The judgment

COMPETITION TRIBUNAL COMPETITION TRIBUNAL REPUBLIC OF SOUTH AFRICAREPUBLIC OF SOUTH AFRICAREPUBLIC OF SOUTH AFRICA Case No.: IR007Apr25 In the matter between:In the matter between: LIFE HEALTHCARE GROUP (PTY) LTDLIFE HEALTHCARE GROUP (PTY) LTDLIFE HEALTHCARE GROUP (PTY) LTDLIFE HEALTHCARE GROUP (PTY) LTD First ApplicantFirst Applicant LIFE RENAL CARE (PTY) LTDLIFE RENAL CARE (PTY) LTDLIFE RENAL CARE (PTY) LTD Second ApplicantSecond Applicant And MEDICLINIC SOUTHERN AFRICA (PTY) LTDMEDICLINIC SOUTHERN AFRICA (PTY) LTDMEDICLINIC SOUTHERN AFRICA (PTY) LTDMEDICLINIC SOUTHERN AFRICA (PTY) LTD MEDICLINIC RENAL SERVICES SOUTH AFRICA MEDICLINIC RENAL SERVICES SOUTH AFRICA MEDICLINIC RENAL SERVICES SOUTH AFRICA MEDICLINIC RENAL SERVICES SOUTH AFRICA (PTY) LTD First RespondentFirst Respondent Second RespondentSecond Respondent A Wessels (Presiding Member)A Wessels (Presiding Member)A Wessels (Presiding Member) A Ndoni (Tribunal Member)A Ndoni (Tribunal Member)A Ndoni (Tribunal Member) Panel: I Valodia (Tribunal Member)I Valodia (Tribunal Member)I Valodia (Tribunal Member) Heard on: 29 August 202529 August 2025 Last submission on:Last submission on:09 September 202509 September 2025 Order issued on:Order issued on: 23 February 202623 February 2026 Reasons issued on:Reasons issued on: 23 February 202623 February 2026 REASONS FOR DECISIONREASONS FOR DECISIONREASONS FOR DECISION INTRODUCTIONINTRODUCTION [1]In this matter, Life Healthcare Group (Pty) Ltd (“Life Healthcare Group”) and In this matter, Life Healthcare Group (Pty) Ltd (“Life Healthcare Group”) and In this matter, Life Healthcare Group (Pty) Ltd (“Life Healthcare Group”) and In this matter, Life Healthcare Group (Pty) Ltd (“Life Healthcare Group”) and In this matter, Life Healthcare Group (Pty) Ltd (“Life Healthcare Group”) and In this matter, Life Healthcare Group (Pty) Ltd (“Life Healthcare Group”) and Life Renal Care (Pty) Ltd (“Life Renal”) (collectively “Life”) seek interim relief in Life Renal Care (Pty) Ltd (“Life Renal”) (collectively “Life”) seek interim relief in Life Renal Care (Pty) Ltd (“Life Renal”) (collectively “Life”) seek interim relief in Life Renal Care (Pty) Ltd (“Life Renal”) (collectively “Life”) seek interim relief in Life Renal Care (Pty) Ltd (“Life Renal”) (collectively “Life”) seek interim relief in Life Renal Care (Pty) Ltd (“Life Renal”) (collectively “Life”) seek interim relief in terms of section 49C of the Competition Act, No. 89 of 1998 (as amended) (the terms of section 49C of the Competition Act, No. 89 of 1998 (as amended) (the terms of section 49C of the Competition Act, No. 89 of 1998 (as amended) (the terms of section 49C of the Competition Act, No. 89 of 1998 (as amended) (the terms of section 49C of the Competition Act, No. 89 of 1998 (as amended) (the terms of section 49C of the Competition Act, No. 89 of 1998 (as amended) (the “Act”) against Mediclinic Southern Africa (Pty) Ltd (“Mediclinic SA”) and “Act”) against Mediclinic Southern Africa (Pty) Ltd (“Mediclinic SA”) and “Act”) against Mediclinic Southern Africa (Pty) Ltd (“Mediclinic SA”) and “Act”) against Mediclinic Southern Africa (Pty) Ltd (“Mediclinic SA”) and “Act”) against Mediclinic Southern Africa (Pty) Ltd (“Mediclinic SA”) and “Act”) against Mediclinic Southern Africa (Pty) Ltd (“Mediclinic SA”) and Mediclinic Renal Services South Africa (“Mediclinic Renal”) (collectively Mediclinic Renal Services South Africa (“Mediclinic Renal”) (collectively Mediclinic Renal Services South Africa (“Mediclinic Renal”) (collectively Mediclinic Renal Services South Africa (“Mediclinic Renal”) (collectively Mediclinic Renal Services South Africa (“Mediclinic Renal”) (collectively Mediclinic Renal Services South Africa (“Mediclinic Renal”) (collectively “Mediclinic”). [2]On 06 February 2025, Life filed a complaint with the Competition Commission On 06 February 2025, Life filed a complaint with the Competition Commission On 06 February 2025, Life filed a complaint with the Competition Commission On 06 February 2025, Life filed a complaint with the Competition Commission On 06 February 2025, Life filed a complaint with the Competition Commission On 06 February 2025, Life filed a complaint with the Competition Commission On 06 February 2025, Life filed a complaint with the Competition Commission (“Commission”) (the “Complaint”)(“Commission”) (the “Complaint”)(“Commission”) (the “Complaint”) 1 alleging that Mediclinic seeks to prevent the alleging that Mediclinic seeks to prevent the alleging that Mediclinic seeks to prevent the alleging that Mediclinic seeks to prevent the provision of in-hospital dialysis services by third-party dialysis service provision of in-hospital dialysis services by third-party dialysis service provision of in-hospital dialysis services by third-party dialysis service provision of in-hospital dialysis services by third-party dialysis service provision of in-hospital dialysis services by third-party dialysis service provision of in-hospital dialysis services by third-party dialysis service providers, including Life Renal and mobile dialysis service providers, at providers, including Life Renal and mobile dialysis service providers, at providers, including Life Renal and mobile dialysis service providers, at providers, including Life Renal and mobile dialysis service providers, at providers, including Life Renal and mobile dialysis service providers, at providers, including Life Renal and mobile dialysis service providers, at Mediclinic’s multidisciplinary hospitals.Mediclinic’s multidisciplinary hospitals.Mediclinic’s multidisciplinary hospitals. 2 Life submitted that this conduct has the Life submitted that this conduct has the Life submitted that this conduct has the effect of substantially preventing or lessening competition within the relevant effect of substantially preventing or lessening competition within the relevant effect of substantially preventing or lessening competition within the relevant effect of substantially preventing or lessening competition within the relevant effect of substantially preventing or lessening competition within the relevant effect of substantially preventing or lessening competition within the relevant effect of substantially preventing or lessening competition within the relevant markets, and does not result in any technological, efficiency or pro-competitive markets, and does not result in any technological, efficiency or pro-competitive markets, and does not result in any technological, efficiency or pro-competitive markets, and does not result in any technological, efficiency or pro-competitive markets, and does not result in any technological, efficiency or pro-competitive markets, and does not result in any technological, efficiency or pro-competitive gains which outweigh that effect, in contravention of the Act. The substantive gains which outweigh that effect, in contravention of the Act. The substantive gains which outweigh that effect, in contravention of the Act. The substantive gains which outweigh that effect, in contravention of the Act. The substantive gains which outweigh that effect, in contravention of the Act. The substantive gains which outweigh that effect, in contravention of the Act. The substantive relief sought by Life in their Notice of Motion was the following: relief sought by Life in their Notice of Motion was the following: relief sought by Life in their Notice of Motion was the following: relief sought by Life in their Notice of Motion was the following: relief sought by Life in their Notice of Motion was the following: “1. For a period of six months from the date of the Tribunal's order, or the “1. For a period of six months from the date of the Tribunal's order, or the “1. For a period of six months from the date of the Tribunal's order, or the “1. For a period of six months from the date of the Tribunal's order, or the “1. For a period of six months from the date of the Tribunal's order, or the “1. For a period of six months from the date of the Tribunal's order, or the conclusion of a hearing in respect of the prohibited practices alleged by the conclusion of a hearing in respect of the prohibited practices alleged by the conclusion of a hearing in respect of the prohibited practices alleged by the conclusion of a hearing in respect of the prohibited practices alleged by the conclusion of a hearing in respect of the prohibited practices alleged by the conclusion of a hearing in respect of the prohibited practices alleged by the Applicants, whichever is the earlier:Applicants, whichever is the earlier:Applicants, whichever is the earlier: 1.1the First and Second Respondents (collectively, the "Respondents") are the First and Second Respondents (collectively, the "Respondents") are the First and Second Respondents (collectively, the "Respondents") are the First and Second Respondents (collectively, the "Respondents") are the First and Second Respondents (collectively, the "Respondents") are the First and Second Respondents (collectively, the "Respondents") are directed to reinstate the Second Applicant's ("Life Renaldirected to reinstate the Second Applicant's ("Life Renaldirected to reinstate the Second Applicant's ("Life Renaldirected to reinstate the Second Applicant's ("Life Renaldirected to reinstate the Second Applicant's ("Life RenalDialysis") access permissions and on-site storage, and to ensure that it is access permissions and on-site storage, and to ensure that it is access permissions and on-site storage, and to ensure that it is access permissions and on-site storage, and to ensure that it is access permissions and on-site storage, and to ensure that it is access permissions and on-site storage, and to ensure that it is permitted to administer renal dialysis treatment and/or extracorporeal permitted to administer renal dialysis treatment and/or extracorporeal permitted to administer renal dialysis treatment and/or extracorporeal permitted to administer renal dialysis treatment and/or extracorporeal permitted to administer renal dialysis treatment and/or extracorporeal permitted to administer renal dialysis treatment and/or extracorporeal blood related treatment to patients at Mediclinic Vergelegen, Mediclinic blood related treatment to patients at Mediclinic Vergelegen, Mediclinic blood related treatment to patients at Mediclinic Vergelegen, Mediclinic blood related treatment to patients at Mediclinic Vergelegen, Mediclinic blood related treatment to patients at Mediclinic Vergelegen, Mediclinic blood related treatment to patients at Mediclinic Vergelegen, Mediclinic Morningside, Mediclinic Panorama and Mediclinic Potchefstroom (i.e., Morningside, Mediclinic Panorama and Mediclinic Potchefstroom (i.e., Morningside, Mediclinic Panorama and Mediclinic Potchefstroom (i.e., Morningside, Mediclinic Panorama and Mediclinic Potchefstroom (i.e., Morningside, Mediclinic Panorama and Mediclinic Potchefstroom (i.e., Morningside, Mediclinic Panorama and Mediclinic Potchefstroom (i.e., should Life Renal Dialysis' access permissions and on-site storage should Life Renal Dialysis' access permissions and on-site storage should Life Renal Dialysis' access permissions and on-site storage should Life Renal Dialysis' access permissions and on-site storage should Life Renal Dialysis' access permissions and on-site storage should Life Renal Dialysis' access permissions and on-site storage permissions be revoked at Mediclinic Potchefstroom prior to the date on permissions be revoked at Mediclinic Potchefstroom prior to the date on permissions be revoked at Mediclinic Potchefstroom prior to the date on permissions be revoked at Mediclinic Potchefstroom prior to the date on permissions be revoked at Mediclinic Potchefstroom prior to the date on permissions be revoked at Mediclinic Potchefstroom prior to the date on which this Tribunal hands down its order in this matter), where Life which this Tribunal hands down its order in this matter), where Life which this Tribunal hands down its order in this matter), where Life which this Tribunal hands down its order in this matter), where Life which this Tribunal hands down its order in this matter), where Life which this Tribunal hands down its order in this matter), where Life Renal Dialysis has been requested to administer such treatment by a Renal Dialysis has been requested to administer such treatment by a Renal Dialysis has been requested to administer such treatment by a Renal Dialysis has been requested to administer such treatment by a Renal Dialysis has been requested to administer such treatment by a Renal Dialysis has been requested to administer such treatment by a referring clinician and subject to Life Renal Dialysis' continued referring clinician and subject to Life Renal Dialysis' continued referring clinician and subject to Life Renal Dialysis' continued referring clinician and subject to Life Renal Dialysis' continued referring clinician and subject to Life Renal Dialysis' continued referring clinician and subject to Life Renal Dialysis' continued substantial adherence to the Respondents' reasonable infection control, substantial adherence to the Respondents' reasonable infection control, substantial adherence to the Respondents' reasonable infection control, substantial adherence to the Respondents' reasonable infection control, substantial adherence to the Respondents' reasonable infection control, substantial adherence to the Respondents' reasonable infection control, security and other protocols; security and other protocols; security and other protocols; 1.2the Respondents are directed to permit Life Renal Dialysis to administer the Respondents are directed to permit Life Renal Dialysis to administer the Respondents are directed to permit Life Renal Dialysis to administer the Respondents are directed to permit Life Renal Dialysis to administer the Respondents are directed to permit Life Renal Dialysis to administer the Respondents are directed to permit Life Renal Dialysis to administer any form of inpatient renal dialysis treatment and/or extracorporeal any form of inpatient renal dialysis treatment and/or extracorporeal any form of inpatient renal dialysis treatment and/or extracorporeal any form of inpatient renal dialysis treatment and/or extracorporeal any form of inpatient renal dialysis treatment and/or extracorporeal any form of inpatient renal dialysis treatment and/or extracorporeal blood-related treatment to patients at all Mediclinic hospitals in South blood-related treatment to patients at all Mediclinic hospitals in South blood-related treatment to patients at all Mediclinic hospitals in South blood-related treatment to patients at all Mediclinic hospitals in South blood-related treatment to patients at all Mediclinic hospitals in South blood-related treatment to patients at all Mediclinic hospitals in South 1 Competition Commission Case No. 2025FEB0007. Competition Commission Case No. 2025FEB0007. Competition Commission Case No. 2025FEB0007. Competition Commission Case No. 2025FEB0007. 2 Life’s founding affidavit, paragraph 6. Life’s founding affidavit, paragraph 6. Life’s founding affidavit, paragraph 6. Africa, and to refrain from in any way preventing or impeding Life Renal Africa, and to refrain from in any way preventing or impeding Life Renal Africa, and to refrain from in any way preventing or impeding Life Renal Africa, and to refrain from in any way preventing or impeding Life Renal Africa, and to refrain from in any way preventing or impeding Life Renal Africa, and to refrain from in any way preventing or impeding Life Renal Dialysis from doing so, where Life Renal Dialysis has been requested Dialysis from doing so, where Life Renal Dialysis has been requested Dialysis from doing so, where Life Renal Dialysis has been requested Dialysis from doing so, where Life Renal Dialysis has been requested Dialysis from doing so, where Life Renal Dialysis has been requested Dialysis from doing so, where Life Renal Dialysis has been requested to administer such treatment by a referring clinician and subject to Life to administer such treatment by a referring clinician and subject to Life to administer such treatment by a referring clinician and subject to Life to administer such treatment by a referring clinician and subject to Life to administer such treatment by a referring clinician and subject to Life to administer such treatment by a referring clinician and subject to Life Renal Dialysis' continued substantial adherence to the Respondents' Renal Dialysis' continued substantial adherence to the Respondents' Renal Dialysis' continued substantial adherence to the Respondents' Renal Dialysis' continued substantial adherence to the Respondents' Renal Dialysis' continued substantial adherence to the Respondents' Renal Dialysis' continued substantial adherence to the Respondents' reasonable infection control, security and other protocols;reasonable infection control, security and other protocols;reasonable infection control, security and other protocols;reasonable infection control, security and other protocols;reasonable infection control, security and other protocols; 1.3the First Respondent is directed to circulate a communication to all the First Respondent is directed to circulate a communication to all the First Respondent is directed to circulate a communication to all the First Respondent is directed to circulate a communication to all the First Respondent is directed to circulate a communication to all the First Respondent is directed to circulate a communication to all clinicians, including but not limited to nephrologists, physicians, nurses clinicians, including but not limited to nephrologists, physicians, nurses clinicians, including but not limited to nephrologists, physicians, nurses clinicians, including but not limited to nephrologists, physicians, nurses clinicians, including but not limited to nephrologists, physicians, nurses clinicians, including but not limited to nephrologists, physicians, nurses and renal technologists, and to hospital executive and clinical and renal technologists, and to hospital executive and clinical and renal technologists, and to hospital executive and clinical and renal technologists, and to hospital executive and clinical and renal technologists, and to hospital executive and clinical and renal technologists, and to hospital executive and clinical management, at all Mediclinic hospitals in South Africa explaining the management, at all Mediclinic hospitals in South Africa explaining the management, at all Mediclinic hospitals in South Africa explaining the management, at all Mediclinic hospitals in South Africa explaining the management, at all Mediclinic hospitals in South Africa explaining the management, at all Mediclinic hospitals in South Africa explaining the nature and meaning of the obligations set out in paragraphs 1.1 and 1.2 nature and meaning of the obligations set out in paragraphs 1.1 and 1.2 nature and meaning of the obligations set out in paragraphs 1.1 and 1.2 nature and meaning of the obligations set out in paragraphs 1.1 and 1.2 nature and meaning of the obligations set out in paragraphs 1.1 and 1.2 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 above, and expressly indicating that all clinicians are free to call for the above, and expressly indicating that all clinicians are free to call for the above, and expressly indicating that all clinicians are free to call for the above, and expressly indicating that all clinicians are free to call for the above, and expressly indicating that all clinicians are free to call for the services of Life Renal Dialysis to treat patients at Mediclinic hospitals, services of Life Renal Dialysis to treat patients at Mediclinic hospitals, services of Life Renal Dialysis to treat patients at Mediclinic hospitals, services of Life Renal Dialysis to treat patients at Mediclinic hospitals, services of Life Renal Dialysis to treat patients at Mediclinic hospitals, services of Life Renal Dialysis to treat patients at Mediclinic hospitals, and that they will not suffer any repercussions as a result of exercising and that they will not suffer any repercussions as a result of exercising and that they will not suffer any repercussions as a result of exercising and that they will not suffer any repercussions as a result of exercising and that they will not suffer any repercussions as a result of exercising and that they will not suffer any repercussions as a result of exercising their clinical discretion in this regard; andtheir clinical discretion in this regard; andtheir clinical discretion in this regard; andtheir clinical discretion in this regard; and 1.4the First Respondent is directed to circulate a communication to all the First Respondent is directed to circulate a communication to all the First Respondent is directed to circulate a communication to all the First Respondent is directed to circulate a communication to all the First Respondent is directed to circulate a communication to all the First Respondent is directed to circulate a communication to all employees of the Second Respondent explaining the obligations set out employees of the Second Respondent explaining the obligations set out employees of the Second Respondent explaining the obligations set out employees of the Second Respondent explaining the obligations set out employees of the Second Respondent explaining the obligations set out employees of the Second Respondent explaining the obligations set out in paragraphs 1.1 and 1.2 above, and indicating that Life Renal Dialysis in paragraphs 1.1 and 1.2 above, and indicating that Life Renal Dialysis in paragraphs 1.1 and 1.2 above, and indicating that Life Renal Dialysis in paragraphs 1.1 and 1.2 above, and indicating that Life Renal Dialysis in paragraphs 1.1 and 1.2 above, and indicating that Life Renal Dialysis in paragraphs 1.1 and 1.2 above, and indicating that Life Renal Dialysis is permitted to treat patients at all Mediclinic hospitals in South Africa is permitted to treat patients at all Mediclinic hospitals in South Africa is permitted to treat patients at all Mediclinic hospitals in South Africa is permitted to treat patients at all Mediclinic hospitals in South Africa is permitted to treat patients at all Mediclinic hospitals in South Africa is permitted to treat patients at all Mediclinic hospitals in South Africa and should not be prevented or impeded from carrying out such and should not be prevented or impeded from carrying out such and should not be prevented or impeded from carrying out such and should not be prevented or impeded from carrying out such and should not be prevented or impeded from carrying out such and should not be prevented or impeded from carrying out such services, in any way whatsoever.services, in any way whatsoever.services, in any way whatsoever. 2. The costs of this interim relief application (including the costs of two 2. The costs of this interim relief application (including the costs of two 2. The costs of this interim relief application (including the costs of two 2. The costs of this interim relief application (including the costs of two 2. The costs of this interim relief application (including the costs of two 2. The costs of this interim relief application (including the costs of two counsel) shall be paid by such Respondents as oppose this application, counsel) shall be paid by such Respondents as oppose this application, counsel) shall be paid by such Respondents as oppose this application, counsel) shall be paid by such Respondents as oppose this application, counsel) shall be paid by such Respondents as oppose this application, counsel) shall be paid by such Respondents as oppose this application, jointly and severally, the one paying the other to be absolved. jointly and severally, the one paying the other to be absolved. jointly and severally, the one paying the other to be absolved. jointly and severally, the one paying the other to be absolved. jointly and severally, the one paying the other to be absolved. 3. Further and/or alternative relief as the Tribunal deems appropriate.”3. Further and/or alternative relief as the Tribunal deems appropriate.”3. Further and/or alternative relief as the Tribunal deems appropriate.”3. Further and/or alternative relief as the Tribunal deems appropriate.”3. Further and/or alternative relief as the Tribunal deems appropriate.”3. Further and/or alternative relief as the Tribunal deems appropriate.” [3]Following the hearing, we received submissions from the parties relating to the Following the hearing, we received submissions from the parties relating to the Following the hearing, we received submissions from the parties relating to the Following the hearing, we received submissions from the parties relating to the Following the hearing, we received submissions from the parties relating to the Following the hearing, we received submissions from the parties relating to the relief sought in the matter.relief sought in the matter.relief sought in the matter. 3 Having considered all of the submissions and Having considered all of the submissions and Having considered all of the submissions and Having considered all of the submissions and 3 Email correspondence from Life dated 01 September 2025 and email correspondence form Mediclinic Email correspondence from Life dated 01 September 2025 and email correspondence form Mediclinic Email correspondence from Life dated 01 September 2025 and email correspondence form Mediclinic Email correspondence from Life dated 01 September 2025 and email correspondence form Mediclinic Email correspondence from Life dated 01 September 2025 and email correspondence form Mediclinic Email correspondence from Life dated 01 September 2025 and email correspondence form Mediclinic Email correspondence from Life dated 01 September 2025 and email correspondence form Mediclinic dated 05 September 2025. dated 05 September 2025. evidence before us, we decided to dismiss the interim relief application. The evidence before us, we decided to dismiss the interim relief application. The evidence before us, we decided to dismiss the interim relief application. The evidence before us, we decided to dismiss the interim relief application. The evidence before us, we decided to dismiss the interim relief application. The evidence before us, we decided to dismiss the interim relief application. The reasons for our decision are set out below. reasons for our decision are set out below. reasons for our decision are set out below. reasons for our decision are set out below. PROCEDURAL BACKGROUND PROCEDURAL BACKGROUND PROCEDURAL BACKGROUND [4]The matter also concerned one procedural aspect, namely Mediclinic’s The matter also concerned one procedural aspect, namely Mediclinic’s The matter also concerned one procedural aspect, namely Mediclinic’s The matter also concerned one procedural aspect, namely Mediclinic’s The matter also concerned one procedural aspect, namely Mediclinic’s The matter also concerned one procedural aspect, namely Mediclinic’s application for leave to file a supplementary affidavit. application for leave to file a supplementary affidavit. application for leave to file a supplementary affidavit. application for leave to file a supplementary affidavit. [5]Prior to the hearing on 12 August 2025, Mediclinic applied for leave to file a Prior to the hearing on 12 August 2025, Mediclinic applied for leave to file a Prior to the hearing on 12 August 2025, Mediclinic applied for leave to file a Prior to the hearing on 12 August 2025, Mediclinic applied for leave to file a Prior to the hearing on 12 August 2025, Mediclinic applied for leave to file a Prior to the hearing on 12 August 2025, Mediclinic applied for leave to file a supplementary affidavit to place evidence before the Tribunal regarding the list supplementary affidavit to place evidence before the Tribunal regarding the list supplementary affidavit to place evidence before the Tribunal regarding the list supplementary affidavit to place evidence before the Tribunal regarding the list supplementary affidavit to place evidence before the Tribunal regarding the list supplementary affidavit to place evidence before the Tribunal regarding the list of hospitals provided by Life in annexure RA2 (annexed to Life’s replying of hospitals provided by Life in annexure RA2 (annexed to Life’s replying of hospitals provided by Life in annexure RA2 (annexed to Life’s replying of hospitals provided by Life in annexure RA2 (annexed to Life’s replying of hospitals provided by Life in annexure RA2 (annexed to Life’s replying of hospitals provided by Life in annexure RA2 (annexed to Life’s replying affidavit), where third party service providers administer dialysis treatment at affidavit), where third party service providers administer dialysis treatment at affidavit), where third party service providers administer dialysis treatment at affidavit), where third party service providers administer dialysis treatment at affidavit), where third party service providers administer dialysis treatment at affidavit), where third party service providers administer dialysis treatment at affidavit), where third party service providers administer dialysis treatment at Life hospitals. Mediclinic submitted that the evidence was first adduced in Life’s Life hospitals. Mediclinic submitted that the evidence was first adduced in Life’s Life hospitals. Mediclinic submitted that the evidence was first adduced in Life’s Life hospitals. Mediclinic submitted that the evidence was first adduced in Life’s Life hospitals. Mediclinic submitted that the evidence was first adduced in Life’s Life hospitals. Mediclinic submitted that the evidence was first adduced in Life’s replying affidavit and that it did not have an opportunity to deal with the veracity replying affidavit and that it did not have an opportunity to deal with the veracity replying affidavit and that it did not have an opportunity to deal with the veracity replying affidavit and that it did not have an opportunity to deal with the veracity replying affidavit and that it did not have an opportunity to deal with the veracity replying affidavit and that it did not have an opportunity to deal with the veracity of the submissions. In short, Mediclinic challenged the accuracy of the list of of the submissions. In short, Mediclinic challenged the accuracy of the list of of the submissions. In short, Mediclinic challenged the accuracy of the list of of the submissions. In short, Mediclinic challenged the accuracy of the list of of the submissions. In short, Mediclinic challenged the accuracy of the list of of the submissions. In short, Mediclinic challenged the accuracy of the list of hospitals where third party service providers administer dialysis treatment hospitals where third party service providers administer dialysis treatment hospitals where third party service providers administer dialysis treatment hospitals where third party service providers administer dialysis treatment hospitals where third party service providers administer dialysis treatment hospitals where third party service providers administer dialysis treatment concluding that Life provides exclusive dialysis services in the majority of its concluding that Life provides exclusive dialysis services in the majority of its concluding that Life provides exclusive dialysis services in the majority of its concluding that Life provides exclusive dialysis services in the majority of its concluding that Life provides exclusive dialysis services in the majority of its concluding that Life provides exclusive dialysis services in the majority of its own hospitals. own hospitals. [6]Thereafter, on 27 August 2025, Life filed an affidavit in opposition of Mediclinic’s Thereafter, on 27 August 2025, Life filed an affidavit in opposition of Mediclinic’s Thereafter, on 27 August 2025, Life filed an affidavit in opposition of Mediclinic’s Thereafter, on 27 August 2025, Life filed an affidavit in opposition of Mediclinic’s Thereafter, on 27 August 2025, Life filed an affidavit in opposition of Mediclinic’s Thereafter, on 27 August 2025, Life filed an affidavit in opposition of Mediclinic’s application to file a supplementary affidavit, citing that Mediclinic has application to file a supplementary affidavit, citing that Mediclinic has application to file a supplementary affidavit, citing that Mediclinic has application to file a supplementary affidavit, citing that Mediclinic has application to file a supplementary affidavit, citing that Mediclinic has application to file a supplementary affidavit, citing that Mediclinic has mischaracterised the information relating to the list of hospitals and third-party mischaracterised the information relating to the list of hospitals and third-party mischaracterised the information relating to the list of hospitals and third-party mischaracterised the information relating to the list of hospitals and third-party mischaracterised the information relating to the list of hospitals and third-party mischaracterised the information relating to the list of hospitals and third-party services providers. services providers. [7]During the hearing, both Life and Mediclinic were given an opportunity to make During the hearing, both Life and Mediclinic were given an opportunity to make During the hearing, both Life and Mediclinic were given an opportunity to make During the hearing, both Life and Mediclinic were given an opportunity to make During the hearing, both Life and Mediclinic were given an opportunity to make During the hearing, both Life and Mediclinic were given an opportunity to make submissions on the factual position of the Life hospitals listed in annexure RA2 submissions on the factual position of the Life hospitals listed in annexure RA2 submissions on the factual position of the Life hospitals listed in annexure RA2 submissions on the factual position of the Life hospitals listed in annexure RA2 submissions on the factual position of the Life hospitals listed in annexure RA2 submissions on the factual position of the Life hospitals listed in annexure RA2 and whether a third-party dialysis service provider operated at these hospitals. and whether a third-party dialysis service provider operated at these hospitals. and whether a third-party dialysis service provider operated at these hospitals. and whether a third-party dialysis service provider operated at these hospitals. and whether a third-party dialysis service provider operated at these hospitals. and whether a third-party dialysis service provider operated at these hospitals. In the main, Mr Wesley, on behalf of Life, was satisfied that because Mediclinic In the main, Mr Wesley, on behalf of Life, was satisfied that because Mediclinic In the main, Mr Wesley, on behalf of Life, was satisfied that because Mediclinic In the main, Mr Wesley, on behalf of Life, was satisfied that because Mediclinic In the main, Mr Wesley, on behalf of Life, was satisfied that because Mediclinic In the main, Mr Wesley, on behalf of Life, was satisfied that because Mediclinic did not object to Life filing an answer to its supplementary affidavit that the did not object to Life filing an answer to its supplementary affidavit that the did not object to Life filing an answer to its supplementary affidavit that the did not object to Life filing an answer to its supplementary affidavit that the did not object to Life filing an answer to its supplementary affidavit that the did not object to Life filing an answer to its supplementary affidavit that the prejudice falls away.prejudice falls away. 4 4 Hearing transcripts, pages 60-61. Hearing transcripts, pages 60-61. Hearing transcripts, pages 60-61. [8]In the circumstances we granted Mediclinic leave to file the supplementary In the circumstances we granted Mediclinic leave to file the supplementary In the circumstances we granted Mediclinic leave to file the supplementary In the circumstances we granted Mediclinic leave to file the supplementary In the circumstances we granted Mediclinic leave to file the supplementary In the circumstances we granted Mediclinic leave to file the supplementary affidavit and for Life to file a response thereto. affidavit and for Life to file a response thereto. affidavit and for Life to file a response thereto. affidavit and for Life to file a response thereto. RELEVANT FACTUAL BACKGROUND RELEVANT FACTUAL BACKGROUND RELEVANT FACTUAL BACKGROUND The parties and their business activitiesThe parties and their business activitiesThe parties and their business activitiesThe parties and their business activities Life Healthcare Group and Life Renal Life Healthcare Group and Life Renal Life Healthcare Group and Life Renal [9]Life Healthcare Group is a provider of acute hospital care in South Africa Life Healthcare Group is a provider of acute hospital care in South Africa Life Healthcare Group is a provider of acute hospital care in South Africa Life Healthcare Group is a provider of acute hospital care in South Africa Life Healthcare Group is a provider of acute hospital care in South Africa Life Healthcare Group is a provider of acute hospital care in South Africa through its network of private multidisciplinary hospitals in which it provides a through its network of private multidisciplinary hospitals in which it provides a through its network of private multidisciplinary hospitals in which it provides a through its network of private multidisciplinary hospitals in which it provides a through its network of private multidisciplinary hospitals in which it provides a through its network of private multidisciplinary hospitals in which it provides a comprehensive suite of services, including emergency units, maternity wards, comprehensive suite of services, including emergency units, maternity wards, comprehensive suite of services, including emergency units, maternity wards, comprehensive suite of services, including emergency units, maternity wards, comprehensive suite of services, including emergency units, maternity wards, comprehensive suite of services, including emergency units, maternity wards, paediatric care, cardiac services, obstetrics and gynaecology, fertility wards, paediatric care, cardiac services, obstetrics and gynaecology, fertility wards, paediatric care, cardiac services, obstetrics and gynaecology, fertility wards, paediatric care, cardiac services, obstetrics and gynaecology, fertility wards, paediatric care, cardiac services, obstetrics and gynaecology, fertility wards, paediatric care, cardiac services, obstetrics and gynaecology, fertility wards, paediatric care, cardiac services, obstetrics and gynaecology, fertility wards, ophthalmology, orthopaedic specialists, neurology, plastic surgery, ophthalmology, orthopaedic specialists, neurology, plastic surgery, ophthalmology, orthopaedic specialists, neurology, plastic surgery, ophthalmology, orthopaedic specialists, neurology, plastic surgery, ophthalmology, orthopaedic specialists, neurology, plastic surgery, ophthalmology, orthopaedic specialists, neurology, plastic surgery, neurosurgery and general surgery.neurosurgery and general surgery.neurosurgery and general surgery. 