On March 14 2011 the Competition Appeal Court upheld an appeal by Yara South Africa Pty Ltd and Omnia Fertilizer Ltd, holding that there is no complaint pending against Yara and Omnia in the longstanding fertiliser complaint referral before the Competition Tribunal.
Sasol Chemical Industries Pty Ltd, Yara and Omnia were originally cited as respondents in the commission's referral of a complaint initiated by Nutri-Flo. In its settlement agreement in May 2009, Sasol made certain admissions regarding contraventions of the Competition Act both by itself and with Yara and Omnia. As a consequence, the commission sought to incorporate further details relating to Omnia and Yara's alleged conduct into the complaint referral.
The commission's application to amend the referral was opposed by both Omnia and Yara, mainly on the basis that the commission sought to introduce a matter which was not covered by the original complaint and also a counter-claim for the dismissal of the complaint referred. The tribunal found that the complaint and referral were capable of being amended and also dismissed Omnia's counterclaim.
The court considered the ambit of Nutri-Flo's complaint and found that the tribunal's finding was incorrect, and that Sasol was the sole focus of Nutri-Flo's complaint. The court further found that the information submitted by Nutri-Flo, forming part of the complaint against Sasol, was not sufficient to justify the claim that a complaint was also initiated against Omnia and Yara. The commission, therefore, was not entitled to refer to the tribunal any complaint or particulars of any complaint other than those relating to the complaint against Sasol, thereby excluding Omnia and Yara. The court found that the onus was on the commission, subsequent to receiving information of contraventions, to initiate a formal complaint.
The court accordingly upheld the appeal with costs and set aside the order of the tribunal. It further held that there is no complaint pending against Yara and Omnia in this matter.
The commission is currently in the process of seeking leave to appeal to the Supreme Court of Appeal, arguing that the court had mistakenly adopted too narrow a legalistic definition when considering the nature of complaints brought before the tribunal for adjudication. To date, the court has not allocated a date to hear the commission's application for leave to appeal.
For further information on this topic please contact Lesley Morphet at Webber Wentzel by telephone (+27 11 530 5000), fax (+27 11 530 5111) or email ([email protected]).