Computershare South Africa v JSE Limited and Others (IM141Dec19; DSC175Mar20) [2020] ZACT 94 (2 April 2020)
- Citation
- [2020] ZACT 94
- Status
- Order
- Jurisdiction
- South Africa
- Court
- Competition Tribunal
- Panel
- M Mazwai, Y Carrim, T Vilakazi
- Case number
- IM141Dec19; DSC175Mar20
More details
- Court
- Competition Tribunal
- Panel
- M Mazwai, Y Carrim, T Vilakazi
- Case number
- IM141Dec19; DSC175Mar20
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Tribunal found that the respondents had substantially complied with their discovery obligations by providing the requested documents or, where unavailable, undertaking to provide sworn statements confirming non-existence. The Tribunal accepted the parties' agreement regarding the confidentiality regime for document access and ordered that the outstanding affidavits and written statements be provided within specified timeframes. The applicant's requests for further revenue information were withdrawn, and the Tribunal made the parties' agreement an order of the Tribunal.
Court disposition
The application to compel further and better discovery was resolved by agreement and made an order of the Tribunal.
Orders
- The documents sought under item 9.1 have been provided and the request is satisfied.
- The JSE will provide an affidavit confirming the absence of documents relating to conflicts of interest by 17h00 on 03 April 2020.
- The documents sought under item 19 have been provided and the request is satisfied.
- The JSE will provide monthly financial information decks for 2014 to 2019 via a secure platform, with confidentiality protections.
- LSA and LIS will provide monthly management accounts for 2014 to 2019 via a secure platform, and a written statement confirming no further accounts exist, by 08 April 2020.
- CSA will not pursue its requests for revenue information under items 22 and 35.
- All information will be provided in accordance with the prevailing confidentiality regime.
02
Material facts
Parties
Computershare South Africa
ApplicantJSE Limited
RespondentLink Market Services South Africa (Pty) Ltd
RespondentCompetition Commission
Respondent03
Procedural history
Posture
Urgent Application / Interlocutory Application to Compel Discovery
04
Questions and positions
Legal issues
- 01
Whether the respondents have complied with their discovery obligations in relation to specific categories of documents requested by the applicant.
- 02
Whether the confidentiality regime for document access is appropriate and sufficient.
- 03
Whether the applicant is entitled to further discovery or statements regarding the existence of documents.
Party arguments
- Applicant
- The applicant, Computershare South Africa, argued that the JSE Limited and Link Market Services South Africa (Pty) Ltd had failed to provide certain documents relevant to the merger reconsideration proceedings, specifically management accounts, pricing schedules, and information regarding conflicts of interest. The applicant sought an order compelling the respondents to produce these documents or, where unavailable, to provide sworn statements confirming their absence.
- Respondent
- The respondents, JSE Limited and Link Market Services South Africa (Pty) Ltd, contended that they had provided all documents in their possession relevant to the applicant's requests. Where documents did not exist, they undertook to provide affidavits or written statements confirming non-existence. They further argued that all confidential information would be made available under the existing confidentiality regime and that no further discovery was warranted.
05
Court’s reasoning
Legal principles
- 01
Uniform Rules of Court, Rule 35
A party compelled to produce documents in discovery must either provide the documents or a sworn statement confirming their absence or non-existence.
- 02
Competition Tribunal Practice Note
Confidential information may be disclosed subject to a confidentiality regime agreed between the parties to protect sensitive data.
06
Ratio, limits and disposition
Ratio decidendi
The Tribunal found that the respondents had substantially complied with their discovery obligations by providing the requested documents or, where unavailable, undertaking to provide sworn statements confirming non-existence. The Tribunal accepted the parties' agreement regarding the confidentiality regime for document access and ordered that the outstanding affidavits and written statements be provided within specified timeframes. The applicant's requests for further revenue information were withdrawn, and the Tribunal made the parties' agreement an order of the Tribunal.
Obiter and limits
- The Tribunal noted the importance of balancing the need for disclosure with the protection of confidential information in merger proceedings.
- The Tribunal encouraged parties to resolve discovery disputes by agreement where possible, to avoid unnecessary delays in proceedings.
Court disposition
The application to compel further and better discovery was resolved by agreement and made an order of the Tribunal.
- The documents sought under item 9.1 have been provided and the request is satisfied.
