Phindi Kema’s appeal dismissed with costs
On Friday, 6 December 2013, the Competition Appeal Court heard an application filed by Ms. Phindi Kema and Africa Race Group (Proprietary) Limited (“the Applicants”) for leave to appeal to the Constitutional Court. The Competition Appeal Court had decided that the Applicants did not have standing to appeal the Competition Tribunal’s decision to approve the intermediate mergers between Gold Circle and Kenilworth Racing and Kenilworth Racing and the Thoroughbred Horseracing Trust.
Advocate S Chitando, instructed by attorneys Burmeister de Lange Soni, appeared on behalf of the Applicants, Advocate M Smithers (SC), instructed by Barkers Attorneys appeared on behalf of Gold Circle, and Advocate A Cockrell (SC), instructed by attorneys Roodt Incorporated, appeared on behalf of Kenilworth Racing and the Thoroughbred Horseracing Trust.
Mr. Justice Dennis Davis, Judge President of the Competition Appeal Court, rejected the submissions made by Advocate Chitando that there was a reasonable prospect that the Constitutional Court would arrive at a different interpretation of the relevant sections of the Competition Act, 89 of 1998 in regard to the categories of persons entitled to appeal a decision of the Competition Tribunal in merger proceedings than the interpretation of the Competition Appeal Court in Distillers Corporation (SA) Ltd and Another v Bulmer (SA) (Pty) Ltd and Another(08/CAC/May01) and in the above matter.
In the circumstances, Mr Justice Davis dismissed the appeals filed by the Applicants and, in doing so, awarded costs in favour of the merging parties.
