The Competition Tribunal (Tribunal) has dismissed a complaint referral by Glenmore Capital (Pty) Ltd (Glenmore) against the National Health Laboratory Service (NHLS), AfroCentric Health (RF) (Pty) Ltd (AfroCentric) and the Department of Health, after upholding exceptions filed separately by NHLS and AfroCentric.

Glenmore’s case concerned the alleged exclusion of its COVID-19 rapid antigen test kits from the public and private sectors. It sought damages of nearly R2 billion.

In August 2022, Glenmore lodged a complaint with the Competition Commission (Commission), alleging that NHLS and AfroCentric had engaged in exclusionary conduct that hindered its access to the market for COVID-19 test kits. Following an investigation, the Commission issued a Notice of Non-Referral i.e. it decided not to prosecute the case. It found that Glenmore's failure to gain market acceptance was due to commercial factors such as the timing of regulatory approval and low demand as the COVID-19 pandemic subsided.

Dissatisfied with that outcome, Glenmore referred the matter directly to the Tribunal. NHLS and AfroCentric raised concerns about the nature of Glenmore’s case. At a pre-hearing in December 2024, Glenmore was granted an opportunity to amend its founding affidavit to address these concerns. Although it amended its papers, NHLS and AfroCentric argued that the revised complaint still failed to disclose a valid cause of action. They then both filed exceptions.

In their exceptions, NHLS and AfroCentric argued that the complaint was vague, lacked a proper legal basis under the Competition Act (Act) and failed to establish key elements such as the relevant market, dominance or anti-competitive effects. They also contended that Glenmore had improperly cited parties, advanced claims beyond the Tribunal’s jurisdiction and repeatedly failed to cure defects despite multiple opportunities to do so. The Tribunal upheld four exceptions:

  1. No valid cause of action – Glenmore’s complaint failed to disclose a cause of action under the Act and lacked the necessary legal and factual foundation.
  2. Improper citation of entities – Glenmore failed to properly identify the legal entity alleged to have contravened the Act, despite multiple opportunities to do so.
  3. Lack of proper market definition – Glenmore failed to plead a clear and coherent relevant market (essential for assessing dominance and anti-competitive effects under the Act), shifting between broad references to the health market, antigen tests and unrelated products like gloves and vitamins, without identifying the relevant product or geographic market.
  4. Lack of jurisdiction and procedural issues – The Tribunal cannot award damages outside the context of consent orders, as contemplated under section 65 of the Act. Allegations such as irregular procurement under the Public Finance Management Act, insider trading and violations of the Medical Schemes Act fall outside the scope of competition law and the Tribunal’s mandate.

The Tribunal found that Glenmore had been given ample opportunity to clarify and substantiate its case but failed to do so. The exceptions were therefore upheld and the complaint referral dismissed. The full reasons can be accessed on the Tribunal’s website: Case Number: CRP148Dec23

Issued by:

Gillian de Gouveia, Communications Manager

On behalf of the Competition Tribunal of South Africa

Cell: +27 (0) 82 410 1195

E-Mail: GillianD@comptrib.co.za

Twitter: @comptrib

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