SAB loses PE drinks competition appeal

The commission brought the appeal application after the tribunal in April last year dismissed the referral of a complaint against the SAB after relying on a previous decision by the CAC that the initial complaint against a firm must be reflected in the case that was referred to the tribunal for adjudication.

The CAC dismissed the case against Yara and Omnia in the fertilizer cartel case because the complainant in the matter never mentioned the two firms in the initiation process‚ yet when the case was referred to the tribunal‚ they were sited as respondents.

In SAB's case the original complainant‚ Port Elizabeth-based drinks wholesaler Nico Pitsiladi‚ made an issue of the fact that he did not get the same discount as that enjoyed by SAB's 13 so-called appointed distributors. While he complained about the lack of a discount‚ the case the commission brought against SAB included allegations of retail price maintenance‚ carving up geographical markets and abuse of dominance.

In its application to the CAC the commission argued that it was fair to bring up a wider range of allegations than those contained in the original complaint. A complainant might only see the aspect of a problem that applies to it and there may well be bigger and wider problems at play that only become apparent upon investigation.

The appeal court said in this case the complainant complained about certain forms of conduct. The court found that the complaint‚ as drafted‚ did not accurately refer to all of the relevant sections of the act which were later invoked by the commission‚ but the conduct‚ against which the complaint was lodged‚ gave rise to an investigation.

During that process‚ the complaint was amplified and "fleshed out". The upshot was that the conduct against which the complainant brought its complaint gave rise to a series of allegations of breaches of the act which could be linked to the conduct against which the complainant had initially complained.

The order of the tribunal was set aside and replaced with an order dismissing the applications brought by SAB and its distributors.