Clover Industries Limited and others v Competition Commission; Competition Commission v Clover Industries Limited and Others (103/CR/Dec06) [2008] ZACT 46; [2008] 2 CPLR 312 (CT) (23 June 2008)

Clover Industries Limited and others v Competition Commission; Competition Commission v Clover Industries Limited and Others (103/CR/Dec06) [2008] ZACT 46; [2008] 2 CPLR 312 (CT) (23 June 2008)

The Tribunal found that Mrs Malherbe's letter did not constitute a formal complaint under section 49B(2)(b) of the Competition Act, but was merely a submission of information under section 49B(2)(a). The investigation was initiated by the Commissioner under section 49B(1), and therefore the time frames for referral...

Source-derived case information.

Citation
[2008] ZACT 46
Parties
Applicant: Clover Industries Limited; Applicant: Clover SA (Pty) Ltd; Applicant: Ladismith Cheese (Pty) Ltd; Respondent: Competition Commission; Respondent: Parmalat (Pty) Ltd; Respondent: Woodlands Dairy (Pty) Ltd; Respondent: Lancewood (Pty) Ltd; Respondent: Nestle SA (Pty) Ltd; Respondent: Milkwood Dairy (Pty) Ltd
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
23 June 2008
Case Number
103/CR/Dec06
Procedural Posture
Points in Limine / Preliminary Objections to Complaint Referral
Outcome
All points in limine raised by Clover and Ladismith are dismissed.
Judges
D Lewis, N Manoim, Y Carrim
Legal Topics
Complaint Prescription, Corporate Leniency, Abuse of Dominance, Cartel Conduct, Procedural Fairness
Competition Law Complaint Prescription Corporate Leniency Abuse of Dominance Cartel Conduct Procedural Fairness

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Summary, issues, holding and outcome

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Parties

Clover Industries Limited

Applicant

Clover SA (Pty) Ltd

Applicant

Ladismith Cheese (Pty) Ltd

Applicant

Competition Commission

Respondent

Parmalat (Pty) Ltd

Respondent

Woodlands Dairy (Pty) Ltd

Respondent

Lancewood (Pty) Ltd

Respondent

Nestle SA (Pty) Ltd

Respondent

Milkwood Dairy (Pty) Ltd

Respondent

Procedural Posture

Points in Limine / Preliminary Objections to Complaint Referral

Legal Issues

  1. 1 Whether the Commission's referral of the complaint was prescribed under section 50(2) of the Competition Act.
  2. 2 Whether Mrs Malherbe's letter constituted a formal complaint or mere submission of information under the Act.
  3. 3 Whether Clover is entitled to immunity from prosecution for certain charges under the corporate leniency agreement.

Ratio Decidendi

The Tribunal found that Mrs Malherbe's letter did not constitute a formal complaint under section 49B(2)(b) of the Competition Act, but was merely a submission of information under section 49B(2)(a). The investigation was initiated by the Commissioner under section 49B(1), and therefore the time frames for referral in section 50(2) did not apply. The Tribunal held that the corporate leniency agreement granted Clover immunity only for specified conduct and not for all charges, and that the C-milk and milk balancing schemes were distinct. The Tribunal further determined that any alleged unfairness or prejudice to Clover arising from the duplication of complaints or overlap of evidence could...

Court Disposition

All points in limine raised by Clover and Ladismith are dismissed.

Orders

  • Clover's first, second and third points in limine are dismissed.
  • Ladismith's point in limine is dismissed.