Foskor (Pty) Ltd v Competition Commission and Others (CO037Aug10NAR240Feb16) [2019] ZANCT 181 (18 December 2019)

Foskor (Pty) Ltd v Competition Commission and Others (CO037Aug10NAR240Feb16) [2019] ZANCT 181 (18 December 2019)

The Tribunal held that its powers under section 27(1)(d) of the Competition Act, interpreted in accordance with the Constitution and relevant foreign law, include the authority to vary or amend a consent order on grounds of changed circumstances or hardship. The Tribunal rejected a narrow reading that would confine variation strictly to ambiguity, error, or omission under section 66(b), finding that such an approach would undermine its regulatory mandate and deny parties access to justice. The Tribunal emphasized that consent orders in competition law are not purely private settlements but serve ongoing public interest and regulatory functions, particularly where behavioural remedies are...

Citation
[2019] ZANCT 181
Parties
Applicant: Foskor (Pty) Ltd; Respondent: Competition Commission; Respondent: Omnia Group (Pty) Ltd; Respondent: Complainants in case no: 2007Dec3382
Court
National Consumer Tribunal
Jurisdiction
South Africa
Judgment Date
18 December 2019
Case Number
CO037Aug10NAR240Feb16
Procedural Posture
Variation Application / Application for Variation of Consent Order; Jurisdictional and Substantive Grounds Considered
Outcome
The Tribunal granted the Commission's application to consider the new consent agreement for variation of the 2011 consent order under section 27(1)(d), with directions for a hearing on the merits. No order as to costs.
Judges
Yasmin Carrim, Andreas Wessels, Anton Roskam
Legal Topics
Variation of Consent Order, Excessive Pricing, Abuse of Dominance, Hardship and Changed Circumstances, Section 27 1 D Powers, Public Interest Remedies
Competition Law Commercial and Corporate Variation of Consent Order Excessive Pricing Abuse of Dominance Hardship and Changed Circumstances Section 27 1 D Powers Public Interest Remedies

Case Brief

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Parties

Foskor (Pty) Ltd

Applicant

Competition Commission

Respondent

Omnia Group (Pty) Ltd

Respondent

Complainants in case no: 2007Dec3382

Respondent

Procedural Posture

Variation Application / Application for Variation of Consent Order; Jurisdictional and Substantive Grounds Considered

Legal Issues

  1. 1 Whether the Tribunal has the power under the Competition Act or in law to vary or amend the terms of a consent order granted on 28 February 2011.
  2. 2 Whether any of the variation grounds advanced by Foskor are precluded by the order of the Full Bench of the High Court.
  3. 3 Whether the Tribunal can vary or amend the consent order on the basis of agreed terms between the Commission and Foskor.

Ratio Decidendi

The Tribunal held that its powers under section 27(1)(d) of the Competition Act, interpreted in accordance with the Constitution and relevant foreign law, include the authority to vary or amend a consent order on grounds of changed circumstances or hardship. The Tribunal rejected a narrow reading that would confine variation strictly to ambiguity, error, or omission under section 66(b), finding that such an approach would undermine its regulatory mandate and deny parties access to justice. The Tribunal emphasized that consent orders in competition law are not purely private settlements but serve ongoing public interest and regulatory functions, particularly where behavioural remedies are...

Court Disposition

The Tribunal granted the Commission's application to consider the new consent agreement for variation of the 2011 consent order under section 27(1)(d), with directions for a hearing on the merits. No order as to costs.

Orders

  • The Commission's application for confirmation of the new consent agreement seeking to vary the 2011 consent order may be considered by the Tribunal under section 27(1)(d) read with sections 1(2) and 1(3).
  • The Commission may proceed to set its application down for a hearing on the merits by arrangement with the Registrar.