before the hearing of the matter the Commission
approached the respondents seeking an agreement to postpone the matter in order
to explore settlement discussions.2
[10] CFP's legal representative, Mr Graeme Wickins ("Mr Wickins"), advised the
Commission that the only basis on which CFP would settle was if the Commission
were to withdraw this matter. If the Commission was amenable to their proposal,
CFP would agree to pay its own costs.3
2 Record page (pg.) 101.
CFP would agree to pay its own costs.3
2 Record page (pg.) 101.
3 Record pg. 142 -143 (Annexure M3 and M4) (see also pg 118 CFP-Answering Affidavit).
2
[11] On 27 June 2018, Mr Andre Croucamp ("Mr Croucamp")4 acting for Beefcor,
advised the Commission that Mr David Manley ("Mr Manley") who was handling
the matter was on leave and would only return on the date of the hearing, 2 July
2018. He suggested that possible settlement be discussed on the morning of the
hearing when all parties were present.5 However he made it clear to the
Commission that in his view the complaint was without merit and "should the matter
be withdrawn, the Commission should tender costs incurred by Beefcor" .6
[12] That same day, Ms Thandi Nkabinde ("Ms Nkabinde") of the Commission advised
Mr Wickins that the Commission had taken the decision to "withdraw the matter in
order to give the negotiations a fair chance" and served CFP with the Notice of
Withdrawal ("the withdrawal notice").7 Immediately thereafter, Mr Wickins advised
the Commission to "hold off' from serving the withdrawal notice as the discussions
between them had not progressed to the point where a settlement had been
reached.
[13] A similar email was sent by Ms Nkabinde to Mr Croucamp and Mr David Manley;
in which they were advised of the Commission's withdrawal against Beefcor. 8
[14] The Commission thereafter and within minutes of sending these emails to the
respondents filed its notice of withdrawal with the Tribunal.9
[15] Beefcor accepted the Commission's withdrawal. It, however, expressed no
intention of entering into settlement negotiations with the Commission save in so
far as it related to costs. It also stressed the fact that it had expended considerable
costs and suffered direct and indirect reputational damage on account of the bad
publicity the complaint attracted.10 Mr Croucamp reiterated Beefcor's position
regarding the proposed settlement. However, he pointed out that the Commission
4 Manley & Manley Inc.
5 Record pg. 101. See also Record pg. 102 -Annexure C.
6 Record pg. 59 - Beefcor's answering affidavit.
7 Record pg. 145 - Annexure AA5.
8 Record pg. 104.
7 Record pg. 145 - Annexure AA5.
8 Record pg. 104.
9 Record pg. 104 and pg. 149 - Annexure AA7.
10 Record pg. 109 - Annexure I.
3
had not yet put in writing any of its settlement proposals for its client to consider. 11
At 19:19, Mr Mfundo Ngobese ("Mr Ngobese"), a senior investigator at the
Commission, in response to Mr Croucamp, reiterated the Commission's reason to
filing the withdrawal notice - namely to provide sufficient opportunity for the parties
to engage it in settlemen1.12
[16] Mr Wickins on behalf of CFP, on the other hand, advised the Commission that if it
wanted more time to engage in settlement discussions, it should have applied for
a postponement of the matter in terms of Tribunal Rule ("CTR") 50(2) rather than
withdraw it. He advised the Commission that CFP did not find the settlement terms
proposed by the Commission acceptable and asked that, "the Commission revoke
its withdrawal from the matter ... so that the hearing can proceed on Mondav". 13
[17] In response to Mr Wickins the Commission expressed surprise and disappointment
to CFP's response. Mr Ngobese advised Mr Wickins that "our view is that it should
have been welcomed by your client that the Commission decided to withdraw
instead of seeking a postponement as this clearly demonstrates the Commission's
intention to start discussions on settlement without a pending case that your client
must answer to ... the Tribunal".14
[18] CFP then requested a directive from the Tribunal asking that we confirm that the
complaint referral has been fully and finally settled. It also asked that in the event
the Commission objected to the directive, that we direct the Commission to revoke
its withdrawal and proceed with the hearing on 2 July 2018. In this letter CFP also
registered its opposition to any postponement application that might subsequently
be brought by the Commission on the basis that the Commission would delay the
conclusion of the matter to the prejudice of CFP.15
[19] The Commission in turn wrote to the Tribunal expressing surprise and
disappointment regarding the respondents' attitude towards the withdrawal notice.
disappointment regarding the respondents' attitude towards the withdrawal notice.
