Legal representatives of SA’s largest retailers – Spar, Shoprite and Pick n Pay – have urged the Competition Tribunal to defer hearing a complaint by Massmart that lease exclusivity clauses at malls and shopping centres frustrated Massmart’s expansion plans. A report in Business Report says during the first day of the tribunal’s hearing on the retailers’ application for the matter to be deferred, David Unterhalter – representing Pick n Pay – criticised Massmart’s application as vague and defective. He highlighted the failure to identify affected markets and unsubstantiated claims of dominance, charging that identifying them was a fundamental building block on which the complaint should be based. ‘The identity of the concerned market is a material fact.&rs quo; Unterhalter said Massmart’s grounds of complaint were unclear. ‘We have no idea which markets are affected by the restraints,’ Unterhalter said.

Appearing for Shoprite, Jeremy Gauntlett said the market inquiry was already dealing with the exclusivity clauses in leases. He criticised the level of detail in Massmart’s complaint describing it as skeletal. Spar’s advocate, Anna Annandale, said a tribunal order on the matter would affect parties such as landlords and wholesalers, who were not part of the case. She said Massmart’s complaint could wait until the inquiry ends in May. But Mike van der Nest, appearing for Massmart, said their case was sustainable. He said Massmart had not been able to furnish the tribunal with more details because the retailers had refused to share their agreements, which had the exclusivity clauses.  

Full report in Business Report  

The tribunal, however, decided to reserve judgment on whether to hear the matter. And the legal teams of Pick n Pay, Spar, and Shoprite have asked that Massmart pick up the costs if the tribunal decides in their favour, notes a Business Day report. Part of the relief Massmart seeks from the tribunal is for it to rule that all existing exclusivity clauses the respondents have signed be declared null and void – a move Annandale said could have far-reaching consequences, especially with the market inquiry under way.

But Frank Snyckers, on behalf of Massmart, said the outcomes of the inquiry would merely be recommendations and non-binding. ‘The inquiry is broader and general and is not aimed at making a finding or validating a fact,’ he said. Snyckers said for as long as the referral proceedings did not continue, Massmart would be suffering a significant prejudice. ‘The inquiry will release its findings and recommendations provisionally next year May. But that is not up to Massmart or the commission. But no matter what happens in the inquiry, we will continue to be excluded from competing nationally, as findings will be non-binding,’ he said.  

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