COMPANY COMMENT: Tribunal tips its hat to Caxton the policeman
Tribunal says a penalty has to be high enough not to become a cost of doing business, but not so high that it is disproportionate to the crime
An R800,000 fine is a bitter pill for struggling newspaper The Witness, but is a slap on the wrist for its ultimate owner, R1.2-trillion market cap behemoth Naspers.
Rival newspaper owner Caxton’s call to have this fine escalated to potentially R40m — R20m payable immediately with the threat of another R20m if any firm within the Naspers stable fails to notify the Competition Commission about any acquisitions within the next five years — was rejected by the Competition Tribunal.
The tribunal said a penalty had to be high enough not to become a cost of doing business, but not so high that it was disproportionate to the crime. While Caxton failed to convince the tribunal R800,000 was too low to "induce a sense of shock", it did score some points against Naspers. The tribunal said normally it would have awarded Naspers costs, but in the case the larger group has to pick up its own lawyers’ tab because without Caxton’s persistence, the competition authorities would not have discovered that The Witness acquired the proprietor of isiZulu newspaper Ilanga, Mandla-Matla, without getting the required permission. Justifying its decision not to award costs, the tribunal said: "Private enforcement should not be chilled despite the fact it may be brought about for motives other than a concern about anticompetitive effects.... the system benefits from the actions of a private policeman whatever its motives." The acquisition about which the parties failed to notify compet...