5 In addition to the main services, Life In addition to the main services, Life In addition to the main services, Life Healthcare Group also offers complementary services through dedicated Healthcare Group also offers complementary services through dedicated Healthcare Group also offers complementary services through dedicated Healthcare Group also offers complementary services through dedicated Healthcare Group also offers complementary services through dedicated Healthcare Group also offers complementary services through dedicated divisions and/or subsidiaries. divisions and/or subsidiaries. divisions and/or subsidiaries. [10]Of particular relevance to the Complaint and to this application is Life Renal, Of particular relevance to the Complaint and to this application is Life Renal, Of particular relevance to the Complaint and to this application is Life Renal, Of particular relevance to the Complaint and to this application is Life Renal, Of particular relevance to the Complaint and to this application is Life Renal, Of particular relevance to the Complaint and to this application is Life Renal, which offers dialysis services through (i) in-hospital dialysis units resident in 31 which offers dialysis services through (i) in-hospital dialysis units resident in 31 which offers dialysis services through (i) in-hospital dialysis units resident in 31 which offers dialysis services through (i) in-hospital dialysis units resident in 31 which offers dialysis services through (i) in-hospital dialysis units resident in 31 which offers dialysis services through (i) in-hospital dialysis units resident in 31 of Life Healthcare Group’s 48 multidisciplinary hospitals, (ii) mobile units which of Life Healthcare Group’s 48 multidisciplinary hospitals, (ii) mobile units which of Life Healthcare Group’s 48 multidisciplinary hospitals, (ii) mobile units which of Life Healthcare Group’s 48 multidisciplinary hospitals, (ii) mobile units which of Life Healthcare Group’s 48 multidisciplinary hospitals, (ii) mobile units which of Life Healthcare Group’s 48 multidisciplinary hospitals, (ii) mobile units which travel to administer dialysis both at Life Healthcare Group’s multidisciplinary travel to administer dialysis both at Life Healthcare Group’s multidisciplinary travel to administer dialysis both at Life Healthcare Group’s multidisciplinary travel to administer dialysis both at Life Healthcare Group’s multidisciplinary travel to administer dialysis both at Life Healthcare Group’s multidisciplinary travel to administer dialysis both at Life Healthcare Group’s multidisciplinary hospitals which do not have resident dialysis units, as well as other third-party, hospitals which do not have resident dialysis units, as well as other third-party, hospitals which do not have resident dialysis units, as well as other third-party, hospitals which do not have resident dialysis units, as well as other third-party, hospitals which do not have resident dialysis units, as well as other third-party, hospitals which do not have resident dialysis units, as well as other third-party, multidisciplinary hospitals, and (iii) standalone clinics which operate separately multidisciplinary hospitals, and (iii) standalone clinics which operate separately multidisciplinary hospitals, and (iii) standalone clinics which operate separately multidisciplinary hospitals, and (iii) standalone clinics which operate separately multidisciplinary hospitals, and (iii) standalone clinics which operate separately multidisciplinary hospitals, and (iii) standalone clinics which operate separately multidisciplinary hospitals, and (iii) standalone clinics which operate separately from, and outside of, multidisciplinary hospitals.from, and outside of, multidisciplinary hospitals.from, and outside of, multidisciplinary hospitals.from, and outside of, multidisciplinary hospitals. 6 [11]In 2024, Life Healthcare Group acquired the dialysis services business from In 2024, Life Healthcare Group acquired the dialysis services business from In 2024, Life Healthcare Group acquired the dialysis services business from In 2024, Life Healthcare Group acquired the dialysis services business from In 2024, Life Healthcare Group acquired the dialysis services business from In 2024, Life Healthcare Group acquired the dialysis services business from Fresenius Medical Care South Africa (Pty) Ltd (“Fresenius”) (“Fresenius Medical Care South Africa (Pty) Ltd (“Fresenius”) (“Fresenius Medical Care South Africa (Pty) Ltd (“Fresenius”) (“Fresenius Medical Care South Africa (Pty) Ltd (“Fresenius”) (“Fresenius Medical Care South Africa (Pty) Ltd (“Fresenius”) (“Life-Fresenius Life-Fresenius Merger”). 7 Fresenius entered the market in 2001 and provided renal dialysis Fresenius entered the market in 2001 and provided renal dialysis Fresenius entered the market in 2001 and provided renal dialysis Fresenius entered the market in 2001 and provided renal dialysis Fresenius entered the market in 2001 and provided renal dialysis services in Southern Africa independent of any hospital group, until it was services in Southern Africa independent of any hospital group, until it was services in Southern Africa independent of any hospital group, until it was services in Southern Africa independent of any hospital group, until it was services in Southern Africa independent of any hospital group, until it was services in Southern Africa independent of any hospital group, until it was acquired by Life Healthcare Group in 2024.acquired by Life Healthcare Group in 2024.acquired by Life Healthcare Group in 2024.acquired by Life Healthcare Group in 2024. 8 5 Life’s founding affidavit, para 28. Life’s founding affidavit, para 28. Life’s founding affidavit, para 28. 6 Life’s founding affidavit, para 29. Life’s founding affidavit, para 29. Life’s founding affidavit, para 29. 7 Under Tribunal case no. LM035Jun23. Under Tribunal case no. LM035Jun23. Under Tribunal case no. LM035Jun23. 8 Mediclinic’s answering affidavit, para 2. Mediclinic’s answering affidavit, para 2. Mediclinic’s answering affidavit, para 2. [12]The Life-Fresenius MergerLife-Fresenius Merger was approved subject to an open access condition was approved subject to an open access condition was approved subject to an open access condition was approved subject to an open access condition in terms of which, Life Healthcare Group undertook by agreement with the in terms of which, Life Healthcare Group undertook by agreement with the in terms of which, Life Healthcare Group undertook by agreement with the in terms of which, Life Healthcare Group undertook by agreement with the in terms of which, Life Healthcare Group undertook by agreement with the in terms of which, Life Healthcare Group undertook by agreement with the Commission, to continue to permit third-party dialysis service providers Commission, to continue to permit third-party dialysis service providers Commission, to continue to permit third-party dialysis service providers Commission, to continue to permit third-party dialysis service providers Commission, to continue to permit third-party dialysis service providers Commission, to continue to permit third-party dialysis service providers reasonable access to its multidisciplinary hospitals to administer dialysis on a reasonable access to its multidisciplinary hospitals to administer dialysis on a reasonable access to its multidisciplinary hospitals to administer dialysis on a reasonable access to its multidisciplinary hospitals to administer dialysis on a reasonable access to its multidisciplinary hospitals to administer dialysis on a reasonable access to its multidisciplinary hospitals to administer dialysis on a mobile basis for a fixed period of five years (“Open Access Condition”).mobile basis for a fixed period of five years (“Open Access Condition”).mobile basis for a fixed period of five years (“Open Access Condition”).mobile basis for a fixed period of five years (“Open Access Condition”).mobile basis for a fixed period of five years (“Open Access Condition”).mobile basis for a fixed period of five years (“Open Access Condition”). 9 The Open Access Condition is subject to third party providers (i) having been Open Access Condition is subject to third party providers (i) having been Open Access Condition is subject to third party providers (i) having been Open Access Condition is subject to third party providers (i) having been Open Access Condition is subject to third party providers (i) having been Open Access Condition is subject to third party providers (i) having been requested to administer treatment by a referring nephrologist or physician and requested to administer treatment by a referring nephrologist or physician and requested to administer treatment by a referring nephrologist or physician and requested to administer treatment by a referring nephrologist or physician and requested to administer treatment by a referring nephrologist or physician and requested to administer treatment by a referring nephrologist or physician and (ii) adhering to Life’s infection control, security and other reasonable protocols (ii) adhering to Life’s infection control, security and other reasonable protocols (ii) adhering to Life’s infection control, security and other reasonable protocols (ii) adhering to Life’s infection control, security and other reasonable protocols (ii) adhering to Life’s infection control, security and other reasonable protocols (ii) adhering to Life’s infection control, security and other reasonable protocols as set from time to time.as set from time to time. 1010 Mediclinic SA and Mediclinic Renal Mediclinic SA and Mediclinic Renal Mediclinic SA and Mediclinic Renal [13]Mediclinic SA is a provider of acute hospital care Mediclinic SA is a provider of acute hospital care Mediclinic SA is a provider of acute hospital care Mediclinic SA is a provider of acute hospital care in South Africa through its in South Africa through its in South Africa through its network of private multidisciplinary hospitals. network of private multidisciplinary hospitals. network of private multidisciplinary hospitals. network of private multidisciplinary hospitals. Mediclinic owns and operates 50 Mediclinic owns and operates 50 Mediclinic owns and operates 50 hospitals and 14 Day Case Clinics in Southern Africa.hospitals and 14 Day Case Clinics in Southern Africa.hospitals and 14 Day Case Clinics in Southern Africa.hospitals and 14 Day Case Clinics in Southern Africa. 1111 According to Mediclinic, According to Mediclinic, it is the 3 rdrd largest private hospital business in South Africa behind Netcare largest private hospital business in South Africa behind Netcare largest private hospital business in South Africa behind Netcare largest private hospital business in South Africa behind Netcare largest private hospital business in South Africa behind Netcare largest private hospital business in South Africa behind Netcare Group Limited (“Netcare”) and Life. Group Limited (“Netcare”) and Life. Group Limited (“Netcare”) and Life. [14]Mediclinic Renal was established in 2021 through its merger with dialysis Mediclinic Renal was established in 2021 through its merger with dialysis Mediclinic Renal was established in 2021 through its merger with dialysis Mediclinic Renal was established in 2021 through its merger with dialysis Mediclinic Renal was established in 2021 through its merger with dialysis Mediclinic Renal was established in 2021 through its merger with dialysis service provider, BGM Renal Care (Pty) Ltd (“BGM”), and has established its service provider, BGM Renal Care (Pty) Ltd (“BGM”), and has established its service provider, BGM Renal Care (Pty) Ltd (“BGM”), and has established its service provider, BGM Renal Care (Pty) Ltd (“BGM”), and has established its service provider, BGM Renal Care (Pty) Ltd (“BGM”), and has established its service provider, BGM Renal Care (Pty) Ltd (“BGM”), and has established its own renal dialysis treatment facilities at 12 own renal dialysis treatment facilities at 12 own renal dialysis treatment facilities at 12 own renal dialysis treatment facilities at 12 of its hospitals (some being acute of its hospitals (some being acute of its hospitals (some being acute and others being acute and chronic)and others being acute and chronic)and others being acute and chronic). 1212 [15]Prior to Mediclinic’s acquisition of BGM in 2021, it did not have its own dialysis Prior to Mediclinic’s acquisition of BGM in 2021, it did not have its own dialysis Prior to Mediclinic’s acquisition of BGM in 2021, it did not have its own dialysis Prior to Mediclinic’s acquisition of BGM in 2021, it did not have its own dialysis Prior to Mediclinic’s acquisition of BGM in 2021, it did not have its own dialysis Prior to Mediclinic’s acquisition of BGM in 2021, it did not have its own dialysis service provider, and all in-hospital dialysis services in Mediclinic hospitals service provider, and all in-hospital dialysis services in Mediclinic hospitals service provider, and all in-hospital dialysis services in Mediclinic hospitals service provider, and all in-hospital dialysis services in Mediclinic hospitals service provider, and all in-hospital dialysis services in Mediclinic hospitals service provider, and all in-hospital dialysis services in Mediclinic hospitals were attended to by third-party dialysis service providers.were attended to by third-party dialysis service providers.were attended to by third-party dialysis service providers.were attended to by third-party dialysis service providers.were attended to by third-party dialysis service providers. 1313 At Mediclinic 9 Life’s founding affidavit, para 12. Also see the Tribunal’s reasons in the merger between Life’s founding affidavit, para 12. Also see the Tribunal’s reasons in the merger between Life’s founding affidavit, para 12. Also see the Tribunal’s reasons in the merger between Life’s founding affidavit, para 12. Also see the Tribunal’s reasons in the merger between Life’s founding affidavit, para 12. Also see the Tribunal’s reasons in the merger between Life’s founding affidavit, para 12. Also see the Tribunal’s reasons in the merger between Life Healthcare Group (Pty) Ltd and Fresenius Medical Care South Africa (Pty) Ltd in respect of the dialysis Healthcare Group (Pty) Ltd and Fresenius Medical Care South Africa (Pty) Ltd in respect of the dialysis Healthcare Group (Pty) Ltd and Fresenius Medical Care South Africa (Pty) Ltd in respect of the dialysis Healthcare Group (Pty) Ltd and Fresenius Medical Care South Africa (Pty) Ltd in respect of the dialysis Healthcare Group (Pty) Ltd and Fresenius Medical Care South Africa (Pty) Ltd in respect of the dialysis Healthcare Group (Pty) Ltd and Fresenius Medical Care South Africa (Pty) Ltd in respect of the dialysis Healthcare Group (Pty) Ltd and Fresenius Medical Care South Africa (Pty) Ltd in respect of the dialysis services business services business CT Case No. LM035Jun23, para 30 (“CT Case No. LM035Jun23, para 30 (“CT Case No. LM035Jun23, para 30 (“Life and Fresenius MergerLife and Fresenius Merger”). 1010 Annexure A to the order in the Annexure A to the order in the Life-Fresenius Merger Life-Fresenius Merger under Tribunal case no. LM035Jun23. under Tribunal case no. LM035Jun23. under Tribunal case no. LM035Jun23. 1111 Mediclinic’s answering affidavit, para 8. Mediclinic’s answering affidavit, para 8. Mediclinic’s answering affidavit, para 8. 1212 Mediclinic’s answering affidavit, para 9. Mediclinic’s answering affidavit, para 9. Mediclinic’s answering affidavit, para 9. 1313 Life’s founding affidavit, para 88.3. Life’s founding affidavit, para 88.3. Life’s founding affidavit, para 88.3. hospitals where Mediclinic Renal does not provide renal dialysis services, these hospitals where Mediclinic Renal does not provide renal dialysis services, these hospitals where Mediclinic Renal does not provide renal dialysis services, these hospitals where Mediclinic Renal does not provide renal dialysis services, these hospitals where Mediclinic Renal does not provide renal dialysis services, these hospitals where Mediclinic Renal does not provide renal dialysis services, these services are provided by third parties.services are provided by third parties.services are provided by third parties. 1414 [16]Mediclinic Renal focuses on the provision of acute renal dialysis services within Mediclinic Renal focuses on the provision of acute renal dialysis services within Mediclinic Renal focuses on the provision of acute renal dialysis services within Mediclinic Renal focuses on the provision of acute renal dialysis services within Mediclinic Renal focuses on the provision of acute renal dialysis services within Mediclinic Renal focuses on the provision of acute renal dialysis services within Mediclinic hospitals. Mediclinic also operates a limited number of co-located Mediclinic hospitals. Mediclinic also operates a limited number of co-located Mediclinic hospitals. Mediclinic also operates a limited number of co-located Mediclinic hospitals. Mediclinic also operates a limited number of co-located Mediclinic hospitals. Mediclinic also operates a limited number of co-located Mediclinic hospitals. Mediclinic also operates a limited number of co-located and stand-alone renal dialysis clinics. Mediclinic does not have mobile dialysis and stand-alone renal dialysis clinics. Mediclinic does not have mobile dialysis and stand-alone renal dialysis clinics. Mediclinic does not have mobile dialysis and stand-alone renal dialysis clinics. Mediclinic does not have mobile dialysis and stand-alone renal dialysis clinics. Mediclinic does not have mobile dialysis and stand-alone renal dialysis clinics. Mediclinic does not have mobile dialysis units. 1515 [17]Our observation, in light of the above, is that the market (as it relates to renal Our observation, in light of the above, is that the market (as it relates to renal Our observation, in light of the above, is that the market (as it relates to renal Our observation, in light of the above, is that the market (as it relates to renal Our observation, in light of the above, is that the market (as it relates to renal Our observation, in light of the above, is that the market (as it relates to renal dialysis services) is undergoing structural changes. This is evident from the fact dialysis services) is undergoing structural changes. This is evident from the fact dialysis services) is undergoing structural changes. This is evident from the fact dialysis services) is undergoing structural changes. This is evident from the fact dialysis services) is undergoing structural changes. This is evident from the fact dialysis services) is undergoing structural changes. This is evident from the fact that both Life and Mediclinic have acquired dialysis services providers and have that both Life and Mediclinic have acquired dialysis services providers and have that both Life and Mediclinic have acquired dialysis services providers and have that both Life and Mediclinic have acquired dialysis services providers and have that both Life and Mediclinic have acquired dialysis services providers and have that both Life and Mediclinic have acquired dialysis services providers and have that both Life and Mediclinic have acquired dialysis services providers and have (to some extent) insourced these services. The other large hospital group in (to some extent) insourced these services. The other large hospital group in (to some extent) insourced these services. The other large hospital group in (to some extent) insourced these services. The other large hospital group in (to some extent) insourced these services. The other large hospital group in (to some extent) insourced these services. The other large hospital group in South Africa, Netcare which has more hospital beds than the parties to this South Africa, Netcare which has more hospital beds than the parties to this South Africa, Netcare which has more hospital beds than the parties to this South Africa, Netcare which has more hospital beds than the parties to this South Africa, Netcare which has more hospital beds than the parties to this South Africa, Netcare which has more hospital beds than the parties to this matter, has jointly owned National Renal Care since 1995.matter, has jointly owned National Renal Care since 1995.matter, has jointly owned National Renal Care since 1995.matter, has jointly owned National Renal Care since 1995.matter, has jointly owned National Renal Care since 1995. Life’s complaint and Mediclinic’s response Life’s complaint and Mediclinic’s response Life’s complaint and Mediclinic’s response Life’s complaint and Mediclinic’s response [18]According to Life, following Mediclinic’s acquisition of BGM in 2021, third parties According to Life, following Mediclinic’s acquisition of BGM in 2021, third parties According to Life, following Mediclinic’s acquisition of BGM in 2021, third parties According to Life, following Mediclinic’s acquisition of BGM in 2021, third parties According to Life, following Mediclinic’s acquisition of BGM in 2021, third parties According to Life, following Mediclinic’s acquisition of BGM in 2021, third parties including Life Renal were still permitted to administer dialysis at Mediclinic including Life Renal were still permitted to administer dialysis at Mediclinic including Life Renal were still permitted to administer dialysis at Mediclinic including Life Renal were still permitted to administer dialysis at Mediclinic including Life Renal were still permitted to administer dialysis at Mediclinic including Life Renal were still permitted to administer dialysis at Mediclinic hospitals. This changed in 2024.hospitals. This changed in 2024.hospitals. This changed in 2024. [19]During January 2024, immediately prior to the During January 2024, immediately prior to the During January 2024, immediately prior to the During January 2024, immediately prior to the Life-Fresenius Merger, Life-Fresenius Merger, Mediclinic commenced giving notice that it would no longer permit Fresenius Mediclinic commenced giving notice that it would no longer permit Fresenius Mediclinic commenced giving notice that it would no longer permit Fresenius Mediclinic commenced giving notice that it would no longer permit Fresenius Mediclinic commenced giving notice that it would no longer permit Fresenius Mediclinic commenced giving notice that it would no longer permit Fresenius (now Life Renal) to provide services at various Mediclinic hospitals.(now Life Renal) to provide services at various Mediclinic hospitals.(now Life Renal) to provide services at various Mediclinic hospitals.(now Life Renal) to provide services at various Mediclinic hospitals.(now Life Renal) to provide services at various Mediclinic hospitals. 1616 Life Renal was given notice that it was no longer able to provide dialysis services at the was given notice that it was no longer able to provide dialysis services at the was given notice that it was no longer able to provide dialysis services at the was given notice that it was no longer able to provide dialysis services at the was given notice that it was no longer able to provide dialysis services at the was given notice that it was no longer able to provide dialysis services at the following five Mediclinic hospitals (“Effected Hospitals”): following five Mediclinic hospitals (“Effected Hospitals”): following five Mediclinic hospitals (“Effected Hospitals”): following five Mediclinic hospitals (“Effected Hospitals”): following five Mediclinic hospitals (“Effected Hospitals”): 19.1 Mediclinic Vergelegen (Somerset West, Cape Town) with effect from Mediclinic Vergelegen (Somerset West, Cape Town) with effect from Mediclinic Vergelegen (Somerset West, Cape Town) with effect from Mediclinic Vergelegen (Somerset West, Cape Town) with effect from Mediclinic Vergelegen (Somerset West, Cape Town) with effect from Mediclinic Vergelegen (Somerset West, Cape Town) with effect from 01 November 2024; 01 November 2024; 19.2 Mediclinic Morningside (Sandton, Johannesburg) with effect from 15 Mediclinic Morningside (Sandton, Johannesburg) with effect from 15 Mediclinic Morningside (Sandton, Johannesburg) with effect from 15 Mediclinic Morningside (Sandton, Johannesburg) with effect from 15 Mediclinic Morningside (Sandton, Johannesburg) with effect from 15 December 2024; December 2024; 1414 Mediclinic’s answering affidavit, para 13. Mediclinic’s answering affidavit, para 13. Mediclinic’s answering affidavit, para 13. 1515 Mediclinic’s answering affidavit, paras 11-12. Mediclinic’s answering affidavit, paras 11-12. Mediclinic’s answering affidavit, paras 11-12. 1616 Life’s heads of argument para 28. Life’s heads of argument para 28. Life’s heads of argument para 28. 19.3 MediclinicPanorama (Panorama, Cape Town) with effect from 03 Panorama (Panorama, Cape Town) with effect from 03 Panorama (Panorama, Cape Town) with effect from 03 Panorama (Panorama, Cape Town) with effect from 03 Panorama (Panorama, Cape Town) with effect from 03 March 2025; 19.4 Mediclinic Potchefstroom with effect from 15 June 2025;Mediclinic Potchefstroom with effect from 15 June 2025;Mediclinic Potchefstroom with effect from 15 June 2025;Mediclinic Potchefstroom with effect from 15 June 2025;Mediclinic Potchefstroom with effect from 15 June 2025; 1717 and 19.5 Mediclinic Newcastle, with effect from 31 August 2025.Mediclinic Newcastle, with effect from 31 August 2025.Mediclinic Newcastle, with effect from 31 August 2025.Mediclinic Newcastle, with effect from 31 August 2025.Mediclinic Newcastle, with effect from 31 August 2025. 1818 [20]Life submitted that the practical implication of its exclusion from the Effected Life submitted that the practical implication of its exclusion from the Effected Life submitted that the practical implication of its exclusion from the Effected Life submitted that the practical implication of its exclusion from the Effected Life submitted that the practical implication of its exclusion from the Effected Life submitted that the practical implication of its exclusion from the Effected Hospitals is that Mediclinic has denied Life Renal access permissions and on-Hospitals is that Mediclinic has denied Life Renal access permissions and on-Hospitals is that Mediclinic has denied Life Renal access permissions and on-Hospitals is that Mediclinic has denied Life Renal access permissions and on-Hospitals is that Mediclinic has denied Life Renal access permissions and on-Hospitals is that Mediclinic has denied Life Renal access permissions and on- site storage and has prevented Life Renal from administering treatment to site storage and has prevented Life Renal from administering treatment to site storage and has prevented Life Renal from administering treatment to site storage and has prevented Life Renal from administering treatment to site storage and has prevented Life Renal from administering treatment to site storage and has prevented Life Renal from administering treatment to inpatients at these hospitals. Further that nephrologistsinpatients at these hospitals. Further that nephrologistsinpatients at these hospitals. Further that nephrologistsinpatients at these hospitals. Further that nephrologistsinpatients at these hospitals. Further that nephrologists 1919 and specialist and specialist physicians operating at the Effected Hospitals are prevented from using the physicians operating at the Effected Hospitals are prevented from using the physicians operating at the Effected Hospitals are prevented from using the physicians operating at the Effected Hospitals are prevented from using the physicians operating at the Effected Hospitals are prevented from using the physicians operating at the Effected Hospitals are prevented from using the services of Life Renal to administer in-hospital dialysis treatment to their services of Life Renal to administer in-hospital dialysis treatment to their services of Life Renal to administer in-hospital dialysis treatment to their services of Life Renal to administer in-hospital dialysis treatment to their services of Life Renal to administer in-hospital dialysis treatment to their services of Life Renal to administer in-hospital dialysis treatment to their patients, in instances where patients require acute or chronic dialysis patients, in instances where patients require acute or chronic dialysis patients, in instances where patients require acute or chronic dialysis patients, in instances where patients require acute or chronic dialysis patients, in instances where patients require acute or chronic dialysis patients, in instances where patients require acute or chronic dialysis treatment. 2020 [21]Life contends that Mediclinic acts as a monopoly provider in the upstream Life contends that Mediclinic acts as a monopoly provider in the upstream Life contends that Mediclinic acts as a monopoly provider in the upstream Life contends that Mediclinic acts as a monopoly provider in the upstream Life contends that Mediclinic acts as a monopoly provider in the upstream Life contends that Mediclinic acts as a monopoly provider in the upstream market for the provision of express access permissions and reasonable on-site market for the provision of express access permissions and reasonable on-site market for the provision of express access permissions and reasonable on-site market for the provision of express access permissions and reasonable on-site market for the provision of express access permissions and reasonable on-site market for the provision of express access permissions and reasonable on-site storage to third-party mobile dialysis service providers within particular storage to third-party mobile dialysis service providers within particular storage to third-party mobile dialysis service providers within particular storage to third-party mobile dialysis service providers within particular storage to third-party mobile dialysis service providers within particular storage to third-party mobile dialysis service providers within particular Mediclinic hospitals and is able to leverage its market power in this regard to Mediclinic hospitals and is able to leverage its market power in this regard to Mediclinic hospitals and is able to leverage its market power in this regard to Mediclinic hospitals and is able to leverage its market power in this regard to Mediclinic hospitals and is able to leverage its market power in this regard to Mediclinic hospitals and is able to leverage its market power in this regard to withhold access to such necessary inputs from service providers. withhold access to such necessary inputs from service providers. withhold access to such necessary inputs from service providers. withhold access to such necessary inputs from service providers. withhold access to such necessary inputs from service providers. withhold access to such necessary inputs from service providers. [22]Life argued that this effectively enables Mediclinic to foreclose rival dialysis Life argued that this effectively enables Mediclinic to foreclose rival dialysis Life argued that this effectively enables Mediclinic to foreclose rival dialysis Life argued that this effectively enables Mediclinic to foreclose rival dialysis Life argued that this effectively enables Mediclinic to foreclose rival dialysis Life argued that this effectively enables Mediclinic to foreclose rival dialysis service providers from operating in the relevant downstream market for the service providers from operating in the relevant downstream market for the service providers from operating in the relevant downstream market for the service providers from operating in the relevant downstream market for the service providers from operating in the relevant downstream market for the service providers from operating in the relevant downstream market for the provision of in-hospital dialysis services at a particular hospital distorting provision of in-hospital dialysis services at a particular hospital distorting provision of in-hospital dialysis services at a particular hospital distorting provision of in-hospital dialysis services at a particular hospital distorting provision of in-hospital dialysis services at a particular hospital distorting provision of in-hospital dialysis services at a particular hospital distorting competition in favour of its own dialysis service provider, Mediclinic Renal competition in favour of its own dialysis service provider, Mediclinic Renal competition in favour of its own dialysis service provider, Mediclinic Renal competition in favour of its own dialysis service provider, Mediclinic Renal competition in favour of its own dialysis service provider, Mediclinic Renal competition in favour of its own dialysis service provider, Mediclinic Renal (“foreclosure theory of harm”). (“foreclosure theory of harm”). (“foreclosure theory of harm”). [23]Life submitted that Mediclinic, by virtue of its upstream market power, is able to Life submitted that Mediclinic, by virtue of its upstream market power, is able to Life submitted that Mediclinic, by virtue of its upstream market power, is able to Life submitted that Mediclinic, by virtue of its upstream market power, is able to Life submitted that Mediclinic, by virtue of its upstream market power, is able to Life submitted that Mediclinic, by virtue of its upstream market power, is able to exclude Mediclinic Renal’s rivals from competing with it by denying access exclude Mediclinic Renal’s rivals from competing with it by denying access exclude Mediclinic Renal’s rivals from competing with it by denying access exclude Mediclinic Renal’s rivals from competing with it by denying access exclude Mediclinic Renal’s rivals from competing with it by denying access exclude Mediclinic Renal’s rivals from competing with it by denying access 1717 Life’s founding affidavit para 17. Life’s founding affidavit para 17. 1818 Life’s replying affidavit, para 302. Life’s replying affidavit, para 302. Life’s replying affidavit, para 302. 1919 A nephrologist is a medical doctor who specializes in kidney health, diagnosing and treating diseases A nephrologist is a medical doctor who specializes in kidney health, diagnosing and treating diseases A nephrologist is a medical doctor who specializes in kidney health, diagnosing and treating diseases A nephrologist is a medical doctor who specializes in kidney health, diagnosing and treating diseases A nephrologist is a medical doctor who specializes in kidney health, diagnosing and treating diseases A nephrologist is a medical doctor who specializes in kidney health, diagnosing and treating diseases A nephrologist is a medical doctor who specializes in kidney health, diagnosing and treating diseases and conditions affecting the kidneys, such as chronic kidney disease, kidney stones, kidney infections, and conditions affecting the kidneys, such as chronic kidney disease, kidney stones, kidney infections, and conditions affecting the kidneys, such as chronic kidney disease, kidney stones, kidney infections, and conditions affecting the kidneys, such as chronic kidney disease, kidney stones, kidney infections, and conditions affecting the kidneys, such as chronic kidney disease, kidney stones, kidney infections, and conditions affecting the kidneys, such as chronic kidney disease, kidney stones, kidney infections, and conditions affecting the kidneys, such as chronic kidney disease, kidney stones, kidney infections, and kidney failure, managing treatments like dialysis and transplantation, and addressing related and kidney failure, managing treatments like dialysis and transplantation, and addressing related and kidney failure, managing treatments like dialysis and transplantation, and addressing related and kidney failure, managing treatments like dialysis and transplantation, and addressing related and kidney failure, managing treatments like dialysis and transplantation, and addressing related and kidney failure, managing treatments like dialysis and transplantation, and addressing related and kidney failure, managing treatments like dialysis and transplantation, and addressing related issues like high blood pressure and electrolyte imbalances. issues like high blood pressure and electrolyte imbalances. issues like high blood pressure and electrolyte imbalances. issues like high blood pressure and electrolyte imbalances. 2020 Life’s founding affidavit para 18. Life’s founding affidavit para 18. permissions to the hospital and reasonable on-site storage within Mediclinic permissions to the hospital and reasonable on-site storage within Mediclinic permissions to the hospital and reasonable on-site storage within Mediclinic permissions to the hospital and reasonable on-site storage within Mediclinic permissions to the hospital and reasonable on-site storage within Mediclinic permissions to the hospital and reasonable on-site storage within Mediclinic hospitals. 