LIFE HEALTHCARE GROUP (PTY) LTD AND LIFE RENAL CARE (PTY) LTD V MEDICLINIC SOUTHERN AFRICA (PTY) LTD AND MEDICLINIC RENAL SERVICES SOUTH AFRICA (PTY) LTD

The judgment

The court's own file

1 THE COMPETITION APPEAL COURT OF SOUTH AFRICA JUDGMENT Reportable Case no: 277/CAC/Mar26 In the matter between: LIFE HEALTHCARE GROUP PROPRIETATY LIMITED First Appellant LIFE RENAL CARE PROPRIETATY LIMITED Second Appellant and MEDICLINIC SOUTHERN AFRICA PROPRIETATY First Respondent LIMITED MEDICLINC RENAL SERVICES SOUTH AFRICA Second Respondent PROPRIETARY LIMITED Coram: Davis, Phatshoane and Dippenaar AJJA Heard 19 June 2026 Delivered 7 August 2026 Neutral citation: Life Healthcare Group Proprietary Limited and Another v Mediclinic Southern Africa Proprietary Limited and Another (277/CAC/Mar26) [2026] ZACAC 5 (7 AUGUST 2026) 2 Summary: Competition law – appeal – interim relief in terms of s 49C of the Competition Act 89 of 1998 (the Act) – whether the Competition Tribunal correctly dismissed the application on the basis that the appellant failed to establish its market definition and failed to make out a prima facie case of abuse of dominance under s 8 of the Act – whether the requirements of s 49C(2)(b) of the Act were established. 3 ORDER An appeal from: The decision of the Competition Tribunal: 1. The appeal is upheld with costs, including the costs of two counsel; 2. The decision of the Tribunal dismissing the application is set aside and replaced with the following order with effect from date of this order: ‘1 For a period of six months from the date of this order, or the conclusion of a hearing in respect of the prohibited practices alleged by the applicants in the complaint filed with the Competition Commission under case number 2025FEB0007, whichever is the earlier: 1.1 The first respondent is directed to reinstate the second applicant’s access permissions and on-site storage at Mediclinic Vergelegen, Mediclinic Morningside, Mediclinic Panorama, Mediclinic Potchefstroom and Mediclinic Newcastle (the hospitals) on the same bases that applied at the time when the second applicant operated at the hospitals, and to ensure that the second applicant is permitted to administer renal dialysis treatment and/or extracorporeal blood-related treatment to patients at the hospitals, where the second applicant has been requested to administer such treatment by a referring clinician, subject to the second applicant’s substantial adherence to the first respondent’s reasonable infection control, security and other protocols; 1.2 The first respondent is directed to permit the second applicant to continue to administer any form of inpatient renal dialysis treatment and/or extracorporeal blood-related treatment to patients at all Mediclinic hospitals in South Africa at which the second applicant is currently providing services, on the same bases as the second applicant currently provides those services, and to refrain from in any way preventing or impeding the second applicant from doing so, where the second applicant has been requested to administer such treatment by a referring clinician, subject to the second applicant’s continued substantial adherence to the first respondent’s reasonable infection control, security and other protocols; 1.3 The first respondent is directed to circulate a communication to all clinicians, including but not limited to nephrologists, physicians, nurses and renal 4 technologists, and to hospital executive and clinical management, at all the Mediclinic hospitals at which the second applicant is currently providing services, or has been excluded from providing services by the first respondent, explaining the nature and meaning of the obligations set out in paragraphs 1.1 and 1.2 above, and expressly indicating that all clinicians are free to call for the services of the second applicant to treat patients at Mediclinic hospitals, and that they will not suffer any repercussions as a result of exercising their clinical discretion in this regard; and 1.4 The first respondent is directed to circulate a communication to all employees of the second respondent explaining the obligations set out in paragraphs 1.1 and 1.2 above, and indicating that the second applicant is permitted to treat patients at all the Mediclinic hospitals at which it is currently providing services, or has been excluded from providing services by the first respondent, and should not be prevented or impeded from carrying out services in these hospitals, in any way whatsoever. 1.5 The costs of the application, including the costs of two counsel, shall be paid by the respondents, jointly and severally, the one paying, the other to be absolved.’ 5 JUDGMENT Dippenaar AJA (Davis and Phatshoane AJJA concurring)

[1]This is an appeal in terms of s 49C(7) of the Competition Act 89 of 1998 (the Act) concerning the dismissal of the appellants’ application for interim relief under s 49C of the Act. The first appellant is Life Healthcare Group (Pty) Ltd (Life Healthcare). The second appellant is its wholly owned subsidiary, Life Renal Care (Pty) Ltd (Life Renal). The first respondent is Mediclinic Southern Africa (Pty) Ltd (Mediclinic SA). The second respondent is its wholly owned subsidiary, Mediclinic Renal Services South Africa (Pty) Ltd (Mediclinic Renal). Where convenient the appellants and respondents will collectively be referred to as ‘Life’ and 7Mediclinic’ respectively.

