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South Africa Order

Competition Tribunal

Nu Africa Duty Free Shops (Pty) Ltd v Distell Limited and related matters (CRP064Jun19) [2020] ZACT 77 (26 October 2020)

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01

Holding and result

The Tribunal found that Nu Africa had not established sufficient grounds for compelling Distell Limited to provide further and better discovery in respect of the specified items. The documents sought were either not relevant or adequately addressed by previous disclosures. Conversely, Nu Africa voluntarily offered certain documents during the hearing, and the Tribunal ordered their production within specified timeframes. Distell's application for additional documents not offered by Nu Africa was dismissed, as the Tribunal was not satisfied of their necessity or relevance. Both parties were directed to comply with the existing timetable for witness statements and to make provision for rebuttal statements. The Tribunal also required the parties to propose hearing dates for the main matter and ordered that costs be in the cause.

Court disposition

Both applications to compel are dismissed except for the voluntary production of documents by Nu Africa. Directions are given for further conduct of proceedings.

Orders

  • Nu Africa’s application to compel further and better discovery is dismissed.
  • Nu Africa must provide Distell with the specified documents by the stated deadlines.
  • Distell must furnish written confidentiality undertakings to Nu Africa if not already done.
  • Distell’s application for further documents not offered by Nu Africa is dismissed.
  • Costs shall be in the cause.
  • Both parties must comply with the timetable dated 15 September 2020 for witness statements and make provision for rebuttal statements.
  • The parties must propose hearing dates for the main matter by close of business 26 October 2020.

02

Material facts

Parties

Nu Africa Duty Free Shops (Pty) Ltd

Applicant

Distell Limited

Respondent

Amounts and remedies

  • Deadline for Audited Annual Financial Statements: ZAR 23
  • Deadline for Expert Report and Sales Data: ZAR 4

03

Procedural history

  1. Posture

    Application to Compel / Order on Applications to Compel and Directions for Further Conduct

04

Questions and positions

Legal issues

Party arguments

Applicant
Nu Africa argued that Distell Limited had failed to provide adequate discovery of documents relevant to the dispute and sought an order compelling further and better discovery. Nu Africa also offered certain documents during the hearing, including audited financial statements, expert reports, and sales data, and requested confidentiality undertakings from Distell.
Respondent
Distell Limited opposed Nu Africa's application for further discovery, arguing that the documents sought were either irrelevant or had already been provided. Distell also brought its own application to compel Nu Africa to produce additional documents listed on its schedule, beyond those offered during the hearing.

05

Court’s reasoning

  1. 01

    Rule 35 of the Uniform Rules of Court

    A party seeking further and better discovery must demonstrate the relevance and necessity of the documents sought to the issues in dispute.

  2. 02

    Competition Tribunal Practice Manual

    Confidentiality undertakings are required to protect sensitive commercial information disclosed during discovery.

06

Ratio, limits and disposition

Ratio decidendi

The Tribunal found that Nu Africa had not established sufficient grounds for compelling Distell Limited to provide further and better discovery in respect of the specified items. The documents sought were either not relevant or adequately addressed by previous disclosures. Conversely, Nu Africa voluntarily offered certain documents during the hearing, and the Tribunal ordered their production within specified timeframes. Distell's application for additional documents not offered by Nu Africa was dismissed, as the Tribunal was not satisfied of their necessity or relevance. Both parties were directed to comply with the existing timetable for witness statements and to make provision for rebuttal statements. The Tribunal also required the parties to propose hearing dates for the main matter and ordered that costs be in the cause.

Obiter and limits

  • The Tribunal emphasised the importance of parties cooperating in the discovery process to avoid unnecessary delays and disputes.
  • The Tribunal noted that confidentiality undertakings are essential to facilitate the exchange of sensitive information without prejudicing commercial interests.

Court disposition

Both applications to compel are dismissed except for the voluntary production of documents by Nu Africa. Directions are given for further conduct of proceedings.

