Tri­bunal clar­i­fies rule for ac­cess to in­for­ma­tion

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - Lizél Blig­naut & Sa­man­tha Hob­son-Jones

THE Com­pe­ti­tion Com­mis­sion re­ferred to the Com­pe­ti­tion Tri­bunal a com­plaint against Group Five for al­legedly par­tic­i­pat­ing in bid-rig­ging with Mur­ray and Roberts and WBHO.

WBHO had pre­vi­ously re­ceived con­di­tional le­niency from the com­mis­sion in terms of its cor­po­rate le­niency pol­icy and Mur­ray and Roberts had, ear­lier, en­tered into a set­tle­ment agree­ment with the com­mis­sion. Group Five was there­fore the sole re­spon­dent in the com­mis­sion’s re­fer­ral.

A re­spon­dent has 20 busi­ness days af­ter be­ing served with a com­plaint re­fer­ral to file an an­swer­ing af­fi­davit, fail­ing which the ini­ti­at­ing party may ap­ply for de­fault judg­ment. Group Five did not file its an­swer within the stip­u­lated time. Rather, it re­quested ac­cess to the com­mis­sion’s record, as it was of the view that the al­le­ga­tions were “vague and con­tra­dic­tory”, hin­der­ing its abil­ity to re­spond.

This is not the first time that such crit­i­cism has been lev­elled against the com­mis­sion’s re­fer­rals. The com­mon re­sponse is for par­ties to bring an ex­cep­tion to the re­fer­ral, the pur­pose of which is to set aside the re­fer­ral or to pro­cure that the ap­pli­cant be di­rected to rem­edy the vague­ness or other ob­jec­tion­able aspects.

The com­mis­sion de­nied Group Five’s re­quest for ac­cess to its record and filed with the tri­bunal an ap­pli­ca­tion for de­fault judg­ment.

At the pre-hear­ing, the tri­bunal al­lowed Group Five to bring an ap­pli­ca­tion to com­pel the com­mis­sion to dis­cover its record. Group Five brought this ap­pli­ca­tion, re­ly­ing on Rule 35(12) of the high court rules and Rule 15 of the com­mis­sion rules. High Court Rule 35(12) states that a party to pro­ceed­ings may at any time have ac­cess to copies of doc­u­ments or record­ings re­ferred to in the plead­ings or af­fi­davits of any other party. Group Five was not the first party to at­tempt to rely on the rule to gain ac­cess to the com­mis­sion’s record dur­ing re­fer­ral pro­ceed­ings.

In an ArcelorMit­tal mat­ter the Supreme Court of Ap­peal granted ArcelorMit­tal ac­cess to doc­u­ments that formed part of the com­mis­sion’s record on the ba­sis that the com­mis­sion’s re­fer­ral made ref­er­ence to the spe­cific doc­u­ments and that such con­tained “a full recital of the facts” on which the re­fer­ral was made.

In this mat­ter, the tri­bunal found that there was no ref­er­ence to any doc­u­ment that would give rise to the pos­si­ble ap­pli­ca­tion of Rule 35(12). In ad­di­tion, Group Five re­lied in its ar­gu­ments for ac­cess to the com­mis­sion’s record on com­mis­sion Rule 15 which states that any per­son may in­spect or copy the com­mis­sion’s record if, in­ter alia, it is not re­stricted in­for­ma­tion. Rule 14 states that non­con­fi­den­tial in­for­ma­tion re­ceived by the com­mis­sion dur­ing its in­ves­ti­ga­tion is not re­stricted in­for­ma­tion af­ter the com­mis­sion is­sues a no­tice of re­fer­ral. Group Five ar­gued that, be­cause the com­mis­sion had is­sued a no­tice of re­fer­ral, the in­for­ma­tion on which it based its re­fer­ral was no longer con­fi­den­tial and Group Five was en­ti­tled to the doc­u­ments that com­prise the com­mis­sion’s record.

The com­mis­sion did not ar­gue that Group Five was not en­ti­tled to ac­cess to its record, ac­ced­ing to the Supreme Court of Ap­peal’s find­ing in ArcelorMit­tal that “AMSA’s ap­pli­ca­tion for dis­clo­sure of the com­mis­sion’s record … is up­held, sub­ject to any claim that the record or any part of it may be re­stricted”. In the com­mis­sion’s view, the ap­peal court’s de­ci­sion re­solved only the is­sue of ac­cess to the record and not the tim­ing of the ac­cess, which ac­cess prior to the re­spon­dents hav­ing pleaded, would amount to “pre­ma­ture dis­cov­ery” and should there­fore not be al­lowed.

The tri­bunal dis­missed Group Five’s ap­pli­ca­tion for ac­cess to the com­mis­sion’s record, as it con­cluded that com­mis­sion Rule 15 is not in­tended to reg­u­late ac­cess to in­for­ma­tion by a lit­i­gant. Rather, com­mis­sion Rule 15 reg­u­lates a pub­lic-ac­cess right of bod­ies that hold pub­lic records and not “a right of ac­cess by a lit­i­gant to use to com­pel early dis­cov­ery from an­other lit­i­gant”.

The tri­bunal in­ter­preted the rules reg­u­lat­ing ac­cess to the com­mis­sion’s record in a way that would not dis­rupt or­di­nary lit­i­ga­tion rules. Dis­cov­ery oc­curs af­ter plead­ings close be­cause plead­ings serve to de­fine rel­e­vance. As dis­cov­ery is based on rel­e­vance, dis­cov­ery be­fore plead­ings would give rise to un­fo­cused doc­u­ment pro­duc­tion. The rules of dis­cov­ery “pro­mote fair­ness and avoid abuse”, while it was ac­cepted that Rule 15 al­lows a lit­i­gant ac­cess to cer­tain in­for­ma­tion, the tim­ing of such ac­cess can­not oc­cur be­fore plead­ing. Group Five’s at­tack, there­fore, ought to have been on the al­leged de­fi­cient re­fer­ral, and a re­quire­ment that it be reme­died be­fore it was re­quired to plead.

Why the Com­pe­ti­tion Tri­bunal dis­missed Group Five’s bid for in­for­ma­tion

Lizél Blig­naut is an ex­ec­u­tive and Sa­man­tha Hob­son-Jones a can­di­date at­tor­ney in ENSafrica’s com­pe­ti­tion depart­ment.

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