Tribunal clarifies rule for access to information
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.