11 Record pg. 105 - Annexure E. Letter sent at 16:16.
12 Ibid.
13 Record pg. 107 - Annexure G.
1• Record pg. 108 - Annexure H.
1s Record pg. 178-179.
4
The Commission seemingly understood from this that they did not intend to
entertain settlement discussions and advised that it would proceed on that basis.16
[20] The Tribunal attempted to convene an urgent pre-hearing between the parties
either on 29 June or 2 July 2018 to ventilate and possibly resolve the issues that
had been raised by each party.17 Due to the Commission's unavailability the
Tribunal then wrote to the parties in which it: i) notified the parties that given the
Commission's withdrawal notice, the matter had been removed from the roll ii) the
Commission had not tendered costs and iii) that if the Commission in future wished
to reinstate this matter, it was required to file an application for reinstatement.18
The application for reinstatement
[21] On 13 September 2018 the Commission referred a complaint against the
respondents under a new case number.19 However the referral affidavit attached
to the CT1 notice was identical to the one attached to the withdrawn complaint.
This filing was met with immediate objection from the respondents on the basis that
the notice of withdrawal filed on 27 June 2018 constituted a withdrawal of the
complaint and a finalisation of the matter in its entirety. The Commission's
attention was drawn to section 67(2) of the Act which states that a complaint may
not be referred to the Tribunal against a firm that has been a respondent in
completed proceedings before the Tribunal under the same conduct of the Act.
Beefcor insisted that the Commission's "new" referral be read in conjunction with
its notice of withdrawa1.20
[22] The Commission thereafter filed its application for reinstatement on 12 October
2018 which was opposed by the respondents. The matter was heard on 3 June
2019.
1s Record pg. 111 -Annexure J.
11 Record pg. 205 -Annexure M16.
1s On 29 June 2018.
19 CR178Sep18.
20 Record pg 112 - Annexure K.
5
Respondents' arguments
[23] Both respondents sought a dismissal of the application on the basis that the
Commission was jurisdictionally barred from reinstating the complaint in terms of
section 67(2). In essence the respondents argued that the Commission's
withdrawal of the complaint in terms of CTR 50(1) amounted to a withdrawal of the
entire complaint referral in the matter including the initiating documents. In other
words, the withdrawal was a withdrawal of the complaint against the respondents
on the merits and not simply an act of removing the matter from the Tribunal roll.
Hence the effect of the withdrawal notice was to render the matter "completed
proceedings" as contemplated in section 67(2) of the Act and the Commission was
barred from reinstatement thereof under the guise of a new complaint referral.
[24] CFP argued that by filing the withdrawal notice the Commission had effectively
accepted a settlement of the matter. CFP had in the correspondence referred to
above indicated to the Commission its willingness to settle the matter on the basis
that if the Commission withdrew the matter CFP would agree to pay its own costs
(as reflected in the correspondence traversed earlier in these reasons). By filing
the withdrawal notice in terms of CTR 50(1) the Commission had effectively
accepted the settlement offer and the matter was accordingly "completed" as
contemplated in section 67(2). 21 If the Commission had intended to enter into
settlement negotiations it would have kept the referral viable by seeking a
postponement of the matter rather than a withdrawal. 22 Moreover the fact that the
Commission elected not to accept the opportunity to revoke its notice of withdrawal
offered by CFP, and decided against seeking a postponement of the matter, further
supports the conclusion that the Commission intended to withdraw the matter in its
entirety.
[25] Finally, it was argued that a unilateral withdrawal and then a subsequent
entirety.
[25] Finally, it was argued that a unilateral withdrawal and then a subsequent
reinstatement in such circumstances, without explanation, amounted to an abuse
of process. The Tribunal would be correct to dismiss the Commission's application
as an indication of its disapproval of such abuse.23
21 Para 11 - 12 of the second respondent's heads of argument.
22 Ibid para 19.
23 Ibid para 20.5.
6
[26] Beefcor's arguments followed a similar vein.
