Glaxo Wellcome (Pty) Ltd and Others v Terblanche N.O.and Others [2000] ZACAC 1; 2001 (4) SA 891 (CAC) (11 October 2000)

Glaxo Wellcome (Pty) Ltd and Others v Terblanche N.O.and Others [2000] ZACAC 1; 2001 (4) SA 891 (CAC) (11 October 2000)

The Competition Appeal Court does not have jurisdiction to suspend the operation and execution of an interim order granted by the Competition Tribunal under section 59(1) of the Competition Act unless the order is subject to a review or appeal. At the time the application was launched, no review proceedings had been instituted, and the subsequent filing of a review after the hearing cannot retrospectively cure the jurisdictional defect. Section 59 interim orders are not appealable under the Act, as they do not meet the common law criteria for appealability and are intended to provide temporary relief pending final determination of the complaint. The statutory scheme and constitutional...

Citation
[2000] ZACAC 1
Parties
Appellant: Glaxo Wellcome (Proprietary) Limited; Appellant: Pfizer Laboratories (Proprietary) Limited; Appellant: Pharmacare Limited; Appellant: SmithKline Beecham Pharmaceuticals (Proprietary) Limited; Appellant: Warner Lambert SA (Proprietary) Limited; Appellant: Synergistic Alliance Investments (Proprietary) Limited; Appellant: Druggist Distributors (Proprietary) Limited; Respondent: Terblanche, Diane, N.O.; Respondent: Fourie, Frederick, N.O.; Respondent: Holden, Merle, N.O.; Respondent: The Competition Tribunal; Respondent: National Association of Pharmaceutical Wholesalers; Respondent: National Wholesale Chemists (Proprietary) Limited; Respondent: Midlands Wholesale Chemists (Proprietary) Limited, t/a 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 Wholesale Chemist CC, t/a L'Etangs; Respondent: Resepkor (Proprietary) Limited, t/a Reskor; Respondent: Pharmaceutical Wholesalers Mainstreet 2 (Proprietary) Limited, t/a New United Pharmaceutical Distributors
Court
Competition Appeal Court
Jurisdiction
South Africa
Judgment Date
11 October 2000
Case Number
02/CAC/SEPTOO
Procedural Posture
Urgent Application / Application to Suspend Execution of Tribunal Interim Order Pending Review and Appeal
Outcome
Application to suspend the operation and execution of the Tribunal's interim order is dismissed with costs, including costs of two counsel.
Judges
Davis JP
Legal Topics
Interim Relief, Appealability of Interim Orders, Jurisdiction of Competition Appeal Court, Balance of Convenience, Constitutional Right to Appeal
Competition Law Civil Procedure Interim Relief Appealability of Interim Orders Jurisdiction of Competition Appeal Court Balance of Convenience Constitutional Right to Appeal

Case Brief

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Parties

Glaxo Wellcome (Proprietary) Limited

Appellant

Pfizer Laboratories (Proprietary) Limited

Appellant

Pharmacare Limited

Appellant

SmithKline Beecham Pharmaceuticals (Proprietary) Limited

Appellant

Warner Lambert SA (Proprietary) Limited

Appellant

Synergistic Alliance Investments (Proprietary) Limited

Appellant

Druggist Distributors (Proprietary) Limited

Appellant

Terblanche, Diane, N.O.

Respondent

Fourie, Frederick, N.O.

Respondent

Holden, Merle, N.O.

Respondent

The Competition Tribunal

Respondent

National Association of Pharmaceutical Wholesalers

Respondent

National Wholesale Chemists (Proprietary) Limited

Respondent

Midlands Wholesale Chemists (Proprietary) Limited, t/a 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 Wholesale Chemist CC, t/a L'Etangs

Respondent

Resepkor (Proprietary) Limited, t/a Reskor

Respondent

Pharmaceutical Wholesalers Mainstreet 2 (Proprietary) Limited, t/a New United Pharmaceutical Distributors

Respondent

Procedural Posture

Urgent Application / Application to Suspend Execution of Tribunal Interim Order Pending Review and Appeal

Legal Issues

  1. 1 Whether the Competition Appeal Court has jurisdiction to suspend the operation and execution of an interim order granted by the Competition Tribunal under section 59(1) of the Competition Act pending review or appeal.
  2. 2 Whether an interim order granted under section 59(1) of the Competition Act is appealable to the Competition Appeal Court.
  3. 3 Whether the subsequent launching of review proceedings after the hearing cures the initial absence of jurisdiction.

Ratio Decidendi

The Competition Appeal Court does not have jurisdiction to suspend the operation and execution of an interim order granted by the Competition Tribunal under section 59(1) of the Competition Act unless the order is subject to a review or appeal. At the time the application was launched, no review proceedings had been instituted, and the subsequent filing of a review after the hearing cannot retrospectively cure the jurisdictional defect. Section 59 interim orders are not appealable under the Act, as they do not meet the common law criteria for appealability and are intended to provide temporary relief pending final determination of the complaint. The statutory scheme and constitutional...

Court Disposition

Application to suspend the operation and execution of the Tribunal's interim order is dismissed with costs, including costs of two counsel.

Orders

  • The application to suspend the operation and execution of the Tribunal's order (Case No 68/IR/JUN00 dated 28 August 2000) is dismissed.
  • Costs are awarded against the applicants, including costs of two counsel.