Clover Industries Limited and Another v Competition Commission and Others; Ladismith Cheese (Pty) Ltd v Competition Commission and Others

The Competition Commission referred several complaints to the Competition Tribunal alleging prohibited practices in the milk industry, including cartel conduct, price fixing, market allocation, exclusive supply agreements, and surplus milk removal schemes, in contravention of the Competition Act 89 of 1998. The referral followed information received from a dairy farmer, Mrs Malherbe, and a subsequent industry-wide investigation. Clover Industries Limited, Clover SA (Pty) Ltd, and Ladismith Cheese (Pty) Ltd raised preliminary points (in limine) before the Tribunal, contending that the Commission’s referral was time-barred because the Malherbe letter constituted a formal complaint under section 49B(2)(b), triggering the one-year period in section 50. Clover also relied on a corporate leniency agreement (CLP) granted by the Commission, arguing that it was unfair and unlawful to prosecute Clover on certain complaints while obliging it, under the CLP, to cooperate in prosecuting related cartel conduct. The Tribunal dismissed all in limine points, prompting appeals and a review application to the Competition Appeal Court.

The appeal against the Tribunal’s dismissal of the first point in limine was dismissed. The review application challenging the dismissal of the second and third in limine points was also dismissed. Costs were awarded against the appellants, including the costs of two counsel where applicable.

This judgment is significant for clarifying the distinction in South African competition law between the submission of information and the lodging of a formal complaint under section 49B of the Competition Act. It confirms that only a complaint submitted under section 49B(2)(b) triggers the one-year referral period in section 50. The case also provides authoritative guidance on the interpretation and operation of the Commission’s corporate leniency policy and affirms the Commission’s ability to self-initiate investigations without being constrained by prescription arguments based on informal information.