Commission ordered to file supplementary founding affidavit within 30 days, failing which Computicket, Shoprite Checkers case may be dismissed

 03 April 2020

Commission ordered to file supplementary founding affidavit within 30 days, failing which Computicket, Shoprite Checkers case may be dismissed

 


The Tribunal has ordered the Competition Commission to file a supplementary founding affidavit in its abuse of dominance case against Shoprite Checkers (Pty) Ltd and Computicket (Pty) Ltd “to cure the defects in the complaint referral in respect of the allegations”.

 

The matter relates to the Commission’s second abuse of dominance case against Computicket, a subsidiary of Shoprite Checkers. The Commission wants to hold Shoprite Checkers jointly and severally liable for Computicket’s alleged contravention of the Competition Act.

 


Computicket, Shoprite Checkers’ applications

 

In November 2019, the Tribunal heard an exception application by Computicket as well as a dismissal application and exception application by Shoprite Checkers.

 

Computicket noted an exception to the Commission’s second abuse of dominance case against it. It asked the Tribunal to order the Commission “to improve upon its pleadings to address the vague and embarrassing nature of the case sought to be made out.”

 

Shoprite Checkers asked the Tribunal to dismiss the Commission’s case against it or, alternatively, it noted an exception against the Commission’s complaint referral. It argued, among others, that the Commission failed to sufficiently disclose material facts and points of law on which it relies for its cause of action against Shoprite Checkers.

 


Tribunal’s order

 

In terms of the Tribunal’s order, the Commission must file a supplementary founding affidavit to the complaint referral within 30 business days, failing which Shoprite Checkers and Computicket will be given leave to approach the Tribunal for an order that the case be dismissed.   

 

In its order, the Tribunal has also noted: “It is our view … that Computicket and Shoprite Checkers are separate economic entities and should therefore be treated as such in respect of the allegations contained in the Commission’s complaint referral.”

 

With regards to the issue of dominance, the Commission conceded that Shoprite Checkers is not active in the market for outsourced ticketing services to inventory providers in which Computicket is active. Unsurprisingly, no market shares attributable to Shoprite Checkers are reflected anywhere in the Commission’s referral. It is simply unclear of what we are to make of the allegations against Shoprite Checkers. Given that the Commission’s reliance on the single economic entity doctrine fails and the question of dominance is abundantly opaque, the Commission must rectify its referral to properly reflect and clarify the case against Shoprite Checkers in order for it to meet the case put against it.”

 


Background

 

 

The first abuse of dominance case

 

In early 2019 the Tribunal found that Computicket had abused its dominance between 2005-2010 and ordered the local ticketing giant to pay an administrative penalty of R20 000 000.00 (twenty million rand).

 

Computicket subsequently took the matter on appeal to the Competition Appeal Court. The appeal was dismissed with costs.

 

The second abuse of dominance case

 

In December 2018, the Commission referred a second complaint against Computicket for primarily the same conduct, spanning from the period 2013 to date. This time however, the Commission wants Shoprite Checkers, as Computicket’s parent company, to be held jointly and severally liable for the alleged contravention.

 

 

 

Issued by:

 

Gillian de Gouveia
Communications Officer
Tel: +27 (0) 12 394 1383
Cell: +27 (0) 82 410 1195
E-Mail: GillianD@comptrib.co.za
Twitter: @comptrib

 


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