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

Pharmaceutical wholesalers lodged a complaint with the Competition Commission alleging that several pharmaceutical manufacturers engaged in anti-competitive conduct after converting Druggists Distributors (Pty) Ltd from a wholesaler into an exclusive distribution agent and discontinuing a standard 17.5% wholesale discount. The complainants alleged that this conduct amounted to prohibited practices under sections 4, 5, 8 and 9 of the Competition Act 89 of 1998, including excessive pricing, predatory pricing, and denial of access to an essential facility. The Commission investigated but referred the complaint to the Competition Tribunal out of time, resulting in a deemed non-referral. The complainants then directly referred the matter to the Tribunal. The respondents applied to strike out certain allegations in the referral on the basis that the Tribunal lacked jurisdiction because those allegations were not part of the original complaint submitted to the Commission.

The appeal by the respondents was upheld and the cross-appeal by the complainants was dismissed. The striking out of allegations relating to excessive pricing, predatory pricing, and denial of access to an essential facility was confirmed on jurisdictional grounds.

The case clarifies the jurisdictional limits of the Competition Tribunal and affirms the central role of the Competition Commission in investigating alleged prohibited practices. It establishes that complainants may not expand or alter the factual basis of a complaint at the referral stage and underscores that jurisdictional facts must objectively exist before the Tribunal may exercise its powers.