Clover Industries Limited and Another v Competition Commission and Others; Ladismith Cheese (Pty) Ltd v Competition Commission of South Africa and Others (81/CAC/Jul08) [2008] ZACAC 3 (12 November 2008)

Clover Industries Limited and Another v Competition Commission and Others; Ladismith Cheese (Pty) Ltd v Competition Commission of South Africa and Others (81/CAC/Jul08) [2008] ZACAC 3 (12 November 2008)

The court held that the letter from Mrs Malherbe did not constitute a formal complaint under Section 49B(2)(b) of the Competition Act, but was merely the submission of information under Section 49B(2)(a). Therefore, the time frames for investigation and referral set out in Section 50(2) did not apply, and the Commission was not time-barred. The Tribunal's interpretation of 'complaint' and its dismissal of the first in limine point were correct. Regarding the Corporate Leniency Policy, the court found that Clover voluntarily entered into the agreement with full knowledge of its limited scope and the possibility of facing prosecution on other complaints. The third, fifth, and sixth...

Citation
[2008] ZACAC 3
Parties
Appellant: Clover Industries Limited; Appellant: Clover SA (Pty) Limited; Appellant: Ladismith Cheese (Pty) Limited; Respondent: The Competition Commission; Respondent: Parmalat (Pty) Limited; Respondent: Woodlands Dairy (Pty) Limited; Respondent: Lancewood (Pty) Limited; Respondent: Nestlé SA (Pty) Limited; Respondent: Milkwood Dairy (Pty) Limited
Court
Competition Appeal Court
Jurisdiction
South Africa
Judgment Date
12 November 2008
Case Number
81/CAC/Jul08
Procedural Posture
Civil Appeal / Appeal and Review of Competition Tribunal's Dismissal of in Limine Points
Outcome
Appeal and review application dismissed with costs, including costs of two counsel where employed.
Judges
Patel JA, Davis JP, Mailula JA
Legal Topics
Corporate Leniency Policy, Abuse of Dominance, Procedural Fairness, Complaint Referral, Price Fixing, Review of Tribunal Decision
Competition Law Commercial and Corporate Administrative Law Corporate Leniency Policy Abuse of Dominance Procedural Fairness Complaint Referral Price Fixing +1 more

Case Brief

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Parties

Clover Industries Limited

Appellant

Clover SA (Pty) Limited

Appellant

Ladismith Cheese (Pty) Limited

Appellant

The Competition Commission

Respondent

Parmalat (Pty) Limited

Respondent

Woodlands Dairy (Pty) Limited

Respondent

Lancewood (Pty) Limited

Respondent

Nestlé SA (Pty) Limited

Respondent

Milkwood Dairy (Pty) Limited

Respondent

Procedural Posture

Civil Appeal / Appeal and Review of Competition Tribunal's Dismissal of in Limine Points

Legal Issues

  1. 1 Whether the letter from Mrs Malherbe constituted a formal complaint under Section 49B(2)(b) of the Competition Act.
  2. 2 Whether the Competition Commission was time-barred from referring the complaint to the Tribunal.
  3. 3 Whether Clover was entitled to immunity under the Corporate Leniency Policy for all complaints referred.

Ratio Decidendi

The court held that the letter from Mrs Malherbe did not constitute a formal complaint under Section 49B(2)(b) of the Competition Act, but was merely the submission of information under Section 49B(2)(a). Therefore, the time frames for investigation and referral set out in Section 50(2) did not apply, and the Commission was not time-barred. The Tribunal's interpretation of 'complaint' and its dismissal of the first in limine point were correct. Regarding the Corporate Leniency Policy, the court found that Clover voluntarily entered into the agreement with full knowledge of its limited scope and the possibility of facing prosecution on other complaints. The third, fifth, and sixth...

Court Disposition

Appeal and review application dismissed with costs, including costs of two counsel where employed.

Orders

  • The appeal is dismissed with costs, including costs of two counsel where so employed.
  • The review application is dismissed with costs, including costs of two counsel where so employed.