[2]Life Healthcare and Mediclinic SA both operate a number of multidisciplinary private hospitals providing acute hospital care. Both Life Renal and Mediclinic Renal provide renal dialysis services in hospitals and standalone clinics. There are three large corporate hospital operators in South Africa, Netcare Group Ltd, Life and Mediclinic. Netcare is the largest. All three offer dialysis services at their hospitals. Historically all three have permitted third party dialysis service providers to operate at their hospitals. The extent to which third party providers operated at the various hospital groups is in dispute. At these hospitals other services are provided by independent third parties, such as doctors, pathologists and the like. These providers can compete on both price and quality of service. Mediclinic confirmed that it ‘controls access to its own hospitals and can therefore prevent a downstream competitor from providing services at its own hospitals’. 6

[3]It was common cause that there is a category of in-hospital patients who are acute patients, such as emergency patients 1 and crash landers. 2 Both acute and chronic inpatients receive treatment whilst confined to a hospital. The decision as to which service provider a patient is referred to typically rests with the patient’s nephrologist or specialist physician. That referral decision is exercised with clinical independence and is primarily informed by the perceived quality of care provided by a particular dialysis services provider. The administration of dialysis services requires a renal technologist or a renal nurse. There is no material differences in equipment used to administer treatment to chronically ill and acutely ill patients. Both acute and chronic patients receive treatment whilst confined to a hospital, often in its intensive care unit, and so are limited to receiving dialysis services from in-hospital units and mobile units.

[4]At the beginning of 2024, Life Healthcare expanded Life Renal’s business by acquiring the dialysis business of a third party, Fresenius (Pty) Ltd (Fresenius). Fresenius had entered the market during 2001 as an independent. The Competition Commission approved the Life/Fresenius merger with effect from 1 April 2024. One of the agreed conditions of the Life Fresenius merger was that Life would continue to permit third party dialysis service providers access to its hospitals.

[5]Mediclinic in turn, acquired a 79% interest in another dialysis service provider, BGM Renal Care (Pty) Ltd (BGM), and established the Mediclinic Renal. BGM was created in 2020 by Mr Prinsloo, the previous CEO of Fresenius. For a period after the Life/Fresenius acquisition both Life Renal and Mediclinic Renal provided in-hospital dialysis services at certain of Mediclinic’s hospitals and competed on this level. From about January 2024 and shortly prior to Life’s acquisition of Fresenius, Mediclinic began rolling out its strategy to insource the provision of dialysis services in its hospitals, targeting Life Renal’s operations at its hospitals. The affected Mediclinic hospitals are Vergelegen (Somerset West), Panorama (Panorama in Cape Town), Morningside (Sandton), Potchefstroom and Newcastle. Mediclinic Renal established 1 Being patients who were not previously treated with dialysis but who are admitted to hospital on an inpatient basis as a result of an acute episode and who require dialysis during their hospitalisation. They may require dialysis owing to a catastrophic event which causes his or her kidneys to shut down, but he or she is anticipated to regain normal kidney function over time such that ongoing dialysis treatment on an outpatient basis is not required. 2 Being patients who are admitted to hospital after a sudden and unexplained deterioration in their health and are then for the first time diagnosed with kidney disease. 7 its own operations alongside those of Life Renal and then gave Life Renal notice that it was terminating Life Renal’s access to the hospital, effectively ending its ability to provide services in the hospital. Mediclinic Renal then stepped in and took over all the services Life Renal had been providing at the hospital.

[6]This conduct led Life lodging a complaint of abuse of dominance with the Competition Commission on 6 February 2025. Its case is that Mediclinic is engaging in various exclusionary acts in terms of s 8 of the Act; in particular in terms of s 8(1)(d)(i), in preventing dialysis patients and their referring doctors from dealing with a competitor of Mediclinic Renal; requiring that patients admitted to a Mediclinic hospital must obtain dialysis services from Mediclinic Renal in contravention of s 8(1)(d)(iii); and/or that Mediclinic is otherwise engaging in exclusionary conduct where the anti-competitive conduct is not outweighed by any alleged efficiency benefits in contravention of s 8(i)(c). Life alleges that Mediclinic is seeking to foreclose the market and prevent the provision of in-house dialysis services by third party dialysis service providers at Mediclinic’s multidisciplinary hospitals. The complaint is presently still being investigated by the Commission.

[7]Life sought interim interdictory relief in terms of s 49C from the Competition Tribunal (Tribunal) by way of an application launched on 17 April 2025. 3 That application forms the subject matter of this appeal. Some six months after the hearing, on 23 February 2026, the majority of the Tribunal members dismissed the application. The majority (Prof Valodia and Ms Ndoni) held that Life had failed to make out a prima facie case that: (a) there was a distinct market for the provision of dialysis services to patients in hospitals; and (b) Mediclinic’s dominance in the market. According to the majority, the market definition advanced by Mediclinic, being the provision of services in multidisciplinary hospitals, was more plausible than that of Life as dialysis services simply formed one aspect of the broad market for the provision of acute multidisciplinary private hospital services. The majority did not regard it necessary to consider the other factors in s 49C(2)(b) and dismissed the application on the basis that no prima facie case of abuse of dominance had been made out by Life. 3 The application was argued on 25 August 2025. Further submissions were made on 9 September 2025. 8

[8]The minority (Mr Wessels), took issue with those findings, concluding that Life had established a prima facie case of abuse of dominance and that the majority had failed to consider the matter from the perspective of the constitutional imperatives as set out in Competition Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd and Another (Mediclinic). 4 In the written reasons provided for the order, neither the majority nor the minority dealt with all the requirements of s 49C(2)(b) of the Act.

