Glenmore's R2bn claims against health service providers dismissed by Competition Tribunal

The Competition Tribunal has ruled against Glenmore Capital, dismissing its complaint regarding the alleged exclusion of its COVID-19 rapid antigen test kits from the South African public and private sectors.

The decision comes after the Tribunal upheld exceptions filed by both the National Health Laboratory Service (NHLS) and AfroCentric Health, citing multiple deficiencies in Glenmore's case.

Glenmore's complaint, originally lodged with the Competition Commission in August 2022, sought damages nearing R2 billion, claiming that NHLS and AfroCentric engaged in exclusionary practices that barred it from entering the market for COVID-19 test kits.

The Commission, however, chose not to pursue the case, citing Glenmore's struggle to achieve market acceptance as a result of commercial factors, including delays in regulatory approval and a decrease in demand as the COVID-19 pandemic waned.

Frustrated with the Commission's decision, Glenmore escalated the matter to the Tribunal. At a pre-hearing in December 2024, Glenmore was afforded an opportunity to amend its founding affidavit to address the concerns raised by NHLS and AfroCentric.

Despite making amendments, both defendants argued that Glenmore’s case remained fundamentally flawed.

In its defence, NHLS and AfroCentric articulated four primary exceptions, asserting that Glenmore's complaint lacked a valid cause of action, failed to properly identify the legal entities involved, lacked a clear market definition, and exceeded the Tribunal's jurisdiction due to the nature of the claims made.

• No valid cause of action: Glenmore's complaint failed to establish a legal basis under the Competition Act, lacking both legal and factual foundation.
• Improper citation of entities: Glenmore did not adequately identify which legal entity allegedly contravened the Act, despite having been given several opportunities to rectify this.
• Lack of proper market definition: The complaint failed to clarify the relevant market, with Glenmore shifting references between disparate health products without defining a cohesive product or geographic market.
• Lack of jurisdiction and procedural issues: The Tribunal highlighted that it cannot award damages unless under consent orders and noted allegations outside the ambit of competition law, such as irregular procurement and insider trading.

The Tribunal noted that Glenmore had been granted ample opportunity to clarify and bolster its case but ultimately failed to provide a coherent argument. With the exceptions upheld, Glenmore’s complaint referral was dismissed in its entirety. 

BUSINESS REPORT