Tribunal gives clarity to complaint referrals
ARESPONDENT in a complaint is often faced with little information as to the allegations against it when it receives the Competition Commission’s referral of a complaint. There has thus been much debate around the contents of the commission’s referral document. Respondents have often sought additional information to enable them to respond to the allegations contained in a complaint referral.
A complaint can be initiated by a member of the public, who complains to the commission. A complaint can also be initiated by the commission itself. Once a complaint has been initiated, it will be investigated by the commission who will then either refer the complaint to the Competition Tribunal for adjudication, or elect not to refer the matter.
The commission’s referral takes the form of a notice of motion, together with a supporting affidavit. At this stage, all that is required is for the commission to set out a “concise statement of the grounds of the complaint and the material facts, or the points of law relevant to the complaint and relied upon by the complainant”.
While a respondent may file an answer, the matter generally develops through the exchange of documents in the discovery process, and through the exchange of factual and expert witness statements. Respondents have thus sought to define the boundaries of the complaint at an earlier stage.
The tribunal’s approach to the content of referrals is primarily one of “fairness”. In this regard, it has held that:
Complaint proceedings in the tribunal are a mix of motion and trial proceedings (and hence it is necessary to consider written submissions, combined with oral evidence of witnesses);
Complaint proceedings involve the intersection of law and economics. The same set of facts can fall within various sections of the Competition Act — ie a pure point of law may require factual evidence for it to be assessed;
The tribunal enjoys inquisitorial powers, and a wide discretion to conduct its own proceedings.
The tribunal has been reluctant to dismiss a matter simply because the founding affidavit is lacking material averments. Rather, the tribunal first wishes to satisfy itself that the prospects of success for a complainant are low, and without first providing the complainant with an opportunity to clarify its case.
Notwithstanding this, the tribunal has confirmed that the case law does not mean that a complainant is entitled to say as little as possible in its founding affidavit, and to be excused from giving further particulars about the case it wishes to bring. Fairness requires that a party ought to be placed in a position to know the case that it has to answer. While this is welcome, there remains little clarity on what it means for a respondent to “know the case that it has to answer”, and hence what particulars are required to be included in a complaint referral.
This issue received a small amount of clarification on March 2 when the tribunal gave a decision in an interlocutory dispute in the longrunning complaint referral against Sasol, Omnia and Yara. While this decision expressly applied only to the facts of that case, it is useful in better understanding the tribunal’s approach to the contents of a referral of a complaint.
Omnia had sought access to various documents from the commission inter alia to enable it to prepare a supplementary answering affidavit to the commission’s complaint referral. In particular, Omnia wishes to make an argument that certain of the many referrals against it have prescribed, and hence requested certain documents so that it could determine when the various complaints had been initiated. The difficulty arose from a previous decision in the same matter by the Supreme Court of Appeal, in which the court confirmed that the commission did not have to initiate a complaint in writing, but could do so “tacitly”.
As indicated above, a complaint referral is required to set out the material facts or points of law relevant to the complaint. The date on which a complaint is initiated is one of these material facts — a complaint may not be initiated more than three years after the practice has ceased. If the complaint is initiated out of time, it is not valid and may be set aside.
The court’s decision that a complaint could be tacitly initiated by the commission complicates this, as previously when it was believed that a complaint could be initiated only in writing the evidence of the date of the complaint initiation was contained in the commission’s initiation document.
However, with a tacit referral, this is not clear (as the date of the commission’s tacit initiation is a matter within its sole knowledge).
The tribunal thus found that the commission is required to state, in its referral of a complaint, the precise date of its complaint referral. If it relies on an inferred date for a tacit initiation, it must provide the facts (including supporting documents) from which this inference is drawn. If the referral contains multiple complaints, it must provide the initiation date for each complaint.
Thus, the commission is now required to provide more information in its referral affidavit concerning the date of the tacit initiation of its complaint.
This a positive development. In our view, the more certainty there is on the required contents of a complaint referral, the better.
Competition Commission is now required to provide more information in its referral documents
Justin Balkin is a director in ENSafrica’s competition practice.