- The JSE will provide an affidavit confirming the absence of documents relating to conflicts of interest by 17h00 on 03 April 2020.
- The documents sought under item 19 have been provided and the request is satisfied.
- The JSE will provide monthly financial information decks for 2014 to 2019 via a secure platform, with confidentiality protections.
- LSA and LIS will provide monthly management accounts for 2014 to 2019 via a secure platform, and a written statement confirming no further accounts exist, by 08 April 2020.
- CSA will not pursue its requests for revenue information under items 22 and 35.
- All information will be provided in accordance with the prevailing confidentiality regime.
Source and reliance status
Competition Tribunal
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Judgment reading view
Judgment text
The complete available source text.
Competition Tribunal
Order
THE
COMPETITION TRIBUNAL OF SOUTH AFRICA
IM141Dec19/DSC175Mar20
In the application for further and better discovery between:
Computershare South Africa Applicant
and
JSE Limited First
Respondent
Link Market Services South Africa (Pty) Ltd Second Respondent
In re: the application for the reconsideration of the intermediate merger between
IM141Dec19
JSE Limited Primary
Acquiring Firm
Link Market Services South Africa (Pty) Ltd Primary Target Firm
And
Competition Commission Respondent
Computershare South Africa Intervenor
Panel M Mazwai (Presiding Member)
Y Carrim (Tribunal Panel Member)
T Vilakazi (Tribunal Panel Member)
Heard on : 02 April 2020
Decided on : 02 April 2020
ORDER
HAVING read the documents filed of record and considered the matter, the following agreement between Computershare South Africa (“CSA”), JSE Limited (“the JSE”) and Link Market Services South Africa (Pty) Ltd (“LSA”) regarding CSA’s interlocutory application to compel discovery from the JSE and LSA is hereby made an order:
1. The documents sought by CSA under item 9.1 of the application have been provided by the JSE and thus the request is satisfied.
2. In response to the documents sought under item 18 of CSA’s application, the JSE will provide an affidavit deposed to by an appropriate person with personal knowledge of the facts stating that the JSE does not have in its possession or control any documents relating to complaints of actual or perceived conflicts of interest on the part of the JSE, which will be provided no later than 17h00 on 03 April 2020.
3. In response to the documents sought under item 19 of CSA’s application, the JSE has provided copies of pricing schedules or similar documents reflecting exchange-related fees including listing, trading, clearing, BDA and/or other relevant fees for the 2014 to 2019 financial years and thus the request is satisfied.
4. In response to the documents sought under item 23, the JSE confirms that it does not have monthly management accounts in its possession or control but will provide all its monthly financial information decks for the 2014 to 2019 financial years, which are auto-produced for the executive committee on a monthly basis from the JSE’s general ledger. Such documents will be made accessible through Webber Wentzel's HiQ document sharing platform to protect their confidentiality, such that they cannot be downloaded or shared, but information can be highlighted and copied across into an excel spreadsheet for the purposes of analysing the data.
5. In response to the documents sought under item 35 of CSA’s application, LSA and its subsidiary Link Investor Services (Pty) Ltd ("LIS") will provide:
5.1. all their respective monthly management accounts, for the 2014 to 2019 financial years, reflecting the relevant financial data in the most disaggregated form in which such monthly management accounts were produced, being in no less detailed form than the January 2014 sheets provided by the merging parties to CDH on 1 April 2020. Such documents will be made accessible through Webber Wentzel's HiQ document sharing platform to protect their confidentiality, such that they cannot be downloaded or shared, but information can be highlighted and copied across into an excel spreadsheet for the purposes of analysing the data; and
5.2. a written statement from an appropriate person at Link Market Services Limited stating that, throughout such period, nothing further by way of monthly management accounts was prepared and/or received by LSA or LIS and that no fuller, more detailed, or disaggregated monthly management accounts as recorded in paragraph 5.1 above were prepared concerning LSA or LIS by the seller in the proposed transaction, being Link Market Services Ltd, based in Australia. Such written statement is to be provided no later than 17h00 on 08 April 2020.
6. CSA will not pursue its requests for revenue information from the JSE and LSA under items 22 and 35 of its application.
7. The information will be provided in accordance with the prevailing confidentiality regime between the parties.
Ms. M Mazwai Presiding Member
Date: 2 April 2020 Date
Concurring: Ms Y Carrim and Dr T Vilakazi
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