Tri­bunal gives clar­ity to com­plaint re­fer­rals

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - Justin Balkin

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.

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