(iii)
If any respondent to the present main application is not cited as a respondent in the renewed application such respondent may also
approach the registrar to have the matter set down to determine its costs.”
The fifth appellant then appealed to this Court against the Tribunal’s order that respondents were not liable to pay fifth appellants
costs in the main application.
The respondents then cross-appealed against the decision of Tribunal on the basis that the Tribunal had erred in finding that acceptance
by the Competition Commission was a pre-requisite for an applicant to have locus standi to apply for interim relief in terms of section 59 of the Act.
THE APPEAL.
Mr Eiser, who appeared on behalf of fifth appellant, submitted that the decision of Tribunal in dismissing the main application on
the grounds that the appellant had not complied with section 59 read with section 44 of the Act was a final decision based upon the
‘selfstandige en afdoende verweer’ See Masuku and Another v Mdlose and Another 1998(1) SA 1 (SCA) at 11 H-I. He further submitted that it was not competent for the Tribunal to order another tribunal which would
hear a renewed application to decide the costs of the main application. As the Tribunal is a creature of statute and its powers were
sourced in the statute, it could not decide mero motu and outside the powers granted to it in terms of the Act to make such an order.
Mr Nelson, who appeared together with Mr van Dorsten on behalf of respondents, submitted that the cost order made by the Tribunal
was justified in law. He referred to section 57(1) of the Act which provides that, subject to sub-section (2) and the Tribunal’s
rules of procedure, ‘each party participating in the hearing must bear its own costs.’ Section 57(2) of the Act did not
alter this principle in the context of the present dispute, because it provides the Tribunal with a discretionary power to award
costs in hearings consequent upon a referral of the complaint in terms of section 51(1). Accordingly the Tribunal is empowered with
a discretion to make a costs order which must be exercised judicially after consideration of all the relevant facts. As Van Niekerk J said in Ganlan Investments (Pty) Ltd and Another v Trilion Ltd and Another 1996(3) SA 692(C) at 700 ‘It is trite law that an award of costs is a matter wholly within the discretion of the trial court
and it must be exercised judicially under consideration of the facts of each case’.
Mr Nelson also referred to the reasoning employed by the Tribunal in arriving at its decision. It found inter alia that the regulations of the Competition Commission may well be ultra vires that is in the interests of the parties to deal with the matter, and further that the requirement for acceptance by the Commission
appeared to escape all the parties and not merely the respondents, who had they been alerted, may well have corrected the defect
before further costs were incurred. Accordingly the Tribunal concluded: “We believe that the interest of justice would not
be served by making a costs award in respect of the main application at this stage and costs in this respect should be reserved”.
The reasoning employed by the Tribunal reflected both a careful consideration of all the facts and a judicial exercise of its discretion
in coming to ia decision not to award costs in respect of the main application. Mr Nelson also referred to Rule 58(1) of the Tribunal
Rules which do not place any limitations on the Tribunal’s discretionary power to make an order for costs. Accordingly if a
renewed application was heard there would be nothing to prevent the Tribunal seized with that application from allocating costs based
on the evidence at its disposal. If the question of costs in the main application were to arise, the Tribunal would, have the jurisdiction
to order costs because the first application would be closely associated with the renewed application.
As Price AJA said in Sonia (Pty) Ltd v Wheeler 1958(1) SA 555 (A) at 562: “Mr Lazarus argued that even if the Eastern Districts Court has jurisdiction to order cancellation
of the contract, its jurisdiction does not extend to the money claimed for a refund of the price paid and costs. He contends that
the claim for the cancellation of the sale cannot be used as a stepping stone to the money claimed so as to give the court extra
jurisdiction. It is argued that if the money claims stood alone and there was no claim for cancellation, the Court would not have
jurisdiction. Assuming this to be so, assuming that the Eastern Districts Court could not entertain a claim for a refund of the purchase price if that claim stood alone it nevertheless seems to me that every consideration
of convenience and common sense indicates that were such a money claim if so closely associated with the claim for cancellation of
the contract, as in this case, and is a consequential claim, following on the cancellation, the same Court which has jurisdiction
to decree cancellation should have jurisdiction to hear the money claim for a refund of the purchase price, and to order costs. A
claim for costs is no less a money claim than the claim for refund of the price. A claim for costs does not differ from any other
claim sounding in money”.