Commission's argument
[27] The Commission contended that the first respondent failed to provide a legal basis
to show how CTR 50(1) had the effect of finalising and settling a complaint before
the Tribunal. According to the Commission, the withdrawal notice only has the
effect of removing the matter from the Tribunal roll and did not amount to a
withdrawal of the initiation itself.24
[28] The Commission denied that its failure to withdraw the withdrawal notice amounted
to an acceptance of CFP's settlement offer. When CFP objected to the notice of
withdrawal, it indicated that the settlement negotiations had not progressed to a
point where all the terms were agreed upon.25 The Commission at all times
maintained that the withdrawal was issued for the purpose of settlement
negotiations and should not be taken as acceptance of any settlement proposal.
[29] With regards to the respondents' objection on the grounds of section 67(2), the
Commission submitted that the operative words to be considered under this
subsection are "completed proceedings before the Tribunaf'. In view of this, it is
common cause that the Tribunal did not make any determination on the initial
referral, therefore the respondents were not subject to completed proceedings
before the Tribunal. Furthermore, the Commission argued that the respondents
failed to establish a legal basis as to why a notice of withdrawal finalises the matter
and why the initial referral cannot be accepted to be completed before the Tribunal.
Based on the above, section 67(2) cannot apply.26
[30] In relation to costs, it was conceded by all parties that costs could not be awarded
against the Commission on the basis of Competition Commission of South Africa
v Pioneer Hi-Bred International Inc. 27 However, Beefcor still persisted with some
kind of costs order against the 'deponents' or officials of the Commission akin to
an order of costs de bonis propriis. CFP argued that a dismissal of the
an order of costs de bonis propriis. CFP argued that a dismissal of the
24 Para 31 of the Commission's heads of argument.
25 Ibid para 9.
26 Ibid para 39.
21 2014 (2) SA 480 CC.
7
Commission's application for reinstatement would be more appropriate to address
the inconvenience, costs and prejudice caused to the respondents.
Our analysis
[31] The issues we are asked to address in this matter distil into three essential
enquiries -
[31.1] Did the Commission's withdrawal notice amount to a mere removal of the
matter from the roll?;
[31.2] Did the withdrawal amount to a settlement of the /is between the parties?
and;
[31.3] Did such withdrawal/settlement amount to completed proceedings
contemplated in section 67(2)?
Did the Commission's withdrawal notice amount to a mere removal of the matter from the
roll?
[32] CTR 50(1) and (3) states the following:
"Withdrawal and postponements
(1) At any time before the Tribunal has determined a matter, the initiating
party may withdraw all of part of the matter by-
(a) serving a Notice of Withdrawal in Form GT 8 on each party; and
(b) filing the Notice of Withdrawal with proof of service.
(3) Subject to section 57 -
(a) a Notice of Withdrawal may include a consent to pay costs; and
(b) if no consent to pay costs is contained in Notice of Withdrawal the
other party may apply to the Tribunal by Notice of Motion in Form GT 6
for an appropriate order for costs."
[33] The above rule is similar to Rule 4(1) of the Uniform Rules of the High Court
(URHC) albeit with some differences in its operation.
[34] URHC 4(1) states that a person who has instituted proceedings may withdraw them
at any time before the matter has been set down. In the high court however,
consent of the other party must be sought, and the court has a discretion whether
or not to grant leave to withdraw the proceedings, and the question of injustice to
8
the other party is relevant to the exercise of its discretion.28 A withdrawal notice
may also contain a consent to pay costs. If no consent to pay costs is contained
in the withdrawal notice, the other party may apply to court on notice for a cost
order.29 When a litigant withdraws an action, very sound reasons must exist why
a defendant or respondent should not be entitled to costs.30 Ordinarily, the court
does not investigate the reasons for the litigant withdrawing or abandoning its case
subject to an appropriate order as to costs, unless that withdrawal amounts to an
abuse of the courts process or justice requires the finality should, if possible, be
reached.31
[35] In criminal proceedings the position is slightly different as contemplated in section
6 of the Criminal Procedure Act32 ("the CPA") where a person conducting a
prosecution at the instance of the State or conducting a prosecution under section
8 of the CPA, may before an accused pleads to a charge, withdraw that charge, in
which event the accused shall not be entitled to a verdict of acquittal in respect of
that charge. 33 After an accused has pleaded, the prosecutor may not withdraw the
charges but may decide to "stop the prosecution" against the accused. In the
criminal law context the prosecutor is not barred from reinstating charges against
the accused for example in circumstances where the investigation was not
complete and new evidence (or facts) comes to light as result of further
investigation. 34
[36] In our proceedings, which are sui generis in nature, elements of both civil
proceedings and criminal proceedings co-exist in the framework of the Act in the
relevant rules. 3s
28 Harms Civil Procedure in the Superior Courts Vol 1 (LexisNexis) 2018 pg. 294.
29 Herbstein and Van Winsen The Civil Practice of the High Courts of South Africa 5 ed Vo\ 1 (Juta)
2012 pg. 749.
