Supreme Health Administrators (Pty) Ltd / Network Healthcare Holdings Limited / Council for Medical Schemes and Competition Commission / Phodiclinics (Pty) Ltd / DJF Defty (Pty) Ltd and 10 Others (122/LM/Dec05) [2006] ZACT 45; [2006] 1 CPLR 422 (CT) (26 May 2006)

Supreme Health Administrators (Pty) Ltd / Network Healthcare Holdings Limited / Council for Medical Schemes and Competition Commission / Phodiclinics (Pty) Ltd / DJF Defty (Pty) Ltd and 10 Others (122/LM/Dec05) [2006] ZACT 45; [2006] 1 CPLR 422 (CT) (26 May 2006)

The Tribunal exercised its discretion to grant Supreme Health, Netcare, and the Council for Medical Schemes leave to intervene in the merger proceedings. The Tribunal found that CMS had a clear material and substantial interest as mandated by statute. Netcare, as a major competitor, demonstrated sufficient interest and ability to assist the Tribunal. Supreme Health's directors possessed relevant knowledge, and their participation under the company's banner would better ventilate issues. The Tribunal rejected limiting the scope of intervention, finding that broad participation would assist its truth-seeking function and avoid unnecessary delays. Legal representatives of interveners were...

Citation
[2006] ZACT 45
Parties
Applicant: Supreme Health Administrators (Pty) Ltd; Applicant: Network Healthcare Holdings Limited; Applicant: Council for Medical Schemes; Respondent: Competition Commission; Respondent: Phodiclinics (Pty) Ltd; Respondent: DJH Defty (Pty) Ltd; Respondent: New Protector Group Holdings (Pty) Ltd (in liquidation); Respondent: Protector Group Medical Services (Pty) Ltd (in liquidation); Respondent: President Pharmacy (Pty) Ltd; Respondent: Capstone 177 (Pty) Ltd; Respondent: Blue Dot Properties 446 (Pty) Ltd; Respondent: Limosa Investments 93 (Pty) Ltd; Respondent: Capensis Investments 403 (Pty) Ltd; Respondent: Medi-Clinic Corporation Limited; Respondent: Phodiso Clinics (Pty) Ltd; Respondent: Phodiso Holdings Limited
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
26 May 2006
Case Number
122/LM/Dec05
Procedural Posture
Leave to Intervene / Application for Intervention in Merger Proceedings Before the Tribunal
Outcome
Leave to intervene in the merger proceedings is granted to Supreme Health Administrators (Pty) Ltd, Network Healthcare Holdings Limited, and the Council for Medical Schemes, without limitation to the scope of intervention.
Judges
Y Carrim, M Mokuena, L Reyburn
Legal Topics
Merger Control, Failing Firm Defence, Market Concentration, Intervention Rights, Confidential Information Access
Competition Law Merger Control Failing Firm Defence Market Concentration Intervention Rights Confidential Information Access

Case Brief

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Parties

Supreme Health Administrators (Pty) Ltd

Applicant

Network Healthcare Holdings Limited

Applicant

Council for Medical Schemes

Applicant

Competition Commission

Respondent

Phodiclinics (Pty) Ltd

Respondent

DJH Defty (Pty) Ltd

Respondent

New Protector Group Holdings (Pty) Ltd (in liquidation)

Respondent

Protector Group Medical Services (Pty) Ltd (in liquidation)

Respondent

President Pharmacy (Pty) Ltd

Respondent

Capstone 177 (Pty) Ltd

Respondent

Blue Dot Properties 446 (Pty) Ltd

Respondent

Limosa Investments 93 (Pty) Ltd

Respondent

Capensis Investments 403 (Pty) Ltd

Respondent

Medi-Clinic Corporation Limited

Respondent

Phodiso Clinics (Pty) Ltd

Respondent

Phodiso Holdings Limited

Respondent

Procedural Posture

Leave to Intervene / Application for Intervention in Merger Proceedings Before the Tribunal

Legal Issues

  1. 1 Whether Supreme Health, Netcare, and the Council for Medical Schemes should be granted leave to intervene in the merger proceedings.
  2. 2 Whether the intervention should be limited in scope to specific issues.
  3. 3 Whether interveners' legal representatives should be granted access to confidential information subject to undertakings.

Ratio Decidendi

The Tribunal exercised its discretion to grant Supreme Health, Netcare, and the Council for Medical Schemes leave to intervene in the merger proceedings. The Tribunal found that CMS had a clear material and substantial interest as mandated by statute. Netcare, as a major competitor, demonstrated sufficient interest and ability to assist the Tribunal. Supreme Health's directors possessed relevant knowledge, and their participation under the company's banner would better ventilate issues. The Tribunal rejected limiting the scope of intervention, finding that broad participation would assist its truth-seeking function and avoid unnecessary delays. Legal representatives of interveners were...

Court Disposition

Leave to intervene in the merger proceedings is granted to Supreme Health Administrators (Pty) Ltd, Network Healthcare Holdings Limited, and the Council for Medical Schemes, without limitation to the scope of intervention.

Orders

  • The applicants are granted leave to intervene in the merger proceedings before the Tribunal in relation to the acquisition of control by Phodiclinics (Pty) Ltd and DJH Defty (Pty) Ltd of the Protector Group of companies under Case No: 122/LM/Dec05, in terms of section 53(c)(v) of the Competition Act, 1998.
  • The applicants may participate in the hearing regarding factors under section 12A(2) and section 12A(3) of the Act.