3.
The merged entity shall provide a quarterly report to the Commission, for a period of 12 months after the date of approval, detailing
all requests by third party healthcare switch entities to integrate their API and functionality with the PMS packages owned or controlled
by the merged entity, as well as detailing the agreements and time frames concluded with such third party healthcare switch entities
in respect of the integration process.”
After the Tribunal had issued its above-mentioned decision in the ’breach case’, DHS filed a remedial plan with the Commission
in terms of rule 39(2)(a) of the Commission’s rules. The remedial plan was filed on 20 February 2004. The Commission and DHS
then engaged in negotiations regarding the proposed remedial plan.
The Commission considers that these negotiations may not be completed by 8 April 2004, when the three-year period stipulated in the
above-stated conditions will expire. Because of this, the Commission has approached the Tribunal with this application to extend
that period by one year, namely until 8 April 2005. DHS, in opposing the application, submits that the Tribunal does not have jurisdiction
to make such an order.
Jurisdiction
The Commission submits that the Tribunal has jurisdiction to grant the application in terms of Rule 42 of the Tribunal’s rules.
This rule lays down the procedure for the bringing of an application not otherwise provided for in terms of those rules.
We pointed out in our decision in the ‘breach case’ that Rule 42 is essentially procedural in nature and does not confer
general powers on the Tribunal to review the Commission’s decisions. Similarly, that rule does not vest the Tribunal with general powers to vary the Commission’s decisions.
The Commission was unable to refer us to any other provision in the Competition Act (“the Act”) or the rules that would
give the Tribunal powers to amend a condition imposed by the Commission when approving a small merger in terms of s. 13(5)(b) of
the Act.
We point out that the Tribunal’s power to amend its own orders is expressly granted in terms of s. 66 of the Act. This power
is limited to the circumstances referred to in that section, essentially cases of error or ambiguity.
The Act does not give the Tribunal express power to vary orders of the Commission made under s. 13(5)(b) of the Act. Nor is it possible
to infer such power from s. 27, the general provision setting out the Tribunal’s functions and powers.
The Commission seems to regard the amendment as merely an extension of a time period. Whilst that might be the effect of the amendment,
it does not alter its character – it amounts to a variation of an order of the Commission.
Even if we assume in the Commission’s favour that what is sought is not the variation of an order but a mere extension, it does
not assist the Commission.
Whilst in terms of s. 58(1)(c) we have powers to extend certain time periods which might otherwise apply, these are limited to time
periods set out in the Act. In this application we are dealing with a time period set out in an order made by the Commission.
We have the power, in terms of s. 14A(2), to extend the period in which the Commission may investigate a large merger, but here too
the power is expressly granted and for a specific and limited purpose.
In our view, given the Tribunal’s express powers of extension (ss. 14A(2) and 58(1)(c)) and variation (s. 66) it follow that
if the legislature had intended the Tribunal to have the power to amend an order of the Commission made under s. 13(5)(b), it would
have provided for this expressly in the Act.
In our view DHS is correct in contending that we have no jurisdiction to grant the order sought. Accordingly, the application is dismissed.
There is no order as to costs.
16 April 2004
N. Manoim
Date
Concurring: D. Lewis and L Reyburn
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