Tribunal to proceed with SAB case

The Competition Tribunal this week rejected a bid by South African Breweries (SAB) to throw out charges of anticompetitive behaviour brought against it by the Competition Commission.

By Michael Bleby

24 Mar 2010

The tribunal, however, ordered the commission to supply SAB with information it needed to fight the charges but had not yet been given, such as witness statements.

The ruling came at the end of a hearing in which the brewer, with a local market share of about 90%, accused the commission of ignoring its obligations to supply evidence.

“The attitude of the commission is that it is not bound by rules,” SAB's advocate, David Unterhalter, said. “This matter should not proceed one step further because there isn't a case for us to answer.”

The commission, which referred its probe against SAB to the tribunal in December 2007, said it was not bound by the deadlines SAB cited to hand over information. Further, evidence of the economic effect of SAB's behaviour was not yet ready, advocate Anthony Gotz said.

“The expert witness statements will only be filed on 1 April 2010. Until that time, it is not feasible for SAB to argue it does not have a case to meet,” Gotz said.

The charges include setting territorial exclusivity agreements with distributors, setting minimum prices and abuse of dominance. If guilty, SAB, which denies any wrongdoing, could be fined up to 10% of turnover. The case will be heard in May.

“SAB believes that its decision to call for a dismissal of the case has been vindicated, and that the ruling by the tribunal has substantially addressed the company's concerns around the procedural fairness of the case,” the company said.

The commission was also happy. “We're happy this technical issue has been resolved,” deputy commissioner Thembinkosi Bonakele said.

Source: Business Day

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