2121 [24]To this end, Life argued that Mediclinic is engaging in the following exclusionary To this end, Life argued that Mediclinic is engaging in the following exclusionary To this end, Life argued that Mediclinic is engaging in the following exclusionary To this end, Life argued that Mediclinic is engaging in the following exclusionary To this end, Life argued that Mediclinic is engaging in the following exclusionary To this end, Life argued that Mediclinic is engaging in the following exclusionary acts: 24.1 preventing dialysis patients (customers) as well as their referring preventing dialysis patients (customers) as well as their referring preventing dialysis patients (customers) as well as their referring preventing dialysis patients (customers) as well as their referring preventing dialysis patients (customers) as well as their referring preventing dialysis patients (customers) as well as their referring nephrologists or specialist physicians (suppliers) from dealing with a nephrologists or specialist physicians (suppliers) from dealing with a nephrologists or specialist physicians (suppliers) from dealing with a nephrologists or specialist physicians (suppliers) from dealing with a nephrologists or specialist physicians (suppliers) from dealing with a competitor of Mediclinic Renal, being Life Renal in contravention of competitor of Mediclinic Renal, being Life Renal in contravention of competitor of Mediclinic Renal, being Life Renal in contravention of competitor of Mediclinic Renal, being Life Renal in contravention of competitor of Mediclinic Renal, being Life Renal in contravention of competitor of Mediclinic Renal, being Life Renal in contravention of section 8(1)(d)(i);section 8(1)(d)(i); 24.2 requiring that dialysis patients admitted to a Mediclinic hospital in requiring that dialysis patients admitted to a Mediclinic hospital in requiring that dialysis patients admitted to a Mediclinic hospital in requiring that dialysis patients admitted to a Mediclinic hospital in requiring that dialysis patients admitted to a Mediclinic hospital in requiring that dialysis patients admitted to a Mediclinic hospital in terms of a contract, pursuant to which the patient is provided with terms of a contract, pursuant to which the patient is provided with terms of a contract, pursuant to which the patient is provided with terms of a contract, pursuant to which the patient is provided with terms of a contract, pursuant to which the patient is provided with terms of a contract, pursuant to which the patient is provided with hospital services, are also required, should they need dialysis, to hospital services, are also required, should they need dialysis, to hospital services, are also required, should they need dialysis, to hospital services, are also required, should they need dialysis, to hospital services, are also required, should they need dialysis, to hospital services, are also required, should they need dialysis, to obtain dialysis services from Mediclinic Renal only in contravention of obtain dialysis services from Mediclinic Renal only in contravention of obtain dialysis services from Mediclinic Renal only in contravention of obtain dialysis services from Mediclinic Renal only in contravention of obtain dialysis services from Mediclinic Renal only in contravention of obtain dialysis services from Mediclinic Renal only in contravention of section 8(1)(d)(iii) of the Act; and/orsection 8(1)(d)(iii) of the Act; and/orsection 8(1)(d)(iii) of the Act; and/or 24.3 otherwise engaging in an exclusionary act where the anti-competitive otherwise engaging in an exclusionary act where the anti-competitive otherwise engaging in an exclusionary act where the anti-competitive otherwise engaging in an exclusionary act where the anti-competitive otherwise engaging in an exclusionary act where the anti-competitive otherwise engaging in an exclusionary act where the anti-competitive effect is not outweighed by any alleged efficiency benefits in effect is not outweighed by any alleged efficiency benefits in effect is not outweighed by any alleged efficiency benefits in effect is not outweighed by any alleged efficiency benefits in effect is not outweighed by any alleged efficiency benefits in effect is not outweighed by any alleged efficiency benefits in contravention of section 8(1)(c) of the Act.contravention of section 8(1)(c) of the Act.contravention of section 8(1)(c) of the Act.contravention of section 8(1)(c) of the Act. 2222 [25]Mediclinic however contends that its decision to revoke Life Renal’s access Mediclinic however contends that its decision to revoke Life Renal’s access Mediclinic however contends that its decision to revoke Life Renal’s access Mediclinic however contends that its decision to revoke Life Renal’s access Mediclinic however contends that its decision to revoke Life Renal’s access Mediclinic however contends that its decision to revoke Life Renal’s access from the Effected Hospitals is as a result of a roll-out strategy in terms of which from the Effected Hospitals is as a result of a roll-out strategy in terms of which from the Effected Hospitals is as a result of a roll-out strategy in terms of which from the Effected Hospitals is as a result of a roll-out strategy in terms of which from the Effected Hospitals is as a result of a roll-out strategy in terms of which from the Effected Hospitals is as a result of a roll-out strategy in terms of which Mediclinic intends to insource its renal dialysis services at its hospitals Mediclinic intends to insource its renal dialysis services at its hospitals Mediclinic intends to insource its renal dialysis services at its hospitals Mediclinic intends to insource its renal dialysis services at its hospitals Mediclinic intends to insource its renal dialysis services at its hospitals Mediclinic intends to insource its renal dialysis services at its hospitals nationally (“insourcing decision”).nationally (“insourcing decision”).nationally (“insourcing decision”). 2323 Mediclinic submitted that it has legitimately Mediclinic submitted that it has legitimately Mediclinic submitted that it has legitimately Mediclinic submitted that it has legitimately decided to insource its renal dialysis services which were previously provided decided to insource its renal dialysis services which were previously provided decided to insource its renal dialysis services which were previously provided decided to insource its renal dialysis services which were previously provided decided to insource its renal dialysis services which were previously provided decided to insource its renal dialysis services which were previously provided by Life Renal particularly because Mediclinic has no oversight or authority over by Life Renal particularly because Mediclinic has no oversight or authority over by Life Renal particularly because Mediclinic has no oversight or authority over by Life Renal particularly because Mediclinic has no oversight or authority over by Life Renal particularly because Mediclinic has no oversight or authority over by Life Renal particularly because Mediclinic has no oversight or authority over the practices, hygiene, infection control, security and other reasonable the practices, hygiene, infection control, security and other reasonable the practices, hygiene, infection control, security and other reasonable the practices, hygiene, infection control, security and other reasonable the practices, hygiene, infection control, security and other reasonable the practices, hygiene, infection control, security and other reasonable protocols of third party service providers.protocols of third party service providers.protocols of third party service providers.protocols of third party service providers. 2424 2121 Life’s founding affidavit para 19, page 16. Life’s founding affidavit para 19, page 16. Life’s founding affidavit para 19, page 16. 2222 Life’s founding affidavit, para 21. Life’s founding affidavit, para 21. Life’s founding affidavit, para 21. 2323 Mediclinic’s heads of argument para 2, page 2. Mediclinic’s heads of argument para 2, page 2. Mediclinic’s heads of argument para 2, page 2. 2424 Mediclinic’s answering affidavit, para 30. Mediclinic’s answering affidavit, para 30. Mediclinic’s answering affidavit, para 30. [26]Before we turn to our assessment of the merits, we note that the application Before we turn to our assessment of the merits, we note that the application Before we turn to our assessment of the merits, we note that the application Before we turn to our assessment of the merits, we note that the application Before we turn to our assessment of the merits, we note that the application Before we turn to our assessment of the merits, we note that the application Before we turn to our assessment of the merits, we note that the application was brought by Life and the relief sought, if granted, would solely affect and be was brought by Life and the relief sought, if granted, would solely affect and be was brought by Life and the relief sought, if granted, would solely affect and be was brought by Life and the relief sought, if granted, would solely affect and be was brought by Life and the relief sought, if granted, would solely affect and be was brought by Life and the relief sought, if granted, would solely affect and be relevant to Life. No other third parties are before us, and our determination and relevant to Life. No other third parties are before us, and our determination and relevant to Life. No other third parties are before us, and our determination and relevant to Life. No other third parties are before us, and our determination and relevant to Life. No other third parties are before us, and our determination and relevant to Life. No other third parties are before us, and our determination and assessment are confined to the conduct and circumstances of Life and does assessment are confined to the conduct and circumstances of Life and does assessment are confined to the conduct and circumstances of Life and does assessment are confined to the conduct and circumstances of Life and does assessment are confined to the conduct and circumstances of Life and does assessment are confined to the conduct and circumstances of Life and does not contemplate the potential industry wide effect of Mediclinic’s decision to not contemplate the potential industry wide effect of Mediclinic’s decision to not contemplate the potential industry wide effect of Mediclinic’s decision to not contemplate the potential industry wide effect of Mediclinic’s decision to not contemplate the potential industry wide effect of Mediclinic’s decision to not contemplate the potential industry wide effect of Mediclinic’s decision to insource. [27]We proceed to assess these respective claims under section 49C and the We proceed to assess these respective claims under section 49C and the We proceed to assess these respective claims under section 49C and the We proceed to assess these respective claims under section 49C and the We proceed to assess these respective claims under section 49C and the We proceed to assess these respective claims under section 49C and the relevant prohibited practice sections of the Act.relevant prohibited practice sections of the Act.relevant prohibited practice sections of the Act.relevant prohibited practice sections of the Act. LEGAL FRAMEWORKLEGAL FRAMEWORK [28]Section 49C(2)(b) of the Act sets out the Tribunal’s approach to adjudicating Section 49C(2)(b) of the Act sets out the Tribunal’s approach to adjudicating Section 49C(2)(b) of the Act sets out the Tribunal’s approach to adjudicating Section 49C(2)(b) of the Act sets out the Tribunal’s approach to adjudicating Section 49C(2)(b) of the Act sets out the Tribunal’s approach to adjudicating Section 49C(2)(b) of the Act sets out the Tribunal’s approach to adjudicating interim relief application, it reads as follows: interim relief application, it reads as follows: interim relief application, it reads as follows: interim relief application, it reads as follows: “Interim Relief“Interim Relief … The Competition Tribunal … may grant an interim order if it is reasonable and The Competition Tribunal … may grant an interim order if it is reasonable and The Competition Tribunal … may grant an interim order if it is reasonable and The Competition Tribunal … may grant an interim order if it is reasonable and The Competition Tribunal … may grant an interim order if it is reasonable and The Competition Tribunal … may grant an interim order if it is reasonable and just to do so, having regard to the following factors:just to do so, having regard to the following factors:just to do so, having regard to the following factors:just to do so, having regard to the following factors: (i)the evidence relating to the alleged prohibited practice;the evidence relating to the alleged prohibited practice;the evidence relating to the alleged prohibited practice;the evidence relating to the alleged prohibited practice;the evidence relating to the alleged prohibited practice; (ii)the need to prevent serious or irreparable damage to the applicant; andthe need to prevent serious or irreparable damage to the applicant; andthe need to prevent serious or irreparable damage to the applicant; andthe need to prevent serious or irreparable damage to the applicant; andthe need to prevent serious or irreparable damage to the applicant; andthe need to prevent serious or irreparable damage to the applicant; and (iii) the balance of convenience.” the balance of convenience.” the balance of convenience.” [29]Section 49C(3) explains that: Section 49C(3) explains that: Section 49C(3) explains that: “In any proceedings in terms of this section, the standard of proof is the same “In any proceedings in terms of this section, the standard of proof is the same “In any proceedings in terms of this section, the standard of proof is the same “In any proceedings in terms of this section, the standard of proof is the same “In any proceedings in terms of this section, the standard of proof is the same “In any proceedings in terms of this section, the standard of proof is the same as the standard of proof in the High Court on a common law application for an as the standard of proof in the High Court on a common law application for an as the standard of proof in the High Court on a common law application for an as the standard of proof in the High Court on a common law application for an as the standard of proof in the High Court on a common law application for an as the standard of proof in the High Court on a common law application for an interim interdict.”interim interdict.” [30]An applicant is only required to make out a An applicant is only required to make out a An applicant is only required to make out a An applicant is only required to make out a prima facie case, not to establish case, not to establish its case on a balance of probabilities as was stated in its case on a balance of probabilities as was stated in its case on a balance of probabilities as was stated in its case on a balance of probabilities as was stated in its case on a balance of probabilities as was stated in eMedia, where the Competition Appeal Court (“CAC”) explained that “[t]Competition Appeal Court (“CAC”) explained that “[t]Competition Appeal Court (“CAC”) explained that “[t]Competition Appeal Court (“CAC”) explained that “[t]his really means that the his really means that the Tribunal must make a summary assessment before granting the interim relief. Tribunal must make a summary assessment before granting the interim relief. Tribunal must make a summary assessment before granting the interim relief. Tribunal must make a summary assessment before granting the interim relief. Tribunal must make a summary assessment before granting the interim relief. Tribunal must make a summary assessment before granting the interim relief. This assessment is only at a prima face levelThis assessment is only at a prima face levelThis assessment is only at a prima face levelThis assessment is only at a prima face level.”.” 2525 [31]In Sekunjalo, the CAC further confirmed that the requirement of evidence the CAC further confirmed that the requirement of evidence the CAC further confirmed that the requirement of evidence the CAC further confirmed that the requirement of evidence the CAC further confirmed that the requirement of evidence relating to the alleged prohibited practice means relating to the alleged prohibited practice means relating to the alleged prohibited practice means relating to the alleged prohibited practice means prima facie evidence. 2626 In this way interim relief applications under section 49C are analogous to interim way interim relief applications under section 49C are analogous to interim way interim relief applications under section 49C are analogous to interim way interim relief applications under section 49C are analogous to interim way interim relief applications under section 49C are analogous to interim way interim relief applications under section 49C are analogous to interim interdict applications in the High Court, where applicants seek relief pending interdict applications in the High Court, where applicants seek relief pending interdict applications in the High Court, where applicants seek relief pending interdict applications in the High Court, where applicants seek relief pending interdict applications in the High Court, where applicants seek relief pending interdict applications in the High Court, where applicants seek relief pending the determination of some other dispute.the determination of some other dispute.the determination of some other dispute.the determination of some other dispute. [32]Therefore, it is not the function of the Tribunal to arrive at a definitive finding of Therefore, it is not the function of the Tribunal to arrive at a definitive finding of Therefore, it is not the function of the Tribunal to arrive at a definitive finding of Therefore, it is not the function of the Tribunal to arrive at a definitive finding of Therefore, it is not the function of the Tribunal to arrive at a definitive finding of Therefore, it is not the function of the Tribunal to arrive at a definitive finding of a contravention.a contravention. 2727 To this end, a successful applicant in an interim relief To this end, a successful applicant in an interim relief To this end, a successful applicant in an interim relief To this end, a successful applicant in an interim relief To this end, a successful applicant in an interim relief application is only required to make out a application is only required to make out a application is only required to make out a prima facie case of prohibited conduct case of prohibited conduct case of prohibited conduct and is not required to prove its case on a balance of probabilities. and is not required to prove its case on a balance of probabilities. and is not required to prove its case on a balance of probabilities. and is not required to prove its case on a balance of probabilities. and is not required to prove its case on a balance of probabilities. [33]In matter between In matter between Depansum (Pty) Ltd t/a dLocal and VISA Inc. and Others,Depansum (Pty) Ltd t/a dLocal and VISA Inc. and Others,Depansum (Pty) Ltd t/a dLocal and VISA Inc. and Others,Depansum (Pty) Ltd t/a dLocal and VISA Inc. and Others,Depansum (Pty) Ltd t/a dLocal and VISA Inc. and Others, 2828 the Tribunal relied on the matter between the Tribunal relied on the matter between the Tribunal relied on the matter between Simon NO v Air Operations of Europe Simon NO v Air Operations of Europe Simon NO v Air Operations of Europe AB and othersAB and others 2929 regarding the approach with respect to disputes of fact. regarding the approach with respect to disputes of fact. regarding the approach with respect to disputes of fact. regarding the approach with respect to disputes of fact. regarding the approach with respect to disputes of fact. In this regard, we bear in mind that this is an application for an interim In this regard, we bear in mind that this is an application for an interim In this regard, we bear in mind that this is an application for an interim In this regard, we bear in mind that this is an application for an interim In this regard, we bear in mind that this is an application for an interim In this regard, we bear in mind that this is an application for an interim interdict. To the extent that there are disputes of fact, we ought to follow the interdict. To the extent that there are disputes of fact, we ought to follow the interdict. To the extent that there are disputes of fact, we ought to follow the interdict. To the extent that there are disputes of fact, we ought to follow the interdict. To the extent that there are disputes of fact, we ought to follow the interdict. To the extent that there are disputes of fact, we ought to follow the approach articulated in the Gool case:approach articulated in the Gool case:approach articulated in the Gool case: “The accepted test for a prima facie right in the context of an interim interdict “The accepted test for a prima facie right in the context of an interim interdict “The accepted test for a prima facie right in the context of an interim interdict “The accepted test for a prima facie right in the context of an interim interdict “The accepted test for a prima facie right in the context of an interim interdict “The accepted test for a prima facie right in the context of an interim interdict is to take the facts averred by the applicant, together with such facts set out is to take the facts averred by the applicant, together with such facts set out is to take the facts averred by the applicant, together with such facts set out is to take the facts averred by the applicant, together with such facts set out is to take the facts averred by the applicant, together with such facts set out is to take the facts averred by the applicant, together with such facts set out by the respondent that are not or cannot be disputed and to consider by the respondent that are not or cannot be disputed and to consider by the respondent that are not or cannot be disputed and to consider by the respondent that are not or cannot be disputed and to consider by the respondent that are not or cannot be disputed and to consider by the respondent that are not or cannot be disputed and to consider whether, having regard to the inherent probabilities, the applicant should on whether, having regard to the inherent probabilities, the applicant should on whether, having regard to the inherent probabilities, the applicant should on whether, having regard to the inherent probabilities, the applicant should on whether, having regard to the inherent probabilities, the applicant should on whether, having regard to the inherent probabilities, the applicant should on those facts obtain final relief at the trial. The facts set up in contradiction by those facts obtain final relief at the trial. The facts set up in contradiction by those facts obtain final relief at the trial. The facts set up in contradiction by those facts obtain final relief at the trial. The facts set up in contradiction by those facts obtain final relief at the trial. The facts set up in contradiction by those facts obtain final relief at the trial. The facts set up in contradiction by 2525 eMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd and anothereMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd and anothereMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd and anothereMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd and anothereMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd and another (201/CAC/JUN22) (1 August 2022) (201/CAC/JUN22) (1 August 2022) (201/CAC/JUN22) (1 August 2022) at at para 93. 2626 Mercantile Bank, A Division of Capitec Bank Ltd and others v Surve` and others Mercantile Bank, A Division of Capitec Bank Ltd and others v Surve` and others Mercantile Bank, A Division of Capitec Bank Ltd and others v Surve` and others Mercantile Bank, A Division of Capitec Bank Ltd and others v Surve` and others Mercantile Bank, A Division of Capitec Bank Ltd and others v Surve` and others Mercantile Bank, A Division of Capitec Bank Ltd and others v Surve` and others [2023] 3 CPLR 33 (CAC), at para 25.33 (CAC), at para 25. 2727 GovChat (Pty) Ltd and another v Facebook Inc. and OthersGovChat (Pty) Ltd and another v Facebook Inc. and OthersGovChat (Pty) Ltd and another v Facebook Inc. and OthersGovChat (Pty) Ltd and another v Facebook Inc. and Others Case No: IR165Nov20, at para 20. Case No: IR165Nov20, at para 20. Case No: IR165Nov20, at para 20. 2828 Competition Tribunal Case No. IR020Aug23. Competition Tribunal Case No. IR020Aug23. Competition Tribunal Case No. IR020Aug23. 2929 1999 (1) SA 217 (SCA) at 228. 1999 (1) SA 217 (SCA) at 228. the respondent should then be considered and, if serious doubt is thrown the respondent should then be considered and, if serious doubt is thrown the respondent should then be considered and, if serious doubt is thrown the respondent should then be considered and, if serious doubt is thrown the respondent should then be considered and, if serious doubt is thrown the respondent should then be considered and, if serious doubt is thrown upon the case of the applicant, he cannot succeed.”upon the case of the applicant, he cannot succeed.”upon the case of the applicant, he cannot succeed.”upon the case of the applicant, he cannot succeed.”upon the case of the applicant, he cannot succeed.” [34]In Nedschroef, the Tribunal explained that the three factors must be understood , the Tribunal explained that the three factors must be understood , the Tribunal explained that the three factors must be understood , the Tribunal explained that the three factors must be understood , the Tribunal explained that the three factors must be understood holistically to determine whether a case for interim relief has been establishedholistically to determine whether a case for interim relief has been establishedholistically to determine whether a case for interim relief has been establishedholistically to determine whether a case for interim relief has been establishedholistically to determine whether a case for interim relief has been establishedholistically to determine whether a case for interim relief has been established “…an application may meet the three factors, but there may be reasons why “…an application may meet the three factors, but there may be reasons why “…an application may meet the three factors, but there may be reasons why “…an application may meet the three factors, but there may be reasons why “…an application may meet the three factors, but there may be reasons why “…an application may meet the three factors, but there may be reasons why granting the application is not reasonable and just. Conversely, an applicant granting the application is not reasonable and just. Conversely, an applicant granting the application is not reasonable and just. Conversely, an applicant granting the application is not reasonable and just. Conversely, an applicant granting the application is not reasonable and just. Conversely, an applicant granting the application is not reasonable and just. Conversely, an applicant may not make out a strong case on all three of the factors, but the Tribunal may not make out a strong case on all three of the factors, but the Tribunal may not make out a strong case on all three of the factors, but the Tribunal may not make out a strong case on all three of the factors, but the Tribunal may not make out a strong case on all three of the factors, but the Tribunal may not make out a strong case on all three of the factors, but the Tribunal may nevertheless consider that an order for interim relief is nevertheless may nevertheless consider that an order for interim relief is nevertheless may nevertheless consider that an order for interim relief is nevertheless may nevertheless consider that an order for interim relief is nevertheless may nevertheless consider that an order for interim relief is nevertheless may nevertheless consider that an order for interim relief is nevertheless reasonable and just …”reasonable and just …” 3030 [35]In eMedia, the CAC held that when examining the three factors, consideration the CAC held that when examining the three factors, consideration the CAC held that when examining the three factors, consideration the CAC held that when examining the three factors, consideration the CAC held that when examining the three factors, consideration must be given to whether there are “must be given to whether there are “must be given to whether there are “clear, non-speculative and uncontroversial clear, non-speculative and uncontroversial clear, non-speculative and uncontroversial clear, non-speculative and uncontroversial facts” that support the grant of interim relief, and that “” that support the grant of interim relief, and that “” that support the grant of interim relief, and that “” that support the grant of interim relief, and that “whilst there will inevitably whilst there will inevitably be disputes of factbe disputes of fact”, that should not prevent the Tribunal from taking a “”, that should not prevent the Tribunal from taking a “”, that should not prevent the Tribunal from taking a “”, that should not prevent the Tribunal from taking a “”, that should not prevent the Tribunal from taking a “robust approach” on the evidence and submissions before it, given that a full ” on the evidence and submissions before it, given that a full ” on the evidence and submissions before it, given that a full ” on the evidence and submissions before it, given that a full ” on the evidence and submissions before it, given that a full ” on the evidence and submissions before it, given that a full examination and determination of the merits will be undertaken at the hearing examination and determination of the merits will be undertaken at the hearing examination and determination of the merits will be undertaken at the hearing examination and determination of the merits will be undertaken at the hearing examination and determination of the merits will be undertaken at the hearing examination and determination of the merits will be undertaken at the hearing in which final relief is sought.in which final relief is sought.in which final relief is sought. 3131 Section 8 of the Act Section 8 of the Act [36]Section 8 of the Act prohibits conduct of a firm that amounts to an abuse of its Section 8 of the Act prohibits conduct of a firm that amounts to an abuse of its Section 8 of the Act prohibits conduct of a firm that amounts to an abuse of its Section 8 of the Act prohibits conduct of a firm that amounts to an abuse of its Section 8 of the Act prohibits conduct of a firm that amounts to an abuse of its Section 8 of the Act prohibits conduct of a firm that amounts to an abuse of its dominant position. There are two types of abuse of dominance. The first being dominant position. There are two types of abuse of dominance. The first being dominant position. There are two types of abuse of dominance. The first being dominant position. There are two types of abuse of dominance. The first being dominant position. There are two types of abuse of dominance. The first being dominant position. There are two types of abuse of dominance. The first being exploitative as it is aimed at consumers and the second type is exclusionary as exploitative as it is aimed at consumers and the second type is exclusionary as exploitative as it is aimed at consumers and the second type is exclusionary as exploitative as it is aimed at consumers and the second type is exclusionary as exploitative as it is aimed at consumers and the second type is exclusionary as exploitative as it is aimed at consumers and the second type is exclusionary as it impedes or prevents rivals from expanding in the market. For our purposes it it impedes or prevents rivals from expanding in the market. For our purposes it it impedes or prevents rivals from expanding in the market. For our purposes it it impedes or prevents rivals from expanding in the market. For our purposes it it impedes or prevents rivals from expanding in the market. For our purposes it it impedes or prevents rivals from expanding in the market. For our purposes it is important to only focus on the sections Life alleges Mediclinic to have is important to only focus on the sections Life alleges Mediclinic to have is important to only focus on the sections Life alleges Mediclinic to have is important to only focus on the sections Life alleges Mediclinic to have is important to only focus on the sections Life alleges Mediclinic to have is important to only focus on the sections Life alleges Mediclinic to have contravened, which are sections 8(1)(c), 8(1)(d)(i), and 8(1)(d)(iii).contravened, which are sections 8(1)(c), 8(1)(d)(i), and 8(1)(d)(iii).contravened, which are sections 8(1)(c), 8(1)(d)(i), and 8(1)(d)(iii).contravened, which are sections 8(1)(c), 8(1)(d)(i), and 8(1)(d)(iii).contravened, which are sections 8(1)(c), 8(1)(d)(i), and 8(1)(d)(iii).contravened, which are sections 8(1)(c), 8(1)(d)(i), and 8(1)(d)(iii). 3030 Nedschroef Johannesburg (Pty) Ltd v Teamcor Limited and OthersNedschroef Johannesburg (Pty) Ltd v Teamcor Limited and OthersNedschroef Johannesburg (Pty) Ltd v Teamcor Limited and OthersNedschroef Johannesburg (Pty) Ltd v Teamcor Limited and OthersNedschroef Johannesburg (Pty) Ltd v Teamcor Limited and Others (95/IR/Oct05) [2006] ZACT 7; (95/IR/Oct05) [2006] ZACT 7; [2006] 1 CPLR 98 (CT) (1 February 2006) at paras 23-25.[2006] 1 CPLR 98 (CT) (1 February 2006) at paras 23-25.[2006] 1 CPLR 98 (CT) (1 February 2006) at paras 23-25.[2006] 1 CPLR 98 (CT) (1 February 2006) at paras 23-25. 3131 eMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd and anothereMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd and anothereMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd and anothereMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd and anothereMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd and another (201/CAC/JUN22) (1 August 2022) (201/CAC/JUN22) (1 August 2022) (201/CAC/JUN22) (1 August 2022) at paras 80-81. [37]Section 8(1) states that it is prohibited for a “Section 8(1) states that it is prohibited for a “Section 8(1) states that it is prohibited for a “Section 8(1) states that it is prohibited for a “dominant” 3232 firm to: “(c) engage in an exclusionary act, other than an act listed in paragraph (d), “(c) engage in an exclusionary act, other than an act listed in paragraph (d), “(c) engage in an exclusionary act, other than an act listed in paragraph (d), “(c) engage in an exclusionary act, other than an act listed in paragraph (d), “(c) engage in an exclusionary act, other than an act listed in paragraph (d), “(c) engage in an exclusionary act, other than an act listed in paragraph (d), if the anti-competitive effect of that act outweighs its technological, if the anti-competitive effect of that act outweighs its technological, if the anti-competitive effect of that act outweighs its technological, if the anti-competitive effect of that act outweighs its technological, if the anti-competitive effect of that act outweighs its technological, if the anti-competitive effect of that act outweighs its technological, efficiency or other pro-competitive gain; orefficiency or other pro-competitive gain; orefficiency or other pro-competitive gain; orefficiency or other pro-competitive gain; or (d) engage in any of the following exclusionary acts, unless the firm (d) engage in any of the following exclusionary acts, unless the firm (d) engage in any of the following exclusionary acts, unless the firm (d) engage in any of the following exclusionary acts, unless the firm (d) engage in any of the following exclusionary acts, unless the firm (d) engage in any of the following exclusionary acts, unless the firm concerned can show technological, efficiency or other pro-competitive concerned can show technological, efficiency or other pro-competitive concerned can show technological, efficiency or other pro-competitive concerned can show technological, efficiency or other pro-competitive concerned can show technological, efficiency or other pro-competitive concerned can show technological, efficiency or other pro-competitive gains which outweigh the anti-competitive effect of its act— gains which outweigh the anti-competitive effect of its act— gains which outweigh the anti-competitive effect of its act— gains which outweigh the anti-competitive effect of its act— gains which outweigh the anti-competitive effect of its act— (i) requiring or inducing a supplier or customer to not deal with a (i) requiring or inducing a supplier or customer to not deal with a (i) requiring or inducing a supplier or customer to not deal with a (i) requiring or inducing a supplier or customer to not deal with a (i) requiring or inducing a supplier or customer to not deal with a (i) requiring or inducing a supplier or customer to not deal with a competitor; andcompetitor; and (iii) selling goods or services on condition that the buyer purchases (iii) selling goods or services on condition that the buyer purchases (iii) selling goods or services on condition that the buyer purchases (iii) selling goods or services on condition that the buyer purchases (iii) selling goods or services on condition that the buyer purchases (iii) selling goods or services on condition that the buyer purchases separate goods or services unrelated to the object of a contract, or separate goods or services unrelated to the object of a contract, or separate goods or services unrelated to the object of a contract, or separate goods or services unrelated to the object of a contract, or separate goods or services unrelated to the object of a contract, or separate goods or services unrelated to the object of a contract, or forcing a buyer to accept a condition unrelated to the object of a forcing a buyer to accept a condition unrelated to the object of a forcing a buyer to accept a condition unrelated to the object of a forcing a buyer to accept a condition unrelated to the object of a forcing a buyer to accept a condition unrelated to the object of a contract” [38]Section 1 defines an “Section 1 defines an “exclusionary actexclusionary act” as “an act that impedes or prevents a an act that impedes or prevents a an act that impedes or prevents a firm from entering into, participating in or expanding within a marketfirm from entering into, participating in or expanding within a marketfirm from entering into, participating in or expanding within a marketfirm from entering into, participating in or expanding within a marketfirm from entering into, participating in or expanding within a marketfirm from entering into, participating in or expanding within a market.” The term “participate” is in turn defined as “” is in turn defined as “the ability of or opportunity for firms to sustain the ability of or opportunity for firms to sustain the ability of or opportunity for firms to sustain the ability of or opportunity for firms to sustain themselves in the marketthemselves in the market.”