Locus Standi
The respondent argues that the complainant does not possess the requisite locus standi to initiate a complaint. Section 1(1)(iv) of the Act defines a ‘complainant’ as a ‘person who has submitted a complaint in terms of section 49B(2)(b)’ .
Section 1(1)(xi) defines a “ firm” as including ‘a person, partnership or trust.’
The respondent relies on these differences in language, to come to the conclusion that a complainant cannot be a ‘firm’ and hence the complainant in this case being a company, and hence a firm, has no locus standi. We assume that what the respondent is arguing, although it was difficult to follow precisely what was meant,
is that a complainant can only be a natural person as otherwise the legislature would defined a complainant as a firm.
The Act does not define the word person. However the Interpretation Act does and it defines a person as including “any company incorporated or registered as such under any law;”.
The complainant is incorporated in terms of section 21 of the Companies Act and is therefore a company and hence meets the definition
of person in the Act.
Complaint Referral
The respondent argued that while certain elements of the complaint referred to the Tribunal derived from the initial complaint submitted
to and investigated by the Commission, others travelled beyond these boundaries and, as such, fell outside of the jurisdiction of
the Tribunal.
This was conceded by the complainant who identified those elements of its prayers that were not reflected in the initial complaint
submitted to the Commission. These ‘excessive’ prayers are accordingly struck out of the notice of motion by our order.
Should the complainant wish to persist with these prayers it will be obliged to submit them to the Commission for its consideration.
Security for Costs
The respondent has asked us to order the complainant to provide security for costs. It argues that the complainant is a mere shell,
expressly established for the purposes of mounting these proceedings.
The complainant, for its part, contends, by way of exception, that the Tribunal is not competent to issue the order sought.
We have not taken a view on the complainant’s exception. However, if we proceed on the assumption that we are entitled to entertain the order sought, we are nevertheless not inclined, as a matter of policy, to grant it. It is in the very nature
of competition law that small players should confront much larger players, firms, or associations of firms that dominate the markets
in which the small players participate or the markets of their suppliers or customers. Furthermore, in bringing a complaint to the
competition authorities, the small player, while doubtlessly driven by its own perceived travails, performs a public function in
identifying a practice that may, after investigation and adjudication, be found to be anti-competitive and, as such, inimical to
the public interest. Accordingly we are extremely reluctant to impose a requirement that would effectively reduce the access of small complainants
to this institution. This is not to say, that we would never order a complainant to provide security for costs. Were we persuaded
that a complaint was vexatious and submitted to meet some or other ulterior motive, we may well order the complainant to provide
the security requested here. However, mere impecuniosity does, not in our view, constitute a valid ground for issuing the order sought
and we decline to do so.
22 November 2002
D. Lewis
Date
Concurring: M. Moerane and N. Manoim
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