Competition Commission v South African Breweries Ltd and Others (134/CR/DEC07) [2010] ZACT 65; [2010] 2 CPLR 401 (CT) (15 October 2010)

Competition Commission v South African Breweries Ltd and Others (134/CR/DEC07) [2010] ZACT 65; [2010] 2 CPLR 401 (CT) (15 October 2010)

The Tribunal held that only documents with high probative value to the issue of equivalence under section 9(1) should be produced. These include documents relating to margins earned and volumes distributed of alcoholic beverages by Metcash, especially SAB products, and contracts with major rival distributors such as Brandhouse and Distell. Requests for documents relating to Metcash's infrastructure, financial statements, strategic documentation, and detailed store-level comparisons were refused as they were either irrelevant, invasive, or likely to generate collateral disputes. The Tribunal rejected SAB's proposal to appoint an independent auditor, finding it too invasive and unnecessary...

Citation
[2010] ZACT 65
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; Respondent: Metcash Trading Africa (Pty) Ltd
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
15 October 2010
Case Number
134/CR/DEC07
Procedural Posture
Interlocutory Application / Order on Production of Documents for Cross Examination
Outcome
Order granted in part: Metcash required to produce specified documents relevant to margins, volumes, and contracts with major distributors; other requests refused.
Judges
Norman Manoim, Yasmin Carrim, Merle Holden
Legal Topics
Price Discrimination, Dominant Firm Conduct, Equivalence of Transactions, Production of Documents, Confidentiality Orders
Competition Law Commercial and Corporate Price Discrimination Dominant Firm Conduct Equivalence of Transactions Production of Documents Confidentiality Orders

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

Metcash Trading Africa (Pty) Ltd

Respondent

Procedural Posture

Interlocutory Application / Order on Production of Documents for Cross Examination

Legal Issues

  1. 1 Whether SAB is entitled to require Metcash to produce specific documents for the purpose of cross-examination.
  2. 2 Whether the requested documents are relevant and probative to the issue of price discrimination under section 9(1) of the Competition Act.
  3. 3 Whether the production of certain documents would be unduly invasive of Metcash's business privacy.

Ratio Decidendi

The Tribunal held that only documents with high probative value to the issue of equivalence under section 9(1) should be produced. These include documents relating to margins earned and volumes distributed of alcoholic beverages by Metcash, especially SAB products, and contracts with major rival distributors such as Brandhouse and Distell. Requests for documents relating to Metcash's infrastructure, financial statements, strategic documentation, and detailed store-level comparisons were refused as they were either irrelevant, invasive, or likely to generate collateral disputes. The Tribunal rejected SAB's proposal to appoint an independent auditor, finding it too invasive and unnecessary...

Court Disposition

Order granted in part: Metcash required to produce specified documents relevant to margins, volumes, and contracts with major distributors; other requests refused.

Orders

  • Metcash Trading Africa (Pty) Ltd is ordered to produce documents relating to margins earned and volumes distributed of alcoholic beverages, specifically SAB products and quarts.
  • Metcash is ordered to produce contracts with Brandhouse and Distell relating to distribution, service levels, trading terms, discounts, and rebates, subject to confidentiality undertakings and inspection at Metcash's premises.