[9]This appeal is based on the following grounds: (a) that the Tribunal failed to consider all the factors in s 49C(2)(b) as it only considered the issue in s 49C(2)(b)(i); (b) that the Tribunal failed to have regard to the constitutionally entrenched right of access to healthcare; (c) that the Tribunal erred in relation to market definition; (d) dominance and market power; (e) exclusionary conduct and anti-competitive effect; and (f) its view on the effect of the decision. It was common cause that the Tribunal’s order is appealable.

[10]The stance adopted by Life was that it has accepted that any dialysis service provider should be allowed to operate at its hospitals if there is a request for them to do so, having agreed to such condition when it acquired Fresenius as part of the merger conditions (the open access condition). Life considers this to be standard industry practice. Its view is that each hospital constitutes a separate market and that Mediclinic’s conduct is exclusionary and falls within the prohibitions on abusive dominance in that market as envisaged by s 8 of the Act, Mediclinic being a dominant firm as envisaged by s 7 of the Act.

[11]Mediclinic adopted the opposite stance, namely that ‘for as long as patients are admitted to Mediclinic, Life cannot treat them’. Its intention is to insource its renal dialysis and related services at its hospitals, a strategy which will be implemented over time at all its hospitals. Mediclinic’s case is that Life’s case for dominance is contrived, its market definition is flawed and its theory of harm devoid of factual underpinning. The parties adopted the same stance in the appeal as before the Tribunal. 4 Competition Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd and Another [2021] ZACC 35; 2022 (4) SA 323 (CC); 2022 (5) BCLR 532 (CC) (Mediclinic). 9

[12]Section 49C of the Act regulates interim relief. In relevant part, s 49C provides: ‘(2) The Competition Tribunal – . . . (b) may grant an interim order if it is reasonable and just to do so, having regard to the following factors: (i) The evidence relating to the alleged prohibited practice; (ii) the need to prevent serious or irreparable damage to the applicant; and (iii) the balance of convenience. (3) In any proceedings in terms of this section, the standard of proof is the same as the standard of proof in a High Court on a common law application for an interim interdict.’

[13]It is well established that all three factors must be considered holistically and must be weighed and balanced through the prism of what is reasonable and just. 5 As held in Business Connexion (Pty) Ltd v Vexall (Pty) Ltd and Another (Business Connexion): 6 ‘The evidence of a prohibited practice is not concerned with the rights of an applicant but the competitive position of competitors in the market, judged against the regulatory criteria of the prohibited practices defined in chapter 2 of the Act’.

[14]The need to prevent serious or irreparable damage to an applicant posits an enquiry into the effects of the alleged prohibited practice upon the applicant and is a party specific enquiry. 7 Damage is to the competitive position of an applicant and other forms of damage are not relevant. The balance of convenience requires that ‘the currency of prejudice is reckoned by recourse to the consequences of the competitive positioning of the parties in the market’. 8

[15]The approach to be adopted is to first establish if there is evidence of a prohibited practice, the Act’s analogue of a prima facie right. The facts alleged by Life must be considered, together with the facts alleged by Mediclinic that Life cannot dispute, and then to consider whether having regard to the inherent probabilities, Life 5 Business Connexion (Pty) Ltd v Vexall (Pty) Ltd and Another [2020] 2 CPLR 490 (CAC) (Business Connexion) para 19. 6 Ibid para 20. 7 Ibid para 21. 8 Ibid para 22. 10 should on those facts establish the existence of a prohibited practice at the hearing of the complaint referral’. 9

[16]As held in GovChat (Pty) Ltd and Another v Facebook Inc, WhatsApp Inc and Facebook South Africa (Pty) Ltd (GovChat), 10 s 8(1)(c) is a rule of reason prohibition. This means that the conduct complained of will be prohibited only if it has an anti- competitive effect which is not outweighed by pro-competitive justifications. Under s 8(1)(c) an applicant or complainant must show the elements of the exclusionary conduct and that the anti- competitive effects outweigh technological or other competitive effects. However, under s 8(1)(d) once the elements of s 8(1)(d) are satisfied, the onus shifts to the respondent to demonstrate that the effects are outweighed by pro-competitive gains. Life must show the critical elements, namely dominance of Mediclinic and that the conduct complained of has exclusionary effects. An assessment of a firm’s dominance is almost always done with reference to the market within which it functions. 11

[17]According to eMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd, 12 s 49C envisages that the Tribunal is obliged to make a summary assessment before granting the interim relief. The assessment is only at the prima facie level. It must consider the evidence as to the alleged practice. There is usually no time to delve too deeply into theories of irreparable harm but at the very least it must be assessed in the context of whether there is a prima facie right at the interim level. As long as there is clear and non-speculative evidence about possible anti-competitive effects, then serious consideration must be given to granting relief. Relief cannot be granted under s 49C unless a prima facie case has been established which, in turn implies that an applicant has put up an arguable case that the state of competition, that is the competitive dynamics in the defined market, can be detrimentally affected by the alleged conduct or practice of a respondent. 9 GovChat (Pty) Ltd and Another v Facebook Inc and Others (case no IR165Nov20) (11 November 2021) para 21. 10 Ibid para 27. 11 Ibid par 29 and authorities cited in fn19. 12 eMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd and Other [2023] 3 CPLR 32 (CAC) para 19. 11