  • Nu Africa’s application to compel further and better discovery is dismissed.
  • Nu Africa must provide Distell with the specified documents by the stated deadlines.
  • Distell must furnish written confidentiality undertakings to Nu Africa if not already done.
  • Distell’s application for further documents not offered by Nu Africa is dismissed.
  • Costs shall be in the cause.
  • Both parties must comply with the timetable dated 15 September 2020 for witness statements and make provision for rebuttal statements.
  • The parties must propose hearing dates for the main matter by close of business 26 October 2020.

Source and reliance status

Competition Tribunal

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Judgment text

The complete available source text.

Source document

Competition Tribunal

Order

[2020] ZACT 77

COMPETITION TRIBUNAL OF

SOUTH AFRICA

Case No.: CRP064Jun19

Nu Africa Duty Free Shops (Pty) Ltd

Applicant

And

Distell Limited

Respondent

In re: the Application to Compel between: CRP064Jun19/DSC128Sep20

Nu Africa Duty Free Shops (Pty) Ltd

Applicant

Distell Limited

Respondent

In re: the Application to Compel between: CRP064Jun19/DSC129Sep20

Distell Limited

Applicant

Nu Africa Duty Free Shops (Pty) Ltd

Respondent

Panel : Yasmin Carrim (Presiding Member)

Enver Daniels (Tribunal Member) Andiswa Ndoni (Tribunal Member)

Heard on : 21 October 2020

Decided on : 26 October 2020

ORDER

This order relates to both applications to compel brought by Nu Africa Duty Free Shops in CRP064Jun19/DSC128Sep20 (“Nu Africa”) and Distell Limited in CRP064Jun19/DSC129Sep20 (“Distell”). After having heard the parties in the above matter the Competition Tribunal orders the following:

A. Application to Compel

1. Nu Africa’s application to compel further and better discovery in respect of items 1.1.1-1.1.5, 1.2-1.6 and 1.6.1-1.6.2 listed on its schedule filed on 21 October 2020 is hereby dismissed.

2. Nu Africa must provide Distell with the following documents which it offered up during the hearing held on 21 October 2020:

a. The audited annual financial statements of the Applicant for each of its financial years up to and including 2018 by no later than 23 October 2020

b. The report prepared by Mr Gideon Jacobus Joubert, referenced in paragraph 12.4 of the Nu Africa’s amended founding affidavit by no later than 23 October 2020

c. An Excel spreadsheet of the products purchased by Nu Africa from all suppliers of alcohol broken down by year and split into spirit categories by volume for the period 01 January 2015 to 31 December 2018 by no later than 04 November 2020.

d. An Excel spreadsheet of Nu Africa’s sales split between (i) duty free customers in South Africa and (ii) export customers broken down by year into spirit categories by volume for the period 01 January 2015 to 31 December 2018 by no later than 04 November 2020.

e. Ms Truen’s report to Distell by no later than 04 November 2020.

3. Distell must furnish written confidentiality undertakings to Nu Africa if it has not done so yet.

4. Distell’s application in respect of any other documents (not offered up in para 2 above) and listed on its schedule of 21 October 2020 is hereby dismissed.

5. Costs shall be in the cause.

B. Further Conduct of Proceedings Direction

6. When filing their written factual witness statements and expert witness statements, Nu Africa and Distell must comply with the timetable dated 15 September 2020

7. Nu Africa and Distell must make provision for the filing of Rebuttal Witness Statements (if any) by Nu Africa in the timetable.

8. The parties must propose hearing dates for the main matter by no later than close of business Monday, 26 October 2020.

Date: 26 October 2020

Presiding Member

Ms Yasmin Carrim

Concurring: Mr Enver Daniels and Ms Andiswa Ndoni

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Rule 35 of the Uniform Rules of Court

Legislation

Legislation referenced in the available case record.

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