.” [39]Both sections 8(1)(c) and 8(1)(d) distinguish between an “Both sections 8(1)(c) and 8(1)(d) distinguish between an “Both sections 8(1)(c) and 8(1)(d) distinguish between an “Both sections 8(1)(c) and 8(1)(d) distinguish between an “Both sections 8(1)(c) and 8(1)(d) distinguish between an “exclusionary actexclusionary act” (as defined above) and an “defined above) and an “anti-competitive effectanti-competitive effect”. In Uniplate, the CAC explained , the CAC explained that an exclusionary act may give rise to an anti-competitive effect, however, to that an exclusionary act may give rise to an anti-competitive effect, however, to that an exclusionary act may give rise to an anti-competitive effect, however, to that an exclusionary act may give rise to an anti-competitive effect, however, to that an exclusionary act may give rise to an anti-competitive effect, however, to that an exclusionary act may give rise to an anti-competitive effect, however, to establish a contravention of the sections that effect must be proven.establish a contravention of the sections that effect must be proven.establish a contravention of the sections that effect must be proven.establish a contravention of the sections that effect must be proven.establish a contravention of the sections that effect must be proven. 3333 [40]Section 8(1)(c) contains a general prohibition of anti-competitive exclusionary Section 8(1)(c) contains a general prohibition of anti-competitive exclusionary Section 8(1)(c) contains a general prohibition of anti-competitive exclusionary Section 8(1)(c) contains a general prohibition of anti-competitive exclusionary Section 8(1)(c) contains a general prohibition of anti-competitive exclusionary Section 8(1)(c) contains a general prohibition of anti-competitive exclusionary conduct. Where a contravention of section 8(1)(c) is alleged, the onus is on the conduct. Where a contravention of section 8(1)(c) is alleged, the onus is on the conduct. Where a contravention of section 8(1)(c) is alleged, the onus is on the conduct. Where a contravention of section 8(1)(c) is alleged, the onus is on the conduct. Where a contravention of section 8(1)(c) is alleged, the onus is on the conduct. Where a contravention of section 8(1)(c) is alleged, the onus is on the applicant to prove elements of an exclusionary act and the anti-competitive applicant to prove elements of an exclusionary act and the anti-competitive applicant to prove elements of an exclusionary act and the anti-competitive applicant to prove elements of an exclusionary act and the anti-competitive applicant to prove elements of an exclusionary act and the anti-competitive applicant to prove elements of an exclusionary act and the anti-competitive effects. This can be demonstrated through evidence of harm to consumer effects. This can be demonstrated through evidence of harm to consumer effects. This can be demonstrated through evidence of harm to consumer effects. This can be demonstrated through evidence of harm to consumer effects. This can be demonstrated through evidence of harm to consumer effects. This can be demonstrated through evidence of harm to consumer 3232 In terms of section 7, “ In terms of section 7, “A firm is dominant in a market if (a) it has at least 45% of that A firm is dominant in a market if (a) it has at least 45% of that A firm is dominant in a market if (a) it has at least 45% of that A firm is dominant in a market if (a) it has at least 45% of that  (b) it has at least 35%, but less than 45%, of that market, unless it can show that it does not have market at least 35%, but less than 45%, of that market, unless it can show that it does not have market at least 35%, but less than 45%, of that market, unless it can show that it does not have market at least 35%, but less than 45%, of that market, unless it can show that it does not have market at least 35%, but less than 45%, of that market, unless it can show that it does not have market at least 35%, but less than 45%, of that market, unless it can show that it does not have market at least 35%, but less than 45%, of that market, unless it can show that it does not have market  or (c) it has less than 35% of that market but has market poweror (c) it has less than 35% of that market but has market poweror (c) it has less than 35% of that market but has market poweror (c) it has less than 35% of that market but has market power”. “Market power” is defined in section ” is defined in section 1(1) as “the power of a firm to control prices, to exclude competition or to behave to an appreciable the power of a firm to control prices, to exclude competition or to behave to an appreciable the power of a firm to control prices, to exclude competition or to behave to an appreciable the power of a firm to control prices, to exclude competition or to behave to an appreciable the power of a firm to control prices, to exclude competition or to behave to an appreciable the power of a firm to control prices, to exclude competition or to behave to an appreciable extent independently of its competitors, customers or suppliersextent independently of its competitors, customers or suppliersextent independently of its competitors, customers or suppliersextent independently of its competitors, customers or suppliers”. 3333 Uniplate Group (Pty) Ltd v The Competition Commission of South AfricaUniplate Group (Pty) Ltd v The Competition Commission of South AfricaUniplate Group (Pty) Ltd v The Competition Commission of South AfricaUniplate Group (Pty) Ltd v The Competition Commission of South AfricaUniplate Group (Pty) Ltd v The Competition Commission of South Africa (176/CAC/Jul19) [2020] (176/CAC/Jul19) [2020] ZACAC 10 at para 23.ZACAC 10 at para 23. welfare or foreclosure in the market, which can be based on reasonable welfare or foreclosure in the market, which can be based on reasonable welfare or foreclosure in the market, which can be based on reasonable welfare or foreclosure in the market, which can be based on reasonable welfare or foreclosure in the market, which can be based on reasonable welfare or foreclosure in the market, which can be based on reasonable inferences from proven facts.inferences from proven facts.inferences from proven facts. 3434 [41]Under section 8(1)(d), the existence of an exclusionary act is assumed if the Under section 8(1)(d), the existence of an exclusionary act is assumed if the Under section 8(1)(d), the existence of an exclusionary act is assumed if the Under section 8(1)(d), the existence of an exclusionary act is assumed if the Under section 8(1)(d), the existence of an exclusionary act is assumed if the Under section 8(1)(d), the existence of an exclusionary act is assumed if the conduct referred to in the section is established. Under this section, the conduct referred to in the section is established. Under this section, the conduct referred to in the section is established. Under this section, the conduct referred to in the section is established. Under this section, the conduct referred to in the section is established. Under this section, the conduct referred to in the section is established. Under this section, the requirement of a substantial anti-competitive effect is met either (i) if there is requirement of a substantial anti-competitive effect is met either (i) if there is requirement of a substantial anti-competitive effect is met either (i) if there is requirement of a substantial anti-competitive effect is met either (i) if there is requirement of a substantial anti-competitive effect is met either (i) if there is requirement of a substantial anti-competitive effect is met either (i) if there is “evidence of actual harm to consumer welfareevidence of actual harm to consumer welfareevidence of actual harm to consumer welfareevidence of actual harm to consumer welfare” or (ii) “if the exclusionary act is if the exclusionary act is substantial or significant in terms of its effect in foreclosing the market to substantial or significant in terms of its effect in foreclosing the market to substantial or significant in terms of its effect in foreclosing the market to substantial or significant in terms of its effect in foreclosing the market to substantial or significant in terms of its effect in foreclosing the market to substantial or significant in terms of its effect in foreclosing the market to rivals”.”. 3535 [42]In terms of section 8(1)(c), the onus is on the complainant to show that the In terms of section 8(1)(c), the onus is on the complainant to show that the In terms of section 8(1)(c), the onus is on the complainant to show that the In terms of section 8(1)(c), the onus is on the complainant to show that the In terms of section 8(1)(c), the onus is on the complainant to show that the In terms of section 8(1)(c), the onus is on the complainant to show that the anticompetitive effect of the conduct outweighs the technological, efficiency anticompetitive effect of the conduct outweighs the technological, efficiency anticompetitive effect of the conduct outweighs the technological, efficiency anticompetitive effect of the conduct outweighs the technological, efficiency anticompetitive effect of the conduct outweighs the technological, efficiency anticompetitive effect of the conduct outweighs the technological, efficiency and pro-competitive gains.and pro-competitive gains.and pro-competitive gains. 3636 [43]Once the elements of section 8(1)(d) are proven, the onus shifts to the Once the elements of section 8(1)(d) are proven, the onus shifts to the Once the elements of section 8(1)(d) are proven, the onus shifts to the Once the elements of section 8(1)(d) are proven, the onus shifts to the Once the elements of section 8(1)(d) are proven, the onus shifts to the Once the elements of section 8(1)(d) are proven, the onus shifts to the respondent to prove that the anti-competitive effects of the conduct are respondent to prove that the anti-competitive effects of the conduct are respondent to prove that the anti-competitive effects of the conduct are respondent to prove that the anti-competitive effects of the conduct are respondent to prove that the anti-competitive effects of the conduct are respondent to prove that the anti-competitive effects of the conduct are outweighed by pro-competitive gains.outweighed by pro-competitive gains.outweighed by pro-competitive gains. [44]In Computicket, the CAC emphasised that, in order to establish an , the CAC emphasised that, in order to establish an , the CAC emphasised that, in order to establish an , the CAC emphasised that, in order to establish an , the CAC emphasised that, in order to establish an “anti- competitive effect”competitive effect” for purposes of section 8(1)(d), it must be shown that the for purposes of section 8(1)(d), it must be shown that the for purposes of section 8(1)(d), it must be shown that the for purposes of section 8(1)(d), it must be shown that the for purposes of section 8(1)(d), it must be shown that the harm in question, “harm in question, “whether in the form of actual or potential harm, strengthens whether in the form of actual or potential harm, strengthens whether in the form of actual or potential harm, strengthens whether in the form of actual or potential harm, strengthens whether in the form of actual or potential harm, strengthens the dominant firm’s position to the extent that competitive rivalry is significantly the dominant firm’s position to the extent that competitive rivalry is significantly the dominant firm’s position to the extent that competitive rivalry is significantly the dominant firm’s position to the extent that competitive rivalry is significantly the dominant firm’s position to the extent that competitive rivalry is significantly the dominant firm’s position to the extent that competitive rivalry is significantly impeded or is likely to be so impeded by the impugned conduct of the dominant impeded or is likely to be so impeded by the impugned conduct of the dominant impeded or is likely to be so impeded by the impugned conduct of the dominant impeded or is likely to be so impeded by the impugned conduct of the dominant impeded or is likely to be so impeded by the impugned conduct of the dominant impeded or is likely to be so impeded by the impugned conduct of the dominant firm.” [45]In the light of these general principles, we now turn to our analysis of each of In the light of these general principles, we now turn to our analysis of each of In the light of these general principles, we now turn to our analysis of each of In the light of these general principles, we now turn to our analysis of each of In the light of these general principles, we now turn to our analysis of each of In the light of these general principles, we now turn to our analysis of each of In the light of these general principles, we now turn to our analysis of each of the elements required to establish a contravention of section 8(1)(d) and the elements required to establish a contravention of section 8(1)(d) and the elements required to establish a contravention of section 8(1)(d) and the elements required to establish a contravention of section 8(1)(d) and the elements required to establish a contravention of section 8(1)(d) and the elements required to establish a contravention of section 8(1)(d) and section 8(1)(c) with reference to the particular facts in this case.section 8(1)(c) with reference to the particular facts in this case.section 8(1)(c) with reference to the particular facts in this case.section 8(1)(c) with reference to the particular facts in this case.section 8(1)(c) with reference to the particular facts in this case. ANALYSIS 3434 Competition Commission and South African Airways (Pty) LtdCompetition Commission and South African Airways (Pty) LtdCompetition Commission and South African Airways (Pty) LtdCompetition Commission and South African Airways (Pty) Ltd (18/CR/Mar01) [2005] ZACT 50, at (18/CR/Mar01) [2005] ZACT 50, at (18/CR/Mar01) [2005] ZACT 50, at para 132 3535 GovChat (Pty) Ltd and another v Facebook Inc. and OthersGovChat (Pty) Ltd and another v Facebook Inc. and OthersGovChat (Pty) Ltd and another v Facebook Inc. and OthersGovChat (Pty) Ltd and another v Facebook Inc. and Others (Case No. IR165Nov20), 11 March 2021 (Case No. IR165Nov20), 11 March 2021 (Case No. IR165Nov20), 11 March 2021 at para 142. 3636 Competition Commission v Senwes LimitedCompetition Commission v Senwes LimitedCompetition Commission v Senwes Limited (110/CR/Dec06) para 170. (110/CR/Dec06) para 170. Relevant markets and dominanceRelevant markets and dominanceRelevant markets and dominance [46]To succeed under section 8(1)(d) or 8(1)(c) of the Act, Life must first establish To succeed under section 8(1)(d) or 8(1)(c) of the Act, Life must first establish To succeed under section 8(1)(d) or 8(1)(c) of the Act, Life must first establish To succeed under section 8(1)(d) or 8(1)(c) of the Act, Life must first establish To succeed under section 8(1)(d) or 8(1)(c) of the Act, Life must first establish To succeed under section 8(1)(d) or 8(1)(c) of the Act, Life must first establish that Mediclinic is dominant in a relevant market, as defined in section 7 of the that Mediclinic is dominant in a relevant market, as defined in section 7 of the that Mediclinic is dominant in a relevant market, as defined in section 7 of the that Mediclinic is dominant in a relevant market, as defined in section 7 of the that Mediclinic is dominant in a relevant market, as defined in section 7 of the that Mediclinic is dominant in a relevant market, as defined in section 7 of the Act. Section 7 of the Act states that: Act. Section 7 of the Act states that: Act. Section 7 of the Act states that: A firm is dominant in a market if- A firm is dominant in a market if- A firm is dominant in a market if- (a) it has at least 45% of that market; (a) it has at least 45% of that market; (a) it has at least 45% of that market; (b) it has at least 35%, but less than 45%, of that market, unless it can show (b) it has at least 35%, but less than 45%, of that market, unless it can show (b) it has at least 35%, but less than 45%, of that market, unless it can show (b) it has at least 35%, but less than 45%, of that market, unless it can show (b) it has at least 35%, but less than 45%, of that market, unless it can show (b) it has at least 35%, but less than 45%, of that market, unless it can show that it does not have market power; or that it does not have market power; or that it does not have market power; or (c) it has less than 35% of that market, but has market power(c) it has less than 35% of that market, but has market power(c) it has less than 35% of that market, but has market power(c) it has less than 35% of that market, but has market power(c) it has less than 35% of that market, but has market power [47]The first enquiry therefore concerns the relevant market definition, thereafter The first enquiry therefore concerns the relevant market definition, thereafter The first enquiry therefore concerns the relevant market definition, thereafter The first enquiry therefore concerns the relevant market definition, thereafter The first enquiry therefore concerns the relevant market definition, thereafter The first enquiry therefore concerns the relevant market definition, thereafter whether Mediclinic is in fact dominant in the identified market(s). whether Mediclinic is in fact dominant in the identified market(s). whether Mediclinic is in fact dominant in the identified market(s). whether Mediclinic is in fact dominant in the identified market(s). whether Mediclinic is in fact dominant in the identified market(s). [48]One complicated issue in this application concerns the parties’ divergent One complicated issue in this application concerns the parties’ divergent One complicated issue in this application concerns the parties’ divergent One complicated issue in this application concerns the parties’ divergent One complicated issue in this application concerns the parties’ divergent One complicated issue in this application concerns the parties’ divergent positions on the appropriate market definition(s). positions on the appropriate market definition(s). positions on the appropriate market definition(s). positions on the appropriate market definition(s). 48.1 Life argued that there are two relevant market definitions: (i) the Life argued that there are two relevant market definitions: (i) the Life argued that there are two relevant market definitions: (i) the Life argued that there are two relevant market definitions: (i) the Life argued that there are two relevant market definitions: (i) the Life argued that there are two relevant market definitions: (i) the upstream market should be defined as the market for the provision of upstream market should be defined as the market for the provision of upstream market should be defined as the market for the provision of upstream market should be defined as the market for the provision of upstream market should be defined as the market for the provision of upstream market should be defined as the market for the provision of reasonable on-site storage facilities and express access permissions reasonable on-site storage facilities and express access permissions reasonable on-site storage facilities and express access permissions reasonable on-site storage facilities and express access permissions reasonable on-site storage facilities and express access permissions reasonable on-site storage facilities and express access permissions to mobile dialysis service providers at a given acute multidisciplinary to mobile dialysis service providers at a given acute multidisciplinary to mobile dialysis service providers at a given acute multidisciplinary to mobile dialysis service providers at a given acute multidisciplinary to mobile dialysis service providers at a given acute multidisciplinary to mobile dialysis service providers at a given acute multidisciplinary private hospital;private hospital; 3737 and (ii) the downstream market defined as the and (ii) the downstream market defined as the and (ii) the downstream market defined as the and (ii) the downstream market defined as the market for the provision of in-hospital dialysis services at particular market for the provision of in-hospital dialysis services at particular market for the provision of in-hospital dialysis services at particular market for the provision of in-hospital dialysis services at particular market for the provision of in-hospital dialysis services at particular market for the provision of in-hospital dialysis services at particular hospitals. 3838 48.2 Mediclinic contrastingly argued that the appropriate market definition Mediclinic contrastingly argued that the appropriate market definition Mediclinic contrastingly argued that the appropriate market definition Mediclinic contrastingly argued that the appropriate market definition Mediclinic contrastingly argued that the appropriate market definition Mediclinic contrastingly argued that the appropriate market definition is a single holistic market for the provision of acute multidisciplinary is a single holistic market for the provision of acute multidisciplinary is a single holistic market for the provision of acute multidisciplinary is a single holistic market for the provision of acute multidisciplinary is a single holistic market for the provision of acute multidisciplinary is a single holistic market for the provision of acute multidisciplinary 3737 Life’s founding affidavit, para 69. Life’s founding affidavit, para 69. Life’s founding affidavit, para 69. 3838 In the alternative Life argued that the relevant markets are the (i) upstream market for the provision In the alternative Life argued that the relevant markets are the (i) upstream market for the provision In the alternative Life argued that the relevant markets are the (i) upstream market for the provision In the alternative Life argued that the relevant markets are the (i) upstream market for the provision In the alternative Life argued that the relevant markets are the (i) upstream market for the provision In the alternative Life argued that the relevant markets are the (i) upstream market for the provision In the alternative Life argued that the relevant markets are the (i) upstream market for the provision of acute multidisciplinary private hospital services and the (ii) downstream market for inpatient dialysis of acute multidisciplinary private hospital services and the (ii) downstream market for inpatient dialysis of acute multidisciplinary private hospital services and the (ii) downstream market for inpatient dialysis of acute multidisciplinary private hospital services and the (ii) downstream market for inpatient dialysis of acute multidisciplinary private hospital services and the (ii) downstream market for inpatient dialysis of acute multidisciplinary private hospital services and the (ii) downstream market for inpatient dialysis of acute multidisciplinary private hospital services and the (ii) downstream market for inpatient dialysis services. Life defined these markets to advance its leveraging theory of harm. See Life’s founding services. Life defined these markets to advance its leveraging theory of harm. See Life’s founding services. Life defined these markets to advance its leveraging theory of harm. See Life’s founding services. Life defined these markets to advance its leveraging theory of harm. See Life’s founding services. Life defined these markets to advance its leveraging theory of harm. See Life’s founding services. Life defined these markets to advance its leveraging theory of harm. See Life’s founding services. Life defined these markets to advance its leveraging theory of harm. See Life’s founding affidavit, paras 72-73. affidavit, paras 72-73. inpatient private hospital services.inpatient private hospital services.inpatient private hospital services. 3939 In the alternative, Mediclinic In the alternative, Mediclinic In the alternative, Mediclinic adopted the market definitions assessed in the adopted the market definitions assessed in the adopted the market definitions assessed in the adopted the market definitions assessed in the Life-Fresenius Merger Life-Fresenius Merger being the (i) upstream market for the provision of in-hospital acute being the (i) upstream market for the provision of in-hospital acute being the (i) upstream market for the provision of in-hospital acute being the (i) upstream market for the provision of in-hospital acute being the (i) upstream market for the provision of in-hospital acute being the (i) upstream market for the provision of in-hospital acute multidisciplinary inpatient private hospital services and (ii) multidisciplinary inpatient private hospital services and (ii) multidisciplinary inpatient private hospital services and (ii) multidisciplinary inpatient private hospital services and (ii) multidisciplinary inpatient private hospital services and (ii) multidisciplinary inpatient private hospital services and (ii) downstream market for the provision of dialysis services. downstream market for the provision of dialysis services. downstream market for the provision of dialysis services. downstream market for the provision of dialysis services. downstream market for the provision of dialysis services. Essential features of the dialysis market Essential features of the dialysis market Essential features of the dialysis market Essential features of the dialysis market [49]Dialysis entails the removal of excess water, solutes and toxins from the blood Dialysis entails the removal of excess water, solutes and toxins from the blood Dialysis entails the removal of excess water, solutes and toxins from the blood Dialysis entails the removal of excess water, solutes and toxins from the blood Dialysis entails the removal of excess water, solutes and toxins from the blood Dialysis entails the removal of excess water, solutes and toxins from the blood in patients whose kidneys are not capable of performing this function. Dialysis in patients whose kidneys are not capable of performing this function. Dialysis in patients whose kidneys are not capable of performing this function. Dialysis in patients whose kidneys are not capable of performing this function. Dialysis in patients whose kidneys are not capable of performing this function. Dialysis in patients whose kidneys are not capable of performing this function. Dialysis is prescribed by specialist physicians or nephrologists who refer patients to is prescribed by specialist physicians or nephrologists who refer patients to is prescribed by specialist physicians or nephrologists who refer patients to is prescribed by specialist physicians or nephrologists who refer patients to is prescribed by specialist physicians or nephrologists who refer patients to is prescribed by specialist physicians or nephrologists who refer patients to dialysis services providers.dialysis services providers.dialysis services providers. 4040 [50]There are three distinct categories of patients who receive dialysis treatment (i) There are three distinct categories of patients who receive dialysis treatment (i) There are three distinct categories of patients who receive dialysis treatment (i) There are three distinct categories of patients who receive dialysis treatment (i) There are three distinct categories of patients who receive dialysis treatment (i) There are three distinct categories of patients who receive dialysis treatment (i) acute inpatients, (ii) chronic inpatients and (iii) chronic outpatients. These acute inpatients, (ii) chronic inpatients and (iii) chronic outpatients. These acute inpatients, (ii) chronic inpatients and (iii) chronic outpatients. These acute inpatients, (ii) chronic inpatients and (iii) chronic outpatients. These acute inpatients, (ii) chronic inpatients and (iii) chronic outpatients. These acute inpatients, (ii) chronic inpatients and (iii) chronic outpatients. These categories are briefly described below. categories are briefly described below. categories are briefly described below. 50.1 Acute inpatientsAcute inpatients can be defined as patients who have no history of can be defined as patients who have no history of can be defined as patients who have no history of can be defined as patients who have no history of kidney failure and have not previously been treated with dialysis, but kidney failure and have not previously been treated with dialysis, but kidney failure and have not previously been treated with dialysis, but kidney failure and have not previously been treated with dialysis, but kidney failure and have not previously been treated with dialysis, but kidney failure and have not previously been treated with dialysis, but who are admitted to hospital on an inpatient basis as a result of an who are admitted to hospital on an inpatient basis as a result of an who are admitted to hospital on an inpatient basis as a result of an who are admitted to hospital on an inpatient basis as a result of an who are admitted to hospital on an inpatient basis as a result of an who are admitted to hospital on an inpatient basis as a result of an acute episode and who require dialysis during their admission. Acute acute episode and who require dialysis during their admission. Acute acute episode and who require dialysis during their admission. Acute acute episode and who require dialysis during their admission. Acute acute episode and who require dialysis during their admission. Acute acute episode and who require dialysis during their admission. Acute inpatients can be sub-divided into (i) those owing to catastrophic inpatients can be sub-divided into (i) those owing to catastrophic inpatients can be sub-divided into (i) those owing to catastrophic inpatients can be sub-divided into (i) those owing to catastrophic inpatients can be sub-divided into (i) those owing to catastrophic inpatients can be sub-divided into (i) those owing to catastrophic events which causes their kidneys to shut down but these patients are events which causes their kidneys to shut down but these patients are events which causes their kidneys to shut down but these patients are events which causes their kidneys to shut down but these patients are events which causes their kidneys to shut down but these patients are events which causes their kidneys to shut down but these patients are anticipated to regain normal kidney function over time, and (ii) so-anticipated to regain normal kidney function over time, and (ii) so-anticipated to regain normal kidney function over time, and (ii) so-anticipated to regain normal kidney function over time, and (ii) so-anticipated to regain normal kidney function over time, and (ii) so-anticipated to regain normal kidney function over time, and (ii) so- called ‘crash landers’ who experience a sudden deterioration in their called ‘crash landers’ who experience a sudden deterioration in their called ‘crash landers’ who experience a sudden deterioration in their called ‘crash landers’ who experience a sudden deterioration in their called ‘crash landers’ who experience a sudden deterioration in their called ‘crash landers’ who experience a sudden deterioration in their health and are diagnosed with kidney disease. These patients, while health and are diagnosed with kidney disease. These patients, while health and are diagnosed with kidney disease. These patients, while health and are diagnosed with kidney disease. These patients, while health and are diagnosed with kidney disease. These patients, while health and are diagnosed with kidney disease. These patients, while initially acute patients become chronic patients who require ongoing initially acute patients become chronic patients who require ongoing initially acute patients become chronic patients who require ongoing initially acute patients become chronic patients who require ongoing initially acute patients become chronic patients who require ongoing initially acute patients become chronic patients who require ongoing dialysis treatment on an outpatientdialysis treatment on an outpatientdialysis treatment on an outpatient 4141 basis. 3939 Mediclinic’s answering affidavit, para 43. Mediclinic’s answering affidavit, para 43. Mediclinic’s answering affidavit, para 43. 4040 Life’s founding affidavit, para 36. Life’s founding affidavit, para 36. Life’s founding affidavit, para 36. 4141 Outpatients refer to a class of patients who have been diagnosed with kidney disease and require Outpatients refer to a class of patients who have been diagnosed with kidney disease and require Outpatients refer to a class of patients who have been diagnosed with kidney disease and require Outpatients refer to a class of patients who have been diagnosed with kidney disease and require Outpatients refer to a class of patients who have been diagnosed with kidney disease and require Outpatients refer to a class of patients who have been diagnosed with kidney disease and require Outpatients refer to a class of patients who have been diagnosed with kidney disease and require ongoing dialysis treatment. The application before us does not concern chronic outpatients. ongoing dialysis treatment. The application before us does not concern chronic outpatients. ongoing dialysis treatment. The application before us does not concern chronic outpatients. ongoing dialysis treatment. The application before us does not concern chronic outpatients. ongoing dialysis treatment. The application before us does not concern chronic outpatients. ongoing dialysis treatment. The application before us does not concern chronic outpatients. 50.2 Chronic inpatients Chronic inpatients havealready been diagnosed with kidney already been diagnosed with kidney already been diagnosed with kidney disease and receive treatment on an outpatient basis but are in poor disease and receive treatment on an outpatient basis but are in poor disease and receive treatment on an outpatient basis but are in poor disease and receive treatment on an outpatient basis but are in poor disease and receive treatment on an outpatient basis but are in poor disease and receive treatment on an outpatient basis but are in poor health and are admitted into hospitals for medical conditions and are health and are admitted into hospitals for medical conditions and are health and are admitted into hospitals for medical conditions and are health and are admitted into hospitals for medical conditions and are health and are admitted into hospitals for medical conditions and are health and are admitted into hospitals for medical conditions and are subsequently admitted for acute episodes.subsequently admitted for acute episodes.subsequently admitted for acute episodes.subsequently admitted for acute episodes. 4242 50.3 Chronic outpatientsChronic outpatients are patients who have been diagnosed with are patients who have been diagnosed with are patients who have been diagnosed with are patients who have been diagnosed with kidney disease and obtain ongoing chronic dialysis treatment on an kidney disease and obtain ongoing chronic dialysis treatment on an kidney disease and obtain ongoing chronic dialysis treatment on an kidney disease and obtain ongoing chronic dialysis treatment on an kidney disease and obtain ongoing chronic dialysis treatment on an kidney disease and obtain ongoing chronic dialysis treatment on an outpatient basis.outpatient basis. 4343 [51]Inpatients (both chronic and acute) are admitted to multidisciplinary hospitals Inpatients (both chronic and acute) are admitted to multidisciplinary hospitals Inpatients (both chronic and acute) are admitted to multidisciplinary hospitals Inpatients (both chronic and acute) are admitted to multidisciplinary hospitals Inpatients (both chronic and acute) are admitted to multidisciplinary hospitals Inpatients (both chronic and acute) are admitted to multidisciplinary hospitals and receive dialysis treatment on an inpatient basis. The dialysis treatment in and receive dialysis treatment on an inpatient basis. The dialysis treatment in and receive dialysis treatment on an inpatient basis. The dialysis treatment in and receive dialysis treatment on an inpatient basis. The dialysis treatment in and receive dialysis treatment on an inpatient basis. The dialysis treatment in and receive dialysis treatment on an inpatient basis. The dialysis treatment in this instance is administered by (i) in-hospital units which are located in and this instance is administered by (i) in-hospital units which are located in and this instance is administered by (i) in-hospital units which are located in and this instance is administered by (i) in-hospital units which are located in and this instance is administered by (i) in-hospital units which are located in and this instance is administered by (i) in-hospital units which are located in and operate from hospital premises (“in-hospital units”) and (ii) mobile dialysis units operate from hospital premises (“in-hospital units”) and (ii) mobile dialysis units operate from hospital premises (“in-hospital units”) and (ii) mobile dialysis units operate from hospital premises (“in-hospital units”) and (ii) mobile dialysis units operate from hospital premises (“in-hospital units”) and (ii) mobile dialysis units operate from hospital premises (“in-hospital units”) and (ii) mobile dialysis units which travel to the hospital premises to administer treatment (“mobile units”).which travel to the hospital premises to administer treatment (“mobile units”).which travel to the hospital premises to administer treatment (“mobile units”).which travel to the hospital premises to administer treatment (“mobile units”).which travel to the hospital premises to administer treatment (“mobile units”).which travel to the hospital premises to administer treatment (“mobile units”). 