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[2023] ZACT 37
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Competition Commission and Another v SA Airlink (Pty) Ltd (CR280Feb18/SUB026Jun23) [2023] ZACT 37 (5 July 2023)
COMPETITION
TRIBUNAL OF SOUTH AFRICA
Case
No.:CR280Feb18/SUB026Jun23
In
the matter between:
THE
COMPETITION COMMISSION First
Applicant
MILES
VAN DER MOLEN Second
Applicant
And
SA
AIRLINK (PTY)
LTD Respondent
Panel:
T Ngcukaitobi
(Presiding Member)
I Valodia (Tribunal
Member)
AW Wessels (Tribunal
Member)
Heard
on: 04
July 2023
Decided
on: 05
July 2023
ORDER
AND BRIEF REASONS
In
the application to set aside a Summons issued at the instance of SA
Airlink (Pty) Ltd on 23 May 2023, for the production of documentation
by Mr Miles van der Molen, the Competition Tribunal makes the
following Order and records the following Brief Reasons in relation
to the documentation sought and recorded in Schedule 1 ("the
Schedule") of the Tribunal Summons:
1.
The Tribunal records that SA Airlink no longer persists with the
following items, listed in the Schedule:
1.1. Item 1: the
Commission states that the documents do not exist in the form in
which they are sought in the summons. While
Mr van der Moten could
potentially compile the information from other sources including
third parties, it would be unduly burdensome
to undertake the
exercise, hence disproportionate to require the production of these
items at this stage.
1.2. Items 2,3 and
4: Mr van der Molen's Confirmatory Affidavit to the Commission's
Replying Affidavit confirms that these
items do not exist. This
allegation is accepted by SA Airlink.
1.3. Items 5.1 and
5.2: Mr van der Molen has provided the information sought.
1.4. Item 5.4: Mr
van der Molen shall, by no later than 7 July 2023, furnish an
affidavit confirming that these documents
do not exist. There is no
longer a dispute between the parties in regard to these documents.
2.
Item 5.3: The submission of SA Airlink is that it has been unfairly
accused by Mr van der Molen at paragraph 24 of
his witness statement
where the following appears "[we] recently launched CPT - KIM
against SA Air/ink and the incumbent responded
by decreasing pricing
and increasing gauge of aircraft on the route." The Commission
states that the above allegation has
been withdrawn by Mr van der
Molen. An amended witness statement shall be delivered by no later
than 7 July 2023. The Tribunal's
view is that in light of the
withdrawal, the documents sought are not relevant. In any event,
Counsel for SA Airlink stated that
this data is available from third
parties. The Tribunal accordingly declines to enforce compliance with
paragraph 5.3 of the summons.
3.
This order does not limit the rights of SA Airlink to cross-examine
Mr van der Molen on any aspect of his original
or amended witness
statement. The Commission is entitled to object to any question
raised in cross-examination. The Tribunal shall
make the appropriate
rulings during the course of the hearing.
4.
There is no order as to costs.
Presiding
Member
Adv.
Tembeka Ngcukaitobl SC
Concurring:
Prof. lmraan Valodia and Mr Andreas Wessels
Date:
05 July 2023