Glaxo Wellcome (Pty) Ltd Others v D. Terblanche Others (04/CAC/Oct00) [2000] ZACAC 2 (4 December 2000)

Glaxo Wellcome (Pty) Ltd Others v D. Terblanche Others (04/CAC/Oct00) [2000] ZACAC 2 (4 December 2000)

The court found that the Tribunal's order was sufficiently vague and ambiguous, particularly in its use of the terms 'similar' and 'wholesaler,' such that compliance was rendered uncertain and exposed applicants to potential penalties. The ambiguity was not curable by clarification under section 66 of the Competition Act without altering the substance of the order. The court held that applicants had established a justifiable case for review with reasonable prospects of success. On the balance of convenience, the court determined that both parties would suffer prejudice depending on the outcome, but the applicants had demonstrated significant financial loss and a clear basis for review....

Citation
[2000] ZACAC 2
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: Diane Terblanche N.O.; Respondent: Frederick Fourie N.O.; Respondent: Merle Holden N.O.; Respondent: 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
4 December 2000
Case Number
04/CAC/Oct00
Procedural Posture
Stay Application / Application for Suspension of Tribunal Order Pending Review
Outcome
Application for suspension of the Tribunal's order granted; operation and execution of the order suspended pending review.
Judges
Davis JP
Legal Topics
Interim Relief, Stay of Execution, Review of Administrative Action, Horizontal Collusion, Distribution Agency, Balance of Convenience
Competition Law Commercial and Corporate Interim Relief Stay of Execution Review of Administrative Action Horizontal Collusion Distribution Agency Balance of Convenience

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

Diane Terblanche N.O.

Respondent

Frederick Fourie N.O.

Respondent

Merle Holden N.O.

Respondent

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

Stay Application / Application for Suspension of Tribunal Order Pending Review

Legal Issues

  1. 1 Whether the Tribunal's interim order is void for vagueness and ambiguity.
  2. 2 Whether the Tribunal's order was ultra vires and overbroad.
  3. 3 Whether the applicants were denied a fair hearing in respect of the relief granted.

Ratio Decidendi

The court found that the Tribunal's order was sufficiently vague and ambiguous, particularly in its use of the terms 'similar' and 'wholesaler,' such that compliance was rendered uncertain and exposed applicants to potential penalties. The ambiguity was not curable by clarification under section 66 of the Competition Act without altering the substance of the order. The court held that applicants had established a justifiable case for review with reasonable prospects of success. On the balance of convenience, the court determined that both parties would suffer prejudice depending on the outcome, but the applicants had demonstrated significant financial loss and a clear basis for review....

Court Disposition

Application for suspension of the Tribunal's order granted; operation and execution of the order suspended pending review.

Orders

  • The operation and execution of the order of the Competition Tribunal under case number 68/IR/Jun00 dated 28 August 2000 is suspended pending the final determination of an application for the review and setting aside of the Tribunal's decision and order, including the order for costs.
  • The costs of this application, including the costs of two counsel, shall be paid jointly and severally by the respondents, the one paying the others to be absolved.