Competition Commission v H Pistorious & Co (Pty) Ltd; In re: Competition Commission v H Pistorious & Co (Pty) Ltd and H Pistorious & Co (Pty) Ltd v Competition Commission (CR150Oct13/ASP165Dec14/Exc200Feb15) [2015] ZACT 123; [2015] 2 CPLR 729 (CT) (14 July 2015)

Competition Commission v H Pistorious & Co (Pty) Ltd; In re: Competition Commission v H Pistorious & Co (Pty) Ltd and H Pistorious & Co (Pty) Ltd v Competition Commission (CR150Oct13/ASP165Dec14/Exc200Feb15) [2015] ZACT 123; [2015] 2 CPLR 729 (CT) (14 July 2015)

The Tribunal held that Tribunal Rule 45(3), read in context and in accordance with the fundamental principle of fairness, requires a party wishing to substitute another party to serve notice on that person or party. The Commission failed to serve the substitution application on the individual Trustees of the Trust, thereby denying them an opportunity to be heard. This failure constitutes non-compliance with Rule 45(3) and violates the principles of natural justice and fairness as contemplated in the Constitution and the Competition Act. The application to substitute is therefore defective and must be dismissed. If the Commission wishes to pursue substitution or joinder of the Trust, it...

Citation
[2015] ZACT 123
Parties
Applicant: Competition Commission; Respondent: H Pistorius & Co (Pty) Ltd
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
14 July 2015
Case Number
CR150Oct13/ASP165Dec14/Exc200Feb15
Procedural Posture
Substitution Application / Application for Substitution and Exception Heard Together
Outcome
The application for substitution is dismissed for non-compliance with Tribunal Rule 45(3. The application for exception is not ripe for hearing.
Judges
Yasmin Carrim, Andreas Wessels, Medi Mokuena
Legal Topics
Substitution of Parties, Service of Process, Natural Justice, Minimum Resale Price Maintenance
Competition Law Civil Procedure Substitution of Parties Service of Process Natural Justice Minimum Resale Price Maintenance

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Parties

Competition Commission

Applicant

H Pistorius & Co (Pty) Ltd

Respondent

Procedural Posture

Substitution Application / Application for Substitution and Exception Heard Together

Legal Issues

  1. 1 Whether the Competition Commission's application to substitute the Trust for H Pistorius & Co (Pty) Ltd as respondent complied with Tribunal Rule 45(3).
  2. 2 Whether notice of the substitution application must be served on the party sought to be substituted.
  3. 3 Whether failure to serve the application on the Trustees renders the substitution application defective.

Ratio Decidendi

The Tribunal held that Tribunal Rule 45(3), read in context and in accordance with the fundamental principle of fairness, requires a party wishing to substitute another party to serve notice on that person or party. The Commission failed to serve the substitution application on the individual Trustees of the Trust, thereby denying them an opportunity to be heard. This failure constitutes non-compliance with Rule 45(3) and violates the principles of natural justice and fairness as contemplated in the Constitution and the Competition Act. The application to substitute is therefore defective and must be dismissed. If the Commission wishes to pursue substitution or joinder of the Trust, it...

Court Disposition

The application for substitution is dismissed for non-compliance with Tribunal Rule 45(3. The application for exception is not ripe for hearing.

Orders

  • The application to substitute the Trust for H Pistorius & Co (Pty) Ltd as respondent is dismissed for non-compliance with Tribunal Rule 45(3).
  • Should the Commission wish to substitute or join the Trust, it must serve the application on the individual Trustees and afford them a reasonable opportunity to answer.