Mukaddam and Others v Pioneer Food (Pty) Ltd and Others

• Jurisdiction: South Africa
• Judge: Nugent JA, Ponnan JA, Malan JA, Tshiqi JA and Wallis JA
• Judgment Date: 29 November 2012
• Docket Number: 49/12 [2012] ZASCA 183
• Hearing Date: 06 November 2012
• Counsel: RP Hoffman SC (with CD Shone) for the appellants. S Burger SC (with TP McNally SC and J Cassette) for the first respondent. J Dickerson SC (with M O'Sullivan and R Garland) for the second respondent. D Unterhalter SC (with M du Plessis and I Goodman) for the third respondent.
• Court: Supreme Court of Appeal

Nugent JA (Ponnan JA, Malan JA, Tshiqi JA and Wallis JA concurring):

[1] Mr Mukkadam, the appellant, is a purveyor of bread. So is Mr Williams, who trades through the medium of WEM Distributors CC, E and Mr Ebrahim, who were applicants together with Mr Mukkadam in the court below, but who are not parties to this appeal. They all conduct business in the Western Cape. They purchase their bread from one or other of the respondents, who are major producers, add their margins, and distribute mainly to informal traders, through whom it reaches consumers.

[2] For some time in the Western Cape the respondents engaged in F practices prohibited by the Competition Act 89 of 1998. Essentially, they engaged in co-ordinated fixing of prices, fixing of discounts that were given to distributors such as the appellants, and agreed not to deal with one another's distributors. The nature of their anti-competitive conduct, G its effect, and the consequences for each of them when subjected to investigation by the competition authorities, is dealt with fully by Wallis JA in the related appeal of Children's Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others, [1] and I need not repeat what was said in that judgment.

[3] The appellants allege that they and about 100 other distributors in H the Western Cape suffered financial loss as a result of the prohibited conduct, particularly the fixing of discounts they would receive, and the appellants wish to pursue claims for damages in a class action. They applied to the Western Cape High Court to certify the institution of a class action on behalf of themselves and other affected distributors for I recovery of their losses. The application was dismissed by Van Zyl AJ and they now appeal with the leave of this court.

Nugent JA (Ponnan JA, Malan JA, Tshiqi JA and Wallis JA concurring)

A [4] I have already joined with Wallis JA in the appeal in the Children's Resource Centre case in recognising class actions as a permitted procedural device for pursuing claims, where the case calls for it, so as to permit those who are wronged to have access to a court. I need not repeat what will need to be shown for such a class action to be certified. B I need say only that included amongst them the applicants for certification will need to satisfy a court, where a novel cause of action is sought to be established, that the claim is at least legally tenable, albeit that the court is not called upon to make a final determination as to the merits of the claim, and that a class action is the most appropriate means for the claims to be pursued. Failing that, the certification of a class action holds C the potential only to be oppressive to the proposed defendants.

[5] The claims that the appellants wish to advance are claims for recovery of damages. Although not fully expressed in the founding affidavit the damages they claim are explained as follows in the appellants' D heads of argument:

'All bread distributors would have directly suffered a reduction in gross profit margin as a result of the respondents' unlawful conduct and to this...