[18]It is thus not contentious that if no prima facie case was made out, the Tribunal was entitled to dismiss the application on that basis without considering the other two factors. 13

[19]The central issue is whether Life established a prima facie case for abuse of dominance. The starting point is whether Life established its market definition on a prima facie basis. This issue dominated the submissions presented at the hearing. Life contended that a separate market exists for the provision of dialysis services to in- hospital patients in the individual hospitals. Mediclinic on the other hand submitted that the well-established market for multi-disciplinary hospital services applied and that the provision of dialysis services was simply a component of the provision of multidisciplinary private hospital services. The key dispute between the parties is whether competition occurs when patients choose a hospital prior to their admission or whether a further choice is made once patients are admitted and they require dialysis. It was not disputed that if Life’s market definition was accepted on a prima facie basis, Mediclinic was a monopolist in each relevant market, given that it owns its hospitals and controls access to them.

[20]Mediclinic argued that a patient makes a single purchasing decision prior to admission to a multidisciplinary hospital and that the focal product and relevant market is that for multidisciplinary hospitals. According to Mediclinic, crash landers and acute patients make a single purchasing decision about which hospital they wish to be admitted before they know they need dialysis and that the purchasing decision is clearly one between hospitals offering multidisciplinary services made prior to admission. It is more plausible, so the argument goes, that competitive constraints operate at the level of the hospital bundle rather than at the level of distinct services such as dialysis as crash landers or their referring doctors will choose the hospital at which they wish to be treated based on the same considerations that any other patient (except emergency) will choose a hospital – convenience and the availability of a suitable range of specialist services. For that reason, it is irrelevant whether patients 13 Mercantile Bank, A division of Capitec Bank Limited and Others v Surve and Others [2023] ZACAC 2; [2023] 3 CPLR 33 (CAC). 12 know in advance if they will require dialysis services as they contract for the provision of a holistic service which includes foreseeable and unforeseeable medical services.

[21]According to Mediclinic, even if it is assumed that hospitals provide upstream services and that separate services such as dialysis, cardiology and the like are each separate non-substitutable downstream services, the relevant question for input foreclosure is whether the input provided by Mediclinic is truly an essential facility or whether it is substitutable with space at other hospitals or facilities. Patients are not an input. The question is whether a renal dialysis provider can use space at other hospitals or buildings in the same geographic area to compete effectively with Mediclinic Renal. It was submitted that if one is to consider the matter with reference to two vertically related markets, the relevant downstream market would be that for renal dialysis services and the upstream market (the input required to provide such services) would be space from which to practice in a given geographic area and not access to ‘captured patients’. It maintains that it has a constitutional right to control access to its own property. Mediclinic further contended that it was not shown to be a dominant provider of space within hospitals in a particular geographic area.

[22]According to Mediclinic the market in which private hospitals compete has consistently been defined as being that for multidisciplinary services. 14 In-hospital renal dialysis services is but one aspect of that service offering. In most hospitals the hospital group that owns the hospital also provides the dialysis services inside the hospital on an exclusive basis. It was argued that Life does not explain why dialysis services are different or are a specialist discipline. According to Mediclinic, the closest the Tribunal has come to departing from that approach is in Mediclinic v Matlosana (Matlosana), 15 where it acknowledged that hospitals compete on various metrics, including quality of care and the provision of a cluster of services and noted that distinct inpatient services are not substitutes for each other. 16 14 Relying on Afrox Healthcare Limited/Amalgamated Hospitals Limited (53/LM/Sept01) [2001] ZACT 42; Phodiclinic (Pty) Ltd & Others/Protector Group Medical Services (Pty) Ltd & Others (122/LM/Dec05) [2007] ZACT 17 paras 21-24 & 117; Netcare Hospitals (Pty) Ltd v Lakeview Hospitals (IM193Oct17) [2018] ZACT 93 paras 10, 12, 17. 15 Mediclinic v Matlosana (LM124Octo16) [2020] JOL 46577 (CT) (Matlosana). 16 In Matlosana, the Tribunal held: ‘[82] The distinct inpatient hospital services generally are not substitutes for each other. Consequently one could delineate each individual inpatient hospital service as a separate relevant product market. 13

[23]Life’s case on the other hand is that there is a distinct class of patients who do not make up-front decisions as to which hospital they will attend to obtain dialysis. Life’s argument rests on the relevant patient group being primarily the crash landers – people who discover they need dialysis only after they are admitted to a hospital. Those are the patients who do not make an upfront choice to select their hospital based on the price or quality of its dialysis services and cannot, once they have been admitted, switch hospitals, even if the dialysis service they are receiving is inferior in quality. Life submitted that they are an important category of patients for dialysis service providers because they will invariably continue to receive dialysis after their discharge from hospital and whoever initially provided dialysis will have a distinct advantage in retaining them as patients once they are discharged. It was not contentious that crash landers are the most important source of referrals of new chronic patients.