30 Ibid.
31 Ibid pg. 750.
32 Act 51 of 1977.
33 Section 6(a) of the CPA.
2012 pg. 749.
30 Ibid.
31 Ibid pg. 750.
32 Act 51 of 1977.
33 Section 6(a) of the CPA.
34 National Director of Public Prosecutions and Others v Freedom Under Law 2014 (2) SACR 107 (SCA)
at 33 and 34, Brandt J stated that charges withdrawn under section 6(a) can be reinstated at any time.
The prosecution can only be recommenced by a different, original decision to reinstitute the
proceedings. Unless and until it is revived in this way, the charge remains withdrawn.
35 A further distinction to be drawn in forum is that section 57 of the Act precludes the Tribunal from
granting costs in favour of or against the Commission, as decided in Pioneer Hi-Bred. An order of costs
can however be made between private parties. Hence a reference to an award or tender of costs in the
rules must be taken to mean costs between private parties and not against or for the Commission.
9
[37] An important distinction between matters being withdrawn or postponed on the one
hand and matters being struck off the roll on the other is to be found in the rules.
While CTR 50 deals with matters withdrawn or postponed under one heading,
matters that are struck off the roll are dealt with in CTR 52. Under CTR 50 a party
may withdraw or postpone a matter. Under CTR 52 the Tribunal may strike a
matter off the roll if the initiating party is not present. The consequences for parties
differ when matters are withdrawn or postponed (under CTR 50) and those struck
off the roll under CTR 52. Withdrawn or postponed matters can be set down again
in terms of CTR 51. If struck off the Tribunal roll, they are to be dealt with in terms
of CTR 52(2).
[38] The rules, notwithstanding in practice the Tribunal has postponed matters where
parties have agreed to do so. However, where there is no agreement a party
seeking a postponement has been required to apply for such. In such cases the
approach of the Tribunal has been similar to that of the high court but with an
emphasis on fairness. 36 Likewise parties have in many cases before the Tribunal
withdrawn parts of their cases, often in the course of a hearing, without serving a
notice of withdrawal. A party simply puts on record those aspects of the case it no
longer wishes to pursue.
[39] A clear distinction can be drawn between postponed matters and withdrawn
matters whether in the context of civil or criminal litigation. A withdrawal of all or
part of a matter is usually considered a withdrawal of the case against the other
side, and not a mere postponement. When a matter is withdrawn unilaterally and
without agreement from the other side, it sends a clear message that the
withdrawing side is not ready to proceed or not confidant of its case. It doesn't
matter whether the decision to withdraw is dressed up in the language of settlement
negotiations or not, the fact that it is withdrawn suggests a signal of ill
negotiations or not, the fact that it is withdrawn suggests a signal of ill
preparedness or lack of confidence in the merits. In criminal proceedings
prosecutors are known to sometimes withdraw charges for further investigation. 37
[40] The Commission does not dispute that it has filed a notice of withdrawal in this
matter. All that it disputes is the consequences that flow therefrom. The
36 See Competition Commission v Eldan Autobody CC and Precision and Sons (Ply) Ltd
(CR024May15/PPA259Feb19).
37 See footnote 34 above.
10
Commission in argument suggests that the consequences of its notice are simply
a removal of the matter from the Tribunal roll and not a withdrawal of its case (on
the merits) against the respondents.
[41 J Yet when regard is had to the email correspondence between the Commission and
the respondents, and the Commission's subsequent conduct, the only reasonable
conclusion to draw is that the Commission itself understood the matter to be
withdrawn on the merits notwithstanding its purported and oft repeated reason for
the withdrawal, namely "settlement negotiations".
[42] When the Commission unilaterally served its withdrawal notice, it was aware of two
critical facts. The first of these is that both the respondents had indicated to it that
they considered a withdrawal as a settlement or withdrawal of the matter on the
merits. CFP went as far as advising the Commission to follow the postponement
route if what it intended were settlement negotiations.
