Netcare Hospital Group (Proprietary) Limited and Another v Manoim NO and Others (CAC 75/CAC/Apr08) [2008] ZACAC 1 (27 October 2008)

Netcare Hospital Group (Proprietary) Limited and Another v Manoim NO and Others (CAC 75/CAC/Apr08) [2008] ZACAC 1 (27 October 2008)

The Tribunal committed reviewable irregularities by introducing evidence from unrelated proceedings and failing to notify Netcare and CHG, thereby breaching procedural fairness. Section 49D does not entitle the Tribunal to embark on an independent inquiry or introduce extraneous evidence without affording affected parties an opportunity to respond. The reviewing court is in as good a position as the Tribunal to approve the consent order, given the detailed investigations and the Commission's considered view that the penalty is appropriate. The consent order is rational, serves the objectives of the Competition Act, and does not offend public policy. The Tribunal's decision is set aside...

Citation
[2008] ZACAC 1
Parties
Applicant: Netcare Hospital Group (Proprietary) Limited; Applicant: Community Hospital Group (Proprietary) Limited; Respondent: Norman Manoim NO; Respondent: Urmila Bhoola NO; Respondent: Yasmin Carrim NO; Respondent: The Competition Tribunal; Respondent: The Competition Commission
Court
Competition Appeal Court
Jurisdiction
South Africa
Judgment Date
27 October 2008
Case Number
CAC 75/CAC/Apr08
Procedural Posture
Review Application / Appeal and Review of Tribunal Refusal to Confirm Consent Order
Outcome
The review succeeds. The Tribunal's order is set aside and replaced with an order confirming the consent agreement as a consent order under the Competition Act.
Judges
Levinsohn, Davis, Patel
Legal Topics
Consent Order, Prior Implementation of Merger, Administrative Penalty, Procedural Fairness, Price Fixing, Section 49d Competition Act
Competition Law Commercial and Corporate Consent Order Prior Implementation of Merger Administrative Penalty Procedural Fairness Price Fixing Section 49d Competition Act

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Parties

Netcare Hospital Group (Proprietary) Limited

Applicant

Community Hospital Group (Proprietary) Limited

Applicant

Norman Manoim NO

Respondent

Urmila Bhoola NO

Respondent

Yasmin Carrim NO

Respondent

The Competition Tribunal

Respondent

The Competition Commission

Respondent

Procedural Posture

Review Application / Appeal and Review of Tribunal Refusal to Confirm Consent Order

Legal Issues

  1. 1 Whether the Tribunal committed reviewable irregularities by introducing extraneous evidence and failing to afford affected parties an opportunity to respond.
  2. 2 Whether the Tribunal was entitled to refuse confirmation of the consent order based on its own assessment of the penalty and explanations provided.
  3. 3 Whether the reviewing court should substitute its own decision for that of the Tribunal regarding the consent order.

Ratio Decidendi

The Tribunal committed reviewable irregularities by introducing evidence from unrelated proceedings and failing to notify Netcare and CHG, thereby breaching procedural fairness. Section 49D does not entitle the Tribunal to embark on an independent inquiry or introduce extraneous evidence without affording affected parties an opportunity to respond. The reviewing court is in as good a position as the Tribunal to approve the consent order, given the detailed investigations and the Commission's considered view that the penalty is appropriate. The consent order is rational, serves the objectives of the Competition Act, and does not offend public policy. The Tribunal's decision is set aside...

Court Disposition

The review succeeds. The Tribunal's order is set aside and replaced with an order confirming the consent agreement as a consent order under the Competition Act.

Orders

  • The order of the Tribunal issued on 10 March 2008 is reviewed and set aside.
  • The agreement concluded between Netcare Hospital Group (Proprietary) Limited, Community Hospital Group (Proprietary) Limited, and the Competition Commission is confirmed as a consent order in terms of section 49A(1) read with section 58(1)(b) of the Competition Act, No 89 of 1998.