With a Tribunal hearing pending, the Competition Commission's case against beer giant SAB recently hit a procedural snag when the Tribunal ordered the Commission to provide SAB with witness statements it had hitherto failed to file. 

In moving to have the case against it dismissed, SAB contended that the Commission's complaint referral is speculative and unsupported by evidence, despite a 5 year investigation. In support of the application, SAB pointed out that the Commission has missed the deadline agreed with the Tribunal for the filing of witness statements. Rather than submit witness statements, the Commission sought to lead witnesses under subpoena. SAB complained that this tactic would prejudice its preparation for the hearing, as witnesses may end up alleging material facts that had not been pleaded.

Although the Tribunal dismissed (without awarding costs) SAB's application for dismissal, it nevertheless ordered the Commission to file written transcripts of the evidence to be given by its witnesses.

Although the Competition Act does not expressly place an obligation on parties to file witness statements for the purposes of a complaint hearing into prohibited practices, it has become the Tribunal's consistent practice to require parties to file witness statements setting out the evidence upon which they intend to rely, prior to the hearing before the Tribunal. The decision is consistent with previous decisions in which the Tribunal has downplayed the significance of detailed pleadings in favour of comprehensive witness statements.

Chris Charter, Director, Competition
Scarlate Nkiwane, Associate, Competition