WBHO Construction Limited v Competition Commission and Another; In re: Competition Commission v WBHO Construction Limited and Another (CR162Oct15/ARI187Dec16) [2017] ZACT 51; [2017] 2 CPLR 903 (CT) (8 August 2017)

WBHO Construction Limited v Competition Commission and Another; In re: Competition Commission v WBHO Construction Limited and Another (CR162Oct15/ARI187Dec16) [2017] ZACT 51; [2017] 2 CPLR 903 (CT) (8 August 2017)

The Tribunal found that the annexures to Group Five's Corporate Leniency Policy application and the transcript of the first meeting between the Commission and Group Five were generated in contemplation of litigation and under the direction of the Commission. The Commission's affidavit explained that these documents were prepared for its use in prosecuting cartel conduct, and their proximity in time to the leniency application supported this. The Tribunal accepted the Commission's explanation and applied the principle that privilege attaches to documents produced for litigation, not merely those authored with litigation in mind. The Tribunal rejected WBHO's argument that the Commission's...

Citation
[2017] ZACT 51
Parties
Applicant: WBHO Construction Limited; Respondent: Competition Commission; Respondent: Group Five Construction Limited
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
8 August 2017
Case Number
CR162Oct15/ARI187Dec16
Procedural Posture
Interlocutory Application / Application to Compel Discovery of Documents Claimed as Privileged
Outcome
Application dismissed. No order as to costs.
Judges
Andreas Wessels, Mondo Mazwai, Enver Daniels
Legal Topics
Litigation Privilege, Corporate Leniency Policy, Discovery of Documents, Cartel Conduct, Administrative Penalty
Competition Law Civil Procedure Litigation Privilege Corporate Leniency Policy Discovery of Documents Cartel Conduct Administrative Penalty

Case Brief

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Parties

WBHO Construction Limited

Applicant

Competition Commission

Respondent

Group Five Construction Limited

Respondent

Procedural Posture

Interlocutory Application / Application to Compel Discovery of Documents Claimed as Privileged

Legal Issues

  1. 1 Whether the annexures to Group Five's Corporate Leniency Policy application are protected by litigation privilege.
  2. 2 Whether the transcript of the first meeting between the Commission and Group Five as leniency applicant is protected by litigation privilege.
  3. 3 Whether the Commission's claim of privilege amounts to prohibited docket privilege.

Ratio Decidendi

The Tribunal found that the annexures to Group Five's Corporate Leniency Policy application and the transcript of the first meeting between the Commission and Group Five were generated in contemplation of litigation and under the direction of the Commission. The Commission's affidavit explained that these documents were prepared for its use in prosecuting cartel conduct, and their proximity in time to the leniency application supported this. The Tribunal accepted the Commission's explanation and applied the principle that privilege attaches to documents produced for litigation, not merely those authored with litigation in mind. The Tribunal rejected WBHO's argument that the Commission's...

Court Disposition

Application dismissed. No order as to costs.

Orders

  • The application is dismissed.
  • No order is made as to costs.