Telkom SA Ltd v Competition Commission South Africa (55/CR/Jul09, 73/CR/Oct09, 78/CR/Nov09) [2011] ZACT 4 (4 February 2011)

Telkom SA Ltd v Competition Commission South Africa (55/CR/Jul09, 73/CR/Oct09, 78/CR/Nov09) [2011] ZACT 4 (4 February 2011)

The Tribunal found that IS's late filing of an amended second referral should be condoned, as Telkom failed to demonstrate any prejudice and both parties agreed to the withdrawal of the first referral and amendment of the second. Telkom's exceptions to the Commission's and IS's referrals were dismissed as misconceived or lacking substance. The Tribunal held that cumulative reliance on the same facts for different contraventions is permissible and should be determined after evidence is led. The Commission's pleadings were found to sufficiently allege economic value for excessive pricing, and mens rea is not required for abuse of dominance. Statutory interpretation and constitutional...

Citation
[2011] ZACT 4
Parties
Applicant: Telkom SA Limited; Respondent: Competition Commission of South Africa; Respondent: Dimension Data (Pty) Ltd t/a Internet Solutions
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
4 February 2011
Case Number
55/CR/Jul09, 73/CR/Oct09, 78/CR/Nov09
Procedural Posture
Exception Application / Order on Exception and Condonation
Outcome
Telkom's exception application is dismissed. IS's late filing of the amended second referral is condoned. Costs are reserved.
Judges
Norman Manoim, Yasmin Carrim, Takalani Madima
Legal Topics
Abuse of Dominance, Excessive Pricing, Margin Squeeze, Essential Facilities, Exception Procedure, Condonation
Competition Law Civil Procedure Abuse of Dominance Excessive Pricing Margin Squeeze Essential Facilities Exception Procedure Condonation

Case Brief

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Parties

Telkom SA Limited

Applicant

Competition Commission of South Africa

Respondent

Dimension Data (Pty) Ltd t/a Internet Solutions

Respondent

Procedural Posture

Exception Application / Order on Exception and Condonation

Legal Issues

  1. 1 Whether the second respondent's late filing of an amended referral should be condoned.
  2. 2 Whether Telkom's exceptions to the Commission's and IS's referrals are legally sustainable.
  3. 3 Whether the Commission's referral is excipiable for relying on the same facts cumulatively for multiple contraventions.

Ratio Decidendi

The Tribunal found that IS's late filing of an amended second referral should be condoned, as Telkom failed to demonstrate any prejudice and both parties agreed to the withdrawal of the first referral and amendment of the second. Telkom's exceptions to the Commission's and IS's referrals were dismissed as misconceived or lacking substance. The Tribunal held that cumulative reliance on the same facts for different contraventions is permissible and should be determined after evidence is led. The Commission's pleadings were found to sufficiently allege economic value for excessive pricing, and mens rea is not required for abuse of dominance. Statutory interpretation and constitutional...

Court Disposition

Telkom's exception application is dismissed. IS's late filing of the amended second referral is condoned. Costs are reserved.

Orders

  • Second respondent must withdraw its first self-referral immediately.
  • Second respondent must amend its second referral and file the amended referral within 20 business days of this order.