Competition Commission and Another v South African Breweries and Others (134/CR/DEC07) [2010] ZACT 45 (9 July 2010)

Competition Commission and Another v South African Breweries and Others (134/CR/DEC07) [2010] ZACT 45 (9 July 2010)

The Tribunal found that the circumstances justified the separation of the distribution complaints (sections 4(1)(b)(ii), 5(1), 5(2), and 9(1)) from the section 8 abuse of dominance complaint. The distribution complaints concern SAB's relationships with its appointed distributors at the wholesale level, while the section 8 complaint relates to SAB's conduct towards retailers. The Tribunal determined that any factual or legal overlaps, particularly regarding dominance, are minimal and manageable, especially since SAB conceded dominance for the section 9 complaint. The interests of convenience, fairness, and expedition strongly favored separation, as the distributors have no legal interest...

Citation
[2010] ZACT 45
Parties
Applicant: Competition Commission; Respondent: South African Breweries Limited; Respondent: Africa’s Beer Wholesalers (Pty) Ltd; Respondent: Boland Beer Distributors (Pty) Ltd; Respondent: Ermelo Beer Wholesales (Pty) Ltd; Respondent: Greytown Beer Distributors (Pty) Ltd; Respondent: Makhado Beer Wholesalers (Pty) Ltd; Respondent: Midlands Beer Distributors (Pty) Ltd; Respondent: Mkuze Beer Wholesalers (Pty) Ltd; Respondent: Southern Cape Beer Distributors (Pty) Ltd; Respondent: Stefquo (Pty) Ltd; Respondent: Vryheid Beer Distributors (Pty) Ltd; Respondent: Madadeni Beer Wholesalers (Pty) Ltd; Respondent: Westonaria Beer Distributors (Pty) Ltd; Respondent: Thohoyandou Beer Distributors (Pty) Ltd
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
9 July 2010
Case Number
134/CR/DEC07
Procedural Posture
Civil Application / Separation Application and Interlocutory Order
Outcome
Separation of complaints granted; distribution complaints to proceed separately from abuse of dominance complaint.
Judges
Norman Manoim, Yasmin Carrim, Merle Holden
Legal Topics
Separation of Issues, Vertical Agreements, Concerted Practices, Minimum Resale Price Maintenance, Price Discrimination, Abuse of Dominance
Competition Law Commercial and Corporate Separation of Issues Vertical Agreements Concerted Practices Minimum Resale Price Maintenance Price Discrimination Abuse of Dominance

Case Brief

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Parties

Competition Commission

Applicant

South African Breweries Limited

Respondent

Africa’s Beer Wholesalers (Pty) Ltd

Respondent

Boland Beer Distributors (Pty) Ltd

Respondent

Ermelo Beer Wholesales (Pty) Ltd

Respondent

Greytown Beer Distributors (Pty) Ltd

Respondent

Makhado Beer Wholesalers (Pty) Ltd

Respondent

Midlands Beer Distributors (Pty) Ltd

Respondent

Mkuze Beer Wholesalers (Pty) Ltd

Respondent

Southern Cape Beer Distributors (Pty) Ltd

Respondent

Stefquo (Pty) Ltd

Respondent

Vryheid Beer Distributors (Pty) Ltd

Respondent

Madadeni Beer Wholesalers (Pty) Ltd

Respondent

Westonaria Beer Distributors (Pty) Ltd

Respondent

Thohoyandou Beer Distributors (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Separation Application and Interlocutory Order

Legal Issues

  1. 1 Whether the complaints against SAB and its appointed distributors under sections 4(1)(b)(ii), 5(1), 5(2), and 9(1) of the Competition Act should be heard separately from the section 8 abuse of dominance complaint.
  2. 2 Whether convenience and fairness justify the separation of issues in this matter.
  3. 3 Whether the alleged factual and legal overlaps between the distribution and abuse complaints preclude separation.

Ratio Decidendi

The Tribunal found that the circumstances justified the separation of the distribution complaints (sections 4(1)(b)(ii), 5(1), 5(2), and 9(1)) from the section 8 abuse of dominance complaint. The distribution complaints concern SAB's relationships with its appointed distributors at the wholesale level, while the section 8 complaint relates to SAB's conduct towards retailers. The Tribunal determined that any factual or legal overlaps, particularly regarding dominance, are minimal and manageable, especially since SAB conceded dominance for the section 9 complaint. The interests of convenience, fairness, and expedition strongly favored separation, as the distributors have no legal interest...

Court Disposition

Separation of complaints granted; distribution complaints to proceed separately from abuse of dominance complaint.

Orders

  • The complaints against the First to Fourteenth Respondents under sections 4(1)(b)(ii), 5(1), 5(2), and 9(1) of the Competition Act will be heard and determined separately from the complaint under section 8 of the Act.
  • The hearing of the section 8 complaint is stayed pending further directions by the Tribunal.