Giwusa and Another v Milco SA (Pty) Ltd and Others (184/CAC/May20; LM263Mar19) [2022] ZACAC 12; [2023] 1 CPLR 4 (CAC) (4 November 2022)

Giwusa and Another v Milco SA (Pty) Ltd and Others (184/CAC/May20; LM263Mar19) [2022] ZACAC 12; [2023] 1 CPLR 4 (CAC) (4 November 2022)

The court found that the applicants failed to provide a full and reasonable explanation for the delay in filing their review application, as required for condonation. The delay was inordinate and unexplained for significant periods, and the prejudice to the respondents and the need for finality in merger proceedings outweighed any prospects of success. The Tribunal's reasons for its decision were found to be adequate, and the applicants' constitutional objections did not justify condonation in the circumstances. Accordingly, the application for condonation and the review were dismissed.

Citation
[2022] ZACAC 12
Parties
Applicant: GIWUSA; Applicant: FAWU; Respondent: Milco SA (Pty) Ltd; Respondent: Clover Industries Ltd; Respondent: Competition Tribunal of SA
Court
Competition Appeal Court
Jurisdiction
South Africa
Judgment Date
4 November 2022
Case Number
184/CAC/May20
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed; each party to pay its own costs.
Judges
Poyo Dlwati
Legal Topics
Merger Control, Condonation, Review of Administrative Action, International Law Jurisdiction
Competition Law Civil Procedure Merger Control Condonation Review of Administrative Action International Law Jurisdiction

Case Brief

Summary, issues, holding and outcome

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Parties

GIWUSA

Applicant

FAWU

Applicant

Milco SA (Pty) Ltd

Respondent

Clover Industries Ltd

Respondent

Competition Tribunal of SA

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the applicants should be granted condonation for the late filing of their review application.
  2. 2 Whether the Competition Tribunal adequately addressed all objections raised by the applicants in its reasons for approving the merger.

Ratio Decidendi

The court found that the applicants failed to provide a full and reasonable explanation for the delay in filing their review application, as required for condonation. The delay was inordinate and unexplained for significant periods, and the prejudice to the respondents and the need for finality in merger proceedings outweighed any prospects of success. The Tribunal's reasons for its decision were found to be adequate, and the applicants' constitutional objections did not justify condonation in the circumstances. Accordingly, the application for condonation and the review were dismissed.

Court Disposition

Application dismissed; each party to pay its own costs.

Orders

  • The application is dismissed.
  • Each party is to pay its own costs.