[24]According to Life, the analysis must start with the services that are the focal point from which to assess the extent to which competitors can and do serve as immediate and effective constraints on a firm supplying that service. 17 The existence of such a market is supported through application of the well-established tools for assessing demand and supply side suitability and the undisputed facts, including the actual competition between dialysis service providers for in-house hospital services. It was submitted that there is a market at each hospital for provision of access to the hospital for the provision of these services. Once that is accepted, there can be no real dispute that Mediclinic is a dominant firm at each of its hospitals, that it is able to exert market power to foreclose rival dialysis service providers from its hospitals and that it has in fact done so, with a clear anti-competitive effect in each market. There is merit in Life’s approach. However, doing so would be burdensome and therefore, for analytical convenience, we do not follow that approach in this case.

[83]It was common cause that outpatient services are a separate relevant product market. Outpatient services are not substitutable with inpatient hospital services and are offered by a different set of competitors under different competitive conditions.

[84]The economic experts also agreed that specialised hospitals which offer only one discipline, such as inpatient psychiatric services, are part of (a) separate relevant product market(s).’ 17 European Union Commission Notice on the definition of the relevant market for the purposes of Union competition law available at https://eur-lex.europa.eu/legal- content/EN/TXT/PDF/?uri=OJ:C_202401645 accessed on 5 August 2026. 14

[25]The majority of the Tribunal held that it could not apply a small but significant non-transitory increase in price (SSNIP) test and could not determine whether a hypothetical monopolist could raise prices or reduce quality to this class of patients (crash landers) without them switching hospitals. However, in Matlosana the Tribunal held: 18 ‘…A medical scheme or uninsured patient cannot substitute an inpatient service for a day care service of an acute multi-disciplinary hospital in response to a price increase or quality reduction in inpatient services. Put differently, a hypothetical monopolist of inpatient multi- disciplinary private hospital services could profitably raise prices by a small but significant amount or degraded non-price factors without the risk of substitution to the day care services of the hospitals.’ That lends credence to the Life’s proposed approach.

[26]To determine whether Life has established the market contended for, it is necessary to consider demand-side substitutability and the hypothetical monopolist test. The purpose of market definition in complaint proceedings is to identify the primary competitive forces relevant to assessing the effects of the conduct by the firm that is the subject of the complaint – in particular whether and to what extent there are other firms that act as immediate and effective constraints on that firm. 19

[27]Applying the hypothetical monopolist test, what must be considered is the smallest geographical area over which a hypothetical monopolist could impose and sustain a small but significant non-transitory increase in price (SSNIP) or effect a deterioration in non-price factors. The ambit of the relevant geographic market thus depends on the distance that patients would be willing to travel in the case of a hypothetical SSNIP or deterioration in non-price factors at one of the relevant hospitals. It is accepted that there are asymmetrical constraints between inpatients, outpatients and day cases. The question is what patients would regard as an alternative hospital, if any, in the case of SNIPP or a quality deterioration at a specific hospital. 18 Matlosana fn 17 para 96. 19 eMedia fn 14 para 58. 15

[28]The smallest possible market is the provision of in-hospital dialysis services at Mediclinic’s hospitals. There is no demand-side substitutability for this service for a patient in a hospital. Should a patient require dialysis, they must obtain it in a hospital. From a patient’s demand-side perspective, there is a specific and identifiable demand for dialysis services that can only be provided in-hospital, which is not substitutable with services that can be provided outside the hospital. That service is also not substitutable either for other specific services provided in the hospital or for the overall general suite of services offered by the hospital in which they have been admitted or by any other hospital. The lack of demand side substitution is key to delineating the relevant market.

[29]Guidance is to be found in the European Union Commission Notice on the definition of the relevant market for the purposes of Union Competition law (EU notice): 20 ‘Demand substitution constitutes the most effective and immediate disciplinary force on the suppliers of a given product. An undertaking’s influence over prevailing conditions of sale – such as prices, the level of innovation or the quality offered – depends on the extent to which its customers can easily switch to available products that the customers consider as substitutes. Demand substitution is therefore the main consideration when defining the relevant product market.’

[30]From a supply side perspective, it was undisputed that the only firms that can supply dialysis to patients in a hospital are those that have an in-hospital unit within that hospital or have a mobile unit that can readily be moved into that hospital in a short period of time. There are no significant technical barriers preventing a mobile unit from providing such services at different hospitals within its operating area as there are no material differences in processes, staff and equipment used to administer in- hospital dialysis to acute or chronic patients, or to administer in-hospital dialysis treatments in different multidisciplinary hospitals. Mobile units are thus capable of competing and do compete with in-hospital units operating within a given multidisciplinary hospital. In-hospital and mobile units are therefore the only firms that 20 According to the EU Notice fn 19 par 23(a); See also para 23(b) of the EU Notice is states that: ‘Supply substitution can also be relevant for the definition of the relevant market in some cases, namely when it is as effective and immediate as demand substitution and when it leads to similar competitive conditions across the products concerned.’ 16 can compete in the market. The direct service is access to and storage space in each of the various hospitals Mediclinic operates. Once the downstream market for the provision of in-hospital dialysis services is correctly identified, then the existence of an upstream market for the provision of access to a hospital to provide these services appears clear, at least on a prima facie basis.

