16.
Section 53 (1)(a)(ii)(aa) and (bb) provide-
53(1) Right to participate in hearing.—The following persons may participate in a hearing, in person or through a representative,
and may put questions to witnesses and inspect any books, documents or items presented at the hearing:
(a)If the hearing is in terms of Part C—
(i)the Commissioner, or any person appointed by the Commissioner;
(ii)the complainant, if—
(aa)the complainant referred the complaint to the Competition Tribunal; or
(bb)in the opinion of the presiding member of the Competition Tribunal, the complainant’s interest is not adequately represented
by another participant, and then only to the extent required for the complainant’s interest to be adequately represented;…”
17.
Rule 46(1) provides
Intervenors.—(1) At any time after an initiating document is filed with the Tribunal, any person who has a material
interest in the relevant matter may apply to intervene in the Tribunal proceedings by filing a Notice of Motion in Form CT 6, which
must—
(a) include a concise statement of the nature of the person’s interest in the proceedings, and the matters in respect of which
the person will make representations; and
be served on every other participant in the proceedings.
18.
Rule 46(1) is a general rule which applies to intervention applications in all proceedings before the Tribunal. It provides that any
person who has a material interest in the relevant matter may apply to intervene in the Tribunal proceedings. In Anglo American Corporation Medical Scheme, this Tribunal held that, in order for an application to satisfy the requirement of interest in Rule 46(1), it would be sufficient
for an applicant to allege that it was the complainant whose complaint had formed the basis or part of the basis for the complaint
referral since a complainant is assumed to have the necessary interest in such proceedings. In this application the applicant has demonstrated a material and direct interest in the outcome of these proceedings both as complainant
and competitor of the second respondent and has satisfied the requirement of interest contained in Rule 46(1).
19.
We deal first with the point of limine raised by second respondent as a ground of opposition to the intervention application. Second
respondent alleges that the Comair complaint is not properly before the Tribunal because the Nationwide complaint relates substantially
to the same conduct as the Comair complaint. According to second respondent, once the Tribunal has adjudicated upon the Nationwide
complaint, the issues in the Comair complaint will also be adjudicated upon.
20.
The Commission submits that it is not appropriate for second respondent to raise such exception in the intervention proceedings as
this exception should be properly raised in the hearings of the complaint proceedings. The Commission argues further that the Nationwide
and Comair complaints are different complaints as they relate to different time periods of the alleged anti-competitive behaviour
on the part of second respondent. Counsel for applicant argued that this is an issue properly considered at the hearings of the complaint proceedings and cannot be
a basis for opposing the intervention application.
21.
It may be that the Comair complaint is different to the Nationwide complaint. The Comair complaint relates to a different time period
of the alleged anti-competitive conduct and it may be that the competitive dynamics of that time period will differ from that of
the Nationwide complaint. But we need not go there in this application. In order for the Tribunal to decide to grant applicant leave
to intervene in this matter it only has to decide whether the applicant has demonstrated an interest that is not adequately represented by the Commission. In such an enquiry the Tribunal does not have to consider whether there are any differences between the Nationwide and Comair complaints,
whether the complaint is valid or not or to consider the merits of the Comair complaint. Those are matters to be dealt with during
the hearing of the complaint itself.
22.
We turn to consider the relief sought by applicant. If we decide that the relief sought by applicant is sufficient to demonstrate
an interest not adequately represented by the Commission, the matter rests there and there is no need for us to consider the second
basis of applicant’s application. If we allow an intervention based on the relief sought, the applicant will in any event have
to make all the necessary allegations to support such relief. Such allegations may deal with the definition of the relevant market
and the effect of the alleged anti-competitive conduct.
23.
The relief sought by the applicant in this matter differs from that sought by the Commission in a number of respects. An important
and obvious difference is to be found in the interdict sought by applicant. Whereas the Commission seeks to declare the second respondent’s
conduct to date unlawful, applicant seeks to constrain the ongoing (future) alleged anti-competitive conduct of the second respondent.
24.
Furthermore the applicant seeks a declarator to prohibit the specific override and trust payments (“loyalty incentives”) of the second respondent which have formed
the basis of the complaint and complaint referral. The Commission on the other hand seeks only to prohibit the payment of commissions
by second respondent to travel agents in excess of the standard 7%. The Commission’s relief does not refer specifically to
the loyalty incentives.
25.
The relief sought by applicant is related to addressing the effects of the alleged prohibited practices of the second respondent on
its own (the applicant’s) commercial interests. The Commission has not sought the relief that the applicant has, nor has it
indicated that it intends to seek such relief. In addition, the Commission has not opposed the application for intervention.
