The Competition Tribunal (“Tribunal”) has dismissed all of the exceptions – except one – raised by three leading pathology laboratories, thereby allowing the case involving alleged excessive pricing of COVID-19 PCR tests to proceed.  
 
The Tribunal heard exception applications by Dr Du Buisson, Kramer, Swart, Bouwer Inc t/a Ampath (“Ampath”), Drs Dietrich Voigt, Mia and partners t/a Pathcare (“Pathcare”), and Dr Mauff AC and Partners t/a Lancet Laboratories (“Lancet”) on 27 November 2024.
 
These exceptions were in response to a case referred to the Tribunal by the Health Funders Association NPC and 36 medical schemes (“the complainants”), relating to an allegedly excessive price charged by the pathologists for COVID-19 PCR tests between March 2020 and December 2021.
 
The complainants, who want to claim damages from the pathologists in the High Court, self-referred the case to the Tribunal after the Competition Commission declined to refer the case. The Commission had settled the complaint with the pathologists through consent agreements which were confirmed as consent orders by the Tribunal. In the consent agreements the pathologists agreed to price reductions but admitted no liability for their conduct. The complainants seek a declaratory order from the Tribunal confirming that the pathologists engaged in a prohibited practice under the Competition Act, which would support their damages claim in the High Court.
 
Exceptions
 
Ampath argued, among others, that the complainants failed to present a valid cause of action. It requested outright dismissal of the case or a final opportunity for the complainants to improve its pleadings with the option to seek dismissal if they failed to meet the required standard. PathCare challenged the referral as vague and embarrassing, and sought a supplementary affidavit within 10 days, failing which it sought dismissal. Lancet sought dismissal of specific claims in the notice of motion, with costs, or 15 days for the complainants to amend their founding affidavit, with dismissal as an alternative if deficiencies were not addressed.
 
The Tribunal’s order
 
The Tribunal dismissed the exceptions that relate to the complainants’ claims regarding the pathologists’ alleged market power, excessive pricing, dominance and detriment to consumers, among others. The exception it has upheld requires the complainants to provide facts regarding price comparisons with smaller firms. In its pleadings, the complainants contend that smaller firms charged significantly lower prices than the pathologists for the PCR tests. The complainants now have to substantiate this allegation so that the pathologists can answer to it.  
 
On the exceptions dismissed, the Tribunal has concluded that at this stage of the pleadings, the material facts necessary to demonstrate the alleged excessive price have been sufficiently set out. Whether that conclusion will be found to be justified on all of the facts is for the Tribunal to decide after hearing the evidence. At this stage, however, the Tribunal is of the view that the complainants have sufficiently set out the material facts necessary for the pathologists to answer to the allegations.
 
The Tribunal’s ruling means that the complainants' case against the pathologists can now proceed to the merits once the pathologists have filed their answers, as ordered by the Tribunal.
 
The Tribunal’s reasons for its decision will be publicly available in due course, once any confidentiality claims by the parties have been finalised.