19 April 2010 by

Tribunal sides with Commission on procedure

Litigants in Competition Law are becoming increasingly aware that proceedings in the Tribunal are far less strict than in a civil court. The Tribunal has traditionally been loath to grant technical points to respondents and has instead sought to give complainants every opportunity to have their case heard, even in the face of irregularities in procedure that would ordinarily bar further process in a civil court. Given the clear public interest mandate of the competition authorities, this courtesy is also extended to the Commission.

In recently granting the Commission's application to amend its referral document in a case against Yara South Africa and Omnia Fertilizer to include price fixing allegations not raised in the initial complaint document, the Tribunal afforded the Commission considerable latitude to broaden the scope of its investigation beyond that stipulated in the initial complaint brought to the Commission. It is now clear that where, in the course of investigating a narrow complaint, facts are brought to light relating to other prohibited conduct, the Commission has a discretion to refer additional particulars to the Tribunal for adjudication. As much as this serves the public interest in having all potential competition infringements fully ventilated, it has implications for those engaging with the Commission during the course of its investigation, as the Commission's power to refer is apparently not confined to the initial scope of its investigation. The ability to include additional allegations in an existing complaint investigation also has implications for the 3 year prescription period in relation to ceased conduct - in certain circumstances involving historical conduct, a fresh complaint may be 'out of time' while bringing the same, fresh allegations into an existing complaint may allow for prosecution to proceed.

Clearly the administration of competition law requires a balance to be struck between the public interest and the rights of respondents, who often face stiff penalties. Current indications are that the scales are tipped against those being investigated.

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

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