26.
The Commission has not sought an order to declare the contracts void while the applicant does.
27.
Counsel for second respondent argued in a somewhat circular fashion that a complainant was not permitted to intervene in a complaint
referral if the Commission was adequately representing its interests. In other words it was not permissible for the applicant to
seek intervention in the matter simply because the Commission had not referred the complaint in identical terms or that the Commission
had not sought the relief in the terms sought by the applicant.
28.
The extent of a complainant’s participation envisaged in s53 has already been decided by this Tribunal and the Competition Appeal
Court. In the Anglo American case, the Tribunal considered the requirements of s53(1)(ii)(bb) and held that the different relief sought by an applicant in that
case was prima facie related to addressing the effects of the prohibited practice should it be proven and that it had accordingly demonstrated an interest
that was not adequately represented by another participant. This approach, sympathetic to an intervenor’s right to claim relief,
is also found in the Competition Appeal Court’s decision in ANSAC. In that case the Court held that the right to participate in hearings is not limited to the right to questioning witnesses or examining
documents but “includes the right to address the Tribunal, make representations to it and to formulate and claim relief”. (Our emphasis) Furthermore, the Appeal Court confirmed a decision by this Tribunal that a complainant need not allege or prove any damages in order to seek interdictory relief.
29.
Contrary to the argument made by Counsel for second respondent, a textual analysis of s53(1)(a) contemplates a situation where the
Commission may not refer a complaint to the Tribunal in identical terms to that of the complaint. It is precisely in anticipation of such differences that s53(1)(ii)(aa) and (bb) provide for a complainant to seek intervention so that its interests
may be adequately represented.
30.
The Act seeks to encourage rather than curtail the participation of interested parties, especially complainants, in proceedings before
the Tribunal. To this extent, s53 itself entitles persons other than the complainant to seek intervention in proceedings of the Tribunal
on the basis set out in that section. In s53(1), a complainant may intervene on more than one basis. The Act also makes provision for a complainant’s interests to
be addressed in other proceedings before the Tribunal.
31.
At the hearing Counsel for second respondent placed great emphasis on public policy considerations for not permitting interventions
by complainants. Counsel submitted that applicant was seeking the declarator in its notice of motion simply in order to pursue a
claim of damages in the High Court. The argument seemingly went as follows. The Commission acts in the public interest in prosecuting
anti-competitive behaviour. The Commission’s prosecutorial role would be undermined by allowing complainants to seek relief
that was in pursuit of a personal interest of claiming damages in a High Court. Counsel for second respondent suggested that there
is “something wrong” in a complainant pursuing its interests in this way.
32.
The arguments put forward by second respondent’s Counsel do not take into account the provisions of the Competition Act in relation
to a complainant’s right to claim damages. While the Tribunal and the Commission are enjoined to exercise a public function
by the Act, the Act also grants an affected party, who is usually a complainant, the right to pursue its personal (commercial) interests
by a claim of damages. But an affected party can do this only once this Tribunal has made a finding of prohibited conduct in a particular
matter and then only in the High Court. Hence a complainant’s right to pursue a civil claim in the High Court, and the nature and extent of the prohibited conduct
in respect of which it may claim damages, is circumscribed or determined by the nature and extent of the conduct that it is found by this Tribunal to constitute a prohibited practice. A complainant seeking
to pursue a claim of damages in the High Court will have to prove the nexus between the prohibited conduct (as declared unlawful
by the Tribunal) and the harm suffered by it. It is conceivable that, in a particular matter, the formulation of the relief sought
by the Commission and granted by the Tribunal in the exercise of their public function may provide very little or no relief to a
complainant seeking damages in the High Court. It is precisely this possible type of outcome that s53 seeks to address by entitling
a complainant to intervene in proceedings before this Tribunal if its interests are not adequately represented by the Commission
or another party. Hence there is nothing “wrong” in a complainant making application to intervene in these proceedings
in order to ensure that it is able to pursue its personal interests in the High Court subsequent to a finding by this Tribunal.
33.
Whilst an intervention by a complainant could result in a slight protraction of the hearings which may not always be in the public
interest, the Act requires the Tribunal to encourage ventilation of all the issues and to give particular attention to a complainant’s
interests. In the circumstances the Tribunal is required to err on the side of caution when considering a complainant’s interests.
Accordingly, we hold that the applicant has demonstrated that its interests are not adequately represented by the Commission or any
other party to the proceeding and the application for intervention is granted.
34.