4444 [52]With respect to in-hospital dialysis units, the equipment used to administer the With respect to in-hospital dialysis units, the equipment used to administer the With respect to in-hospital dialysis units, the equipment used to administer the With respect to in-hospital dialysis units, the equipment used to administer the With respect to in-hospital dialysis units, the equipment used to administer the With respect to in-hospital dialysis units, the equipment used to administer the treatment is fixed to the hospital premises at an intensive care unit (“ICU”) or treatment is fixed to the hospital premises at an intensive care unit (“ICU”) or treatment is fixed to the hospital premises at an intensive care unit (“ICU”) or treatment is fixed to the hospital premises at an intensive care unit (“ICU”) or treatment is fixed to the hospital premises at an intensive care unit (“ICU”) or treatment is fixed to the hospital premises at an intensive care unit (“ICU”) or high care ward. The inpatients receive bed-side dialysis treatment. The mobile high care ward. The inpatients receive bed-side dialysis treatment. The mobile high care ward. The inpatients receive bed-side dialysis treatment. The mobile high care ward. The inpatients receive bed-side dialysis treatment. The mobile high care ward. The inpatients receive bed-side dialysis treatment. The mobile high care ward. The inpatients receive bed-side dialysis treatment. The mobile units however need to transport their equipment to the relevant hospital units however need to transport their equipment to the relevant hospital units however need to transport their equipment to the relevant hospital units however need to transport their equipment to the relevant hospital units however need to transport their equipment to the relevant hospital units however need to transport their equipment to the relevant hospital premises where the dialysis treatment will be administered. The mobile unit premises where the dialysis treatment will be administered. The mobile unit premises where the dialysis treatment will be administered. The mobile unit premises where the dialysis treatment will be administered. The mobile unit premises where the dialysis treatment will be administered. The mobile unit premises where the dialysis treatment will be administered. The mobile unit premises where the dialysis treatment will be administered. The mobile unit service providers are given access and storage space for their equipment at service providers are given access and storage space for their equipment at service providers are given access and storage space for their equipment at service providers are given access and storage space for their equipment at service providers are given access and storage space for their equipment at service providers are given access and storage space for their equipment at relevant hospital premises.relevant hospital premises.relevant hospital premises. 4545 [53]Chronic outpatients who receive treatment on an outpatient basis can receive Chronic outpatients who receive treatment on an outpatient basis can receive Chronic outpatients who receive treatment on an outpatient basis can receive Chronic outpatients who receive treatment on an outpatient basis can receive Chronic outpatients who receive treatment on an outpatient basis can receive Chronic outpatients who receive treatment on an outpatient basis can receive treatment from an in-hospital unit or from a standalone clinic. With respect to treatment from an in-hospital unit or from a standalone clinic. With respect to treatment from an in-hospital unit or from a standalone clinic. With respect to treatment from an in-hospital unit or from a standalone clinic. With respect to treatment from an in-hospital unit or from a standalone clinic. With respect to treatment from an in-hospital unit or from a standalone clinic. With respect to the standalone clinics, these are facilities which operate outside of, and the standalone clinics, these are facilities which operate outside of, and the standalone clinics, these are facilities which operate outside of, and the standalone clinics, these are facilities which operate outside of, and the standalone clinics, these are facilities which operate outside of, and the standalone clinics, these are facilities which operate outside of, and separately to a multidisciplinary hospital and only treat outpatients. Chronic separately to a multidisciplinary hospital and only treat outpatients. Chronic separately to a multidisciplinary hospital and only treat outpatients. Chronic separately to a multidisciplinary hospital and only treat outpatients. Chronic separately to a multidisciplinary hospital and only treat outpatients. Chronic separately to a multidisciplinary hospital and only treat outpatients. Chronic outpatients require regular dialysis treatment and are not limited to receiving outpatients require regular dialysis treatment and are not limited to receiving outpatients require regular dialysis treatment and are not limited to receiving outpatients require regular dialysis treatment and are not limited to receiving outpatients require regular dialysis treatment and are not limited to receiving outpatients require regular dialysis treatment and are not limited to receiving 4242 Life’s founding affidavit, para 38. Life’s founding affidavit, para 38. Life’s founding affidavit, para 38. 4343 Life’s founding affidavit, para 38.2. Life’s founding affidavit, para 38.2. Life’s founding affidavit, para 38.2. 4444 Life’s founding affidavit, para 41.1. Life’s founding affidavit, para 41.1. Life’s founding affidavit, para 41.1. 4545 Life’s founding affidavit, para 41.1. Life’s founding affidavit, para 41.1. Life’s founding affidavit, para 41.1. treatment from in-hospital units or mobile units.treatment from in-hospital units or mobile units.treatment from in-hospital units or mobile units.treatment from in-hospital units or mobile units. 4646 Outpatient dialysis treatment Outpatient dialysis treatment Outpatient dialysis treatment administered in-hospital mimics that of a standalone clinic. administered in-hospital mimics that of a standalone clinic. administered in-hospital mimics that of a standalone clinic. administered in-hospital mimics that of a standalone clinic. administered in-hospital mimics that of a standalone clinic. [54]Standalone clinics only offer services to chronic outpatients, whereas acute and Standalone clinics only offer services to chronic outpatients, whereas acute and Standalone clinics only offer services to chronic outpatients, whereas acute and Standalone clinics only offer services to chronic outpatients, whereas acute and Standalone clinics only offer services to chronic outpatients, whereas acute and Standalone clinics only offer services to chronic outpatients, whereas acute and chronic inpatients are limited to only receive treatment from in-hospital units or chronic inpatients are limited to only receive treatment from in-hospital units or chronic inpatients are limited to only receive treatment from in-hospital units or chronic inpatients are limited to only receive treatment from in-hospital units or chronic inpatients are limited to only receive treatment from in-hospital units or chronic inpatients are limited to only receive treatment from in-hospital units or chronic inpatients are limited to only receive treatment from in-hospital units or mobile units able to administer treatment at a hospital premises.mobile units able to administer treatment at a hospital premises.mobile units able to administer treatment at a hospital premises.mobile units able to administer treatment at a hospital premises.mobile units able to administer treatment at a hospital premises. 4747 [55]Considering the above, for both acute and chronic patients, but especially Considering the above, for both acute and chronic patients, but especially Considering the above, for both acute and chronic patients, but especially Considering the above, for both acute and chronic patients, but especially Considering the above, for both acute and chronic patients, but especially Considering the above, for both acute and chronic patients, but especially chronic outpatients who require ongoing dialysis treatment dialysis, dialysis is chronic outpatients who require ongoing dialysis treatment dialysis, dialysis is chronic outpatients who require ongoing dialysis treatment dialysis, dialysis is chronic outpatients who require ongoing dialysis treatment dialysis, dialysis is chronic outpatients who require ongoing dialysis treatment dialysis, dialysis is chronic outpatients who require ongoing dialysis treatment dialysis, dialysis is non-substitutable. Therefore, demand is perfectly inelastic, meaning that non-substitutable. Therefore, demand is perfectly inelastic, meaning that non-substitutable. Therefore, demand is perfectly inelastic, meaning that non-substitutable. Therefore, demand is perfectly inelastic, meaning that non-substitutable. Therefore, demand is perfectly inelastic, meaning that non-substitutable. Therefore, demand is perfectly inelastic, meaning that demand for dialysis will remain constant even in the event of changes in price. demand for dialysis will remain constant even in the event of changes in price. demand for dialysis will remain constant even in the event of changes in price. demand for dialysis will remain constant even in the event of changes in price. demand for dialysis will remain constant even in the event of changes in price. demand for dialysis will remain constant even in the event of changes in price. Medical aid schemes and the effect on price and network arrangements Medical aid schemes and the effect on price and network arrangements Medical aid schemes and the effect on price and network arrangements Medical aid schemes and the effect on price and network arrangements Medical aid schemes and the effect on price and network arrangements Medical aid schemes and the effect on price and network arrangements [56]A feature of the market relating to hospital services is the role of medical aid A feature of the market relating to hospital services is the role of medical aid A feature of the market relating to hospital services is the role of medical aid A feature of the market relating to hospital services is the role of medical aid A feature of the market relating to hospital services is the role of medical aid A feature of the market relating to hospital services is the role of medical aid schemes in determining the price of hospital services, as well as network schemes in determining the price of hospital services, as well as network schemes in determining the price of hospital services, as well as network schemes in determining the price of hospital services, as well as network schemes in determining the price of hospital services, as well as network schemes in determining the price of hospital services, as well as network arrangements between hospitals and medical aid schemes. arrangements between hospitals and medical aid schemes. arrangements between hospitals and medical aid schemes. arrangements between hospitals and medical aid schemes. arrangements between hospitals and medical aid schemes. [57]The parties did not adduce evidence related to network arrangements between The parties did not adduce evidence related to network arrangements between The parties did not adduce evidence related to network arrangements between The parties did not adduce evidence related to network arrangements between The parties did not adduce evidence related to network arrangements between The parties did not adduce evidence related to network arrangements between services providers and medical aid schemes. services providers and medical aid schemes. services providers and medical aid schemes. services providers and medical aid schemes. [58]We understand however from the Commission’s Health Market Inquiry (“HMI”) We understand however from the Commission’s Health Market Inquiry (“HMI”) We understand however from the Commission’s Health Market Inquiry (“HMI”) We understand however from the Commission’s Health Market Inquiry (“HMI”) We understand however from the Commission’s Health Market Inquiry (“HMI”) We understand however from the Commission’s Health Market Inquiry (“HMI”) that factors such as networks initiated by providers and funders, and whether that factors such as networks initiated by providers and funders, and whether that factors such as networks initiated by providers and funders, and whether that factors such as networks initiated by providers and funders, and whether that factors such as networks initiated by providers and funders, and whether that factors such as networks initiated by providers and funders, and whether the medical practitioner concerned is contracted to a medical scheme influence the medical practitioner concerned is contracted to a medical scheme influence the medical practitioner concerned is contracted to a medical scheme influence the medical practitioner concerned is contracted to a medical scheme influence the medical practitioner concerned is contracted to a medical scheme influence the medical practitioner concerned is contracted to a medical scheme influence the choice of general practitioners (“GPs”), specialists and hospitals which the choice of general practitioners (“GPs”), specialists and hospitals which the choice of general practitioners (“GPs”), specialists and hospitals which the choice of general practitioners (“GPs”), specialists and hospitals which the choice of general practitioners (“GPs”), specialists and hospitals which the choice of general practitioners (“GPs”), specialists and hospitals which patients choose.patients choose. 4848 [59]Mediclinic submitted that the price of hospital services is determined in Mediclinic submitted that the price of hospital services is determined in Mediclinic submitted that the price of hospital services is determined in Mediclinic submitted that the price of hospital services is determined in Mediclinic submitted that the price of hospital services is determined in Mediclinic submitted that the price of hospital services is determined in negotiation with medical schemes. Notwithstanding this, Mediclinic submitted negotiation with medical schemes. Notwithstanding this, Mediclinic submitted negotiation with medical schemes. Notwithstanding this, Mediclinic submitted negotiation with medical schemes. Notwithstanding this, Mediclinic submitted negotiation with medical schemes. Notwithstanding this, Mediclinic submitted negotiation with medical schemes. Notwithstanding this, Mediclinic submitted that the volume of patients could reduce or increase bargaining power that the volume of patients could reduce or increase bargaining power that the volume of patients could reduce or increase bargaining power that the volume of patients could reduce or increase bargaining power that the volume of patients could reduce or increase bargaining power that the volume of patients could reduce or increase bargaining power viz-a-viz 4646 Life’s founding affidavit, para 41.3. Life’s founding affidavit, para 41.3. Life’s founding affidavit, para 41.3. 4747 Life’s founding affidavit, para 41.5. Life’s founding affidavit, para 41.5. Life’s founding affidavit, para 41.5. 4848 Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, September 2019, page 46. September 2019, page 46. medical aid schemes.medical aid schemes. 4949 In its oral submissions, Mediclinic further submitted that In its oral submissions, Mediclinic further submitted that In its oral submissions, Mediclinic further submitted that In its oral submissions, Mediclinic further submitted that In its oral submissions, Mediclinic further submitted that hospitals are constrained by market conditions and by the sensitivity of medical hospitals are constrained by market conditions and by the sensitivity of medical hospitals are constrained by market conditions and by the sensitivity of medical hospitals are constrained by market conditions and by the sensitivity of medical hospitals are constrained by market conditions and by the sensitivity of medical hospitals are constrained by market conditions and by the sensitivity of medical aids and doctors to the overall cost composition of services, which is aids and doctors to the overall cost composition of services, which is aids and doctors to the overall cost composition of services, which is aids and doctors to the overall cost composition of services, which is aids and doctors to the overall cost composition of services, which is aids and doctors to the overall cost composition of services, which is transparent and itemised in detailed billing.transparent and itemised in detailed billing.transparent and itemised in detailed billing.transparent and itemised in detailed billing. 5050 [60]Life concedes that there are hospital specific tariffs set nationally by medical Life concedes that there are hospital specific tariffs set nationally by medical Life concedes that there are hospital specific tariffs set nationally by medical Life concedes that there are hospital specific tariffs set nationally by medical Life concedes that there are hospital specific tariffs set nationally by medical Life concedes that there are hospital specific tariffs set nationally by medical aid schemes. Life however contends that there is scope for potential price aid schemes. Life however contends that there is scope for potential price aid schemes. Life however contends that there is scope for potential price aid schemes. Life however contends that there is scope for potential price aid schemes. Life however contends that there is scope for potential price aid schemes. Life however contends that there is scope for potential price competition because the countervailing powers of medical aid schemes is not competition because the countervailing powers of medical aid schemes is not competition because the countervailing powers of medical aid schemes is not competition because the countervailing powers of medical aid schemes is not competition because the countervailing powers of medical aid schemes is not competition because the countervailing powers of medical aid schemes is not absolute. First, because the tariffs may not be the same for Life and Mediclinic absolute. First, because the tariffs may not be the same for Life and Mediclinic absolute. First, because the tariffs may not be the same for Life and Mediclinic absolute. First, because the tariffs may not be the same for Life and Mediclinic absolute. First, because the tariffs may not be the same for Life and Mediclinic absolute. First, because the tariffs may not be the same for Life and Mediclinic and that price competition may take place in this regard where there is more and that price competition may take place in this regard where there is more and that price competition may take place in this regard where there is more and that price competition may take place in this regard where there is more and that price competition may take place in this regard where there is more and that price competition may take place in this regard where there is more than one service provider.than one service provider.than one service provider.Secondly, private hospitals do not need to charge Secondly, private hospitals do not need to charge Secondly, private hospitals do not need to charge Secondly, private hospitals do not need to charge the tariff they may charge above it and require co-payments.the tariff they may charge above it and require co-payments.the tariff they may charge above it and require co-payments.the tariff they may charge above it and require co-payments.the tariff they may charge above it and require co-payments. 5151 [61]The parties did not deal with the effect of medical aid schemes on the prices of The parties did not deal with the effect of medical aid schemes on the prices of The parties did not deal with the effect of medical aid schemes on the prices of The parties did not deal with the effect of medical aid schemes on the prices of The parties did not deal with the effect of medical aid schemes on the prices of The parties did not deal with the effect of medical aid schemes on the prices of in-hospital services (or in particular dialysis treatment) or the limitations on in-hospital services (or in particular dialysis treatment) or the limitations on in-hospital services (or in particular dialysis treatment) or the limitations on in-hospital services (or in particular dialysis treatment) or the limitations on in-hospital services (or in particular dialysis treatment) or the limitations on in-hospital services (or in particular dialysis treatment) or the limitations on patient choice with respect to network arrangements between hospitals and patient choice with respect to network arrangements between hospitals and patient choice with respect to network arrangements between hospitals and patient choice with respect to network arrangements between hospitals and patient choice with respect to network arrangements between hospitals and patient choice with respect to network arrangements between hospitals and medical aid schemes. We remain cognisant however that medical aid schemes medical aid schemes. We remain cognisant however that medical aid schemes medical aid schemes. We remain cognisant however that medical aid schemes medical aid schemes. We remain cognisant however that medical aid schemes medical aid schemes. We remain cognisant however that medical aid schemes medical aid schemes. We remain cognisant however that medical aid schemes do influence the choices of patients. do influence the choices of patients. do influence the choices of patients. The role and purpose of market definition The role and purpose of market definition The role and purpose of market definition The role and purpose of market definition [62]It is well established in both jurisprudence and in the relevant economics It is well established in both jurisprudence and in the relevant economics It is well established in both jurisprudence and in the relevant economics It is well established in both jurisprudence and in the relevant economics It is well established in both jurisprudence and in the relevant economics It is well established in both jurisprudence and in the relevant economics literature that the purpose of market definition is to delineate the boundaries literature that the purpose of market definition is to delineate the boundaries literature that the purpose of market definition is to delineate the boundaries literature that the purpose of market definition is to delineate the boundaries literature that the purpose of market definition is to delineate the boundaries literature that the purpose of market definition is to delineate the boundaries within which competitive constraints operate, in order to assess the presence within which competitive constraints operate, in order to assess the presence within which competitive constraints operate, in order to assess the presence within which competitive constraints operate, in order to assess the presence within which competitive constraints operate, in order to assess the presence within which competitive constraints operate, in order to assess the presence or absence of market power. or absence of market power. or absence of market power. [63]Market definition therefore serves as an analytical tool of classification, Market definition therefore serves as an analytical tool of classification, Market definition therefore serves as an analytical tool of classification, Market definition therefore serves as an analytical tool of classification, Market definition therefore serves as an analytical tool of classification, Market definition therefore serves as an analytical tool of classification, identifying the scope of the relevant market, and constitutes a preliminary step identifying the scope of the relevant market, and constitutes a preliminary step identifying the scope of the relevant market, and constitutes a preliminary step identifying the scope of the relevant market, and constitutes a preliminary step identifying the scope of the relevant market, and constitutes a preliminary step identifying the scope of the relevant market, and constitutes a preliminary step in the assessment of market power.in the assessment of market power.in the assessment of market power. 5252 4949 Mediclinic’s answering affidavit, para 62. Mediclinic’s answering affidavit, para 62. Mediclinic’s answering affidavit, para 62. 5050 Hearing transcripts pages 168-169. Hearing transcripts pages 168-169. Hearing transcripts pages 168-169. 5151 Hearing transcripts, page 174. Hearing transcripts, page 174. 5252 M Motta Competition Policy: Theory and PracticeCompetition Policy: Theory and PracticeCompetition Policy: Theory and Practice 2004 (Cambridge University Press: New York), 2004 (Cambridge University Press: New York), 2004 (Cambridge University Press: New York), 2004 (Cambridge University Press: New York), page 101. [64]Further, the European Commission in its Notice on Market Definitions states Further, the European Commission in its Notice on Market Definitions states Further, the European Commission in its Notice on Market Definitions states Further, the European Commission in its Notice on Market Definitions states Further, the European Commission in its Notice on Market Definitions states Further, the European Commission in its Notice on Market Definitions states that: “Market definition is a tool that the Commission uses to identify and define the “Market definition is a tool that the Commission uses to identify and define the “Market definition is a tool that the Commission uses to identify and define the “Market definition is a tool that the Commission uses to identify and define the “Market definition is a tool that the Commission uses to identify and define the “Market definition is a tool that the Commission uses to identify and define the boundaries of competition between undertakings. The main purpose of market boundaries of competition between undertakings. The main purpose of market boundaries of competition between undertakings. The main purpose of market boundaries of competition between undertakings. The main purpose of market boundaries of competition between undertakings. The main purpose of market boundaries of competition between undertakings. The main purpose of market definition is to identify in a systematic way the effective and immediate definition is to identify in a systematic way the effective and immediate definition is to identify in a systematic way the effective and immediate definition is to identify in a systematic way the effective and immediate definition is to identify in a systematic way the effective and immediate definition is to identify in a systematic way the effective and immediate competitive constraints faced by the undertakings involved when they offer competitive constraints faced by the undertakings involved when they offer competitive constraints faced by the undertakings involved when they offer competitive constraints faced by the undertakings involved when they offer competitive constraints faced by the undertakings involved when they offer competitive constraints faced by the undertakings involved when they offer particular products in a particular area.”particular products in a particular area.”particular products in a particular area.” 5353 [65]In the eMedia 5454 the CAC stated that the CAC stated that “when applying the provisions of the Act “when applying the provisions of the Act “when applying the provisions of the Act “when applying the provisions of the Act dealing with the abuse of dominant position it is necessary to define the market dealing with the abuse of dominant position it is necessary to define the market dealing with the abuse of dominant position it is necessary to define the market dealing with the abuse of dominant position it is necessary to define the market dealing with the abuse of dominant position it is necessary to define the market dealing with the abuse of dominant position it is necessary to define the market as this illuminates the primary competitive drivers that operate in a given case as this illuminates the primary competitive drivers that operate in a given case as this illuminates the primary competitive drivers that operate in a given case as this illuminates the primary competitive drivers that operate in a given case as this illuminates the primary competitive drivers that operate in a given case as this illuminates the primary competitive drivers that operate in a given case as this illuminates the primary competitive drivers that operate in a given case and the first step in the process entails the consideration of the stage of supply and the first step in the process entails the consideration of the stage of supply and the first step in the process entails the consideration of the stage of supply and the first step in the process entails the consideration of the stage of supply and the first step in the process entails the consideration of the stage of supply and the first step in the process entails the consideration of the stage of supply relevant to the inquiry sometimes referred to as the functional dimension of the relevant to the inquiry sometimes referred to as the functional dimension of the relevant to the inquiry sometimes referred to as the functional dimension of the relevant to the inquiry sometimes referred to as the functional dimension of the relevant to the inquiry sometimes referred to as the functional dimension of the relevant to the inquiry sometimes referred to as the functional dimension of the market. From there on one defines the product dimension and lastly, the market. From there on one defines the product dimension and lastly, the market. From there on one defines the product dimension and lastly, the market. From there on one defines the product dimension and lastly, the market. From there on one defines the product dimension and lastly, the market. From there on one defines the product dimension and lastly, the geographic dimension with the objective of identifying the competitors of the geographic dimension with the objective of identifying the competitors of the geographic dimension with the objective of identifying the competitors of the geographic dimension with the objective of identifying the competitors of the geographic dimension with the objective of identifying the competitors of the geographic dimension with the objective of identifying the competitors of the firm concerned that are capable of constraining the firm's behaviour and firm concerned that are capable of constraining the firm's behaviour and firm concerned that are capable of constraining the firm's behaviour and firm concerned that are capable of constraining the firm's behaviour and firm concerned that are capable of constraining the firm's behaviour and firm concerned that are capable of constraining the firm's behaviour and preventing it from behaving independently of competitive pressure.”preventing it from behaving independently of competitive pressure.”preventing it from behaving independently of competitive pressure.”preventing it from behaving independently of competitive pressure.”preventing it from behaving independently of competitive pressure.”preventing it from behaving independently of competitive pressure.” [66]With the above in mind, we now turn to consider the assessment of the relevant With the above in mind, we now turn to consider the assessment of the relevant With the above in mind, we now turn to consider the assessment of the relevant With the above in mind, we now turn to consider the assessment of the relevant With the above in mind, we now turn to consider the assessment of the relevant With the above in mind, we now turn to consider the assessment of the relevant market(s). Our assessment Our assessment Product market Product market [67]In our view, the conclusion in this application hinges primarily on whether Life In our view, the conclusion in this application hinges primarily on whether Life In our view, the conclusion in this application hinges primarily on whether Life In our view, the conclusion in this application hinges primarily on whether Life In our view, the conclusion in this application hinges primarily on whether Life In our view, the conclusion in this application hinges primarily on whether Life has made out a has made out a prima facie case that Mediclinic is dominant in the narrow facie case that Mediclinic is dominant in the narrow facie case that Mediclinic is dominant in the narrow facie case that Mediclinic is dominant in the narrow market for the provision of reasonable on-site storage facilities and express market for the provision of reasonable on-site storage facilities and express market for the provision of reasonable on-site storage facilities and express market for the provision of reasonable on-site storage facilities and express market for the provision of reasonable on-site storage facilities and express market for the provision of reasonable on-site storage facilities and express 5353 Commission Notice on the definition of the Relevant Market for the Purposes of Community Commission Notice on the definition of the Relevant Market for the Purposes of Community Commission Notice on the definition of the Relevant Market for the Purposes of Community Commission Notice on the definition of the Relevant Market for the Purposes of Community Commission Notice on the definition of the Relevant Market for the Purposes of Community Commission Notice on the definition of the Relevant Market for the Purposes of Community Commission Notice on the definition of the Relevant Market for the Purposes of Community Competition Law, Official Journal, OJ [2024] C 1645, para 6 available at Competition Law, Official Journal, OJ [2024] C 1645, para 6 available at Competition Law, Official Journal, OJ [2024] C 1645, para 6 available at Competition Law, Official Journal, OJ [2024] C 1645, para 6 available at Competition Law, Official Journal, OJ [2024] C 1645, para 6 available at Competition Law, Official Journal, OJ [2024] C 1645, para 6 available at https://eur- lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:C_202401645lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:C_202401645lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:C_202401645lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:C_202401645lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:C_202401645 last accessed on 03 January 2026. last accessed on 03 January 2026. last accessed on 03 January 2026. 