We are pleased to report that Luke Kelly has joined AfricanAntitrust.
Our newest contributing author, Luke Kelly, is an advocate of the High Court of South Africa and member of the Cape Bar. He holds a masters degree in competition law from King’s College London and currently teaches competition law on a part-time basis at the University of Cape Town.
We look forward — as do you, we expect — to reading Luke’s insightful takes on competition law in South Africa and elsewhere on the continent.
Race becomes issue at competition-law conference in South Africa
According to severalreports, the issue of race came to the fore during a discussion of illegal cartel conduct in South Africa at a recently held plaintiffs’ firm symposium (organised by Hausfeld LLP and Abrahams Kiewitz). Quoting from Amanda Visser’s BDLive article entitled “Cartels blamed on white men in dark suits” (23 Oct. 2013):
The Black Business Council has come out against cartels in South Africa, with CEO Xolani Qubeka, blaming the practice on “highly educated white male executives in dark suits”.
Mr Qubeka’s comments at a symposium on cartel collusion came after the recent outcry over collusion and cartel activities in the construction industry.
… Mr Qubeka said the Black Business Council aims not only to rid the country of collusive behaviour, but also to instigate criminal cases against the key architects, masquerading as corporate managers, who are committing fraud.
“Consumers in South Africa cannot continue to be abused by highly educated white male executives in dark suits who lock themselves in dark rooms plotting how they can maximise their wealth through self-serving fraudulent schemes against the entire nation,” he said.
Sounds like the infamous old saying about equating cartels to “men in smoke-filled back rooms” — only with more incendiary overtones… Ironically, the speaker Mr. Qubeka (who did not complete high school and is an outspoken critic of the S.A. Black Economic Empowerment (BEE) agenda, according to a May 2013 Sunday Times profile and otherarticles) used to be a Director of South African telecommunications giant MTN — a corporation that has had its own fair share of competition-based complaints and investigations, as we have reported on this blog.
We observe that the conference-sponsoring Hausfeld firm has historically been perceived as opposing racism and, indeed, has helped pursue claims (including pro bono matters) on behalf of groups suffering from discrimination, such as Holocaust survivors. The firm is currently involved in more traditional plaintiff litigation matters in South Africa, including several miners’ class-action lawsuits against their employers, AngloGold Ashanti Limited (formerly Anglo American), Harmony Gold Mining Company Limited, and Goldfields Limited (based on diseases allegedly contracted by the class members). The firm is also involved, again jointly with Abrahams’, in the bread price-fixing class action in South Africa.
Source: Getty Images via ZIMBIO
AfricanAntitrust.com has an unwritten policy of not commenting on issues irrelevant to antitrust or competition law (that would be: race) and instead staying on topic (that would be: antitrust and competition law).
Nortons Inc., together with the South African Chamber of Commerce and Industry (SACCI) and the Mandela Institute at Wits School of Law, have gathered together a panel of experts to discuss the judgment in Pioneer Foods last year and the effects it has on South Africa’s jurisprudence & business community.
The seminar is entitled: “A new class – the problems and promises of class action litigation in South African law” and runs from 8:00 am – 4:30 pm on Wednesday, 12 June 2013, in Johannesburg at the Wits School of Law (map).
For more information, a full schedule, and to RSVP & sign up,
On 29 November 2012, Judge Wallis of the Supreme Court of Appeal (the “SCA”) handed down judgment in The Trustees of The Children’s Resource Centre / Pioneer Foods (Pty) Limited & Others. The case related to the certification of a class in respect of a number of class actions against three bread producers arising from an investigation by the Competition Commission into price fixing and market allocation in respect of various bread products (the “Bread class action litigation”).
The appeals were brought by a bread distributor in the Western Cape and by a number of organisations in relation to a so-called “consumer” class action for damages after their applications were dismissed by the Western Cape High Court (the “WCHC”).
In its decision the SCA held that class actions should be recognised, not only in respect of constitutional claims, but also in any other case where access to justice in terms of Section 34 of the Constitution required that it would be the most appropriate means of litigating the claims of the members of the class. The SCA then laid down the requirements for such an action, commencing with the need for certification by the court at the outset, before even the issuing of summons. For this purpose, the SCA set out the following criteria before a court could certify a class action:
there must be an objectively identifiable class;
a cause of action must exist which raises a triable issue;
there must be common issues of law and fact that can appropriately be dealt with in the interests of all members of the class;
there must be appropriate procedures for distributing damages to the members of the class; and
the representatives must be suitable to conduct the litigation on behalf of the class.
The SCA found that the appellants’ case had changed during the course of the litigation; and it held that their definition of the proposed class was over-broad and the relief they sought inappropriate. However, Wallis JA held that their claim was potentially plausible and, as this was the first time that the SCA had laid down the requirements for bringing a class action, it was appropriate to afford the appellants an opportunity to remedy the flaws in their papers in compliance with these new requirements. Accordingly, the SCA remitted the matter back to the WCHC.
African Antitrust & Competition Law 