Allens Meshco (Pty) Ltd and Others v Competition Commission and Others, Cape Gate (Pty) Ltd v Competition Commission and Others (63/CR/Sep09) [2010] ZACT 37 (28 May 2010)

Parties

Procedural Posture

Urgent Application / Interlocutory Application for Discovery Prior to Answering Affidavits

Legal Issues

1. 1 Whether the Competition Tribunal should compel discovery of documents referred to in the Commission's complaint referral prior to the filing of answering affidavits.
2. 2 Whether High Court Rule 35(12) applies to Tribunal proceedings and under what circumstances.
3. 3 Which documents must be produced to ensure fairness to respondents in answering the complaint referral.

Ratio Decidendi

The Tribunal held that its proceedings are sui generis and not strictly bound by High Court rules, but may have regard to them where procedural gaps exist. The Tribunal found that fairness requires the production of documents expressly relied upon or quoted in the complaint referral, but not generic categories or documents merely inferred to exist. The application was granted in respect of specific items (emails, SMS, distribution agreement) directly referenced in the referral, but refused for items where the referral did not rely on the content or existence of the documents. The Tribunal ordered the Commission to provide further particulars regarding the reference to the 'national price...

Court Disposition

Application granted in part; specific documents ordered to be produced; remainder of application dismissed.

Orders

• The applicants must be provided with the documents listed as items 8, 9, 10, and 11 of the Notice of Motion.
• The Competition Commission must provide further particulars regarding the reference to the 'national price list' in paragraph 28.3.1 of the complaint referral, specifying whether it refers to a single firm and naming the firm, or to multiple firms and naming each.