Competition Commission and South African Airways (18/CR/Mar01) [2003] ZACT 57; [2004] 1 CPLR 230 (CT) (31 October 2003)

Competition Commission and South African Airways (18/CR/Mar01) [2003] ZACT 57; [2004] 1 CPLR 230 (CT) (31 October 2003)

The Tribunal held that Rule 22(1)(c)(iii) does not preclude parties from requesting clarification of issues between themselves, especially with the Tribunal's consent at a pre-hearing conference. However, the Tribunal emphasized that such procedures should not inhibit expedition and must be balanced against the requirement for informality and fairness. In this case, the Tribunal found that the respondent was entitled to clarification on two specific issues: the basis for the allegation of dominance (including the calculation and source of the market share) and the grounds for the administrative penalty under section 59(1)(b) of the Competition Act. The Tribunal ordered the Commission to...

Citation
[2003] ZACT 57
Parties
Applicant: Competition Commission; Respondent: South African Airways (Pty) Ltd
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
31 October 2003
Case Number
18/CR/Mar01
Procedural Posture
Clarification Application / Application to Compel Further and Better Particulars Prior to Hearing
Outcome
Application to compel further and better particulars is stayed pending the furnishing of witness statements, except for two specific issues where the Commission is ordered to provide clarification.
Judges
N. Manoim, U. Bhoola, M. Madlanga
Legal Topics
Clarification of Issues, Dominant Firm Definition, Administrative Penalty, Pre Hearing Procedure
Competition Law Civil Procedure Clarification of Issues Dominant Firm Definition Administrative Penalty Pre Hearing Procedure

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Parties

Competition Commission

Applicant

South African Airways (Pty) Ltd

Respondent

Procedural Posture

Clarification Application / Application to Compel Further and Better Particulars Prior to Hearing

Legal Issues

  1. 1 Whether the respondent is entitled to further and better particulars from the Commission regarding the allegations of dominance and liability for an administrative penalty.
  2. 2 Whether Rule 22(1)(c)(iii) of the Tribunal Rules permits requests for clarification between parties or only at the Tribunal's prerogative.
  3. 3 Whether the Commission must provide greater precision on the market share and basis for the administrative penalty allegation.

Ratio Decidendi

The Tribunal held that Rule 22(1)(c)(iii) does not preclude parties from requesting clarification of issues between themselves, especially with the Tribunal's consent at a pre-hearing conference. However, the Tribunal emphasized that such procedures should not inhibit expedition and must be balanced against the requirement for informality and fairness. In this case, the Tribunal found that the respondent was entitled to clarification on two specific issues: the basis for the allegation of dominance (including the calculation and source of the market share) and the grounds for the administrative penalty under section 59(1)(b) of the Competition Act. The Tribunal ordered the Commission to...

Court Disposition

Application to compel further and better particulars is stayed pending the furnishing of witness statements, except for two specific issues where the Commission is ordered to provide clarification.

Orders

  • The Commission is ordered to provide clarification on the basis for the allegation that the respondent is a dominant firm, including the calculation and source of the market share.
  • The Commission is ordered to clarify the grounds for alleging liability for an administrative penalty under section 59(1)(b) of the Competition Act.