[31]From a demand side perspective, a firm wishing to provide in-hospital dialysis services at a particular hospital must be provided access to and storage facilities in a particular hospital. From a supply side perspective, access to and storage facilities at a specific hospital can only ever be provided by that particular hospital. Every hospital has complete and exclusive control over access to and storage at its premises and thus has real monopoly power. Since provision of access permissions and reasonable on-site storage facilities to mobile dialysis providers constitutes an essential input into the market for in-hospital dialysis services, the two markets are virtually related. This gives rise to a classic input foreclosure theory of harm whereby Mediclinic’s withholding of access to those essential inputs results in the foreclosure of mobile dialysis service providers from the market for the provision of those services. The markets are at least complementary – sufficient for appellants to establish a leveraging theory of harm – in-house hospital patients are locked in once admitted allowing Mediclinic to leverage market power from each market for access to its various hospitals to each inpatient dialysis services market.

[32]On the evidence there are several indicators that Mediclinic’s market definition is not accurate in the current circumstances. The respondent’s systems market is inconsistent with the EU notice which provides guidance on defining markets involving primary and secondary products. There is no demand side substitutability. From a patient’s demand side perspective there is a specific and identifiable demand from dialysis services that can only be provided in a hospital, which is not substitutable with services that can be provided outside the hospital. It is also not substitutable for other specific services provided in a hospital or for the overall general suite of services offered by the hospital in which they were admitted or by any other hospital.

[33]In considering the anti-competitive effects, it must be considered whether the exclusionary act is substantial or significant in foreclosing the market to rivals. Those 17 effects can be actual or potential. Mediclinic’s submissions regarding the replacement of one monopoly provider by another and hence that Computicket (Pty) Ltd v Competition Commission of South Africa (Computicket) 21 is distinguishable (because there has been no reduction in the number of service providers), does not bear scrutiny. Factually it was undisputed that both Life Renal and Mediclinic Renal for a period of time competed at the respective hospitals. Whether it was a transitionary period, as Mediclinic contends, does not detract from this fact.

[34]As held in South African Airways (Pty) Ltd v Comair Ltd and Another: 22 ‘It was sufficient if there was evidence that the exclusionary practice is substantial or significant or it has the potential to foreclose the market to competition. If it is substantial or significant, it may be inferred that it creates, enhances or preserves the market power of the dominant firm. If it creates, enhances or preserves the market power of the dominant firm it will be assumed to have an anti-competitive effect’.

[35]Mediclinic’s contentions of pro-competitive gains, a reduction in revenue to Life Renal, safety and clinical considerations, do not bear scrutiny. In their answering papers, Mediclinic raised certain complaints and concerns about the quality of renal services provided by Fresenius and gaps in clinical supervision of patients, resulting in harm to patients. They placed reliance on affidavits from four former employees of Fresenius, who left its employ before the acquisition of Fresenius by Life Renal. It does not appear from the papers that any complaints were raised at the time. There is merit in Life’s contention that the quality complaints were raised to counter Life’s complaints, given that they are historical prior to Life Acquiring Fresenius in 2024 and its own inaction in addressing those complaints until Life acquired control before raising such complaints, at least on a prima facie basis. Mediclinic’s claim that a reduction in Life’s revenue is inherently pro-competitive conflates harm to an incumbent with benefit to the competitive process. It is not itself evidence of improved competitive outcomes. The question is not whether Life loses revenue but whether the impugned conduct excludes a competitor. Mediclinic’s argument that choice is not reduced because one service provider has simply been replaced by another, does not withstand scrutiny. 21 Computicket (Pty) Ltd v Competition Commission of South Africa [2019] 2 CPLR 539 (CAC) (Computicket). 22 South African Airways (Pty) Ltd v Comair Ltd and Another 2012 (1) SA 20 (CAC) paras 106, quoted in Computicket para 19. 18 Even where Life Renal was the sole provider so that the market was uncontested, it was always constrained by the possibility of entry by a new entrant.

[36]The approach adopted by the majority of the Tribunal disregarded two important factors. First, in its valuation, the Tribunal was required, as pointed out in the minority judgment, to take into account the jurisprudential and transformative principles of the Constitution and the Act and to consider the aspiration to create a social justice- sensitive economy, 23 given that the conduct complained of impacts patients’ constitutional right to access to healthcare. 24 Second, the Tribunal was required to holistically 25 consider all three factors in s 49C(2)(b), weigh and balance those factors through the prism of what is reasonable and just. 26 This was stated by the Tribunal in Nedschroef Johannesburg (Pty) Ltd v Teamcor Ltd and Others (Nedschroef). 27 An applicant for an interim order need only adduce evidence of a contravention at a prima facie level and the Tribunal is required to make a summary assessment of that evidence in order to grant interim relief. 28 The Tribunal was not required to determine whether Life had proved its case, rather whether its case was arguable, and thus crossed the prima facie case threshold. 29