5454 eMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd and anothereMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd and anothereMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd and anothereMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd and anothereMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd and another (201/CAC/JUN22) (1 August 2022) (201/CAC/JUN22) (1 August 2022) (201/CAC/JUN22) (1 August 2022) at para 58. access permissions to mobile dialysis service providers at a given acute access permissions to mobile dialysis service providers at a given acute access permissions to mobile dialysis service providers at a given acute access permissions to mobile dialysis service providers at a given acute access permissions to mobile dialysis service providers at a given acute access permissions to mobile dialysis service providers at a given acute multidisciplinary private hospital. This is so because, if a case of dominance multidisciplinary private hospital. This is so because, if a case of dominance multidisciplinary private hospital. This is so because, if a case of dominance multidisciplinary private hospital. This is so because, if a case of dominance multidisciplinary private hospital. This is so because, if a case of dominance multidisciplinary private hospital. This is so because, if a case of dominance has not been made out, that is where the matter ends.has not been made out, that is where the matter ends.has not been made out, that is where the matter ends.has not been made out, that is where the matter ends. [68]At the nub of Life’s case is the fact that it considers Mediclinic’s decision to At the nub of Life’s case is the fact that it considers Mediclinic’s decision to At the nub of Life’s case is the fact that it considers Mediclinic’s decision to At the nub of Life’s case is the fact that it considers Mediclinic’s decision to At the nub of Life’s case is the fact that it considers Mediclinic’s decision to At the nub of Life’s case is the fact that it considers Mediclinic’s decision to revoke Life’s access to the Effected Hospitals as a strategy aimed at ‘locking revoke Life’s access to the Effected Hospitals as a strategy aimed at ‘locking revoke Life’s access to the Effected Hospitals as a strategy aimed at ‘locking revoke Life’s access to the Effected Hospitals as a strategy aimed at ‘locking revoke Life’s access to the Effected Hospitals as a strategy aimed at ‘locking revoke Life’s access to the Effected Hospitals as a strategy aimed at ‘locking in’ patients, which prevents patients from using alternative dialysis service in’ patients, which prevents patients from using alternative dialysis service in’ patients, which prevents patients from using alternative dialysis service in’ patients, which prevents patients from using alternative dialysis service in’ patients, which prevents patients from using alternative dialysis service in’ patients, which prevents patients from using alternative dialysis service providers once admitted to Mediclinic hospitals. providers once admitted to Mediclinic hospitals. providers once admitted to Mediclinic hospitals. providers once admitted to Mediclinic hospitals. [69]A distinguishing feature in this case, in our view, is the fact that Life’s narrow A distinguishing feature in this case, in our view, is the fact that Life’s narrow A distinguishing feature in this case, in our view, is the fact that Life’s narrow A distinguishing feature in this case, in our view, is the fact that Life’s narrow A distinguishing feature in this case, in our view, is the fact that Life’s narrow A distinguishing feature in this case, in our view, is the fact that Life’s narrow market definition considers competition which takes place at the point of care market definition considers competition which takes place at the point of care market definition considers competition which takes place at the point of care market definition considers competition which takes place at the point of care market definition considers competition which takes place at the point of care market definition considers competition which takes place at the point of care (once a patient has been admitted), whereas Mediclinic’s broad market (once a patient has been admitted), whereas Mediclinic’s broad market (once a patient has been admitted), whereas Mediclinic’s broad market (once a patient has been admitted), whereas Mediclinic’s broad market (once a patient has been admitted), whereas Mediclinic’s broad market (once a patient has been admitted), whereas Mediclinic’s broad market definition considers competition which takes place before patients are admitted definition considers competition which takes place before patients are admitted definition considers competition which takes place before patients are admitted definition considers competition which takes place before patients are admitted definition considers competition which takes place before patients are admitted definition considers competition which takes place before patients are admitted in the form of referrals from specialists. in the form of referrals from specialists. in the form of referrals from specialists. in the form of referrals from specialists. [70]Both Life and Mediclinic acknowledge that the market for the provision of acute Both Life and Mediclinic acknowledge that the market for the provision of acute Both Life and Mediclinic acknowledge that the market for the provision of acute Both Life and Mediclinic acknowledge that the market for the provision of acute Both Life and Mediclinic acknowledge that the market for the provision of acute Both Life and Mediclinic acknowledge that the market for the provision of acute multidisciplinary inpatient private hospital services in South Africa is a well-multidisciplinary inpatient private hospital services in South Africa is a well-multidisciplinary inpatient private hospital services in South Africa is a well-multidisciplinary inpatient private hospital services in South Africa is a well-multidisciplinary inpatient private hospital services in South Africa is a well-multidisciplinary inpatient private hospital services in South Africa is a well- defined market in competition jurisprudence.defined market in competition jurisprudence.defined market in competition jurisprudence.defined market in competition jurisprudence. 5555 [71]We agree with Mediclinic that the broad market for the provision of acute We agree with Mediclinic that the broad market for the provision of acute We agree with Mediclinic that the broad market for the provision of acute We agree with Mediclinic that the broad market for the provision of acute We agree with Mediclinic that the broad market for the provision of acute We agree with Mediclinic that the broad market for the provision of acute multidisciplinary inpatient private hospital services in South Africa is a well-multidisciplinary inpatient private hospital services in South Africa is a well-multidisciplinary inpatient private hospital services in South Africa is a well-multidisciplinary inpatient private hospital services in South Africa is a well-multidisciplinary inpatient private hospital services in South Africa is a well-multidisciplinary inpatient private hospital services in South Africa is a well- established market. Albeit in merger transactions, the Tribunal has previously established market. Albeit in merger transactions, the Tribunal has previously established market. Albeit in merger transactions, the Tribunal has previously established market. Albeit in merger transactions, the Tribunal has previously established market. Albeit in merger transactions, the Tribunal has previously established market. Albeit in merger transactions, the Tribunal has previously conducted its assessments in the market for the provision of acute conducted its assessments in the market for the provision of acute conducted its assessments in the market for the provision of acute conducted its assessments in the market for the provision of acute conducted its assessments in the market for the provision of acute conducted its assessments in the market for the provision of acute multidisciplinary private inpatient hospital services.multidisciplinary private inpatient hospital services.multidisciplinary private inpatient hospital services.multidisciplinary private inpatient hospital services. 5656 We briefly discuss some We briefly discuss some relevant South African and international case law in hospital and hospital relevant South African and international case law in hospital and hospital relevant South African and international case law in hospital and hospital relevant South African and international case law in hospital and hospital relevant South African and international case law in hospital and hospital relevant South African and international case law in hospital and hospital services markets. services markets. [72]In Mediclinic Southern Africa (Pty) Ltd and Matlosana Medical Health Services Mediclinic Southern Africa (Pty) Ltd and Matlosana Medical Health Services Mediclinic Southern Africa (Pty) Ltd and Matlosana Medical Health Services Mediclinic Southern Africa (Pty) Ltd and Matlosana Medical Health Services Mediclinic Southern Africa (Pty) Ltd and Matlosana Medical Health Services Mediclinic Southern Africa (Pty) Ltd and Matlosana Medical Health Services (Pty) Ltd (“Mediclinic-Matlosana Merger”)(Pty) Ltd (“Mediclinic-Matlosana Merger”)(Pty) Ltd (“Mediclinic-Matlosana Merger”)(Pty) Ltd (“Mediclinic-Matlosana Merger”) 5757 the Tribunal assessed the market the Tribunal assessed the market the Tribunal assessed the market for the provision of private multidisciplinary acute inpatient hospital services for the provision of private multidisciplinary acute inpatient hospital services for the provision of private multidisciplinary acute inpatient hospital services for the provision of private multidisciplinary acute inpatient hospital services for the provision of private multidisciplinary acute inpatient hospital services for the provision of private multidisciplinary acute inpatient hospital services 5555 Life’s founding affidavit, para 72. Mediclinic’s heads of argument, para 79. Life’s founding affidavit, para 72. Mediclinic’s heads of argument, para 79. Life’s founding affidavit, para 72. Mediclinic’s heads of argument, para 79. Life’s founding affidavit, para 72. Mediclinic’s heads of argument, para 79. Life’s founding affidavit, para 72. Mediclinic’s heads of argument, para 79. 5656 Life and Fresenius Merger Life and Fresenius Merger CT Case No. LM035Jun23 para 28. CT Case No. LM035Jun23 para 28. CT Case No. LM035Jun23 para 28. Mediclinic Southern Africa (Pty) Ltd Mediclinic Southern Africa (Pty) Ltd Mediclinic Southern Africa (Pty) Ltd and Matlosana Medical Health Services (Pty) Ltdand Matlosana Medical Health Services (Pty) Ltdand Matlosana Medical Health Services (Pty) Ltdand Matlosana Medical Health Services (Pty) Ltd CT Case No. LM124Octo16, para 81. See also CT Case No. LM124Octo16, para 81. See also CT Case No. LM124Octo16, para 81. See also CT Case No. LM124Octo16, para 81. See also Netcare Hospitals (Pty) Ltd and Lakeview HospitalNetcare Hospitals (Pty) Ltd and Lakeview HospitalNetcare Hospitals (Pty) Ltd and Lakeview HospitalNetcare Hospitals (Pty) Ltd and Lakeview Hospital CT Case No. LM193Oct17, para 17. CT Case No. LM193Oct17, para 17. CT Case No. LM193Oct17, para 17. 5757 Competition Tribunal Case No. Lm124Oct16, para 103. Competition Tribunal Case No. Lm124Oct16, para 103. Competition Tribunal Case No. Lm124Oct16, para 103. Competition Tribunal Case No. Lm124Oct16, para 103. (excluding day case services of these hospitals). This merger involved (excluding day case services of these hospitals). This merger involved (excluding day case services of these hospitals). This merger involved (excluding day case services of these hospitals). This merger involved (excluding day case services of these hospitals). This merger involved (excluding day case services of these hospitals). This merger involved (excluding day case services of these hospitals). This merger involved Mediclinic’s acquisition of Matlosana Medical Health Services, a private Mediclinic’s acquisition of Matlosana Medical Health Services, a private Mediclinic’s acquisition of Matlosana Medical Health Services, a private Mediclinic’s acquisition of Matlosana Medical Health Services, a private Mediclinic’s acquisition of Matlosana Medical Health Services, a private Mediclinic’s acquisition of Matlosana Medical Health Services, a private company which owned and managed two multidisciplinary private hospitals. company which owned and managed two multidisciplinary private hospitals. company which owned and managed two multidisciplinary private hospitals. company which owned and managed two multidisciplinary private hospitals. company which owned and managed two multidisciplinary private hospitals. company which owned and managed two multidisciplinary private hospitals. [73]Similarly in the merger between Similarly in the merger between Similarly in the merger between Netcare Hospitals (Pty) Ltd and Lakeview Netcare Hospitals (Pty) Ltd and Lakeview Netcare Hospitals (Pty) Ltd and Lakeview Netcare Hospitals (Pty) Ltd and Lakeview Hospital 5858 the Tribunal assessed the market for multidisciplinary private the Tribunal assessed the market for multidisciplinary private the Tribunal assessed the market for multidisciplinary private the Tribunal assessed the market for multidisciplinary private the Tribunal assessed the market for multidisciplinary private hospital services which was agreed to by the parties. In terms of this merger, hospital services which was agreed to by the parties. In terms of this merger, hospital services which was agreed to by the parties. In terms of this merger, hospital services which was agreed to by the parties. In terms of this merger, hospital services which was agreed to by the parties. In terms of this merger, hospital services which was agreed to by the parties. In terms of this merger, hospital services which was agreed to by the parties. In terms of this merger, Netcare acquired Lakeview Hospital, which operated as a licenced private Netcare acquired Lakeview Hospital, which operated as a licenced private Netcare acquired Lakeview Hospital, which operated as a licenced private Netcare acquired Lakeview Hospital, which operated as a licenced private Netcare acquired Lakeview Hospital, which operated as a licenced private Netcare acquired Lakeview Hospital, which operated as a licenced private hospital. [74]Additionally, in the merger between Additionally, in the merger between Additionally, in the merger between Phodiclinics (Pty) Lid & Others and Phodiclinics (Pty) Lid & Others and Phodiclinics (Pty) Lid & Others and Protector Group Medical Services (Pty) Ltd (in liquidation) & OthersProtector Group Medical Services (Pty) Ltd (in liquidation) & OthersProtector Group Medical Services (Pty) Ltd (in liquidation) & OthersProtector Group Medical Services (Pty) Ltd (in liquidation) & OthersProtector Group Medical Services (Pty) Ltd (in liquidation) & OthersProtector Group Medical Services (Pty) Ltd (in liquidation) & Others 5959 the Tribunal assessed the market for the provision of private hospital services, Tribunal assessed the market for the provision of private hospital services, Tribunal assessed the market for the provision of private hospital services, Tribunal assessed the market for the provision of private hospital services, Tribunal assessed the market for the provision of private hospital services, Tribunal assessed the market for the provision of private hospital services, which was not contested by the parties in this matter. Likewise in the merger which was not contested by the parties in this matter. Likewise in the merger which was not contested by the parties in this matter. Likewise in the merger which was not contested by the parties in this matter. Likewise in the merger which was not contested by the parties in this matter. Likewise in the merger which was not contested by the parties in this matter. Likewise in the merger between Life Healthcare Group (Pty) Ltd and Joint Medical Holdings LimitedLife Healthcare Group (Pty) Ltd and Joint Medical Holdings LimitedLife Healthcare Group (Pty) Ltd and Joint Medical Holdings LimitedLife Healthcare Group (Pty) Ltd and Joint Medical Holdings LimitedLife Healthcare Group (Pty) Ltd and Joint Medical Holdings LimitedLife Healthcare Group (Pty) Ltd and Joint Medical Holdings Limited 6060 the market definition for the provision of private hospital services was not the market definition for the provision of private hospital services was not the market definition for the provision of private hospital services was not the market definition for the provision of private hospital services was not the market definition for the provision of private hospital services was not the market definition for the provision of private hospital services was not contested by the parties and assessed by the Tribunal. contested by the parties and assessed by the Tribunal. contested by the parties and assessed by the Tribunal. contested by the parties and assessed by the Tribunal. contested by the parties and assessed by the Tribunal. [75]We additionally considered the We additionally considered the We additionally considered the Life-Fresenius Merger Life-Fresenius Merger as well as international as well as international case law relating to dialysis. case law relating to dialysis. case law relating to dialysis. [76]In the Life-Fresenius Merger, Life-Fresenius Merger, the Tribunal, without concluding on the relevant the Tribunal, without concluding on the relevant the Tribunal, without concluding on the relevant the Tribunal, without concluding on the relevant markets, assessed the market for the provision of dialysis services. We markets, assessed the market for the provision of dialysis services. We markets, assessed the market for the provision of dialysis services. We markets, assessed the market for the provision of dialysis services. We markets, assessed the market for the provision of dialysis services. We markets, assessed the market for the provision of dialysis services. We understand that there is no other South African jurisprudence which defines a understand that there is no other South African jurisprudence which defines a understand that there is no other South African jurisprudence which defines a understand that there is no other South African jurisprudence which defines a understand that there is no other South African jurisprudence which defines a understand that there is no other South African jurisprudence which defines a market for dialysis services. market for dialysis services. market for dialysis services. [77]In the European Commission (“EU”) merger between In the European Commission (“EU”) merger between In the European Commission (“EU”) merger between In the European Commission (“EU”) merger between In the European Commission (“EU”) merger between Galencia & Fresenius Galencia & Fresenius Medical Care and Vifor Fresenius Medical Care Renal Pharma JV.Medical Care and Vifor Fresenius Medical Care Renal Pharma JV.Medical Care and Vifor Fresenius Medical Care Renal Pharma JV.Medical Care and Vifor Fresenius Medical Care Renal Pharma JV.Medical Care and Vifor Fresenius Medical Care Renal Pharma JV.Medical Care and Vifor Fresenius Medical Care Renal Pharma JV. 6161 Galencia operates as an international group active in the provision of healthcare and operates as an international group active in the provision of healthcare and operates as an international group active in the provision of healthcare and operates as an international group active in the provision of healthcare and operates as an international group active in the provision of healthcare and operates as an international group active in the provision of healthcare and develops, manufactures and sells pharmaceutical products. Fresenius is active develops, manufactures and sells pharmaceutical products. Fresenius is active develops, manufactures and sells pharmaceutical products. Fresenius is active develops, manufactures and sells pharmaceutical products. Fresenius is active develops, manufactures and sells pharmaceutical products. Fresenius is active develops, manufactures and sells pharmaceutical products. Fresenius is active 5858 Competition Tribunal Case No. LM193Oct17, para 17. Competition Tribunal Case No. LM193Oct17, para 17. Competition Tribunal Case No. LM193Oct17, para 17. Competition Tribunal Case No. LM193Oct17, para 17. 5959 Competition Tribunal Case No. Case Number 122/LM/Dec05. Competition Tribunal Case No. Case Number 122/LM/Dec05. Competition Tribunal Case No. Case Number 122/LM/Dec05. Competition Tribunal Case No. Case Number 122/LM/Dec05. 6060 Competition Tribunal Case No. Case No. 74/LM/Sep11. Competition Tribunal Case No. Case No. 74/LM/Sep11. Competition Tribunal Case No. Case No. 74/LM/Sep11. Competition Tribunal Case No. Case No. 74/LM/Sep11. 6161 Case No. COMP/M.6091. Case No. COMP/M.6091. in renal dialysis including, research and development, the sale of dialysis in renal dialysis including, research and development, the sale of dialysis in renal dialysis including, research and development, the sale of dialysis in renal dialysis including, research and development, the sale of dialysis in renal dialysis including, research and development, the sale of dialysis in renal dialysis including, research and development, the sale of dialysis products and the provision of dialysis services. Vifor mainly operated in products and the provision of dialysis services. Vifor mainly operated in products and the provision of dialysis services. Vifor mainly operated in products and the provision of dialysis services. Vifor mainly operated in products and the provision of dialysis services. Vifor mainly operated in products and the provision of dialysis services. Vifor mainly operated in research and development as well as marketing and distribution of renal research and development as well as marketing and distribution of renal research and development as well as marketing and distribution of renal research and development as well as marketing and distribution of renal research and development as well as marketing and distribution of renal research and development as well as marketing and distribution of renal dialysis equipment. The EC in this merger left the product market definition for dialysis equipment. The EC in this merger left the product market definition for dialysis equipment. The EC in this merger left the product market definition for dialysis equipment. The EC in this merger left the product market definition for dialysis equipment. The EC in this merger left the product market definition for dialysis equipment. The EC in this merger left the product market definition for dialysis services open and did not further segment the dialysis market into dialysis services open and did not further segment the dialysis market into dialysis services open and did not further segment the dialysis market into dialysis services open and did not further segment the dialysis market into dialysis services open and did not further segment the dialysis market into dialysis services open and did not further segment the dialysis market into separate markets for the two types of dialysis treatments hemodialysis (“HD”) separate markets for the two types of dialysis treatments hemodialysis (“HD”) separate markets for the two types of dialysis treatments hemodialysis (“HD”) separate markets for the two types of dialysis treatments hemodialysis (“HD”) separate markets for the two types of dialysis treatments hemodialysis (“HD”) separate markets for the two types of dialysis treatments hemodialysis (“HD”) and peritoneal dialysis (“PD”). and peritoneal dialysis (“PD”). and peritoneal dialysis (“PD”). [78]In considering international jurisprudence, we considered the matter between In considering international jurisprudence, we considered the matter between In considering international jurisprudence, we considered the matter between In considering international jurisprudence, we considered the matter between In considering international jurisprudence, we considered the matter between In considering international jurisprudence, we considered the matter between Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2 (1984) Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2 (1984) Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2 (1984) Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2 (1984) Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2 (1984) Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2 (1984) (“(“Jefferson Case”). Whilst we do not rely on the principles in this matter, the matter . Whilst we do not rely on the principles in this matter, the matter . Whilst we do not rely on the principles in this matter, the matter . Whilst we do not rely on the principles in this matter, the matter . Whilst we do not rely on the principles in this matter, the matter . Whilst we do not rely on the principles in this matter, the matter interestingly considered whether a hospital’s exclusive contract requiring interestingly considered whether a hospital’s exclusive contract requiring interestingly considered whether a hospital’s exclusive contract requiring interestingly considered whether a hospital’s exclusive contract requiring interestingly considered whether a hospital’s exclusive contract requiring interestingly considered whether a hospital’s exclusive contract requiring patients to use a particular anaesthesiology group was an illegal tying patients to use a particular anaesthesiology group was an illegal tying patients to use a particular anaesthesiology group was an illegal tying patients to use a particular anaesthesiology group was an illegal tying patients to use a particular anaesthesiology group was an illegal tying patients to use a particular anaesthesiology group was an illegal tying arrangement in violation of the Sherman Act. The U.S Supreme Court held that arrangement in violation of the Sherman Act. The U.S Supreme Court held that arrangement in violation of the Sherman Act. The U.S Supreme Court held that arrangement in violation of the Sherman Act. The U.S Supreme Court held that arrangement in violation of the Sherman Act. The U.S Supreme Court held that arrangement in violation of the Sherman Act. The U.S Supreme Court held that the contract was not illegal because the hospital lacked sufficient market power the contract was not illegal because the hospital lacked sufficient market power the contract was not illegal because the hospital lacked sufficient market power the contract was not illegal because the hospital lacked sufficient market power the contract was not illegal because the hospital lacked sufficient market power the contract was not illegal because the hospital lacked sufficient market power to coerce patients and restrain competition. We briefly set out the U.S Supreme to coerce patients and restrain competition. We briefly set out the U.S Supreme to coerce patients and restrain competition. We briefly set out the U.S Supreme to coerce patients and restrain competition. We briefly set out the U.S Supreme to coerce patients and restrain competition. We briefly set out the U.S Supreme to coerce patients and restrain competition. We briefly set out the U.S Supreme Court’s findings in the Court’s findings in the Jefferson Case. Jefferson Case. 78.1 In this matter, the East Jefferson Hospital entered into an exclusive In this matter, the East Jefferson Hospital entered into an exclusive In this matter, the East Jefferson Hospital entered into an exclusive In this matter, the East Jefferson Hospital entered into an exclusive In this matter, the East Jefferson Hospital entered into an exclusive In this matter, the East Jefferson Hospital entered into an exclusive contract with Roux Associates, a firm of anaesthesiologists, which contract with Roux Associates, a firm of anaesthesiologists, which contract with Roux Associates, a firm of anaesthesiologists, which contract with Roux Associates, a firm of anaesthesiologists, which contract with Roux Associates, a firm of anaesthesiologists, which contract with Roux Associates, a firm of anaesthesiologists, which stipulated that only Roux could provide anaesthesiologic services at stipulated that only Roux could provide anaesthesiologic services at stipulated that only Roux could provide anaesthesiologic services at stipulated that only Roux could provide anaesthesiologic services at stipulated that only Roux could provide anaesthesiologic services at stipulated that only Roux could provide anaesthesiologic services at the hospital. As a result, Dr. Edwin G. Hyde (“Hyde”), an the hospital. As a result, Dr. Edwin G. Hyde (“Hyde”), an the hospital. As a result, Dr. Edwin G. Hyde (“Hyde”), an the hospital. As a result, Dr. Edwin G. Hyde (“Hyde”), an the hospital. As a result, Dr. Edwin G. Hyde (“Hyde”), an the hospital. As a result, Dr. Edwin G. Hyde (“Hyde”), an anaesthesiologist, was denied staff privileges at the hospital. Hyde anaesthesiologist, was denied staff privileges at the hospital. Hyde anaesthesiologist, was denied staff privileges at the hospital. Hyde anaesthesiologist, was denied staff privileges at the hospital. Hyde anaesthesiologist, was denied staff privileges at the hospital. Hyde anaesthesiologist, was denied staff privileges at the hospital. Hyde claimed that this exclusive contract was a violation of section 1 of the claimed that this exclusive contract was a violation of section 1 of the claimed that this exclusive contract was a violation of section 1 of the claimed that this exclusive contract was a violation of section 1 of the claimed that this exclusive contract was a violation of section 1 of the claimed that this exclusive contract was a violation of section 1 of the Sherman Act, arguing that it constituted an illegal “tying arrangement” Sherman Act, arguing that it constituted an illegal “tying arrangement” Sherman Act, arguing that it constituted an illegal “tying arrangement” Sherman Act, arguing that it constituted an illegal “tying arrangement” Sherman Act, arguing that it constituted an illegal “tying arrangement” Sherman Act, arguing that it constituted an illegal “tying arrangement” that restrained competition. that restrained competition. that restrained competition. 78.2 The Federal District Court ruled in favour of the hospital, finding the The Federal District Court ruled in favour of the hospital, finding the The Federal District Court ruled in favour of the hospital, finding the The Federal District Court ruled in favour of the hospital, finding the The Federal District Court ruled in favour of the hospital, finding the The Federal District Court ruled in favour of the hospital, finding the contract’s anticompetitive effects to be minimal and outweighed by contract’s anticompetitive effects to be minimal and outweighed by contract’s anticompetitive effects to be minimal and outweighed by contract’s anticompetitive effects to be minimal and outweighed by contract’s anticompetitive effects to be minimal and outweighed by improvements in patient care. However, the U.S. Court of Appeals for improvements in patient care. However, the U.S. Court of Appeals for improvements in patient care. However, the U.S. Court of Appeals for improvements in patient care. However, the U.S. Court of Appeals for improvements in patient care. However, the U.S. Court of Appeals for improvements in patient care. However, the U.S. Court of Appeals for the Fifth Circuit reversed the decision by labelling the contract as the Fifth Circuit reversed the decision by labelling the contract as the Fifth Circuit reversed the decision by labelling the contract as the Fifth Circuit reversed the decision by labelling the contract as the Fifth Circuit reversed the decision by labelling the contract as the Fifth Circuit reversed the decision by labelling the contract as illegal “per se” under the Sherman Act. The U.S. Supreme Court ” under the Sherman Act. The U.S. Supreme Court ” under the Sherman Act. The U.S. Supreme Court ” under the Sherman Act. The U.S. Supreme Court ” under the Sherman Act. The U.S. Supreme Court ultimately reversed the Appeals Court’s decision.ultimately reversed the Appeals Court’s decision.ultimately reversed the Appeals Court’s decision.ultimately reversed the Appeals Court’s decision. 78.3 The U.S Supreme Court had to consider whether the exclusive The U.S Supreme Court had to consider whether the exclusive The U.S Supreme Court had to consider whether the exclusive The U.S Supreme Court had to consider whether the exclusive The U.S Supreme Court had to consider whether the exclusive The U.S Supreme Court had to consider whether the exclusive contract between the hospital and firm of anaesthesiologists was in contract between the hospital and firm of anaesthesiologists was in contract between the hospital and firm of anaesthesiologists was in contract between the hospital and firm of anaesthesiologists was in contract between the hospital and firm of anaesthesiologists was in contract between the hospital and firm of anaesthesiologists was in violation of the Sherman Act because every patient undergoing violation of the Sherman Act because every patient undergoing violation of the Sherman Act because every patient undergoing violation of the Sherman Act because every patient undergoing violation of the Sherman Act because every patient undergoing surgery at the hospital had to use the services of one firm of surgery at the hospital had to use the services of one firm of surgery at the hospital had to use the services of one firm of surgery at the hospital had to use the services of one firm of surgery at the hospital had to use the services of one firm of surgery at the hospital had to use the services of one firm of anaesthesiologists, and, if not, whether the contracts were anaesthesiologists, and, if not, whether the contracts were anaesthesiologists, and, if not, whether the contracts were anaesthesiologists, and, if not, whether the contracts were anaesthesiologists, and, if not, whether the contracts were anaesthesiologists, and, if not, whether the contracts were nevertheless illegal because it unreasonably restrained competition nevertheless illegal because it unreasonably restrained competition nevertheless illegal because it unreasonably restrained competition nevertheless illegal because it unreasonably restrained competition nevertheless illegal because it unreasonably restrained competition nevertheless illegal because it unreasonably restrained competition among anaesthesiologists. among anaesthesiologists. among anaesthesiologists. 78.4 There were at least 20 hospitals in the New Orleans metropolitan There were at least 20 hospitals in the New Orleans metropolitan There were at least 20 hospitals in the New Orleans metropolitan There were at least 20 hospitals in the New Orleans metropolitan There were at least 20 hospitals in the New Orleans metropolitan area, and approximately 70% of the patients living in the Jefferson area, and approximately 70% of the patients living in the Jefferson area, and approximately 70% of the patients living in the Jefferson area, and approximately 70% of the patients living in the Jefferson area, and approximately 70% of the patients living in the Jefferson area, and approximately 70% of the patients living in the Jefferson Parish area went to hospitals other than East Jefferson. The entire Parish area went to hospitals other than East Jefferson. The entire Parish area went to hospitals other than East Jefferson. The entire Parish area went to hospitals other than East Jefferson. The entire Parish area went to hospitals other than East Jefferson. The entire Parish area went to hospitals other than East Jefferson. The entire New Orleans metropolitan area was regarded as the appropriate New Orleans metropolitan area was regarded as the appropriate New Orleans metropolitan area was regarded as the appropriate New Orleans metropolitan area was regarded as the appropriate New Orleans metropolitan area was regarded as the appropriate relevant geographic market in which hospitals compete, this evidence relevant geographic market in which hospitals compete, this evidence relevant geographic market in which hospitals compete, this evidence relevant geographic market in which hospitals compete, this evidence relevant geographic market in which hospitals compete, this evidence relevant geographic market in which hospitals compete, this evidence convinced the District Court that East Jefferson does not possess any convinced the District Court that East Jefferson does not possess any convinced the District Court that East Jefferson does not possess any convinced the District Court that East Jefferson does not possess any convinced the District Court that East Jefferson does not possess any convinced the District Court that East Jefferson does not possess any significant “market power”; and concluded that petitioners could not significant “market power”; and concluded that petitioners could not significant “market power”; and concluded that petitioners could not significant “market power”; and concluded that petitioners could not significant “market power”; and concluded that petitioners could not significant “market power”; and concluded that petitioners could not use the Roux contract to anticompetitive ends. use the Roux contract to anticompetitive ends. use the Roux contract to anticompetitive ends. use the Roux contract to anticompetitive ends. 78.5 The same evidence led the Court of Appeals to draw a different The same evidence led the Court of Appeals to draw a different The same evidence led the Court of Appeals to draw a different The same evidence led the Court of Appeals to draw a different The same evidence led the Court of Appeals to draw a different The same evidence led the Court of Appeals to draw a different conclusion. Noting that 30% of the residents of the Parish go to East conclusion. Noting that 30% of the residents of the Parish go to East conclusion. Noting that 30% of the residents of the Parish go to East conclusion. Noting that 30% of the residents of the Parish go to East conclusion. Noting that 30% of the residents of the Parish go to East conclusion. Noting that 30% of the residents of the Parish go to East Jefferson Hospital, and that in fact Jefferson Hospital, and that in fact Jefferson Hospital, and that in fact “patients tend to choose hospitals “patients tend to choose hospitals “patients tend to choose hospitals by location rather than price or quality,”by location rather than price or quality,”by location rather than price or quality,”by location rather than price or quality,” the Court of Appeals the Court of Appeals concluded that the relevant geographic market was the East Bank of concluded that the relevant geographic market was the East Bank of concluded that the relevant geographic market was the East Bank of concluded that the relevant geographic market was the East Bank of concluded that the relevant geographic market was the East Bank of concluded that the relevant geographic market was the East Bank of Jefferson Parish. The conclusion that East Jefferson Hospital Jefferson Parish. The conclusion that East Jefferson Hospital Jefferson Parish. The conclusion that East Jefferson Hospital Jefferson Parish. The conclusion that East Jefferson Hospital Jefferson Parish. The conclusion that East Jefferson Hospital Jefferson Parish. The conclusion that East Jefferson Hospital possessed market power in that area was buttressed by the facts that possessed market power in that area was buttressed by the facts that possessed market power in that area was buttressed by the facts that possessed market power in that area was buttressed by the facts that possessed market power in that area was buttressed by the facts that possessed market power in that area was buttressed by the facts that the prevalence of health insurance eliminates a patient's incentive to the prevalence of health insurance eliminates a patient's incentive to the prevalence of health insurance eliminates a patient's incentive to the prevalence of health insurance eliminates a patient's incentive to the prevalence of health insurance eliminates a patient's incentive to the prevalence of health insurance eliminates a patient's incentive to compare costs, that the patient is not sufficiently informed to compare compare costs, that the patient is not sufficiently informed to compare compare costs, that the patient is not sufficiently informed to compare compare costs, that the patient is not sufficiently informed to compare compare costs, that the patient is not sufficiently informed to compare compare costs, that the patient is not sufficiently informed to compare quality, and that convenience tends to magnify the importance of quality, and that convenience tends to magnify the importance of quality, and that convenience tends to magnify the importance of quality, and that convenience tends to magnify the importance of quality, and that convenience tends to magnify the importance of quality, and that convenience tends to magnify the importance of location. 