Goodyear South Africa (Pty) Ltd v Competition Commission and Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: N Manoim JA (S Potterill AJA and M Kubushi AJA concurring)
• Judgment Date: 19 July 2022
• Docket Number: 198/CAC/Jan22; CR053Aug10
• Hearing Date: 06 May 2022
• Court: Competition Appeal Court
• Citation: 2022 JDR 2071 (CAC)

Manoim JA (Potterill AJA and Kubushi AJA concurring):

Introduction:

[1]

This is an appeal against a directive given by the presiding member at a pre- hearing conference of the Competition Tribunal (Tribunal) relating to the admission of an expert witness statement. [1]

[2]

The appellant, Goodyear South African (Pty) Ltd (Goodyear), is one amongst five respondents in an ongoing case in which several tyre manufacturers are alleged to have contravened section 4(1)(b)(i) of the Competition Act, no 89 of 1998 (the Act). The appellant is appealing the directive because the member of the Tribunal had ruled that it could not have its expert witness statement admitted. The case had been referred to the Tribunal by the Competition Commission (Commission). [2] The Commission is the first respondent in the appeal which it opposes. The other respondents have not opposed the appeal.

[3]

Section 4(1)(b)(i) makes an agreement between competitors to fix prices a contravention of the Act.

[4]

The essence of the case is that the respondent firms were competitors, who from 1999 to 2007, were involved in a cartel to increase the list prices of tyres sold to tyre dealers in South Africa, as well as to time when increases would be implemented. Goodyear denies the allegations and contends that the price increases that occurred were made by it unilaterally and in response to increases in raw material prices.

[5]

What is immediately apparent from the time period in which the contravention is alleged to have taken place is that this complaint has taken years to get to trial. In October 2006 the Commission first took up the case when it received a complaint from a customer called Parsons Transport which owns a fleet of trucks. Since then, the Commission has added to the complaint and acquired further evidence through raids on some of the respondents' premises. During this period there have been

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Manoim JA (Potterill AJA and Kubushi AJA concurring)

several interlocutory skirmishes which have taken the matter to this court and even to the Constitutional Court. The fortunes of either side have fluctuated in this litigation, and each blames the other for the length of time it has taken to get the complaint to trial. It is not necessary for me to apportion blame. The only relevance of the effluxion of time at the present moment is Goodyear's explanation for why it needs to call an expert witness to supplement the testimony of its factual witnesses and the Commission's concern about further delay.

The pre-hearing

[6]

This background in the matter leads me to describe what happened at the pre-hearing. The practice of the Competition Tribunal is to regulate its forthcoming hearings in what are termed pre-hearing conferences, presided over by a single member of the panel who will hear the matter subsequently. The purpose of these conferences is to attend to the necessary procedural housekeeping to ensure that the trial before the full panel comprising three members, can run smoothly.

[7]

On the 14 December 2021 the presiding member held a pre-hearing to make final preparations for the hearing of this matter. Present were the legal representatives of the Competition Commission and three of the respondents who were still opposing the matter. [3]

[8]

Goodyear's counsel informed the presiding member that it intended to call an economist as one of its witnesses. The pre-hearing took place on a Tuesday. On the previous Friday afternoon, Goodyear's attorneys had filed its economist's report and indicated that it intended to call the economist because, as was put by its counsel Mr Gotz at the pre-hearing, it would be difficult for its factual witnesses to deal with matters they had not thought about for fifteen years. The expert he explained, was briefed to deal with the extent of the difference between the net price and the list price. Also, to deal with trends in raw material price increases.

[9]

The Commission objected to the calling of the witness. Its reasons were both procedural and substantive. The hearing was due to commence on 1 February 2022 and the Commission was concerned that this might delay the case. Moreover, the Commission had to consider whether it needed to brief its own expert in

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Manoim JA (Potterill AJA and Kubushi AJA concurring)

response - leading to further delay. The Commission was highly critical of the manner in which Goodyear had gone about bringing the application.

[10]

According to the Commission, "Goodyear had not asked the Tribunal for provision to be made in the timetable for the filing of an expert witness statement, neither during the previous pre-hearings when the filing of witness statements was discussed (as early as December 2016 and again in May 2017), nor when the timetable was agreed for the filing of supplementary witness statements and the holding of the hearing (in March 2021)." [4]

[11]

The Commission also queried if this was evidence that was properly the domain of an expert, given that it appeared from its first reading of the report, to be factual, not opinion evidence.

[12]

As is evident from the transcript of the pre-hearing, there was much back and forth argument between the respective legal representatives about this issue.

[13]

At the end of the hearing, as is Tribunal practice, a directive was sent to all the parties indicating what rulings had been made by the member at the pre-hearing. The directive stated the following on the Goodyear application:

[14]

"The economic report that was filed by Goodyear on 10 December 2021 will not be admitted as an expert witness statement for the purpose of these proceedings." [5]

[15]

The appeal is against this part of the directive. Goodyear goes on to argue that the direction is incorrect because:

a.

It is not competent for a single member (as opposed to the full panel) to give such a ruling; and

b.

Even if it is, the ruling infringes on Goodyear's fair hearing rights because it denies it the ability to defend itself in the proceedings.

Issues to be decided:

[16]

The key issue in the appeal is whether the directive is of a final nature.

[17]

The language of this ruling suggests it was made as a final ruling. However, in the course of the pre-hearing the presiding member appeared to suggest that she had not taken a final view of the matter and any direction was of an interim nature.

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Manoim JA (Potterill AJA and Kubushi AJA concurring)

[18]

For instance, after initially stating that the witness statement would not be permitted, she went on to say that "... if the Tribunal feels at a later stage we cannot proceed without the assistance of an expert, well then we will at least come back to this point. But for now, we are no- I am not allowing...