Johannesburg - The Competition Appeal Court has dismissed a bid by Clover Industries and Ladismith Cheese to get a price-
fixing case against them withdrawn.
The Competition Appeal Court dismissed the parties appeal and review with costs against the decision by the Competition Tribunal on June 23 2008 to dismiss their points in limine (ie. legal points raised before hearing the main matter).
These in limine points were heard by a panel of the Tribunal on June 2 2008.
Clover Industries and Ladismith Cheese jointly raised the first point in limine contending that the Competition Commission's complaint referral - in which the Commission alleges that milk processors, including Clover and Ladismith, are engaged in anti-competitive practices - should be withdrawn.
They alleged that the complaint had lapsed after the expiry of a one-year time period prescribed by the Act and/or in the alternative, the Commission did not get the necessary extensions from the initial complainant after the investigation period had ended in terms of section 50 (2) of the
Act.
The Tribunal found that the time frames referred to in section 50(2) do not apply.
Clover's second and third points in limine relate to Clover's alleged procedural defect and unfairness in the complaints drawn up by the commission.
On the second and third points in limine the Tribunal said, "..in our view it would be premature for us to determine questions of fairness at this stage of the proceedings. It is only at a later stage that the prejudice that Clover would suffer can be fully ascertained and be effectively dealt
with".
This decision follows from an investigation into anticompetitive behaviour in the milk industry which began in February 2005. The Commission alleges that that Clover Industries, Clover SA, Parmalat, Ladismith Cheese, Woodlands Dairy, Lancewood, Nestlé SA and Milkwood Dairy are engaging in the following prohibited practices in contravention of the Competition Act:
Exchange of information between competitors
Milk exchange and supply agreements between milk processors
Abuse of exclusive supply agreements with the producers
The fixing of retail prices and market allocation
The fixing of selling price and/or trading of milk and processed products
The Commission negotiated a corporate leniency agreement with Clover. Clover was granted leniency on the sixth charge (the fixing of selling price and/or trading milk and process products) in return for co-operating with the Commission in the prosecution of the other milk processors - Parmalat, Ladismith Cheese, Woodlands Dairy, Lancewood, Nestlé SA and Milkwood Dairy.
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