South Africa’s Competition Tribunal has dismissed attempts to set aside the ongoing milk cartel case against Clover and seven other milk processors.

In 2008, the Tribunal and, on appeal, the Competition Appeal Court had to determine a challenge raised by Clover and Ladismith, as to whether the complaint had been initiated timeously.

The Tribunal decided that it had, and the Competition Appeal Court (CAC) confirmed the decision on appeal. The CAC refused leave to appeal and Clover and Ladismith have petitioned the Supreme Court of Appeal to grant them leave.

The present challenge came from the respondents, Milkwood and Woodlands. The companies challenged the right of the Competition Commission to use evidence against them, allegedly obtained from an unauthorised summons and subsequent interrogation of their respective executives. The respondents also alleged that the referral against them was unlawful and asked for it to be set aside.

A further challenge was that the one count, (count 5) had not been validly referred by the Commission against Woodland, because it had not been preceded by an administrative procedure by the Commission, called a complaint initiation.

They also sought an order that the evidence elicited from the summons whether oral or documentary, could not be used by the respondents in “any hearing before the Tribunal”.

In the course of the hearing, several technical arguments were addressed as to the validity of the Commissions’ conduct. 



The Tribunal has ruled that the two summonses were void for vagueness, particularity concerning the alleged prohibited practices that gave rise to the search. As a result, the Tribunal did not deem it necessary to consider any other of the technical issues raised because of this conclusion.

However, the Tribunal imposed a novel remedy in the case. Although setting aside the summons it made a preservation order. That is, copies of the documents seized will be retained by the Tribunals’ registrar until the Commission determines whether it wishes to issue a new summons that complies with the law. A preservation order is issued to balance the right to privacy against the interests of the administration of justice.

The Tribunal found in favour of the Commission in respect of Count 5 and held that it had been validly initiated prior to referral. The Tribunal held further that the issue of whether the evidence elicited at the interrogations could be used should be held over for the panel that hears the case.

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