78.6 The Court of Appeals held that the case involves a "tying The Court of Appeals held that the case involves a "tying The Court of Appeals held that the case involves a "tying The Court of Appeals held that the case involves a "tying The Court of Appeals held that the case involves a "tying arrangement" because the “arrangement" because the “arrangement" because the “users of the hospital's operating rooms users of the hospital's operating rooms users of the hospital's operating rooms (the tying product) are also compelled to purchase the hospital's (the tying product) are also compelled to purchase the hospital's (the tying product) are also compelled to purchase the hospital's (the tying product) are also compelled to purchase the hospital's (the tying product) are also compelled to purchase the hospital's (the tying product) are also compelled to purchase the hospital's chosen anaesthesia service (the tied product).”chosen anaesthesia service (the tied product).”chosen anaesthesia service (the tied product).”chosen anaesthesia service (the tied product).” Having defined the Having defined the relevant geographic market for the tying product as the East Bank of relevant geographic market for the tying product as the East Bank of relevant geographic market for the tying product as the East Bank of relevant geographic market for the tying product as the East Bank of relevant geographic market for the tying product as the East Bank of relevant geographic market for the tying product as the East Bank of Jefferson Parish, the court held that the hospital possessed Jefferson Parish, the court held that the hospital possessed Jefferson Parish, the court held that the hospital possessed Jefferson Parish, the court held that the hospital possessed Jefferson Parish, the court held that the hospital possessed “sufficient market power in the tying market to coerce purchasers of the tied market power in the tying market to coerce purchasers of the tied market power in the tying market to coerce purchasers of the tied market power in the tying market to coerce purchasers of the tied market power in the tying market to coerce purchasers of the tied market power in the tying market to coerce purchasers of the tied product.” 78.7 The U.S Supreme’s Court’s analysis focused on the hospital’s sale of The U.S Supreme’s Court’s analysis focused on the hospital’s sale of The U.S Supreme’s Court’s analysis focused on the hospital’s sale of The U.S Supreme’s Court’s analysis focused on the hospital’s sale of The U.S Supreme’s Court’s analysis focused on the hospital’s sale of The U.S Supreme’s Court’s analysis focused on the hospital’s sale of services to its patients, rather than its contractual arrangements with services to its patients, rather than its contractual arrangements with services to its patients, rather than its contractual arrangements with services to its patients, rather than its contractual arrangements with services to its patients, rather than its contractual arrangements with services to its patients, rather than its contractual arrangements with the providers of anaesthesiologic services. It further considered the providers of anaesthesiologic services. It further considered the providers of anaesthesiologic services. It further considered the providers of anaesthesiologic services. It further considered the providers of anaesthesiologic services. It further considered the providers of anaesthesiologic services. It further considered whether petitioners were selling two separate products that may be whether petitioners were selling two separate products that may be whether petitioners were selling two separate products that may be whether petitioners were selling two separate products that may be whether petitioners were selling two separate products that may be whether petitioners were selling two separate products that may be tied together, and, if so, whether they have used their market power tied together, and, if so, whether they have used their market power tied together, and, if so, whether they have used their market power tied together, and, if so, whether they have used their market power tied together, and, if so, whether they have used their market power tied together, and, if so, whether they have used their market power to force their patients to accept the tying arrangement.to force their patients to accept the tying arrangement.to force their patients to accept the tying arrangement.to force their patients to accept the tying arrangement.to force their patients to accept the tying arrangement. 78.8 It was held that there was nothing inherently anticompetitive regarding It was held that there was nothing inherently anticompetitive regarding It was held that there was nothing inherently anticompetitive regarding It was held that there was nothing inherently anticompetitive regarding It was held that there was nothing inherently anticompetitive regarding It was held that there was nothing inherently anticompetitive regarding the packaged sales. Only in instances where patients were forced to the packaged sales. Only in instances where patients were forced to the packaged sales. Only in instances where patients were forced to the packaged sales. Only in instances where patients were forced to the packaged sales. Only in instances where patients were forced to purchase Roux’s services as a result of the hospital’s market power purchase Roux’s services as a result of the hospital’s market power purchase Roux’s services as a result of the hospital’s market power purchase Roux’s services as a result of the hospital’s market power purchase Roux’s services as a result of the hospital’s market power purchase Roux’s services as a result of the hospital’s market power would the arrangement have anticompetitive consequences. The U.S would the arrangement have anticompetitive consequences. The U.S would the arrangement have anticompetitive consequences. The U.S would the arrangement have anticompetitive consequences. The U.S would the arrangement have anticompetitive consequences. The U.S would the arrangement have anticompetitive consequences. The U.S Supreme Court held that if no forcing was present, patients are free to Supreme Court held that if no forcing was present, patients are free to Supreme Court held that if no forcing was present, patients are free to Supreme Court held that if no forcing was present, patients are free to Supreme Court held that if no forcing was present, patients are free to Supreme Court held that if no forcing was present, patients are free to enter a competing hospital and to use another anaesthesiologist enter a competing hospital and to use another anaesthesiologist enter a competing hospital and to use another anaesthesiologist enter a competing hospital and to use another anaesthesiologist enter a competing hospital and to use another anaesthesiologist enter a competing hospital and to use another anaesthesiologist instead of Roux. instead of Roux. 78.9 The U.S Supreme Court found that the evidence adduced was The U.S Supreme Court found that the evidence adduced was The U.S Supreme Court found that the evidence adduced was The U.S Supreme Court found that the evidence adduced was The U.S Supreme Court found that the evidence adduced was The U.S Supreme Court found that the evidence adduced was insufficient to provide a basis for a finding that the contract insufficient to provide a basis for a finding that the contract insufficient to provide a basis for a finding that the contract insufficient to provide a basis for a finding that the contract insufficient to provide a basis for a finding that the contract unreasonably restrained competition. The record established that the unreasonably restrained competition. The record established that the unreasonably restrained competition. The record established that the unreasonably restrained competition. The record established that the unreasonably restrained competition. The record established that the unreasonably restrained competition. The record established that the choice of anaesthesiologists at the hospital was limited to one of the choice of anaesthesiologists at the hospital was limited to one of the choice of anaesthesiologists at the hospital was limited to one of the choice of anaesthesiologists at the hospital was limited to one of the choice of anaesthesiologists at the hospital was limited to one of the choice of anaesthesiologists at the hospital was limited to one of the four doctor who are associated with the contracting firm. It was further four doctor who are associated with the contracting firm. It was further four doctor who are associated with the contracting firm. It was further four doctor who are associated with the contracting firm. It was further four doctor who are associated with the contracting firm. It was further four doctor who are associated with the contracting firm. It was further found that if the respondent were admitted to the hospital’s staff, the found that if the respondent were admitted to the hospital’s staff, the found that if the respondent were admitted to the hospital’s staff, the found that if the respondent were admitted to the hospital’s staff, the found that if the respondent were admitted to the hospital’s staff, the found that if the respondent were admitted to the hospital’s staff, the range of choice would be enlarged, but the most significant restraints range of choice would be enlarged, but the most significant restraints range of choice would be enlarged, but the most significant restraints range of choice would be enlarged, but the most significant restraints range of choice would be enlarged, but the most significant restraints range of choice would be enlarged, but the most significant restraints on the patient's freedom to select a specific anaesthesiologist would on the patient's freedom to select a specific anaesthesiologist would on the patient's freedom to select a specific anaesthesiologist would on the patient's freedom to select a specific anaesthesiologist would on the patient's freedom to select a specific anaesthesiologist would on the patient's freedom to select a specific anaesthesiologist would nevertheless remain. There was further no evidence that the price, nevertheless remain. There was further no evidence that the price, nevertheless remain. There was further no evidence that the price, nevertheless remain. There was further no evidence that the price, nevertheless remain. There was further no evidence that the price, nevertheless remain. There was further no evidence that the price, quality, or supply or demand for either the “tying product” or the “tied quality, or supply or demand for either the “tying product” or the “tied quality, or supply or demand for either the “tying product” or the “tied quality, or supply or demand for either the “tying product” or the “tied quality, or supply or demand for either the “tying product” or the “tied quality, or supply or demand for either the “tying product” or the “tied product” has been adversely affected by the exclusive contract, and product” has been adversely affected by the exclusive contract, and product” has been adversely affected by the exclusive contract, and product” has been adversely affected by the exclusive contract, and product” has been adversely affected by the exclusive contract, and product” has been adversely affected by the exclusive contract, and no showing that the market as a whole has been affected at all by the no showing that the market as a whole has been affected at all by the no showing that the market as a whole has been affected at all by the no showing that the market as a whole has been affected at all by the no showing that the market as a whole has been affected at all by the no showing that the market as a whole has been affected at all by the contract. [79]These established markets were tested through a series of economic and These established markets were tested through a series of economic and These established markets were tested through a series of economic and These established markets were tested through a series of economic and These established markets were tested through a series of economic and These established markets were tested through a series of economic and factual evidence adduced during hearing proceedings. factual evidence adduced during hearing proceedings. factual evidence adduced during hearing proceedings. factual evidence adduced during hearing proceedings. factual evidence adduced during hearing proceedings. [80]We also considered the Commission’s final findings and recommendations We also considered the Commission’s final findings and recommendations We also considered the Commission’s final findings and recommendations We also considered the Commission’s final findings and recommendations We also considered the Commission’s final findings and recommendations We also considered the Commission’s final findings and recommendations report in the HMI. It was found that the healthcare facilities sector consists report in the HMI. It was found that the healthcare facilities sector consists report in the HMI. It was found that the healthcare facilities sector consists report in the HMI. It was found that the healthcare facilities sector consists report in the HMI. It was found that the healthcare facilities sector consists report in the HMI. It was found that the healthcare facilities sector consists mainly of general acute care hospitals which offer a wide range of specialities mainly of general acute care hospitals which offer a wide range of specialities mainly of general acute care hospitals which offer a wide range of specialities mainly of general acute care hospitals which offer a wide range of specialities mainly of general acute care hospitals which offer a wide range of specialities mainly of general acute care hospitals which offer a wide range of specialities though there are significant similarities in the range of specialties offered by all though there are significant similarities in the range of specialties offered by all though there are significant similarities in the range of specialties offered by all though there are significant similarities in the range of specialties offered by all though there are significant similarities in the range of specialties offered by all though there are significant similarities in the range of specialties offered by all general acute hospitals.general acute hospitals. 6262 [81]The Commission’s report held that The Commission’s report held that The Commission’s report held that “though we find that acute private hospitals “though we find that acute private hospitals “though we find that acute private hospitals “though we find that acute private hospitals compete on the basis of specialties and sub-specialties, it is nonetheless not compete on the basis of specialties and sub-specialties, it is nonetheless not compete on the basis of specialties and sub-specialties, it is nonetheless not compete on the basis of specialties and sub-specialties, it is nonetheless not compete on the basis of specialties and sub-specialties, it is nonetheless not compete on the basis of specialties and sub-specialties, it is nonetheless not necessary to breakdown the analysis to the speciality level, as private acute necessary to breakdown the analysis to the speciality level, as private acute necessary to breakdown the analysis to the speciality level, as private acute necessary to breakdown the analysis to the speciality level, as private acute necessary to breakdown the analysis to the speciality level, as private acute necessary to breakdown the analysis to the speciality level, as private acute facilities compete on the same broad set of specialties and services. We have facilities compete on the same broad set of specialties and services. We have facilities compete on the same broad set of specialties and services. We have facilities compete on the same broad set of specialties and services. We have facilities compete on the same broad set of specialties and services. We have facilities compete on the same broad set of specialties and services. We have facilities compete on the same broad set of specialties and services. We have concluded that it is sufficient to analyse “in-hospital healthcare services as concluded that it is sufficient to analyse “in-hospital healthcare services as concluded that it is sufficient to analyse “in-hospital healthcare services as concluded that it is sufficient to analyse “in-hospital healthcare services as concluded that it is sufficient to analyse “in-hospital healthcare services as concluded that it is sufficient to analyse “in-hospital healthcare services as generally provided by general acute hospitals”.generally provided by general acute hospitals”.generally provided by general acute hospitals”.generally provided by general acute hospitals”. 6363 [82]In our view, Mediclinic’s reliance on this established market is not controversial. In our view, Mediclinic’s reliance on this established market is not controversial. In our view, Mediclinic’s reliance on this established market is not controversial. In our view, Mediclinic’s reliance on this established market is not controversial. In our view, Mediclinic’s reliance on this established market is not controversial. In our view, Mediclinic’s reliance on this established market is not controversial. In the circumstances, it is not necessary to belabour these reasons with In the circumstances, it is not necessary to belabour these reasons with In the circumstances, it is not necessary to belabour these reasons with In the circumstances, it is not necessary to belabour these reasons with In the circumstances, it is not necessary to belabour these reasons with In the circumstances, it is not necessary to belabour these reasons with evidence and arguments in support of Mediclinic’s purported market definition. evidence and arguments in support of Mediclinic’s purported market definition. evidence and arguments in support of Mediclinic’s purported market definition. evidence and arguments in support of Mediclinic’s purported market definition. evidence and arguments in support of Mediclinic’s purported market definition. evidence and arguments in support of Mediclinic’s purported market definition. [83]Life’s purported market definition is, however, both novel and contentious. It Life’s purported market definition is, however, both novel and contentious. It Life’s purported market definition is, however, both novel and contentious. It Life’s purported market definition is, however, both novel and contentious. It Life’s purported market definition is, however, both novel and contentious. It Life’s purported market definition is, however, both novel and contentious. It assumes that a single hospital premises may, in and of itself, constitute a assumes that a single hospital premises may, in and of itself, constitute a assumes that a single hospital premises may, in and of itself, constitute a assumes that a single hospital premises may, in and of itself, constitute a assumes that a single hospital premises may, in and of itself, constitute a assumes that a single hospital premises may, in and of itself, constitute a contestable market. contestable market. [84]In Life’s view, Mediclinic’s conduct is tantamount to foreclosure in respect of In Life’s view, Mediclinic’s conduct is tantamount to foreclosure in respect of In Life’s view, Mediclinic’s conduct is tantamount to foreclosure in respect of In Life’s view, Mediclinic’s conduct is tantamount to foreclosure in respect of In Life’s view, Mediclinic’s conduct is tantamount to foreclosure in respect of In Life’s view, Mediclinic’s conduct is tantamount to foreclosure in respect of inpatients admitted to Mediclinic hospitals who receive dialysis. Life contended inpatients admitted to Mediclinic hospitals who receive dialysis. Life contended inpatients admitted to Mediclinic hospitals who receive dialysis. Life contended inpatients admitted to Mediclinic hospitals who receive dialysis. Life contended inpatients admitted to Mediclinic hospitals who receive dialysis. Life contended inpatients admitted to Mediclinic hospitals who receive dialysis. Life contended that because Mediclinic has a monopoly on its premises, this allows it to control, that because Mediclinic has a monopoly on its premises, this allows it to control, that because Mediclinic has a monopoly on its premises, this allows it to control, that because Mediclinic has a monopoly on its premises, this allows it to control, that because Mediclinic has a monopoly on its premises, this allows it to control, that because Mediclinic has a monopoly on its premises, this allows it to control, and effectively deny, access permissions and on-site storage facilities to third and effectively deny, access permissions and on-site storage facilities to third and effectively deny, access permissions and on-site storage facilities to third and effectively deny, access permissions and on-site storage facilities to third and effectively deny, access permissions and on-site storage facilities to third and effectively deny, access permissions and on-site storage facilities to third party dialysis service providers and favour its own in-hospital dialysis services. party dialysis service providers and favour its own in-hospital dialysis services. party dialysis service providers and favour its own in-hospital dialysis services. party dialysis service providers and favour its own in-hospital dialysis services. party dialysis service providers and favour its own in-hospital dialysis services. party dialysis service providers and favour its own in-hospital dialysis services. party dialysis service providers and favour its own in-hospital dialysis services. 6262 Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, September 2019, page 64. September 2019, page 64. 6363 Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, September 2019, page 64.September 2019, page 64. [85]Life has thus adopted an exceptionally narrow market definition which confines Life has thus adopted an exceptionally narrow market definition which confines Life has thus adopted an exceptionally narrow market definition which confines Life has thus adopted an exceptionally narrow market definition which confines Life has thus adopted an exceptionally narrow market definition which confines Life has thus adopted an exceptionally narrow market definition which confines the relevant market to a particular multidisciplinary hospital’s premises.the relevant market to a particular multidisciplinary hospital’s premises.the relevant market to a particular multidisciplinary hospital’s premises.the relevant market to a particular multidisciplinary hospital’s premises.the relevant market to a particular multidisciplinary hospital’s premises.the relevant market to a particular multidisciplinary hospital’s premises. [86]We have not found any jurisprudence, and neither has Life provided any, which We have not found any jurisprudence, and neither has Life provided any, which We have not found any jurisprudence, and neither has Life provided any, which We have not found any jurisprudence, and neither has Life provided any, which We have not found any jurisprudence, and neither has Life provided any, which We have not found any jurisprudence, and neither has Life provided any, which supports this novel approach. In light of this, we have sought to assess the supports this novel approach. In light of this, we have sought to assess the supports this novel approach. In light of this, we have sought to assess the supports this novel approach. In light of this, we have sought to assess the supports this novel approach. In light of this, we have sought to assess the supports this novel approach. In light of this, we have sought to assess the plausibility of these market definitions in the present proceedings to determine plausibility of these market definitions in the present proceedings to determine plausibility of these market definitions in the present proceedings to determine plausibility of these market definitions in the present proceedings to determine plausibility of these market definitions in the present proceedings to determine plausibility of these market definitions in the present proceedings to determine whether Life has made out a whether Life has made out a whether Life has made out a prima facie case of dominance. case of dominance. Life’s purported vertical relationship between the upstream and downstream Life’s purported vertical relationship between the upstream and downstream Life’s purported vertical relationship between the upstream and downstream Life’s purported vertical relationship between the upstream and downstream Life’s purported vertical relationship between the upstream and downstream Life’s purported vertical relationship between the upstream and downstream Life’s purported vertical relationship between the upstream and downstream markets [87]Not only are Life’s purported market definitions novel, but they also present an Not only are Life’s purported market definitions novel, but they also present an Not only are Life’s purported market definitions novel, but they also present an Not only are Life’s purported market definitions novel, but they also present an Not only are Life’s purported market definitions novel, but they also present an Not only are Life’s purported market definitions novel, but they also present an alternate vertical relationship. Life defined the upstream market as one for alternate vertical relationship. Life defined the upstream market as one for alternate vertical relationship. Life defined the upstream market as one for alternate vertical relationship. Life defined the upstream market as one for alternate vertical relationship. Life defined the upstream market as one for alternate vertical relationship. Life defined the upstream market as one for alternate vertical relationship. Life defined the upstream market as one for alternate vertical relationship. Life defined the upstream market as one for alternate vertical relationship. Life defined the upstream market as one for alternate vertical relationship. Life defined the upstream market as one for alternate vertical relationship. Life defined the upstream market as one for alternate vertical relationship. Life defined the upstream market as one for alternate vertical relationship. Life defined the upstream market as one for alternate vertical relationship. Life defined the upstream market as one for alternate vertical relationship. Life defined the upstream market as one for alternate vertical relationship. Life defined the upstream market as one for alternate vertical relationship. Life defined the upstream market as one for alternate vertical relationship. Life defined the upstream market as one for alternate vertical relationship. Life defined the upstream market as one for alternate vertical relationship. Life defined the upstream market as one for alternate vertical relationship. Life defined the upstream market as one for provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access provision of reasonable on-site storage facilities, and express access permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute permissions to mobile dialysis service providers at a given acute multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision multidisciplinary private hospital and the downstream market for the provision of in-hospital dialysis services at a particular hospital. of in-hospital dialysis services at a particular hospital. of in-hospital dialysis services at a particular hospital. of in-hospital dialysis services at a particular hospital. of in-hospital dialysis services at a particular hospital. of in-hospital dialysis services at a particular hospital. of in-hospital dialysis services at a particular hospital. of in-hospital dialysis services at a particular hospital. of in-hospital dialysis services at a particular hospital. of in-hospital dialysis services at a particular hospital. of in-hospital dialysis services at a particular hospital. of in-hospital dialysis services at a particular hospital. of in-hospital dialysis services at a particular hospital. of in-hospital dialysis services at a particular hospital. of in-hospital dialysis services at a particular hospital. of in-hospital dialysis services at a particular hospital. of in-hospital dialysis services at a particular hospital. of in-hospital dialysis services at a particular hospital. of in-hospital dialysis services at a particular hospital. of in-hospital dialysis services at a particular hospital. of in-hospital dialysis services at a particular hospital. of in-hospital dialysis services at a particular hospital. [88]Life submitted that Life submitted that “Mediclinic acts as an operator of acute multidisciplinary “Mediclinic acts as an operator of acute multidisciplinary “Mediclinic acts as an operator of acute multidisciplinary “Mediclinic acts as an operator of acute multidisciplinary “Mediclinic acts as an operator of acute multidisciplinary hospitals, in terms of which it provides inputs into the provision of a range of in-hospitals, in terms of which it provides inputs into the provision of a range of in-hospitals, in terms of which it provides inputs into the provision of a range of in-hospitals, in terms of which it provides inputs into the provision of a range of in-hospitals, in terms of which it provides inputs into the provision of a range of in-hospitals, in terms of which it provides inputs into the provision of a range of in- hospital healthcare services within its hospitals. In respect of in-hospital dialysis hospital healthcare services within its hospitals. In respect of in-hospital dialysis hospital healthcare services within its hospitals. In respect of in-hospital dialysis hospital healthcare services within its hospitals. In respect of in-hospital dialysis hospital healthcare services within its hospitals. In respect of in-hospital dialysis hospital healthcare services within its hospitals. In respect of in-hospital dialysis services, those inputs are access to, and reasonable on-site storage within, the services, those inputs are access to, and reasonable on-site storage within, the services, those inputs are access to, and reasonable on-site storage within, the services, those inputs are access to, and reasonable on-site storage within, the services, those inputs are access to, and reasonable on-site storage within, the services, those inputs are access to, and reasonable on-site storage within, the relevant multidisciplinary hospital to dialysis services providers.”relevant multidisciplinary hospital to dialysis services providers.”relevant multidisciplinary hospital to dialysis services providers.”relevant multidisciplinary hospital to dialysis services providers.”relevant multidisciplinary hospital to dialysis services providers.” 6464 [89]According to Life, the provision of access permissions and reasonable on-site According to Life, the provision of access permissions and reasonable on-site According to Life, the provision of access permissions and reasonable on-site According to Life, the provision of access permissions and reasonable on-site According to Life, the provision of access permissions and reasonable on-site According to Life, the provision of access permissions and reasonable on-site storage facilities to mobile dialysis providers constitutes an essential input into storage facilities to mobile dialysis providers constitutes an essential input into storage facilities to mobile dialysis providers constitutes an essential input into storage facilities to mobile dialysis providers constitutes an essential input into storage facilities to mobile dialysis providers constitutes an essential input into storage facilities to mobile dialysis providers constitutes an essential input into the market for the provision of in-hospital dialysis services, the two markets are the market for the provision of in-hospital dialysis services, the two markets are the market for the provision of in-hospital dialysis services, the two markets are the market for the provision of in-hospital dialysis services, the two markets are the market for the provision of in-hospital dialysis services, the two markets are the market for the provision of in-hospital dialysis services, the two markets are the market for the provision of in-hospital dialysis services, the two markets are vertically related.vertically related. 6565 [90]In the Life-Fresenius Merger Life-Fresenius Merger the Tribunal considered the vertical relationship the Tribunal considered the vertical relationship the Tribunal considered the vertical relationship the Tribunal considered the vertical relationship between the parties and found that the transaction raised vertical overlaps. This between the parties and found that the transaction raised vertical overlaps. This between the parties and found that the transaction raised vertical overlaps. This between the parties and found that the transaction raised vertical overlaps. This between the parties and found that the transaction raised vertical overlaps. This between the parties and found that the transaction raised vertical overlaps. This 6464 Life’s founding affidavit, para 64. Life’s founding affidavit, para 64. Life’s founding affidavit, para 64. 6565 Life’s heads of argument, para 52. Life’s heads of argument, para 52. Life’s heads of argument, para 52. was so because Life provides acute multidisciplinary private hospital services was so because Life provides acute multidisciplinary private hospital services was so because Life provides acute multidisciplinary private hospital services was so because Life provides acute multidisciplinary private hospital services was so because Life provides acute multidisciplinary private hospital services was so because Life provides acute multidisciplinary private hospital services and Fresenius was a dialysis service provider which administers dialysis and Fresenius was a dialysis service provider which administers dialysis and Fresenius was a dialysis service provider which administers dialysis and Fresenius was a dialysis service provider which administers dialysis and Fresenius was a dialysis service provider which administers dialysis and Fresenius was a dialysis service provider which administers dialysis treatment to patients admitted to acute hospitals.treatment to patients admitted to acute hospitals.treatment to patients admitted to acute hospitals.treatment to patients admitted to acute hospitals. 6666 In its input foreclosure In its input foreclosure assessment, the Tribunal considered Life’s upstream market for the provision assessment, the Tribunal considered Life’s upstream market for the provision assessment, the Tribunal considered Life’s upstream market for the provision assessment, the Tribunal considered Life’s upstream market for the provision assessment, the Tribunal considered Life’s upstream market for the provision assessment, the Tribunal considered Life’s upstream market for the provision of multidisciplinary acute private hospital services and foreclosure related to of multidisciplinary acute private hospital services and foreclosure related to of multidisciplinary acute private hospital services and foreclosure related to of multidisciplinary acute private hospital services and foreclosure related to of multidisciplinary acute private hospital services and foreclosure related to of multidisciplinary acute private hospital services and foreclosure related to access to hospitals which offered these services. access to hospitals which offered these services. access to hospitals which offered these services. access to hospitals which offered these services. [91]In the present case Life considered the relevant input in the upstream market In the present case Life considered the relevant input in the upstream market In the present case Life considered the relevant input in the upstream market In the present case Life considered the relevant input in the upstream market In the present case Life considered the relevant input in the upstream market In the present case Life considered the relevant input in the upstream market as storage space at a specific hospital and the downstream market as storage space at a specific hospital and the downstream market as storage space at a specific hospital and the downstream market as storage space at a specific hospital and the downstream market as storage space at a specific hospital and the downstream market as storage space at a specific hospital and the downstream market correspondingly in respect of dialysis within that specific hospital.correspondingly in respect of dialysis within that specific hospital.correspondingly in respect of dialysis within that specific hospital.correspondingly in respect of dialysis within that specific hospital.correspondingly in respect of dialysis within that specific hospital.correspondingly in respect of dialysis within that specific hospital. 