[37]It is by reference to the impugned conduct and its effects that the relevant market ought to be defined. On a prima facie level Life has established the market it contends for, even if it is open to some doubt. For present purposes that is sufficient. On its face and at least on a prima facie basis, Mediclinic’s conduct is in contravention of s 8 of the Act, by using its monopoly power as a provider of access to patients to foreclose competitors to its hospitals. Granting interim would preserve competition pending the final determination of Life’s complaint. 23 eMedia Investments (Pty) Ltd South Africa v Multichoice (Pty) Ltd and Another (eMedia 2022) [2022] 2 CPLR 23 (CAC) para 95. 24 Mediclinic fn 4 para 2. 25 GovChat para 160. 26 Business Connexion (Pty) Ltd v Vexall (Pty) Ltd and Another (Business Connexion) (2020) 2 CPLR 490 (CAC) para 19. 27 Nedschroef Johannesburg (Pty) Ltd and Teamcor Ltd/Waco International Ltd/CBC Fasteners (Pty) Ltd/Avlock International (Pty) Ltd and Others [2006] 1 CPLR 98 (CT) para 24. 28 Mercantile Bank, A Division of Capitec bank Ltd and Others v Surve and Others [2023] 3 CPLR 33 (CAC) para 25. 29 eMedia 2022 fn 26 para 19 19

[38]On a conspectus of the facts, at least on a prima facie basis, I conclude that Life has established that Mediclinic is a dominant firm at each of its hospitals and a monopolist provider of access to and storage facilities at each of its hospitals. It is able to exert market power to foreclose rival dialysis service providers from its hospitals. In the hospitals referred to in these proceedings, it has done so. It has also been established that there has been an anti-competitive effect, at least on a prima facie basis and that Life has been completely foreclosed from operating in the specified hospitals (Mediclinic Vergelegen, Mediclinic Morningside, Mediclinic Panorama, Mediclinic Potchefstroom and Mediclinic Newcastle) and that it will ultimately be excluded from all Mediclinic’s hospitals, as is its expressed intention. That is because the market structure has changed. What was previously essentially an uncontested market, has become an incontestable one.

[39]I thus conclude that Life’s complaint is at least plausible. It is not necessary for Life to prove at this juncture that its complaint will succeed. It is enough that Life has established at least a prima facie case. For present purposes it is not necessary to determine which of the provisions of s 8 have been established on a prima facie basis. That determination is best left to the Tribunal to consider and determine in due course. At the very least it can be accepted on a prima facie basis that Life has established that Mediclinic has engaged in an exclusionary act, other than those described in s 8(1)(d) and that the anti-competitive effect of the act outweighs its technological, efficiency or other pro-competitive gain as envisaged in s 8(1)(c) or s 8(1)(d)(i). It may well be that Life in due course may not be able to establish tying, as required for purposes of s 8(1)(d)(iii). That is not fatal to the present relief. The reasoning and conclusion of the minority of the Tribunal on this issue cannot be faulted.

[40]However, that is not the end of the enquiry. Both the majority and minority members of the Tribunal failed to engage on the remaining factors in s 49C(2)(b). For that reason alone, the Tribunal’s decision falls to be set aside. It is necessary to consider the other two factors referred to in s 49C(2).

[41]Turning to the requirement of the need to prevent irreparable or serious harm: Life’s case is that its competitive position would be irreparably harmed as it would be excluded from providing its services at any Mediclinic hospital until final adjudication 20 of its complaint, forcing it to re-enter the market as a new entrant, requiring the re- establishment of relationships with referring doctors and new staff. Re-entry would be a slow, costly and capital-intensive process and would depend on the availability of employees with scarce skills who are in short supply. Life Renal’s units servicing Mediclinic hospitals would cease to operate and the employees of those units would leave their employ; employees who are in short supply and exceptionally valuable. Mediclinic did not strenuously dispute this.

[42]The effect of being completely foreclosed from competing for patients in Mediclinic’s hospitals from which Life Renal, constitutes a well-grounded apprehension of harm, even if there is some doubt as to whether a contravention has been established. 30 Life’s exclusion would have an obvious and serious effect on its ability to compete, which cannot be repaired by an order in due course simply restoring its ability to compete prospectively. That constitutes sufficient harm for the interim relief sought by Life.

[43]A further well-grounded apprehension of harm would occur by the channelling away of patients who require ongoing outpatient treatment after hospitalisation if the crash landers are a significant source of new referrals of new chronic patients. Mediclinic acknowledged that providing acute and chronic services in hospital provides a good launching pad to expand into the provision of outpatients.

[44]Mediclinic’s argument that the highwater mark of Life’s case on harm is that it stands to lose revenue is an oversimplification of its case. Its further contention that it was incumbent on Life to quantify the revenue at issue, does not pass muster. The case is about competitive harm, not merely a loss of revenue. The facts, considered in context, do illustrate irreparable harm to Life’s competitive position.

