Shoprite Checkers Proprietary Limited and Others v Massmart Holdings Limited (CRP034Jun15, EXC088Jul15, EXC107AUG15, EXC109AUG15, STA204DEC15) [2016] ZACT 74; [2016] 2 CPLR 1014 (CT) (1 September 2016)

Shoprite Checkers Proprietary Limited and Others v Massmart Holdings Limited (CRP034Jun15, EXC088Jul15, EXC107AUG15, EXC109AUG15, STA204DEC15) [2016] ZACT 74; [2016] 2 CPLR 1014 (CT) (1 September 2016)

The Tribunal found that the stay application failed on all three legs of the applicable test: the prospects of success, interests of justice, and balance of convenience did not favour a stay. The Grocery Inquiry is a recommendatory process and does not determine the rights or issues in Massmart's referral. The Tribunal is the sole adjudicative body for complaint proceedings under the Act, and there is no risk of conflicting findings or institutional comity concerns. Regarding the exceptions, the Tribunal held that Massmart's referral was vague and embarrassing, lacking a coherent market definition and sufficient material facts to support its theory of harm under section 5(1). The...

Citation
[2016] ZACT 74
Parties
Applicant: Shoprite Checkers Proprietary Limited; Applicant: Pick 'n Pay Retailers Proprietary Limited; Applicant: Spar Group Limited; Respondent: Massmart Holdings Limited
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
1 September 2016
Case Number
CRP034Jun15
Procedural Posture
Stay Application / Application for Stay and Exceptions; Interlocutory Decision
Outcome
Stay application dismissed; exceptions partially upheld; Massmart granted leave to amend referral; costs awarded as specified.
Judges
Norman Manoim, Anton Roskam, Andiswa Ndoni
Legal Topics
Exclusive Leases, Market Definition, Foreclosure, Exception Procedure, Institutional Comity, Costs Order
Competition Law Commercial and Corporate Exclusive Leases Market Definition Foreclosure Exception Procedure Institutional Comity Costs Order

Case Brief

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Parties

Shoprite Checkers Proprietary Limited

Applicant

Pick 'n Pay Retailers Proprietary Limited

Applicant

Spar Group Limited

Applicant

Massmart Holdings Limited

Respondent

Procedural Posture

Stay Application / Application for Stay and Exceptions; Interlocutory Decision

Legal Issues

  1. 1 Whether Massmart's referral to the Tribunal should be stayed pending the outcome of the Competition Commission's Grocery Inquiry.
  2. 2 Whether Massmart's referral affidavit contains sufficient material facts and a coherent market definition to sustain a complaint under section 5(1) of the Competition Act.
  3. 3 Whether the cumulative effect of exclusivity agreements between landlords and incumbent retailers constitutes anti-competitive conduct under section 5(1).

Ratio Decidendi

The Tribunal found that the stay application failed on all three legs of the applicable test: the prospects of success, interests of justice, and balance of convenience did not favour a stay. The Grocery Inquiry is a recommendatory process and does not determine the rights or issues in Massmart's referral. The Tribunal is the sole adjudicative body for complaint proceedings under the Act, and there is no risk of conflicting findings or institutional comity concerns. Regarding the exceptions, the Tribunal held that Massmart's referral was vague and embarrassing, lacking a coherent market definition and sufficient material facts to support its theory of harm under section 5(1). The...

Court Disposition

Stay application dismissed; exceptions partially upheld; Massmart granted leave to amend referral; costs awarded as specified.

Orders

  • The applications for exception are partially upheld. Massmart is given leave to amend its referral affidavit in accordance with the guidance provided, subject to it doing so within 40 business days from date of this decision.
  • Massmart is liable for the costs of the first to third applicants in the exception application, on a party and party scale, including the costs of two counsel.