In the matter between CONTINENTAL TYRES SOUTH AFRICA (PTY) LTD v. COMPETITION COMMISSION OF SOUTH AFRICA AND ANR

South Africa

27.09.2018

MRTP/ Competition Laws

Public law acts were to be regarded and relied upon as lawful unless and until they were set aside by Courts

Appeal was against decision of Tribunal which it handed down on 2 June 2017. Tribunal's decision related to a special plea taken by both Goodyear South Africa (Pty) Ltd ("Good Year") and Continental South Africa (Pty) Ltd ("Continental") that, Tribunal had no jurisdiction to adjudicate third-party complaint of Parsons Transport (Pty) Ltd ("Parsons"), as Commission had failed to refer it to Tribunal within time frames prescribed in terms of Section 50(2)(a) read Sections 50(4)(a) and Rules 4(1) and 6(4) of the Competition Tribunal Rules, 2001 ("Tribunal rules"). Tribunal found that, the Parsons' complaint was a valid referral under Section 50 of the Competition Act, 1998/Act and the Tribunal Rules and it, therefore, had jurisdiction over complaint. Issue raised in present matter is whether Competition Commission lawfully referred a third-party complaint to Competition Tribunal in terms of Section 50(2)(a) read with Section 50(4)(a) of Act?

Agreement extending date for filing of complaint referral to 31 August 2010 was expressly incorporated into the Act on account of Section 50(4)(a) of Act. As such, it had force and stature of provisions of the Act. Neither Rule 6(4) nor any other Tribunal rules might cut-down that date because, in absence of express language to contrary, that date would include hours right up until midnight. Complaint referral was filed timeously and in accordance with Section 50 of Act.

Public law acts were to be regarded and relied upon as lawful unless and until they were set aside by Courts. Accordingly, Registrar was presumed to have acted lawfully and within confines of her authority in accepting complaint referral. Irregularity complained of was merely technical, and manifestly an instance where maxim de minimis non curet lax (law did not concern itself with trifles) would apply. Commission's omission to note case number on electronic version of complaint referral was, therefore, so trifling as to be overlooked. It certainly did not warrant a finding that there was no valid referral in terms of Section 50 of the Act.

Crucially, neither Good Year nor Continental had demonstrated that, they would suffer prejudice as a result of Tribunal's omission to note case number on electronic copy of complaint referral in terms of Rule 8(2)(b). In view of recognised technical nature of defect complained of, and that Appellants suffered no prejudice in pursuing their rights following upon referral, Tribunal exercised its wide discretionary powers under Section 55(2) of Act in favour of condoning technical non-compliance. Commission had complied with Section 50 of Act and that Parsons' complaint was validly referred to Tribunal. Accordingly, appeals dismissed.

Tags : Complaint referral Compliance Provisions

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