SAB asks tribunal to dismiss 'speculative' complaint

SAB filed a dismissal application to the Competition Tribunal less than two months before the hearings are scheduled to begin.

The basis for the application is that it has been more than five years and the commission has not obtained any evidence to form the basis of its complaints.

SAB said the commission had failed to file witness statements, instead issuing subpoenas against 10 witnesses; the case was speculative; and the approach was an abuse of the tribunal process.

“We are opposing the dismissal application of course,” Competition Commission economist Simon Roberts said yesterday. “We did a full investigation and instead of putting up witness statements we issued subpoenas.” It appears the commission took this route as witnesses were unwilling to testify against SAB as some were its customers.

SAB said it was speculating the commission had not consulted with those witnesses and was concerned about the lack of transparency, hence the subpoenas.

Should the tribunal dismiss SAB's application, hearings are expected to go ahead from 4 - 28 May 2010, and continue in August.

The commission referred the case to the tribunal on 21 December 2007, saying SAB had concluded agreements with the respondents collectively, constituting a concerted practice, prohibited in terms of section 4(1) (b)(ii) of the Competition Act. Under this section, the commission may seek a declaratory order from the tribunal against two or more companies if their conduct excludes others from the market.

The commission said this practice also involved division of the market by allocating territories.

Among the respondents are liquor distributors Africa Beer Wholesalers, Boland Beer Distributors, Ermelo Beer Wholesalers, Greytown Beer Distributors, Makhado Beer Wholesalers, Midlands Beer Distributors, Mkuze Beer Wholesalers, Southern Cape Beer Distributors, Stefquo and Vryheid Beer Distributors. Others include SAB franchisees Madadeni Beer Wholesalers and Westonaria Beer Distributors.

SAB said it believed it had not engaged in any anticompetitive business practice.

It stood by its January statement in which it said it would defend the commission's claims and it believed that, “should the tribunal hearing go ahead, the prospects of success are good”. It said in a worst-case scenario it would pay an R80m-R100m fine.

Source: Business Day