There is no need for us to decide whether any of the other differences between the complaint and the complaint referral constitute
separate grounds of application for intervention.
Scope of intervention
35.
Counsel for second respondent argued that the scope of the intervention by applicant should be limited only to the extent that its
interests are not adequately represented by the Commission. Counsel argued further that the scope of the hearing in the Comair complaint
should be limited only to that aspect of the Comair complaint which differs from the Nationwide complaint. While an intervention
by a party may cause some degree of extended proceedings, it is difficult to determine the ambit of the intervention at this stage
of the complaint proceedings. This is especially so in light of the fact that second respondent has not yet filed its response to
the Commission’s complaint referral. Any limitation on the extent of the intervention by the applicant at this stage may in
fact undermine the public interest that the Tribunal seeks to promote by granting leave to intervene. The Commission is dominis litis
in the complaint proceedings and it is expected that it will seek to prevent any unnecessary duplication of witnesses or undue protraction
of the proceedings due to the applicant’s intervention.
36.
Accordingly, applicant is hereby granted leave to intervene as participant in the complaint proceedings held under case number 83/CR/Oct04
(“Comair complaint”), such intervention to include, without limitation, the right to-
36.1.
attend all pre-hearing conferences in this matter;
36.2.
adduce evidence and make argument in support of the relief it
seeks;
36.3.
request the Tribunal to direct, summon and/or order any person to
appear at the hearing, or to produce any book, document or item for purposes of such hearing;
36.4.
cross-examine witnesses;
36.5.
inspect any books, documents and other items presented at the
hearing; and
36.6.
participate in any proceedings concerning objections to the
Commission’s complaint referral and in any other interlocutory proceedings, which may affect the relief sought by the applicant.
37.
It is further ordered that the applicant is required to file a statement of particulars of complaint within ten business days of the
date of this order. The second respondent is entitled to file an answer to such particulars of complaint and the applicant is entitled
to file a reply thereto. Tribunal rules 15 to 17 inclusive will apply, mutatis mutandis, to the applicant’s particulars, the
second respondent’s answer and to applicant’s reply. The applicant’s relief will be confined to seeking an order
contemplated by sections 58(1)(a)(i), (v) and (vi) of the Act.
Application for condonation
38.
We are left to deal with second respondent’s application for condonation of the late filing of its answering affidavit.
39.
It is common cause between the parties that second respondent filed its answering affidavit with this Tribunal, in opposition to the
application for intervention 43 business days later than it was due. The applicant’s intervention application was filed and
served on second respondent on 17 November 2004. In terms of Tribunal Rule 46, read with Rule 43(1), second respondent was required
to file an answer (if any) to the intervention application by 1 December 2004. Second respondent filed its answer on 2 February 2005,
43 business days late and pursuant to a written request from the Tribunal on 25 January 2005.
40.
Section 58(1)(c) requires a party seeking condonation to show “good cause”. The Tribunal has the discretion to grant condonation,
on good cause shown. In considering applications for condonation the Tribunal, when exercising its discretion, may have regard to
the rules of the High Court. The High Court has held that the “ the court has discretion to be exercised judicially upon a
consideration of all the facts and that in essence it is a question of fairness to both sides. In this enquiry, relevant considerations
may include the degree of non-compliance with the Rules, the explanation therefore, the prospects of success on appeal, the importance
of the case…the convenience of the Court and the avoidance of unnecessary delay in the administration of justice. The list
is not exhaustive”. When exercising its discretion in terms of section 58(1)(c) read with Rule 54(1) the Tribunal has to have regard to all the circumstances
of the case. The list of relevant factors to consider is not exhaustive. The Tribunal may have regard to the degree of non-compliances
and explanation therefor but also the importance of the case, the convenience of the Tribunal, prejudice to the other side and the
extent to which the public interest is served by granting condonation. The Tribunal acts in the public interest.
41.
In its condonation application second respondent advances several reasons for the delay. While the December holiday season and second
respondent’s internal restructuring may have contributed to some delay (and we make no finding in that regard), in our view
the condonation application does not contain a satisfactory factual explanation for second respondent’s extreme delay. The
affidavit by Mr Prosper Chavarika, the executive legal counsel does not set out a full and detailed account of the cause of the delay
and does not contain any confirmatory affidavits by persons he claims, under oath, for whom he was required to wait.
42.
The Tribunal has previously stated that it is becoming “increasingly concerned at the cavalier approach adopted by the many
practitioners and their clients to the time frames provided in the Act and the Rules and to the formulaic nature of many of the applications
for condonation”.
43.
.RTF of original document