Competition Commission South Africa v Pentel South Africa (Pty) Ltd (27/CR/Apr11) [2011] ZACT 89; [2011] 2 CPLR 352 (CT) (27 October 2011)

Competition Commission South Africa v Pentel South Africa (Pty) Ltd (27/CR/Apr11) [2011] ZACT 89; [2011] 2 CPLR 352 (CT) (27 October 2011)

The Tribunal held that once the original complainant withdrew its complaint, it ceased to exist under section 49(B)(2)(b) of the Competition Act. The subsequent initiation by the Commissioner constituted a new complaint under section 49(B)(1), which is not subject to the one-year prescription period in section 50(2). The Tribunal rejected Pentel's argument that the Commission merely continued with the original complaint, finding that the Act does not provide for the Commissioner to take over a complainant's complaint after withdrawal. Regarding the appointment of an inspector, the Tribunal found that the Commission's assignment of inspectors satisfied the statutory requirement to direct...

Citation
[2011] ZACT 89
Parties
Applicant: Competition Commission South Africa; Respondent: Pentel South Africa (Pty) Ltd
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
27 October 2011
Case Number
27/CR/Apr11
Procedural Posture
Civil Application / Objections in Limine
Outcome
Both points in limine raised by the respondent are dismissed. The application is dismissed.
Judges
Norman Manoim, Andiswa Ndoni, Medi Mokuena
Legal Topics
Minimum Resale Price Maintenance, Complaint Prescription, Commission Initiation, Appointment of Inspector
Competition Law Minimum Resale Price Maintenance Complaint Prescription Commission Initiation Appointment of Inspector

Case Brief

Summary, issues, holding and outcome

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Parties

Competition Commission South Africa

Applicant

Pentel South Africa (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Objections in Limine

Legal Issues

  1. 1 Whether the complaint against Pentel South Africa (Pty) Ltd had prescribed under section 50(2) of the Competition Act.
  2. 2 Whether the Commissioner failed to direct an inspector to investigate the complaint as required by section 49(B)(3) of the Competition Act.

Ratio Decidendi

The Tribunal held that once the original complainant withdrew its complaint, it ceased to exist under section 49(B)(2)(b) of the Competition Act. The subsequent initiation by the Commissioner constituted a new complaint under section 49(B)(1), which is not subject to the one-year prescription period in section 50(2). The Tribunal rejected Pentel's argument that the Commission merely continued with the original complaint, finding that the Act does not provide for the Commissioner to take over a complainant's complaint after withdrawal. Regarding the appointment of an inspector, the Tribunal found that the Commission's assignment of inspectors satisfied the statutory requirement to direct...

Court Disposition

Both points in limine raised by the respondent are dismissed. The application is dismissed.

Orders

  • The application is dismissed.
  • There is no order as to costs.