[45]Turning to the balance of convenience it requires weighing the prejudice Life would suffer if the interim relief were not granted to Life against the prejudice Mediclinic would suffer if interim relief were to be granted. It requires an equitable reckoning as 30 Lottoland SA (Pty) Ltd v Google Ireland Ltd and Google SA (Pty) Ltd (case no IR191Mar23) (12 November 2024) (Lottoland) para 39. 21 to who bears the greater burden of error. 31 Prejudice is reckoned by recourse to the consequences for the competitive positioning of the parties in the market. As stated in Business Connexion: ‘[a] respondent that is required to desist from conduct that gives it a legitimate competitive advantage suffers prejudice. An applicant that is required to endure an unlawful competitive disadvantage also suffers prejudice’. 32

[46]On the facts, Life has established a favourable balance of convenience. Mediclinic did not establish that it would suffer any material harm. On the undisputed facts, it would not be precluded from entering and operating concurrently with Life Renal in any Mediclinic hospital. The potential harm to patients who require dialysis in hospitals must also be taken into consideration. It is irrelevant that private healthcare services are involved. Harm to patients is an important consideration because it affects patients’ constitutional right of access to healthcare. As confirmed by the Constitutional Court, the Constitution imposes a positive duty on a court to promote the spirit, purport and objects of the right. 33 That duty is reflected in the Act itself – maintaining or increasing the scope for choice of essential and much needed services. It is beyond dispute that, as found by the minority of the Tribunal: ‘patients that need dialysis are severely compromised from a health perspective’ and ‘are a vulnerable group’. Competition between different service providers may well result in an improved quality and price of services.

[47]Seen holistically, Life has met the requirements of s 49C(2)(b). This Court must exercise its discretion whether to grant an interim order. In considering the various factors holistically and taking into account the jurisprudential and transformative principles of the Constitution and the Act and the aspiration to create a ‘social justice- sensitive economy’, 34 it would be reasonable and just to exercise such discretion in favour of Life.

[48]For these reasons the appeal must be upheld. It would serve no purpose to simply substitute the Tribunal’s order with the proposed order, given the passage of 31 Business Connexion fn 29 para 158. 32 Business Connexion fn 29 para 22. 33 Mediclinic fn 4 para 72. 34 Mediclinic fn 4 para 2. See also eMedia para 95. 22 time. It would be fair and reasonable to grant relief with effect from the date of this order. Costs follow the result. Given the complexities involved, the employment of two counsel was justified. Order

[49]In the result, the following order is granted: 1 The appeal is upheld with costs, including the costs of two counsel; 2 The decision of the Tribunal dismissing the application is set aside and replaced with the following order with effect from date of this order: ‘1 For a period of six months from the date of this order, or the conclusion of a hearing in respect of the prohibited practices alleged by the applicants in the complaint filed with the Competition Commission under case number 2025FEB0007, whichever is the earlier: 1.1 The first respondent is directed to reinstate the second applicant’s access permissions and on-site storage at Mediclinic Vergelegen, Mediclinic Morningside, Mediclinic Panorama, Mediclinic Potchefstroom and Mediclinic Newcastle (the hospitals) on the same bases that applied at the time when the second applicant operated at the hospitals, and to ensure that the second applicant is permitted to administer renal dialysis treatment and/or extracorporeal blood-related treatment to patients at the hospitals, where the second applicant has been requested to administer such treatment by a referring clinician, subject to the second applicant’s substantial adherence to the first respondent’s reasonable infection control, security and other protocols; 1.2 The first respondent is directed to permit the second applicant to continue to administer any form of inpatient renal dialysis treatment and/or extracorporeal blood-related treatment to patients at all Mediclinic hospitals in South Africa at which the second applicant is currently providing services, on the same bases as the second applicant currently provides those services, and to refrain from in any way preventing or impeding the second applicant from doing so, where the second applicant has been requested to administer such treatment by a referring clinician, subject to the second applicant’s continued substantial adherence to the first respondent’s reasonable infection control, security and other protocols; 23 1.3 The first respondent is directed to circulate a communication to all clinicians, including but not limited to nephrologists, physicians, nurses and renal technologists, and to hospital executive and clinical management, at all the Mediclinic hospitals at which the second applicant is currently providing services, or has been excluded from providing services by the first respondent, explaining the nature and meaning of the obligations set out in paragraphs 1.1 and 1.2 above, and expressly indicating that all clinicians are free to call for the services of the second applicant to treat patients at Mediclinic hospitals, and that they will not suffer any repercussions as a result of exercising their clinical discretion in this regard; and 1.4 The first respondent is directed to circulate a communication to all employees of the second respondent explaining the obligations set out in paragraphs 1.1 and 1.2 above, and indicating that the second applicant is permitted to treat patients at all the Mediclinic hospitals at which it is currently providing services, or has been excluded from providing services by the first respondent, and should not be prevented or impeded from carrying out services in these hospitals, in any way whatsoever. 1.5 The costs of the application, including the costs of two counsel, shall be paid by the respondents, jointly and severally, the one paying, the other to be absolved.’ _____________ EF DIPPENAAR Acting Judge of Appeal Competition Appeal Court of South Africa 24 Appearances Counsel for the First and Second Appellants: M Wesley SC & C Avidon Instructed by: Herbet Smith Freehills Kramer South Africa Attorneys Inc. Counsel for the First and Second Respondents: J Blou SC & G Marriott Instructed by: Thomson Wilks Attorneys, Cape Town.