[43] In other words, the lawyers for CFP, speaking against their own client's interests,
advised the Commission that for it to retain some bargaining power in settlement
negotiations it should keep the matter live rather than withdraw it. Thus, the
Commission was asked to 'hold off' its notice and later when the notice had already
been served and filed, to revoke it. This was sound advice, after all a live matter
on the roll could serve to incentivise a respondent to settle even if at the doors of
court. A postponed matter could still serve to incentivise settlement because it
bears the prospect of litigation which could be risky and expensive for both sides.
[44] Of course, had the Commission sought a postponement of the matter at that late
stage it would have had to motivate such application to the Tribunal and to the
respondents. The respondents would certainly have been opposed to the
postponement because of wasted costs and inconvenience. The Tribunal itself
might not have granted the postponement. As we have stated before, a
might not have granted the postponement. As we have stated before, a
postponement is not there for the asking and in the framework of the Act, where
wasted costs cannot be granted against the Commission, the Tribunal would in all
probability have required a reasonable explanation for the postponement such as
unavailability of witnesses or the like. The Commission has applied for many such
postponements in the past and it is no stranger to the Tribunal's approach.
Furthermore, the Commission's Cartel Division is experienced in running matters
11
of alleged contraventions of cartels. Mr Ngobese has appeared many times before
us. One would have expected him, in his effort to promote settlement with the
respondents to keep the matter on the roll which he has done at times.
[45] The Commission's response to CFP's advice is as much bewildering as it is telling.
[46] What is telling is that on 28 June 2018 Mr Ngobese in his response to CFP
demonstrates that he fully, appreciates the difference between the effect of his
withdrawal and a postponement when he states:38
"Our view is that it should have been welcomed by your client that the
Commission decided to withdraw instead of seeking a postponement as this
clearly demonstrates the Commission's intention to start discussions on
settlement without a pending case that your client must answer to ... the Tribunal."
(Our emphasis)
[47] The Commission was thus clearly aware of the consequences of it withdrawing the
matter namely that there would be no pending case before the Tribunal and elected
to do so in full knowledge of the respondents' understanding of the act of
withdrawal.
[48] This is confirmed by the Commission, when indicated on its withdrawal notice that
it was withdrawing all the initiating documents in the complaint which must include
the initiation under section 49B(1) itself. Were this not the case, the Commission
would have simply elected to seek a postponement of the matter.
[49] On 13 September 2018, the Commission referred a "new" complaint to the Tribunal
which had a different case number to the withdrawn complaint. But it filed an
identical notice of motion and founding affidavit to the withdrawn complaint. We
note that the Commission did not attach a new initiation statement to this "new"
complaint.
[50] However, notwithstanding that the Commission attempted to refer the same
withdrawn complaint under the guise of a new complaint, the fact that it referred a
new complaint by filing a new complaint referral for which it obtained a new case
new complaint by filing a new complaint referral for which it obtained a new case
number, demonstrates that the Commission itself understood its withdrawal notice
38 Record pg. 108 -Annexure H.
12
to constitute a withdrawal on the merits. If it believed as it now avers, that the
matter was merely removed from the roll by its withdrawal notice, it would not have
seen it necessary to file a new complaint under a new case number.
[51] Hence, we find that the Commission's withdrawal notice had the effect of
withdrawing the complaint referral against the respondents and not merely a
removal of the matter from the roll.
Did the withdrawal amount to a settlement of the /is between the parties?
[52] Does this necessarily mean that the withdrawal at the same time amounted to a
settlement of the /is between the parties?
[53] We say not. The fact that the complaint referral was withdrawn does not as a
matter of fact and law amount to a settlement.
[54] Recall that the Commission's oft repeated rationale for the withdrawal was
ostensibly to encourage settlement talks between the parties. The respondents in
return were also pushing for settlement. But despite the positions expressed by
the two respondents namely that they viewed the withdrawal of the matter as a
"settlement", CFP's attorneys were alive to the fact that the Commission's decision
to withdraw, rather than postpone, could result in confusion about the status of the
complaint. Hence the advice given to the Commission that it ought to pursue the
path of postponement and not withdrawal.
