Malefo and Another v Street Pole Ads (SA) (Pty) Ltd and Others (35/IR/May05) [2005] ZACT 56; [2006] 2 CPLR 544 (CT) (1 September 2005)

Malefo and Another v Street Pole Ads (SA) (Pty) Ltd and Others (35/IR/May05) [2005] ZACT 56; [2006] 2 CPLR 544 (CT) (1 September 2005)

The Tribunal found that the evidence relating to the alleged prohibited practices was highly opaque and disputed. The applicants failed to demonstrate serious or irreparable harm arising from a contravention of the Competition Act, as the harm alleged was primarily commercial harm to minority shareholders rather than competition harm. The relief sought was aimed at maintaining joint control and deadlock in Pole-Add, rather than addressing anti-competitive conduct. The Tribunal emphasised that structural remedies regarding company control are not ordinarily available at the interim relief stage and fall under merger regulation, not prohibited practices. Accordingly, the requirements for...

Citation
[2005] ZACT 56
Parties
Applicant: Nyobo Moses Malefo; Applicant: Fullhouse Investments 119 (Pty) Ltd; Respondent: Street Pole Ads (S.A.) (Pty) Ltd; Respondent: Brent Herbert; Respondent: Grant Smith; Respondent: Lucas Potgieter
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
1 September 2005
Case Number
35/IR/May05
Procedural Posture
Urgent Application / Interim Relief Application Before the Competition Tribunal
Outcome
Application for interim relief dismissed.
Judges
D. Lewis, Y. Carrim, M. Madlanga
Legal Topics
Interim Relief, Market Allocation, Abuse of Dominance, Shareholder Dispute, Merger Control
Competition Law Commercial and Corporate Interim Relief Market Allocation Abuse of Dominance Shareholder Dispute Merger Control

Case Brief

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Parties

Nyobo Moses Malefo

Applicant

Fullhouse Investments 119 (Pty) Ltd

Applicant

Street Pole Ads (S.A.) (Pty) Ltd

Respondent

Brent Herbert

Respondent

Grant Smith

Respondent

Lucas Potgieter

Respondent

Procedural Posture

Urgent Application / Interim Relief Application Before the Competition Tribunal

Legal Issues

  1. 1 Whether the applicants are entitled to interim relief under Section 49C of the Competition Act.
  2. 2 Whether the conduct of SPA constitutes a prohibited practice under Sections 4 and 8 of the Competition Act.
  3. 3 Whether the harm alleged by the applicants is cognisable competition harm under the Act.

Ratio Decidendi

The Tribunal found that the evidence relating to the alleged prohibited practices was highly opaque and disputed. The applicants failed to demonstrate serious or irreparable harm arising from a contravention of the Competition Act, as the harm alleged was primarily commercial harm to minority shareholders rather than competition harm. The relief sought was aimed at maintaining joint control and deadlock in Pole-Add, rather than addressing anti-competitive conduct. The Tribunal emphasised that structural remedies regarding company control are not ordinarily available at the interim relief stage and fall under merger regulation, not prohibited practices. Accordingly, the requirements for...

Court Disposition

Application for interim relief dismissed.

Orders

  • The application for interim relief is dismissed.
  • Each party to bear its own costs for the wasted hearing day of 24 May 2005.