On April 7 2011 the Competition Tribunal dismissed a complaint brought by the Competition Commission against South African Breweries (SAB) and its appointed distributors.
The commission's complaint alleged that SAB's agreements with its appointed distributors had the effect of dividing markets, in contravention of the Competition Act (89/1998). The complaint further alleged that:
- SAB favoured its own distributors over independent distributors, thereby disadvantaging independent distributors in the market; and
- SAB had engaged in an abuse of dominance by inducing its retailers not to deal with SAB's competitors, thereby placing its competitors at a disadvantage in the beer market.
It was agreed between the parties that the case before the tribunal would relate only to the allegations involving distributors, with the abuse of dominance complaint being dealt with at a later date.
SAB's case was that the tribunal did not have jurisdiction to hear the commission's complaint, as the case lodged by the commission with the tribunal extended beyond the initial complaint lodged by the complainant. This point is in line with the recent decisions of the Competition Appeal Court and the Supreme Court of Appeal in Omnia/Commission and Woodlands, respectively. In these two cases, it was held that a complaint lodged with the tribunal by the commission cannot extend beyond the scope of the complainant's original complaint. The commission must lodge a separate complaint in respect of any additional complaint grounds.
The tribunal stated that the outcome was regrettable, but that it was bound by the decisions of higher courts.
For further information on this topic please contact Daryl Dingley at Webber Wentzel by telephone (+27 11 530 5000), fax (+27 11 530 5111) or email ([email protected]).