The Tribunal has today issued an order dismissing an application, by a former bakery owner, to access confidential parts of the Commission’s record of investigation in a matter it decided not to prosecute.
 
The applicant in the matter, Hylton Mark Neethling, filed a complaint with the Commission in 2017. He alleged that Wholesome Foods (Pty) Ltd was selling baked bread below cost. The Commission investigated the matter and found, among others, that the price charged by Wholesome Foods was unlikely to be below marginal or average cost. The Commission issued a certificate of non-referral (decided not to prosecute) and provided reasons for its decision.
 
Neethling subsequently self-referred the matter to the Tribunal, adding an allegation of cartel conduct between Wholesome Foods and Golden Crust.
 
In order to ascertain whether he had a legitimate abuse of dominance case, Neethling requested a copy of the Commission’s record of investigation. A non-confidential copy was provided to him. Cost and pricing structure had been redacted as Wholesome foods had claimed confidentiality over competitively sensitive information.
 
In his submission Neethling stated that he was unable to exercise his rights in litigating his complaint further, due to Wholesome Food’s refusal to grant him access to its pricing information. He submitted that the information is essential for him to assess the merits of his case.
 
Wholesome Foods maintained its objection in granting access to the information, arguing that pricing information contains intellectual property which it needs to protect.
 
In dismissing Neethling’s application the Tribunal says, among others: “… The Tribunal must not be used by litigants, who have to prepare their cases based on the facts obtained by them during their own collection of information and facts prior to them self-referring complaints to the Tribunal, to seek information from non-litigants (in this instance, the Commission) in order to assess the merits of their cases for the purposes of pursuing their self-referrals.”  
 
The Tribunal has, thus, dismissed the application adding: “Neethling is not without any alternative remedies. Should he intend to proceed with the matter, he may subpoena the Commission and the question of confidentiality can be disposed of during the proceedings, if any.”
 
The Tribunal has also ordered that Neethling must pay the costs of Wholesome Foods.
 
The Tribunal’s full order and reasons will be made available in due course.