Glaxo Wellcome (Pty) Ltd and Others v National Association of Pharmaceutical Wholesalers and Others (15/CAC/Feb02) [2002] ZACAC 3 (21 October 2002)

Glaxo Wellcome (Pty) Ltd and Others v National Association of Pharmaceutical Wholesalers and Others (15/CAC/Feb02) [2002] ZACAC 3 (21 October 2002)

The Court held that the Tribunal lacked jurisdiction to entertain allegations of excessive pricing and predatory pricing because these were not raised in the original complaint to the Competition Commission. The statutory complaint procedures require that only conduct specifically alleged and investigated by the Commission may be referred to the Tribunal. The attempt by the complainants to introduce new allegations in the referral was impermissible. Furthermore, the Court found that the essential facilities doctrine under section 8(b) of the Competition Act is narrowly defined and does not encompass the mere supply of products or goods; it refers to infrastructure or resources that cannot...

Citation
[2002] ZACAC 3
Parties
Appellant: Glaxo Wellcome (Pty) Limited; Appellant: Pfizer Laboratories (Pty) Limited; Appellant: Pharmacare Limited; Appellant: SmithKline Beecham Pharmaceuticals (Pty) Limited; Appellant: Warner Lambert SA (Pty) Limited; Appellant: Synergistic Alliance Investments (Pty) Limited; Appellant: Druggist Distributors (Pty) Limited; Respondent: National Association of Pharmaceutical Wholesalers; Respondent: Natal Wholesale Chemist (Pty) Limited t/a Alpha Pharm Durban; Respondent: Midlands Wholesale Chemists (Pty) Ltd t/a Alpha Pharm Pietermaritzburg; Respondent: East Cape Pharmaceuticals Limited t/a Alpha Pharm Eastern Cape; Respondent: Free State Buying Association Limited t/a Alpha Pharm Bloemfontein (KEMCO); Respondent: Pharmed Pharmaceuticals Limited; Respondent: L’Etangs Whole Chemists CC t/a L’Etangs; Respondent: Resepkor (Pty) Limited t/a Reskor Pharmaceuticals Wholesalers; Respondent: Mainstreet 2 (Pty) Limited t/a New United Pharmaceutical Distributors
Court
Competition Appeal Court
Jurisdiction
South Africa
Judgment Date
21 October 2002
Case Number
15/CAC/Feb02
Procedural Posture
Civil Appeal / Appeal and Cross Appeal Against Tribunal Decision on Application to Strike Out Parts of Complaint Referral
Outcome
Appeal upheld; Tribunal's decision amended to strike out allegations of excessive pricing, predatory pricing, and denial of access to essential facility from the complaint referral. Cross-appeal dismissed.
Judges
Hussain JA, Selikowitz JA, Mailula AJA
Legal Topics
Essential Facilities Doctrine, Refusal to Deal, Excessive Pricing, Predatory Pricing, Complaint Referral Procedure, Jurisdiction of Tribunal
Competition Law Essential Facilities Doctrine Refusal to Deal Excessive Pricing Predatory Pricing Complaint Referral Procedure Jurisdiction of Tribunal

Case Brief

Summary, issues, holding and outcome

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Parties

Glaxo Wellcome (Pty) Limited

Appellant

Pfizer Laboratories (Pty) Limited

Appellant

Pharmacare Limited

Appellant

SmithKline Beecham Pharmaceuticals (Pty) Limited

Appellant

Warner Lambert SA (Pty) Limited

Appellant

Synergistic Alliance Investments (Pty) Limited

Appellant

Druggist Distributors (Pty) Limited

Appellant

National Association of Pharmaceutical Wholesalers

Respondent

Natal Wholesale Chemist (Pty) Limited t/a Alpha Pharm Durban

Respondent

Midlands Wholesale Chemists (Pty) Ltd t/a Alpha Pharm Pietermaritzburg

Respondent

East Cape Pharmaceuticals Limited t/a Alpha Pharm Eastern Cape

Respondent

Free State Buying Association Limited t/a Alpha Pharm Bloemfontein (KEMCO)

Respondent

Pharmed Pharmaceuticals Limited

Respondent

L’Etangs Whole Chemists CC t/a L’Etangs

Respondent

Resepkor (Pty) Limited t/a Reskor Pharmaceuticals Wholesalers

Respondent

Mainstreet 2 (Pty) Limited t/a New United Pharmaceutical Distributors

Respondent

Procedural Posture

Civil Appeal / Appeal and Cross Appeal Against Tribunal Decision on Application to Strike Out Parts of Complaint Referral

Legal Issues

  1. 1 Whether the Tribunal had jurisdiction to entertain allegations of excessive pricing and predatory pricing not raised in the original complaint to the Commission.
  2. 2 Whether denial of access to an essential facility was properly alleged in the complaint and referral.
  3. 3 Whether the Tribunal correctly applied the essential facilities doctrine under section 8(b) of the Competition Act.

Ratio Decidendi

The Court held that the Tribunal lacked jurisdiction to entertain allegations of excessive pricing and predatory pricing because these were not raised in the original complaint to the Competition Commission. The statutory complaint procedures require that only conduct specifically alleged and investigated by the Commission may be referred to the Tribunal. The attempt by the complainants to introduce new allegations in the referral was impermissible. Furthermore, the Court found that the essential facilities doctrine under section 8(b) of the Competition Act is narrowly defined and does not encompass the mere supply of products or goods; it refers to infrastructure or resources that cannot...

Court Disposition

Appeal upheld; Tribunal's decision amended to strike out allegations of excessive pricing, predatory pricing, and denial of access to essential facility from the complaint referral. Cross-appeal dismissed.

Orders

  • Prayer 1.1 of the respondents' notice of motion to strike out certain parts of the complainants' complaint referral is granted.
  • The complainants are ordered to pay the costs of the appeal, including the costs of two counsel.