Competition Commission and Another v SA Airlink (Pty) Ltd (CR280Feb18/SUB026Jun23) [2023] ZACT 37 (5 July 2023)

Competition Commission and Another v SA Airlink (Pty) Ltd (CR280Feb18/SUB026Jun23) [2023] ZACT 37 (5 July 2023)

The Tribunal found that the documents sought under items 1, 2, 3, and 4 do not exist, and requiring their production would be unduly burdensome and disproportionate. Items 5.1 and 5.2 have already been provided, and item 5.4 will be confirmed as non-existent by affidavit. Regarding item 5.3, the Tribunal held that the withdrawal of the relevant allegation in the witness statement renders the requested documents irrelevant, and in any event, the data is available from third parties. The Tribunal declined to enforce compliance with paragraph 5.3 of the summons. The order does not limit SA Airlink's right to cross-examine Mr van der Molen, nor the Commission's right to object during...

Citation
[2023] ZACT 37
Parties
Applicant: Competition Commission; Applicant: Miles van der Molen; Respondent: SA Airlink (Pty) Ltd
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
5 July 2023
Case Number
CR280Feb18/SUB026Jun23
Procedural Posture
Stay Application / Order on Application to Set Aside Summons
Outcome
Application to set aside the summons is granted in respect of the disputed items; no order as to costs.
Judges
T Ngcukaitobi, I Valodia, AW Wessels
Legal Topics
Tribunal Summons, Document Production, Burden of Proof, Cross Examination
Competition Law Tribunal Summons Document Production Burden of Proof Cross Examination

Case Brief

Summary, issues, holding and outcome

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Parties

Competition Commission

Applicant

Miles van der Molen

Applicant

SA Airlink (Pty) Ltd

Respondent

Procedural Posture

Stay Application / Order on Application to Set Aside Summons

Legal Issues

  1. 1 Whether the Tribunal should set aside the summons for production of documents issued at the instance of SA Airlink.
  2. 2 Whether the documents listed in the Schedule are available, relevant, or unduly burdensome to produce.
  3. 3 Whether the withdrawal of certain allegations affects the relevance of requested documents.

Ratio Decidendi

The Tribunal found that the documents sought under items 1, 2, 3, and 4 do not exist, and requiring their production would be unduly burdensome and disproportionate. Items 5.1 and 5.2 have already been provided, and item 5.4 will be confirmed as non-existent by affidavit. Regarding item 5.3, the Tribunal held that the withdrawal of the relevant allegation in the witness statement renders the requested documents irrelevant, and in any event, the data is available from third parties. The Tribunal declined to enforce compliance with paragraph 5.3 of the summons. The order does not limit SA Airlink's right to cross-examine Mr van der Molen, nor the Commission's right to object during...

Court Disposition

Application to set aside the summons is granted in respect of the disputed items; no order as to costs.

Orders

  • SA Airlink no longer persists with items 1, 2, 3, 4, 5.1, and 5.2 of the Schedule.
  • Mr van der Molen shall, by no later than 7 July 2023, furnish an affidavit confirming that documents under item 5.4 do not exist.