In the present dispute, the costs of appellants’ incurred in the dismissal of respondent’s application on the basis that
it lacked locus standi to so bring it, were awarded against respondent.
The only dispute insofar as costs are concerned, turns on costs relating to the main application. Viewed in this context it is clear
that the Tribunal envisaged that the main application would be resuscitated by a fresh application brought by respondents on the
basis that the Competition Commission accepted the complaint. In the event that such an application was not brought, the Tribunal’s
order afforded an opportunity to the successful party to approach the registrar to have the matter set down to determine the costs
of the ‘decided application’.
The order made by the Tribunal was not a final order. It envisaged the determination of a costs order insofar as the main application
was concerned after a renewed application had been brought. The general rule that costs follow the event is subject to the overriding
principle that all costs are in the discretion of the court provided the discretion is exercised judicially (see The Laws of South Africa vol. 3 at 292 and the cases collected therein).
In my view, there is no merit in the argument that the Tribunal exercised its discretion in judicially or that the order was of a
final nature which precluded appellant from claiming costs at the later stage.
The Cross Appeal.
The basis of the cross-appeal can only be understood after an examination of the reasoning employed by the Tribunal. At the time of
the application, section 59 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……’
Section 44 provides: ‘A complaint against a prohibited practice by a firm may be initiated by the Commissioner, or submitted
to the Competition Commission by any person in the prescribed manner.
In determining what was meant by ‘submitted in the prescribed manner’, the Tribunal referred to the Rules of the Competition
Commission. In particular, Rule 2(f)(ii) defines a complaint as a matter that has been submitted to the Commission in terms of section
44 and accepted by the Commission in terms of Rule 17.
Rule 17(1) provides ‘A person other than the Commissioner by filing a completed Form CC 1, may submit a matter to the Commission,
if
(a)
if the matter concerns a practice that meets both of the tests set out in Rule 16(a) & (b);
(b)
the submission is not frivolous; and
(c)
the Commissioner has not initiated or accepted a complaint in respect of that practice.
Rule 17(2) provides ‘upon receiving a submission in terms of sub-rule (1), the Commission must either
(a)
accept the submission as a complaint in terms of section 44; or
(b)
notify the person who made the submission that the Commission has rejected the submission as a complaint,
and provide a brief written explanation for that decision.
The Tribunal found that Rule 17(2) read with Rule 2(f)(ii) supported the conclusion that a complaint was only submitted to the Competition
Commission as defined once it had been duly accepted by the Commission. For this reason the phrase in section 59 “a person
referred to in section 44” meant a person who had lodged a complaint with the Commission which had then been accepted by the
Commission and thus had become a complaint as defined. As the Tribunal said in its determination [t]he statute ‘mandates the
use of regulation to provide the procedure for the manner of submission of complaints’. Thus ‘on an interpretation of
the rules, acceptance by the Commission is a pre-requisite for a valid complaint and that the application was launched prematurely’.
Mr Nelson submitted that there were two bases in terms of which this finding of the Tribunal should be rejected, namely that it had
failed to properly interpret the words, “submitted in the prescribed manner” as contained in section 44 and that the
Competition Second Amendment Act 39 2000 (‘the Amendment Act’) which came into effect on 1 February 2001 retrospectively
amended the provisions of section 59 read together with section 44 so that, as the retrospective position now applied, the cross-appeal
must succeed.
THE MEANING OF SUBMITTED IN THE PRESCRIBED MANNER.
