Clover Industries (Pty) Ltd and Others v Competion Commission and Others; Clover Industries (Pty) Ltd and Another v Lewis NO (79/CAC/JUL08;103/CR/DEC2008) [2008] ZAWCHC 297 (17 November 2008)

Clover Industries (Pty) Ltd and Others v Competion Commission and Others; Clover Industries (Pty) Ltd and Another v Lewis NO (79/CAC/JUL08;103/CR/DEC2008) [2008] ZAWCHC 297 (17 November 2008)

The Court held that the letter from Mrs Malherbe did not constitute a complaint as defined under section 49B(2)(b) of the Competition Act, but was merely the provision of information. The legislative distinction between a complaint and information is material and cannot be blurred. Since Mrs Malherbe was not a complainant, there was no complaint, and the relevant statutory provisions regarding complaints did not apply. The appellants voluntarily entered into the leniency agreement with full knowledge of its terms and consequences, and there was no entitlement to immunity beyond what was agreed. The application for leave to appeal was dismissed as there were no reasonable prospects of...

Citation
[2008] ZAWCHC 297
Parties
Appellant: Clover Industries (Pty) Ltd; Appellant: Clover SA (Pty) Ltd; Appellant: Ladismith Cheese (Pty) Ltd; Respondent: Competition Commission; Respondent: Parmalat (Pty) Limited; Respondent: Woodlands Dairy (Pty) Limited; Respondent: Lacnewood (Pty) Limited; Respondent: Nestle SA (Pty) Limited; Respondent: Milkwood Dairy (Pty) Limited; Respondent: David Lewis, N.O.
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
17 November 2008
Case Number
79/CAC/JUL08;103/CR/DEC2008
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against an Order of 19 September 2007; Reasons Handed Down 12 November 2008.
Outcome
Application for leave to appeal dismissed with costs, including costs of two counsels.
Judges
Davis, Mailula, Patel
Legal Topics
Complaint Referral, Leniency Agreement, Leave to Appeal, Cartel Prosecution, Interpretation of Competition Act, Procedural Fairness
Competition Law Commercial and Corporate Civil Procedure Complaint Referral Leniency Agreement Leave to Appeal Cartel Prosecution Interpretation of Competition Act +1 more

Case Brief

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Parties

Clover Industries (Pty) Ltd

Appellant

Clover SA (Pty) Ltd

Appellant

Ladismith Cheese (Pty) Ltd

Appellant

Competition Commission

Respondent

Parmalat (Pty) Limited

Respondent

Woodlands Dairy (Pty) Limited

Respondent

Lacnewood (Pty) Limited

Respondent

Nestle SA (Pty) Limited

Respondent

Milkwood Dairy (Pty) Limited

Respondent

David Lewis, N.O.

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against an Order of 19 September 2007; Reasons Handed Down 12 November 2008.

Legal Issues

  1. 1 Whether the letter from Mrs Malherbe constituted a complaint under section 49B(2) of the Competition Act.
  2. 2 Whether the complaint was investigated within the prescribed period as required by section 50(1) of the Competition Act.
  3. 3 Whether leave to appeal should be granted regarding the review of proceedings flowing from the corporate leniency agreement.

Ratio Decidendi

The Court held that the letter from Mrs Malherbe did not constitute a complaint as defined under section 49B(2)(b) of the Competition Act, but was merely the provision of information. The legislative distinction between a complaint and information is material and cannot be blurred. Since Mrs Malherbe was not a complainant, there was no complaint, and the relevant statutory provisions regarding complaints did not apply. The appellants voluntarily entered into the leniency agreement with full knowledge of its terms and consequences, and there was no entitlement to immunity beyond what was agreed. The application for leave to appeal was dismissed as there were no reasonable prospects of...

Court Disposition

Application for leave to appeal dismissed with costs, including costs of two counsels.

Orders

  • The application for leave to appeal is dismissed.
  • Costs are awarded against the appellants, including costs of two counsels.