Interim Relief Jurisprudence in South African Competition Law: a Critical Review of the Competition Tribunal’s Approach

• Jurisdiction: South Africa
• Citation: (2011) 23 SA Merc LJ 432
• Date: 25 May 2019
• Published date: 25 May 2019
• Pages: 432-447

Interim Relief Jurisprudence in South African

Competition Law: a Critical Review of the

Competition Tribunal’s Approach*

PHUMUDZO S MUNYAI**

University of South Africa

1 Introduction

Some anti-competitive conducts are so egregious that the need to prevent

their continuance becomes immediate. In crude cases where prohibited

practices are alleged to have occurred and immediate relief is required, an

interim order can be the speediest and the most effective of all remedies

available in law.

1

The South African Competition Act

2

makes provision for a

complainant to apply to the Competition Tribunal for an interim order in

respect of the alleged prohibited practice.

3

The implication of the word

complainant is that the right to apply for an interim order under the

Competition Act is exclusively reserved for someone who has already f‌iled a

complaint with the Competition Commission.

4

And the expression prohibited

practice, it is submitted, further indicates that the remedy of interim relief

under the Act is only available in instances of practices prohibited under

Chapter 2, like price f‌ixing, implying that the remedy is not available in

merger proceedings.

5

Section 49C of the Competition Act gives the

Competition Tribunal authority to grant an interim order to a complainant, if

the requirements of section 49C(2) are met, pending the f‌inal determination of

the applicant’s complaint f‌iled with the Competition Commission.

6

Section

* This article is based on a paper presented at the Eighth International Workshop on Commercial

Law, hosted by the Centre for Business Law of the University of South Africa, on 3 August 2011 at

Nedbank in Sandton, South Africa.

** LLB (UP) LLM (Unisa). Senior lecturer in Competition Law in the Department of Mercantile

Law, School of Law,University of South Africa, Pretoria.

1

CB Prest The Law and Practice of Interdicts (1996) 1.

2

Act 89 of 1998 (‘the Competition Act’).

3

Section 49C(1).

4

Nqobion Arts Business Enterprise CC vs The Business Place Joburg & BeEntrepreneuring2006 (1)

CPLR 115 (CT) para [13]; Martin Brassey, John Campbell, Robert Legh, Charles Simkins, David

Unterhalter & Jerome Wilson Competition Law (2002) 331; Minette Neuhoff,Marylla Govender, Martin

Versfeld & Daryl Dingley APractical Guide to the South African Competition Act (2006) 336.

5

Brassey et al op cit note 4 at 330.

6

Section 49C generally provides:

‘(1) At any time, whether or not a hearing has commenced into an alleged prohibited practice, a

complainant may apply to the Competition Tribunal for an interim order in respect of the

alleged practice.

(2) The Competition Tribunal –

...

(a) may grant an interim order if it is just and reasonable to do so, having regard to the

following factors:

(i) the evidence relating to the alleged prohibited practice;

(ii) the need to prevent serious or irreparable damage to the applicant; and

432

(2011) 23 SA Merc LJ 432

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49C repealed the old section 59(1) of the same Act which also had similar

provisions enabling a complainant to apply to the Tribunal for an interim

order and for the Tribunal to grant the order if circumstances so required.

7

While the Competition Act does not specify the precise nature of relief that

may be granted under section 49C, it has been observed that most of the relief

granted by the Competition Tribunal came in the form of interim interdicts.

8

As a result, the general principles of the law of interim interdicts will be kept

in mind when developing the central argument of this paper. The main

purpose of this paper is to provide a critical review of the Competition

Tribunal’s interim relief jurisprudence with a view to establishing whether the

Tribunal has been consistent in its application of the legal principles relating

to interim relief.

The paper observes that in several cases dealt with under the repealed

section 59 and the current section 49C, the Tribunal has treated the

requirement of ‘evidence relating to the alleged prohibited practice’

9

as a

threshold test, while the requirements of harm and balance of convenience,

10

were relegated to the status of ‘the other requirements’ falling into the second

leg of the inquiry; becoming relevant and worthy of consideration only if the

threshold was met.

11

The above is evident from the Tribunal’s repeated

insistence that it will, regardless of the prospect of harm or of the balance of

convenience, be extremely reluctant to grant interim relief where evidence of

a prohibited practice is found to be weak.

12

The extent to which the

requirement of evidence of the alleged prohibited practice is given substantial

prominence over the other requirements for interim relief in applications

before the Competition Tribunal may suggest that the Tribunal follows an

approach, in particular a standard of proof, different from that applied at

(iii) the balance of convenience.

(3) In any proceedings in terms of this section, the standard of proof is the same as the standard of

proof in a High Court on a common-law application for an interim interdict.’

7

Section 59(1) generally provided:

‘At any time, whether or not a hearing has commenced into an alleged prohibited practice, a person

referred to in section 44 may apply to the Competition Tribunal for an interim order in respect of that

alleged practice, and the Tribunal may grant such an order if:-

(a) there is evidence that a prohibited practice has occurred;

(b) an interim order is reasonably necessary to:-

(i) prevent serious, irreparable damage to that person; or

(ii) to prevent the purposes of this Act being frustrated;

(c) the respondent has been given a reasonable opportunity to be heard, having regard to the

urgency of the proceedings; and

(d) the balance of convenience favours the granting of the order.’

8

Brassey et al op cit note 4 at 000; Neuhoff op cit note 4 at 302.

9

Section 49C(2) (b)(i).

10

Section 49C(2) (b)(ii) and (iii).

11

The Bulb Man (SA) (Pty) Ltd vs Hadeco (Pty) 2006 (2) CPLR 559 (CT) para [35]; Nuco Chrome

(Pty) Ltd vs Xstrata SA Pty (Ltd) and Another (Pty) 2004 (2) CPLR 341 (CT) para [6]; Nkosinauth

Ronald Msomi t/a Minnie Cigarette Wholesalers vs British American Tobacco 2001-2002 CPLR 383

(CT) para [13]; York Timbers Ltd vs SA Forestry Company Ltd 2001-2002 CPLR 408 (CT) paras

[64]–[65]; SAR, J.P. Slabber vs SAD Holdings, SAD Tribunal Case Number 04/IR/Oct99; 2006 JOL

18309 (CT) para [3.1].

12

York Timbers Ltd vs SA Forestry supra note 11 para [101]; Natal Wholesale Chemists vs Astra

Pharmaceuticals 20001–2002 CPLR 363 (CT) para [35]; National Association of Pharmaceutical

Wholesalers vs Glaxo Wellcome and Others [2003] 2 CPLR 402 (CT) para [28].

INTERIM RELIEF IN COMPETITION LAW 433

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