Schering (Pty) Ltd and Others v New United Pharmaceutical Distributors (Pty) Ltd. [formerly Mainstreet 2 (Pty) Ltd] and Others [2001] ZACAC 5; [2001] ZACAC 5 (30 November 2001)

Parties

Procedural Posture

Civil Appeal / Appeal From Competition Tribunal Decision Refusing Dismissal of Interim Relief Application

Legal Issues

1. 1 Whether the respondents' conduct in lodging a second interim relief application constituted an abuse of the court process.
2. 2 Whether the delay in prosecuting the interim relief application justified dismissal for abuse of process.
3. 3 Whether the use of affidavits from the earlier application rendered the second application defective.

Ratio Decidendi

The court found that the respondents' conduct in lodging the second interim relief application did not constitute an abuse of the court process. The delay in prosecuting the application was attributable in part to the appellants' own actions, including appeals and jurisdictional challenges. The use of affidavits from the earlier application was not improper, as the respondents provided a new founding affidavit detailing changes since the first application and confirmed that unchanged circumstances persisted. The conditional nature of the second application was justified by the procedural context and did not prejudice the appellants. The court held that there was no behaviour by the...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

• The appeal is dismissed with costs, such costs to include the costs incurred upon the employment of two counsel.