GlaxoSmithKline South Africa (Pty) Ltd / Glaxo Group Ltd and Mpho Makhathnini / Nelisiwe Mthethwa / Musa Msomi / Elijah Paul / Musoke Tom Myers / Aids Healthcare Foundation Ltd (97/CR/Nov04) [2006] ZACT 23; [2006] 1 CPLR 120 (CT) (20 March 2006)

GlaxoSmithKline South Africa (Pty) Ltd / Glaxo Group Ltd and Mpho Makhathnini / Nelisiwe Mthethwa / Musa Msomi / Elijah Paul / Musoke Tom Myers / Aids Healthcare Foundation Ltd (97/CR/Nov04) [2006] ZACT 23; [2006] 1 CPLR 120 (CT) (20 March 2006)

The Tribunal held that its jurisdiction to make a consent order under section 49D of the Competition Act is contingent on the Commission retaining its title to prosecute the complaint. Once the Commission's referral period lapses and it is deemed to have issued a notice of non-referral, it loses both the power to prosecute and the power to settle by consent order. The December 2003 agreement was concluded while the Commission retained its title to prosecute, but the application for a consent order was made after this period had expired. Therefore, the Tribunal lacked jurisdiction to make the agreement a consent order. The powers to prosecute and to settle are coextensive under the Act,...

Citation
[2006] ZACT 23
Parties
Applicant: GlaxoSmithKline South Africa (Pty) Ltd; Applicant: Glaxo Group Ltd; Respondent: Mpho Makhathnini; Respondent: Nelisiwe Mthethwa; Respondent: Musa Msomi; Respondent: Elijah Paul Musoke; Respondent: Tom Myers; Respondent: Aids Healthcare Foundation Ltd; Respondent: Competition Commission
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
20 March 2006
Case Number
97/CR/Nov04
Procedural Posture
Consent Order Application / Application for Consent Order Under Section 49 D of the Competition Act
Outcome
Application dismissed for lack of jurisdiction.
Judges
Norman Manoim, David Lewis, Yasmin Carrim
Legal Topics
Consent Order, Jurisdiction of Tribunal, Excessive Pricing, Private Complainant Rights
Competition Law Consent Order Jurisdiction of Tribunal Excessive Pricing Private Complainant Rights

Case Brief

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Parties

GlaxoSmithKline South Africa (Pty) Ltd

Applicant

Glaxo Group Ltd

Applicant

Mpho Makhathnini

Respondent

Nelisiwe Mthethwa

Respondent

Musa Msomi

Respondent

Elijah Paul Musoke

Respondent

Tom Myers

Respondent

Aids Healthcare Foundation Ltd

Respondent

Competition Commission

Respondent

Procedural Posture

Consent Order Application / Application for Consent Order Under Section 49 D of the Competition Act

Legal Issues

  1. 1 Does the Competition Tribunal have jurisdiction to make the December 2003 agreement between the Commission and the applicant a consent order under section 49D of the Competition Act after the Commission's referral period has lapsed?
  2. 2 Can the Commission enter into a consent agreement after losing its title to prosecute the complaint?
  3. 3 Are the powers to prosecute and to settle coextensive under the Competition Act?

Ratio Decidendi

The Tribunal held that its jurisdiction to make a consent order under section 49D of the Competition Act is contingent on the Commission retaining its title to prosecute the complaint. Once the Commission's referral period lapses and it is deemed to have issued a notice of non-referral, it loses both the power to prosecute and the power to settle by consent order. The December 2003 agreement was concluded while the Commission retained its title to prosecute, but the application for a consent order was made after this period had expired. Therefore, the Tribunal lacked jurisdiction to make the agreement a consent order. The powers to prosecute and to settle are coextensive under the Act,...

Court Disposition

Application dismissed for lack of jurisdiction.

Orders

  • The application is dismissed.
  • There is no order as to costs.