[55] What was anticipated by CFP has come to pass, this case being on point. The
confusion notwithstanding, what is clear is that the withdrawal did not amount to a
settlement. Indeed, this was why CFP asked the Commission to "hold off' the
withdrawal notice, because the terms of settlement had not yet been received from
the Commissioner.
[56] But more importantly, this matter does not concern a private civil dispute between
the parties, but rather a matter in the public interest in which the Commission is
required to enforce the provisions of the Act. While the Act is administrative in
required to enforce the provisions of the Act. While the Act is administrative in
nature, the role of the Commission, as enforcer, is akin to that of a prosecutor.
Unless there is some kind of written agreement which is confirmed as an order of
13
the Tribunal, whether this be in the form of a consent order under section 490 of
the Act or a settlement arrived in the course of contested proceedings, the matter
cannot be considered as being settled in all time.
[57] In other words, as a matter of law, while the complaint referral has been withdrawn
by the Commission, this does not mean that the Commission cannot bring another
complaint referral against the respondents, which would be equivalent to the
reinstatement of charges in criminal proceedings. However, it will have to explain
why this "new" complaint was different from the withdrawn complaint. For example,
it will have to explain that new facts have come to light or the same evidence has
been reviewed by the Commission's investigators in a different light.39
[58] However, no such explanation is given by the Commission.
[59] This then brings us to the question of whether the Commission is precluded from
reinstating the withdrawn complaint and whether the withdrawal constituted
"completed proceedings" before the Tribunal under section 67(2).
Did the withdrawal amount to completed proceedings contemplated in section 67(2)?
[60] Section 67(2) of the Act states:
"A complaint may not be referred to the Competition Tribunal against any finn
that has been a respondent in completed proceedings before the Tribunal under
the same or another section of this Act relating substantially to the same
conduct."
[61] Much reliance was placed by the respondents on the Competition Appeal Court's
judgment in Sappi Fine Paper (Pty) Ltd v the Competition Commission of South
Africa and Another" 0 (" Sappi') in support of their arguments that the Commission's
application should be dismissed.
[62] However, the facts of this case differ from those in Sappi. That case involved an
initiation by the Commission of a complaint that had previously been initiated by a
39 Whether or not the Commission would be required to initiate a new complaint under section 498(1)
is not a matter to be decided here.
is not a matter to be decided here.
40 23/CAC/Sep02.
14
private complainant, referred by the Commission then withdrawn and then
subsequently became invalid due to the expiry of the one-year period in section
50(2) of the Act.
[63] While the court in Sappi concluded, that the second complaint was based on
substantially the same facts as the first complaint and therefore constituted
"completed proceedings" under section 67(2) the invalid complaint and the new
complaint had never constituted "completed proceedings before this Tribunal'
contemplated in section 67(2). As confirmed by the CAC in Omnia Fertilizer
Limited v Competition Commission and Others; Sasol Chemical Industries Limited
v Competition Commission and Others41 ("Omnia") section 67(2) cannot apply to a
matter that is not before the Tribunal. Nor is the Commission precluded from
initiating its own complaint in the context of a third-party complaint.
[64] In Omnia, Nutri-Flo ("the complainant") had filed a complaint to the Commission
alleging that Sasol was guilty of contraventions of the Act. The Commission
investigated the matter and issued a notice of non-referral. The complainants did
not self-refer the matter. The complainant then lodged a fresh complaint which
identified two additional firms alleged to have contravened the Act. In addition, the
complainant sought interim relief pending the outcome of the investigation of its
complaint. Nothing came of the interim relief proceedings. The second complaint
was investigated and subsequently referred to the Tribunal. Sasol then sought to,
inter alia, review the referral of the second complaint on the ground that it deals
substantially with the same complaint the Commission had issued a certificate of
non-referral in respect thereof (i.e. section 67(2) defence).
[65] The CAC held that the first complaint had not been referred to the Tribunal nor had
any proceedings against the respondents been completed before the Tribunal.
Section 67(2), therefore, did not apply in that case.42 The court was of the view
Section 67(2), therefore, did not apply in that case.42 The court was of the view
that where two complaints are substantially the same the Commission would be
precluded from pursuing a second complaint and making a referral in
circumstances where section 67(2) applied or where the complainant refers the
complaint directly to the Tribunal in terms of section 51 (1 ).43 The Commission has,
41 (52/CAC/Jun05).
