National Association of Pharmaceutical Wholesalers and Others v Glaxo Wellcome (Pty) Ltd and Others

The appellants were pharmaceutical wholesalers who historically purchased products from pharmaceutical manufacturers at discounted prices and resold them to retailers. The manufacturers restructured their distribution model by establishing an exclusive distribution agency (EDA), converting Druggists Distributors (Pty) Ltd into a logistics service provider (later Kinesis Logistics) and later selling it to an independent third-party logistics provider, Tibbeth & Britten. The wholesalers complained that the EDA arrangement reduced their historical discounts and negatively affected their businesses. They sought interim relief from the Competition Tribunal under section 59 of the Competition Act 89 of 1998 to interdict the manufacturers from using the EDA and to restore the pre-existing distribution arrangements. After an earlier interim order was set aside on review, the matter was reheard by the Tribunal (Lewis Tribunal), which refused interim relief. The wholesalers appealed that refusal to the Competition Appeal Court and sought condonation for late filing.

The appeal was dismissed and the application for condonation for late filing of the appeal record was refused. The refusal of interim relief by the Competition Tribunal was confirmed. Pharmacare was awarded a special costs order on an attorney-and-client scale. The manufacturers’ cross-appeal on expert qualifying fees was noted but not determined in the extracted portion of the judgment.

The case underscores the strict and temporary nature of interim relief under the Competition Act and the importance of urgency and procedural diligence. It affirms that interim relief cannot be used to obtain final or retrospective remedies, that relief must be precisely pleaded, and that omnibus prayers cannot cure fundamentally defective or outdated relief. The judgment also highlights the need to join all parties with a substantial interest in the relief sought.