Mr Nelson submitted that the word ‘prescribed’ was defined in section 1 as meaning ‘prescribed from time to time
by regulation in terms of section 78.’ Section 78 provides that the Minister, by notice in the Gazette may make regulations
that are required to give effect to the purposes of the Act. The rules of the Competition Commission were promulgated in terms of
section 21(4) and section 78 of the Act and therefore he argued it was not proper to give meaning to the phrase ‘in the prescribed
manner’ in section 44 by reference to rules which were not part of the definition of ‘prescribed’ in terms of section
1.
The logic of this argument would lead to a rejection of a reference to rules promulgated under any section other than s 78 which prescribe
any procedures. But s 21(4) does precisely that. It provides that the Minister may, in consultation with the Commissioner, and by
notice in the Gazette prescribe regulations for matters relating to the functions of the Commission including (a) forms (b) time periods (c) information required (d) additional
definitions (e) filing fees (f) access to confidential information (g) manner and form of participation in Commission procedures;
and (h) procedures. To the extent that section 1 does not refer to section 21(4), it can only be concluded that this was an omission on the part of
the legislation. While the court should be reluctant to come to the conclusion that there is a clear omission in the Act rather than
seeking another possible plausible interpretation, in this context it is clear that s 1 should have referred to the two sections
in trms of which regulations can be prescribed. When the phrase ‘in the prescribed manner’ was employed in section 44
it was intended that the complaint be lodged in terms of a procedure set out in rules promulgated by the Minister (in this case in
terms of section 21(4)). For this reason I can find no merit in respondents argument.
Mr Nelson further submitted that were the Tribunal’s reasoning to be employed, it would result in only one complainant being
able to bring an application for interim relief in terms of section 59. The person referred to in section 44 would be a person who
had brought a complaint which had been submitted as defined to the Commission. In terms of Rule 17(1)(c), a person, other than the
Commissioner by filing a completed form CC 1 may submit a matter to the Commission…if the Commission has not initiated or
accepted a complaint in respect of that practice. (my emphasis).
Mr Nelson submitted that if the Commissioner had accepted a complaint in respect of that practice by complainant A, all other complainants would be precluded from bringing an application in terms of section 59 in that their
complaint could never be accepted in terms of the Rules.
As Mr Puckran, who appeared together with Mr Meyer on behalf of first to fourth and sixth to ninth appellants, submitted this result
would not necessarily be capricious in that as the Tribunal found, to hold otherwise would lead to the danger that the complaint
is an incohate fact until acceptance by the Commission. An applicant whose submissions still awaited acceptance by the Commission
could proceed and possibly obtain interim relief from the Tribunal only to discover subsequently that the Commission had refused
to accept the complaint thereby nullifying it. This possibility gives meaning to the Rule regarding acceptance of the complaint,
the absence of which could undermine the certainty of the proceedings. As long as acceptance of the complaint is a requisite for
a valid complaint, acceptance must take place before a valid complaint can be said to exist.
While it must be conceded that the Amendment Act has altered the position and hence is indicative that the legislature has changed
its policy in this regard, as Mr Puckran submitted this did not make the initial interpretation of the provisions as contained in
the Act capricious or unfair. They were clothed in the logic that there should be not dichotomy between the decision of the Commission
and that of the Tribunal. Furthermore as Mr Eiser correctly submitted, the rule only precluded another litigant from making application
in terms of section 59 in respect of the same practice, There does not appear to be a bar to other litigants being joined in the
matter nor could the rule be interpreted to preclude another litigant from making a complaint where there were differences in the
alleged practice which had motivated the initial application in terms of section 59.
For this reason it is difficult to accept the argument of Mr Nelson that the Tribunal’s decision was in contravention of section
34 of the Republic of South Africa Constitution Act 108 of 1996, namely that everyone has the right to have any dispute that can
be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent
and impartial tribunal or forum. In this case the dispute would have been decided in terms of the Act and before an independent tribunal,
to which other interested parties would not necessarily be barred.
Were there to be any additional issue raised in the complaint of the second complainant, such a person would have an entitlement to
bring an application in t