Massmart Complaint - Tribunal Decision
The Massmart proceedings will therefore continue to run in parallel with the market inquiry.
The Tribunal’s reasons included that:
- Market inquiries are not adjudicative proceedings and are not determinative of parties’ issues or rights. Therefore, nothing decided by the market inquiry would be definitive of the Massmart matter.
- The complaint referral process and the market inquiry are not the same in nature. The market inquiry provides recommendations and the Tribunal is the sole institution with adjudicative powers over complaint proceedings under the Act. Therefore no risk of conflicting findings arises and there is no issue in relation to institutional comity.
- The issues to be determined and the two processes are not the same and there is therefore no merit to the argument regarding duplicity of efforts.
The exceptions were upheld by the Tribunal.
Massmart has been provided 40 business days to amend its complaint referral in order to meet the relevant procedural and content requirements.
Massmart acknowledged in the hearing that its abuse of dominance complaint under section 8 needed to be reconsidered and amended.
The Tribunal’s main reasons for upholding the exceptions to Massmart’s section 5(1) complaint included that:
- The complaint is vague and embarrassing in that it is not coherent and consistent.
- Massmart is required to provide allegations of material facts which support its assertions on market definition and anti-competitive effects.
On the issue of non-joinder of the landlords, the Tribunal held that it did not need to make a definitive decision on this point but however offered the following guidance:
“Where a complainant seeks to attack the specific terms of an agreement that it seeks to have expunged, ordinarily both parties to the agreement should be joined. Whereas, as in prayers one and two, the practice is the subject of the relief, rather than a specific clause in a lease, citing the landlord may not be required.”
It therefore seems that the Tribunal is of the view that Massmart is not required to cite the landlords if its prayers remain as currently pleaded.
However we expect that Massmart will still asses and consider any benefits of citing and any risks of not citing the landlords in its amended complaint referral.
Massmart has until 27 October 2016 to amend its complaint referral.
Massmart and Pick ‘n Pay also continued their contractual dispute in the Constitutional Court on Tuesday.
The Business day report on the matter can be accessed at the following link: http://www.bdlive.co.za/business/retail/2016/08/31/masstores-and-pick-n-pay-trade-blows-in-constitutional-court.
Judgement was reserved.