Phutuma Networks (Pty) Ltd v Telkom SA Ltd

Phutuma Networks (Pty) Ltd lodged a complaint with the Competition Commission alleging that Telkom SA Ltd abused its dominant position, in contravention of section 8(c) of the Competition Act 89 of 1998, by appointing Network Telex to provide telegraphic/telegram and maritime telex services without a competitive tender process. Phutuma alleged that Telkom’s conduct constituted an exclusionary act that prevented it from entering or expanding in the relevant market, and that Telkom unlawfully favoured a non‑BEE compliant company. The Commission issued a certificate of non‑referral, after which Phutuma referred the complaint to the Competition Tribunal. Telkom raised exceptions, arguing that the founding affidavit failed to disclose a cause of action under section 8(c), particularly because it did not define a relevant market, establish Telkom’s dominance in that market, or show an exclusionary act with anti‑competitive effects. The Tribunal upheld the exception and dismissed the complaint with costs, prompting this appeal.

The appeal was dismissed with costs. No punitive costs order was made.

The case clarifies the pleading requirements for abuse of dominance complaints under section 8(c) of the Competition Act and draws a clear distinction between competition law and administrative or procurement law. It confirms that alleged failures to follow public procurement or BEE requirements do not, without more, constitute exclusionary conduct under competition law.