42 Omnia para 21.
43 Omnia para 24.
15
however, no express power to refer a complaint that the complainant has
abandoned by not referring it to the Tribunal. The only circumstance in which the
Commission can do so would be where it initiates a complaint under section 49B(1)
which it may refer to the Tribunal at any time (section 50(1 )).44
[66] While we are not concerned with the issue of an initiation by the Commission in
this case it would be worthwhile to point out that the decision by the CAC in Omnia
held that the Commission could initiate a new complaint of its own under section
49B(1 ). This was also confirmed by the SCA in the recent decision of Competition
Commission v Yara (South Africa) (Ply) Ltd and Others45 ("Yara"). In Yara, the
SCA has found that the Commission is not precluded from initiating its own
complaint even in the context of investigating a third-party complaint, even if such
initiation was done tacitly. Both these cases refer to the same complaint referral
initiated by Nutri-Flo and the Commission. 46
[67] Moreover, in order for completed proceedings contemplated in section 67(2) to
amount to res judicata, a decision must have been made by the Tribunal in relation
to that conduct. In Competition Commission v South African Airways (Pty) Ud47
the Tribunal ruled that to the extent that a respondent admits liability in a consent
order made by the Tribunal in section 490 of the Act, the proceedings are
completed and no person may refer a complaint to the Tribunal against the
respondent under the same or another section of the Act relating substantially to
the same conduct.48
Conclusion
[68] In conclusion, we find that the effect of the Commission's withdrawal notice was a
withdrawal of the case against the respondents and not merely a removal of the
case from the Tribunal roll and such withdrawal did not amount to a settlement of
the case against the respondents. This does not mean that the Commission is
precluded from reinstating a complaint against the respondents as result of further
precluded from reinstating a complaint against the respondents as result of further
investigation, more evidence or a rethinking of the case. Whether or not the
44 Omnia para 24.
45 2013 (6) SA 404 (SCA).
46 See also Power Construction and Another v Competition Commission (145/CAC/Sep16); Continental
Tyres South Africa (Pty) Ltd v Competition Commission and Another (150/CAC/Jun17).
47 (83/CR/Oct04 ).
4B SAA paras 59-60.
16
Commission would be required to initiate a new complaint under section 498(1) in
order to do so is not a matter for us to decide here.
[69] The Commission has however not adequately explained why it seeks to now
reinstate the same complaint referral against the respondents and its application
for reinstatement falls to be dismissed.
[70] While we do not seek to elevate form over substance, it appears to us that the
Commission might have played fast and loose with the rules of the Tribunal,
making use of different procedural mechanisms to achieve a purpose other than
that for which the mechanism is designed which may well lead to confusion for
parties and adjudicators alike. The Tribunal, as a sui generis body, has always
been cautious about the application of rules without regard to its truth-seeking
function. At the same time, at the core of our framework lies the Constitutional
principle of fairness. Fairness in matters between the Commission and
respondents becomes an even more important principle when the framework does
not provide for the award of costs as a disciplining mechanism. In other words,
had the issue been between private parties, the prejudice and inconvenience to
the other could be addressed by an appropriate order of costs. But this is not the
case here. Fairness requires us to have regard to the prejudice caused to the
respondents and to the interests of justice. Had the Commission followed the route
of postponement as opposed to withdrawal this entire dispute could have been
avoided, a dispute that has no doubt come at considerable cost and inconvenience
to the parties and the public purse alike.
[71] The Commission, a public body tasked with the responsibility of promoting the
objectives of the Act is required to conduct itself with decorum and accountability.
In our view it has failed to do so in this case.
[72] In the circumstances we are inclined to dismiss the Commission's application to
reinstate this case on the Tribunal roll.
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Order
The Tribunal hereby orders the following:
1. The Commission's application to reinstate the complaint referral (CR 172Sep17)
withdrawn on 27 June 2018 is hereby dismissed.
2. There is no order as to costs.
Presiding Member
Ms Yasmin Carrim
17 October 2019
Date
Concurring: Ms Andiswa Ndoni and Mr Anton Roskam
Tribunal Case Manager
For the Applicant
For the First Respondent
For the Second Respondent
: Ndumiso Ndlovu
: D Mashego and K Modise
: GC Pretorius SC instructed by Manley Manley Inc.
: MM Le Roux instructed by Werksmans Attorneys
18