Shoprite Checkers Proprietary Limited and Other v Massmart Holdings Limited (CRP034Jun15/EXC241Mar17, CRP034Jun15/EXC240Mar17, CRP034Jun15/EXC239Mar17) [2018] ZACT 121; [2018] 1 CPLR 155 (CT) (13 February 2018)

Shoprite Checkers Proprietary Limited and Other v Massmart Holdings Limited (CRP034Jun15/EXC241Mar17, CRP034Jun15/EXC240Mar17, CRP034Jun15/EXC239Mar17) [2018] ZACT 121; [2018] 1 CPLR 155 (CT) (13 February 2018)

The Tribunal found that Massmart's referral failed to plead a clear and substantiated market definition, both for the local mall market and the national market for fresh groceries. The referral did not adequately allege the extent of foreclosure or demonstrate how the challenged lease provisions resulted in a substantial prevention or lessening of competition. Massmart's alternative market definition was vague and lacked precision, and its evidence of consumer harm was speculative and future-oriented rather than actual. The Tribunal held that competition law requires objective evidence of harm to competition, not merely exclusion of a particular competitor. Massmart's reliance on future...

Citation
[2018] ZACT 121
Parties
Applicant: Massmart Holdings Limited; Respondent: Shoprite Checkers Proprietary Limited; Respondent: Pick 'n Pay Retailers Proprietary Limited; Respondent: Spar Group Limited; Respondent: South African Property Owners Association
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
13 February 2018
Case Number
CRP034Jun15/EXC239Mar17
Procedural Posture
Exception Application / Decision on Exceptions to Complaint Referral
Outcome
Exceptions upheld; referral dismissed; costs awarded to first to third respondents.
Judges
Norman Manoim, Andiswa Ndoni, Anton Roskam
Legal Topics
Exclusive Dealing, Vertical Restrictions, Market Definition, Foreclosure, Consumer Welfare, Section 5 1 Competition Act
Competition Law Commercial and Corporate Exclusive Dealing Vertical Restrictions Market Definition Foreclosure Consumer Welfare Section 5 1 Competition Act

Case Brief

Summary, issues, holding and outcome

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Parties

Massmart Holdings Limited

Applicant

Shoprite Checkers Proprietary Limited

Respondent

Pick 'n Pay Retailers Proprietary Limited

Respondent

Spar Group Limited

Respondent

South African Property Owners Association

Respondent

Procedural Posture

Exception Application / Decision on Exceptions to Complaint Referral

Legal Issues

  1. 1 Whether Massmart's complaint referral sufficiently pleads a cause of action under section 5(1) of the Competition Act.
  2. 2 Whether the market definition and extent of foreclosure are adequately alleged.
  3. 3 Whether the relief sought is competent in law given the absence of joined landlords.

Ratio Decidendi

The Tribunal found that Massmart's referral failed to plead a clear and substantiated market definition, both for the local mall market and the national market for fresh groceries. The referral did not adequately allege the extent of foreclosure or demonstrate how the challenged lease provisions resulted in a substantial prevention or lessening of competition. Massmart's alternative market definition was vague and lacked precision, and its evidence of consumer harm was speculative and future-oriented rather than actual. The Tribunal held that competition law requires objective evidence of harm to competition, not merely exclusion of a particular competitor. Massmart's reliance on future...

Court Disposition

Exceptions upheld; referral dismissed; costs awarded to first to third respondents.

Orders

  • The exceptions of the first to third respondents are upheld.
  • The referral is dismissed.