6767 In both instances the upstream and downstream are narrowly defined with respect to instances the upstream and downstream are narrowly defined with respect to instances the upstream and downstream are narrowly defined with respect to instances the upstream and downstream are narrowly defined with respect to instances the upstream and downstream are narrowly defined with respect to instances the upstream and downstream are narrowly defined with respect to a particular hospital. a particular hospital. Demand and supply-side substitution Demand and supply-side substitution Demand and supply-side substitution [92]A key element in the determination of the relevant market is the concept of A key element in the determination of the relevant market is the concept of A key element in the determination of the relevant market is the concept of A key element in the determination of the relevant market is the concept of A key element in the determination of the relevant market is the concept of A key element in the determination of the relevant market is the concept of A key element in the determination of the relevant market is the concept of substitutability. Below, we briefly set out principles related to demand and substitutability. Below, we briefly set out principles related to demand and substitutability. Below, we briefly set out principles related to demand and substitutability. Below, we briefly set out principles related to demand and substitutability. Below, we briefly set out principles related to demand and substitutability. Below, we briefly set out principles related to demand and supply side substitutability as well as an assessment thereof. supply side substitutability as well as an assessment thereof. supply side substitutability as well as an assessment thereof. supply side substitutability as well as an assessment thereof. supply side substitutability as well as an assessment thereof. [93]In defining the relevant market(s), it is necessary to consider both demand-side In defining the relevant market(s), it is necessary to consider both demand-side In defining the relevant market(s), it is necessary to consider both demand-side In defining the relevant market(s), it is necessary to consider both demand-side In defining the relevant market(s), it is necessary to consider both demand-side In defining the relevant market(s), it is necessary to consider both demand-side and supply-side substitution. and supply-side substitution. and supply-side substitution. [94]Demand-side substitution occurs where consumers would switch to alternative Demand-side substitution occurs where consumers would switch to alternative Demand-side substitution occurs where consumers would switch to alternative Demand-side substitution occurs where consumers would switch to alternative Demand-side substitution occurs where consumers would switch to alternative Demand-side substitution occurs where consumers would switch to alternative products or services in response to a small but significant increase in price; products or services in response to a small but significant increase in price; products or services in response to a small but significant increase in price; products or services in response to a small but significant increase in price; products or services in response to a small but significant increase in price; products or services in response to a small but significant increase in price; such alternatives are therefore part of the same market. Supply-side such alternatives are therefore part of the same market. Supply-side such alternatives are therefore part of the same market. Supply-side such alternatives are therefore part of the same market. Supply-side such alternatives are therefore part of the same market. Supply-side such alternatives are therefore part of the same market. Supply-side substitution arises where suppliers can readily shift production or entry to substitution arises where suppliers can readily shift production or entry to substitution arises where suppliers can readily shift production or entry to substitution arises where suppliers can readily shift production or entry to substitution arises where suppliers can readily shift production or entry to substitution arises where suppliers can readily shift production or entry to provide the product or service in question, thereby exerting a competitive provide the product or service in question, thereby exerting a competitive provide the product or service in question, thereby exerting a competitive provide the product or service in question, thereby exerting a competitive provide the product or service in question, thereby exerting a competitive provide the product or service in question, thereby exerting a competitive constraint. Both forms of substitution assist in delineating the boundaries of the constraint. Both forms of substitution assist in delineating the boundaries of the constraint. Both forms of substitution assist in delineating the boundaries of the constraint. Both forms of substitution assist in delineating the boundaries of the constraint. Both forms of substitution assist in delineating the boundaries of the constraint. Both forms of substitution assist in delineating the boundaries of the market and in assessing the extent of market power.market and in assessing the extent of market power.market and in assessing the extent of market power.market and in assessing the extent of market power. 6666 Life and Fresenius MergerLife and Fresenius Merger CT Case No. LM035Jun23, para 26. CT Case No. LM035Jun23, para 26. CT Case No. LM035Jun23, para 26. 6767 Life’s replying affidavit, para 32. Life’s replying affidavit, para 32. Life’s replying affidavit, para 32. Demand side substitutability Demand side substitutability Demand side substitutability [95]Life submitted that Life submitted that “a patient that is admitted to a multidisciplinary hospital as “a patient that is admitted to a multidisciplinary hospital as “a patient that is admitted to a multidisciplinary hospital as “a patient that is admitted to a multidisciplinary hospital as “a patient that is admitted to a multidisciplinary hospital as a result of an acute episode (i.e., either an acute or chronic inpatient) is typically a result of an acute episode (i.e., either an acute or chronic inpatient) is typically a result of an acute episode (i.e., either an acute or chronic inpatient) is typically a result of an acute episode (i.e., either an acute or chronic inpatient) is typically a result of an acute episode (i.e., either an acute or chronic inpatient) is typically a result of an acute episode (i.e., either an acute or chronic inpatient) is typically confined to a hospital bed for the duration of their treatment, often within an confined to a hospital bed for the duration of their treatment, often within an confined to a hospital bed for the duration of their treatment, often within an confined to a hospital bed for the duration of their treatment, often within an confined to a hospital bed for the duration of their treatment, often within an confined to a hospital bed for the duration of their treatment, often within an ICU, and this is a very significant restriction on their ability to procure dialysis ICU, and this is a very significant restriction on their ability to procure dialysis ICU, and this is a very significant restriction on their ability to procure dialysis ICU, and this is a very significant restriction on their ability to procure dialysis ICU, and this is a very significant restriction on their ability to procure dialysis ICU, and this is a very significant restriction on their ability to procure dialysis services outside of the hospital (e.g., at a Standalone Clinic, or at another services outside of the hospital (e.g., at a Standalone Clinic, or at another services outside of the hospital (e.g., at a Standalone Clinic, or at another services outside of the hospital (e.g., at a Standalone Clinic, or at another services outside of the hospital (e.g., at a Standalone Clinic, or at another services outside of the hospital (e.g., at a Standalone Clinic, or at another multidisciplinary hospital) for the duration of their treatment. That is, the relevant multidisciplinary hospital) for the duration of their treatment. That is, the relevant multidisciplinary hospital) for the duration of their treatment. That is, the relevant multidisciplinary hospital) for the duration of their treatment. That is, the relevant multidisciplinary hospital) for the duration of their treatment. That is, the relevant multidisciplinary hospital) for the duration of their treatment. That is, the relevant market is limited to the provision of in-hospital dialysis services within a market is limited to the provision of in-hospital dialysis services within a market is limited to the provision of in-hospital dialysis services within a market is limited to the provision of in-hospital dialysis services within a market is limited to the provision of in-hospital dialysis services within a market is limited to the provision of in-hospital dialysis services within a particular multidisciplinary hospital.” [own emphasis]particular multidisciplinary hospital.” [own emphasis]particular multidisciplinary hospital.” [own emphasis]particular multidisciplinary hospital.” [own emphasis] 6868 [96]In our assessment of demand side substitution factors, we first considered the In our assessment of demand side substitution factors, we first considered the In our assessment of demand side substitution factors, we first considered the In our assessment of demand side substitution factors, we first considered the In our assessment of demand side substitution factors, we first considered the In our assessment of demand side substitution factors, we first considered the hypothetical monopolist test set out below. hypothetical monopolist test set out below. hypothetical monopolist test set out below. hypothetical monopolist test set out below. Hypothetical monopolist test Hypothetical monopolist test Hypothetical monopolist test [97]The hypothetical monopolist test is an established economic test relied on to The hypothetical monopolist test is an established economic test relied on to The hypothetical monopolist test is an established economic test relied on to The hypothetical monopolist test is an established economic test relied on to The hypothetical monopolist test is an established economic test relied on to The hypothetical monopolist test is an established economic test relied on to determine the extent of a product market. This test starts by looking at the determine the extent of a product market. This test starts by looking at the determine the extent of a product market. This test starts by looking at the determine the extent of a product market. This test starts by looking at the determine the extent of a product market. This test starts by looking at the determine the extent of a product market. This test starts by looking at the narrowest possible putative markets and asks whether a hypothetical narrowest possible putative markets and asks whether a hypothetical narrowest possible putative markets and asks whether a hypothetical narrowest possible putative markets and asks whether a hypothetical narrowest possible putative markets and asks whether a hypothetical narrowest possible putative markets and asks whether a hypothetical monopolist over that putative market could increase its profits by implementing monopolist over that putative market could increase its profits by implementing monopolist over that putative market could increase its profits by implementing monopolist over that putative market could increase its profits by implementing monopolist over that putative market could increase its profits by implementing monopolist over that putative market could increase its profits by implementing a small but significant non-transitory increase in price (“SSNIP”) above the a small but significant non-transitory increase in price (“SSNIP”) above the a small but significant non-transitory increase in price (“SSNIP”) above the a small but significant non-transitory increase in price (“SSNIP”) above the a small but significant non-transitory increase in price (“SSNIP”) above the a small but significant non-transitory increase in price (“SSNIP”) above the competitive level.competitive level. [98]Constrained by the evidence before us, we are unable to conduct the SSNIPP Constrained by the evidence before us, we are unable to conduct the SSNIPP Constrained by the evidence before us, we are unable to conduct the SSNIPP Constrained by the evidence before us, we are unable to conduct the SSNIPP Constrained by the evidence before us, we are unable to conduct the SSNIPP Constrained by the evidence before us, we are unable to conduct the SSNIPP test to determine the extent of the relevant market(s). test to determine the extent of the relevant market(s). test to determine the extent of the relevant market(s). test to determine the extent of the relevant market(s). test to determine the extent of the relevant market(s). [99]During the proceedings, we however enquired from Mediclinic how one would During the proceedings, we however enquired from Mediclinic how one would During the proceedings, we however enquired from Mediclinic how one would During the proceedings, we however enquired from Mediclinic how one would During the proceedings, we however enquired from Mediclinic how one would During the proceedings, we however enquired from Mediclinic how one would apply the SNNIP test in circumstances where Mediclinic has enforced a barrier apply the SNNIP test in circumstances where Mediclinic has enforced a barrier apply the SNNIP test in circumstances where Mediclinic has enforced a barrier apply the SNNIP test in circumstances where Mediclinic has enforced a barrier apply the SNNIP test in circumstances where Mediclinic has enforced a barrier apply the SNNIP test in circumstances where Mediclinic has enforced a barrier to entry for third party dialysis service providers at its hospitals.to entry for third party dialysis service providers at its hospitals.to entry for third party dialysis service providers at its hospitals.to entry for third party dialysis service providers at its hospitals.to entry for third party dialysis service providers at its hospitals. 6969 6868 Life’s founding affidavit, para 59.1. Life’s founding affidavit, para 59.1. Life’s founding affidavit, para 59.1. 6969 Hearing transcript, page 166. Hearing transcript, page 166. [100]Mr Blou on behalf of Mediclinic explained that the present matter concerns Mr Blou on behalf of Mediclinic explained that the present matter concerns Mr Blou on behalf of Mediclinic explained that the present matter concerns Mr Blou on behalf of Mediclinic explained that the present matter concerns Mr Blou on behalf of Mediclinic explained that the present matter concerns Mr Blou on behalf of Mediclinic explained that the present matter concerns foreclosure whereas the SNNIPP test will seek to determine whether or not foreclosure whereas the SNNIPP test will seek to determine whether or not foreclosure whereas the SNNIPP test will seek to determine whether or not foreclosure whereas the SNNIPP test will seek to determine whether or not foreclosure whereas the SNNIPP test will seek to determine whether or not foreclosure whereas the SNNIPP test will seek to determine whether or not Mediclinic has market power such that it is able to price its services Mediclinic has market power such that it is able to price its services Mediclinic has market power such that it is able to price its services Mediclinic has market power such that it is able to price its services Mediclinic has market power such that it is able to price its services Mediclinic has market power such that it is able to price its services independently of competitors.independently of competitors.independently of competitors. 7070 [101]Mr Blou submitted that if one were to apply the SNNIP test, total costs to the Mr Blou submitted that if one were to apply the SNNIP test, total costs to the Mr Blou submitted that if one were to apply the SNNIP test, total costs to the Mr Blou submitted that if one were to apply the SNNIP test, total costs to the Mr Blou submitted that if one were to apply the SNNIP test, total costs to the Mr Blou submitted that if one were to apply the SNNIP test, total costs to the patient would increase agnostic of the particular in-hospital service provided. patient would increase agnostic of the particular in-hospital service provided. patient would increase agnostic of the particular in-hospital service provided. patient would increase agnostic of the particular in-hospital service provided. patient would increase agnostic of the particular in-hospital service provided. patient would increase agnostic of the particular in-hospital service provided. This would ultimately influence Mediclinic’s ability to compete effectively in the This would ultimately influence Mediclinic’s ability to compete effectively in the This would ultimately influence Mediclinic’s ability to compete effectively in the This would ultimately influence Mediclinic’s ability to compete effectively in the This would ultimately influence Mediclinic’s ability to compete effectively in the This would ultimately influence Mediclinic’s ability to compete effectively in the multidisciplinary private hospitals market. Mr Blou further submitted that the multidisciplinary private hospitals market. Mr Blou further submitted that the multidisciplinary private hospitals market. Mr Blou further submitted that the multidisciplinary private hospitals market. Mr Blou further submitted that the multidisciplinary private hospitals market. Mr Blou further submitted that the multidisciplinary private hospitals market. Mr Blou further submitted that the ability to set prices is also affected by medical aid schemes.ability to set prices is also affected by medical aid schemes.ability to set prices is also affected by medical aid schemes.ability to set prices is also affected by medical aid schemes.ability to set prices is also affected by medical aid schemes. 7171 [102]No evidence adduced by Life or Mediclinic apart from the abovementioned No evidence adduced by Life or Mediclinic apart from the abovementioned No evidence adduced by Life or Mediclinic apart from the abovementioned No evidence adduced by Life or Mediclinic apart from the abovementioned No evidence adduced by Life or Mediclinic apart from the abovementioned No evidence adduced by Life or Mediclinic apart from the abovementioned offered further assistance in conducting a SNNIP test to determine the offered further assistance in conducting a SNNIP test to determine the offered further assistance in conducting a SNNIP test to determine the offered further assistance in conducting a SNNIP test to determine the offered further assistance in conducting a SNNIP test to determine the offered further assistance in conducting a SNNIP test to determine the appropriate market definition(s). appropriate market definition(s). appropriate market definition(s). [103]Whilst the SNNIP test primarily concerns consumer behaviour in the event of a Whilst the SNNIP test primarily concerns consumer behaviour in the event of a Whilst the SNNIP test primarily concerns consumer behaviour in the event of a Whilst the SNNIP test primarily concerns consumer behaviour in the event of a Whilst the SNNIP test primarily concerns consumer behaviour in the event of a Whilst the SNNIP test primarily concerns consumer behaviour in the event of a price increase, the European Commission has also recognised that a decrease price increase, the European Commission has also recognised that a decrease price increase, the European Commission has also recognised that a decrease price increase, the European Commission has also recognised that a decrease price increase, the European Commission has also recognised that a decrease price increase, the European Commission has also recognised that a decrease in quality may affect consumer behaviour. The European Commission’s in quality may affect consumer behaviour. The European Commission’s in quality may affect consumer behaviour. The European Commission’s in quality may affect consumer behaviour. The European Commission’s in quality may affect consumer behaviour. The European Commission’s in quality may affect consumer behaviour. The European Commission’s Notice on the definition of the relevant market for the purposes of Union competition on the definition of the relevant market for the purposes of Union competition on the definition of the relevant market for the purposes of Union competition on the definition of the relevant market for the purposes of Union competition on the definition of the relevant market for the purposes of Union competition on the definition of the relevant market for the purposes of Union competition law recognised alternatives to the SSNIP test, such as assessing the switching recognised alternatives to the SSNIP test, such as assessing the switching recognised alternatives to the SSNIP test, such as assessing the switching recognised alternatives to the SSNIP test, such as assessing the switching recognised alternatives to the SSNIP test, such as assessing the switching recognised alternatives to the SSNIP test, such as assessing the switching behaviour of customers of a zero-price product in response to a small but behaviour of customers of a zero-price product in response to a small but behaviour of customers of a zero-price product in response to a small but behaviour of customers of a zero-price product in response to a small but behaviour of customers of a zero-price product in response to a small but behaviour of customers of a zero-price product in response to a small but significant non-transitory decrease of quality (“SSNDQ”).significant non-transitory decrease of quality (“SSNDQ”).significant non-transitory decrease of quality (“SSNDQ”).significant non-transitory decrease of quality (“SSNDQ”).significant non-transitory decrease of quality (“SSNDQ”). 7272 [104]In the present instance, whilst the parties did not directly make submissions or In the present instance, whilst the parties did not directly make submissions or In the present instance, whilst the parties did not directly make submissions or In the present instance, whilst the parties did not directly make submissions or In the present instance, whilst the parties did not directly make submissions or In the present instance, whilst the parties did not directly make submissions or In the present instance, whilst the parties did not directly make submissions or adduce empirical evidence relating to the SSNDQ, they did in their written and adduce empirical evidence relating to the SSNDQ, they did in their written and adduce empirical evidence relating to the SSNDQ, they did in their written and adduce empirical evidence relating to the SSNDQ, they did in their written and adduce empirical evidence relating to the SSNDQ, they did in their written and adduce empirical evidence relating to the SSNDQ, they did in their written and oral submissions explain the effect of a decrease in quality on patients’ choices oral submissions explain the effect of a decrease in quality on patients’ choices oral submissions explain the effect of a decrease in quality on patients’ choices oral submissions explain the effect of a decrease in quality on patients’ choices oral submissions explain the effect of a decrease in quality on patients’ choices oral submissions explain the effect of a decrease in quality on patients’ choices in both the broadly and narrowly defined markets. in both the broadly and narrowly defined markets. in both the broadly and narrowly defined markets. in both the broadly and narrowly defined markets. 7070 Hearing transcript, page 167. Hearing transcript, page 167. 7171 Hearing transcripts, pages 167-168. Hearing transcripts, pages 167-168. Hearing transcripts, pages 167-168. 7272 In general, an SSNDQ is applied as a conceptual framework for a qualitative assessment of demand In general, an SSNDQ is applied as a conceptual framework for a qualitative assessment of demand In general, an SSNDQ is applied as a conceptual framework for a qualitative assessment of demand In general, an SSNDQ is applied as a conceptual framework for a qualitative assessment of demand In general, an SSNDQ is applied as a conceptual framework for a qualitative assessment of demand In general, an SSNDQ is applied as a conceptual framework for a qualitative assessment of demand In general, an SSNDQ is applied as a conceptual framework for a qualitative assessment of demand substitution. The Commission does not usually assess whether such an SSNDQ would be profitable substitution. The Commission does not usually assess whether such an SSNDQ would be profitable substitution. The Commission does not usually assess whether such an SSNDQ would be profitable substitution. The Commission does not usually assess whether such an SSNDQ would be profitable substitution. The Commission does not usually assess whether such an SSNDQ would be profitable substitution. The Commission does not usually assess whether such an SSNDQ would be profitable substitution. The Commission does not usually assess whether such an SSNDQ would be profitable for a hypothetical monopolist. Moreover, a quantitative application of the SSNDQ test is subject to for a hypothetical monopolist. Moreover, a quantitative application of the SSNDQ test is subject to for a hypothetical monopolist. Moreover, a quantitative application of the SSNDQ test is subject to for a hypothetical monopolist. Moreover, a quantitative application of the SSNDQ test is subject to for a hypothetical monopolist. Moreover, a quantitative application of the SSNDQ test is subject to for a hypothetical monopolist. Moreover, a quantitative application of the SSNDQ test is subject to for a hypothetical monopolist. Moreover, a quantitative application of the SSNDQ test is subject to several difficulties, including in relation to the quantification of quality. See The European several difficulties, including in relation to the quantification of quality. See The European several difficulties, including in relation to the quantification of quality. See The European several difficulties, including in relation to the quantification of quality. See The European several difficulties, including in relation to the quantification of quality. See The European several difficulties, including in relation to the quantification of quality. See The European several difficulties, including in relation to the quantification of quality. See The European Commission’s Notice on the definition of the relevant market for the purposes of Union competition Notice on the definition of the relevant market for the purposes of Union competition Notice on the definition of the relevant market for the purposes of Union competition Notice on the definition of the relevant market for the purposes of Union competition Notice on the definition of the relevant market for the purposes of Union competition Notice on the definition of the relevant market for the purposes of Union competition law footnote 54. [105]Mediclinic submitted that in the event that Mediclinic does not provide a high-Mediclinic submitted that in the event that Mediclinic does not provide a high-Mediclinic submitted that in the event that Mediclinic does not provide a high-Mediclinic submitted that in the event that Mediclinic does not provide a high-Mediclinic submitted that in the event that Mediclinic does not provide a high-Mediclinic submitted that in the event that Mediclinic does not provide a high-Mediclinic submitted that in the event that Mediclinic does not provide a high- quality service to patients, failure to do so would result in reputation harm and quality service to patients, failure to do so would result in reputation harm and quality service to patients, failure to do so would result in reputation harm and quality service to patients, failure to do so would result in reputation harm and quality service to patients, failure to do so would result in reputation harm and quality service to patients, failure to do so would result in reputation harm and patients would “switch” to other vertically integrated multidisciplinary hospitals patients would “switch” to other vertically integrated multidisciplinary hospitals patients would “switch” to other vertically integrated multidisciplinary hospitals patients would “switch” to other vertically integrated multidisciplinary hospitals patients would “switch” to other vertically integrated multidisciplinary hospitals patients would “switch” to other vertically integrated multidisciplinary hospitals immediately or when they are admitted next.immediately or when they are admitted next.immediately or when they are admitted next.immediately or when they are admitted next. 7373 [106]Life denies this owing to its narrow market definition which presumes that Life denies this owing to its narrow market definition which presumes that Life denies this owing to its narrow market definition which presumes that Life denies this owing to its narrow market definition which presumes that Life denies this owing to its narrow market definition which presumes that Life denies this owing to its narrow market definition which presumes that patients confined to hospital beds cannot readily switch dialysis services patients confined to hospital beds cannot readily switch dialysis services patients confined to hospital beds cannot readily switch dialysis services patients confined to hospital beds cannot readily switch dialysis services patients confined to hospital beds cannot readily switch dialysis services patients confined to hospital beds cannot readily switch dialysis services providers by relocating to another hospital.providers by relocating to another hospital.providers by relocating to another hospital.providers by relocating to another hospital. 7474 [107]Considering the inconclusiveness of the SNNIP and SSNDQ tests we now turn Considering the inconclusiveness of the SNNIP and SSNDQ tests we now turn Considering the inconclusiveness of the SNNIP and SSNDQ tests we now turn Considering the inconclusiveness of the SNNIP and SSNDQ tests we now turn Considering the inconclusiveness of the SNNIP and SSNDQ tests we now turn Considering the inconclusiveness of the SNNIP and SSNDQ tests we now turn to consider demand and supply side substitutability to determine the plausibility to consider demand and supply side substitutability to determine the plausibility to consider demand and supply side substitutability to determine the plausibility to consider demand and supply side substitutability to determine the plausibility to consider demand and supply side substitutability to determine the plausibility to consider demand and supply side substitutability to determine the plausibility of Life’s purported market definitions. of Life’s purported market definitions. of Life’s purported market definitions. Demand side substitution factors Demand side substitution factors Demand side substitution factors [108]In Life’s view, patients’ confinement to a hospital and the inability to exercise In Life’s view, patients’ confinement to a hospital and the inability to exercise In Life’s view, patients’ confinement to a hospital and the inability to exercise In Life’s view, patients’ confinement to a hospital and the inability to exercise In Life’s view, patients’ confinement to a hospital and the inability to exercise In Life’s view, patients’ confinement to a hospital and the inability to exercise choice suggests that there is no demand-side substitution. Life submitted that choice suggests that there is no demand-side substitution. Life submitted that choice suggests that there is no demand-side substitution. Life submitted that choice suggests that there is no demand-side substitution. Life submitted that choice suggests that there is no demand-side substitution. Life submitted that choice suggests that there is no demand-side substitution. Life submitted that the lack of demand-side substitution as above described is the key to the lack of demand-side substitution as above described is the key to the lack of demand-side substitution as above described is the key to the lack of demand-side substitution as above described is the key to the lack of demand-side substitution as above described is the key to the lack of demand-side substitution as above described is the key to delineating the relevant market.delineating the relevant market.delineating the relevant market. 7575 [109]In light of the above, we consider (i) classes of patients, (ii) the role of In light of the above, we consider (i) classes of patients, (ii) the role of In light of the above, we consider (i) classes of patients, (ii) the role of In light of the above, we consider (i) classes of patients, (ii) the role of In light of the above, we consider (i) classes of patients, (ii) the role of In light of the above, we consider (i) classes of patients, (ii) the role of nephrologists and (iii) bundling of hospital services as demand side substitution nephrologists and (iii) bundling of hospital services as demand side substitution nephrologists and (iii) bundling of hospital services as demand side substitution nephrologists and (iii) bundling of hospital services as demand side substitution nephrologists and (iii) bundling of hospital services as demand side substitution nephrologists and (iii) bundling of hospital services as demand side substitution factors. (a)Classes of patients Classes of patients [110]As above described, dialysis patients can broadly be classified as acute As above described, dialysis patients can broadly be classified as acute As above described, dialysis patients can broadly be classified as acute As above described, dialysis patients can broadly be classified as acute As above described, dialysis patients can broadly be classified as acute As above described, dialysis patients can broadly be classified as acute inpatients, chronic inpatients and chronic outpatients. Acute inpatients are inpatients, chronic inpatients and chronic outpatients. Acute inpatients are inpatients, chronic inpatients and chronic outpatients. Acute inpatients are inpatients, chronic inpatients and chronic outpatients. Acute inpatients are inpatients, chronic inpatients and chronic outpatients. Acute inpatients are inpatients, chronic inpatients and chronic outpatients. Acute inpatients are admitted and receive treatment as a result of catastrophic events or admitted and receive treatment as a result of catastrophic events or admitted and receive treatment as a result of catastrophic events or admitted and receive treatment as a result of catastrophic events or admitted and receive treatment as a result of catastrophic events or admitted and receive treatment as a result of catastrophic events or unexplained deterioration in health (so-called crash landers). In the first unexplained deterioration in health (so-called crash landers). In the first unexplained deterioration in health (so-called crash landers). In the first unexplained deterioration in health (so-called crash landers). In the first unexplained deterioration in health (so-called crash landers). In the first unexplained deterioration in health (so-called crash landers). In the first 7373 Mediclinic’s answering affidavit, paras 40, and 58.2. Mediclinic’s answering affidavit, paras 40, and 58.2. Mediclinic’s answering affidavit, paras 40, and 58.2. Mediclinic’s answering affidavit, paras 40, and 58.2. 7474 Life’s founding affidavit, para 80. Life’s founding affidavit, para 80. Life’s founding affidavit, para 80. 7575 Life’s heads of argument, para 46. Life’s heads of argument, para 46. Life’s heads of argument, para 46. instance we consider the classes of patients namely acute and chronic instance we consider the classes of patients namely acute and chronic instance we consider the classes of patients namely acute and chronic instance we consider the classes of patients namely acute and chronic instance we consider the classes of patients namely acute and chronic instance we consider the classes of patients namely acute and chronic inpatients who receive in-hospital dialysis services.inpatients who receive in-hospital dialysis services.inpatients who receive in-hospital dialysis services.inpatients who receive in-hospital dialysis services. [111]With respect to catastrophic events, it stands to reason that patients (especially With respect to catastrophic events, it stands to reason that patients (especially With respect to catastrophic events, it stands to reason that patients (especially With respect to catastrophic events, it stands to reason that patients (especially With respect to catastrophic events, it stands to reason that patients (especially With respect to catastrophic events, it stands to reason that patients (especially in life threatening situations) would, out of necessity, choose the nearest in life threatening situations) would, out of necessity, choose the nearest in life threatening situations) would, out of necessity, choose the nearest in life threatening situations) would, out of necessity, choose the nearest in life threatening situations) would, out of necessity, choose the nearest in life threatening situations) would, out of necessity, choose the nearest hospital to receive treatment and at least be stabilised. Patient’s choice is hospital to receive treatment and at least be stabilised. Patient’s choice is hospital to receive treatment and at least be stabilised. Patient’s choice is hospital to receive treatment and at least be stabilised. Patient’s choice is hospital to receive treatment and at least be stabilised. Patient’s choice is hospital to receive treatment and at least be stabilised. Patient’s choice is driven by urgency and proximity rather than considerations such as price, driven by urgency and proximity rather than considerations such as price, driven by urgency and proximity rather than considerations such as price, driven by urgency and proximity rather than considerations such as price, driven by urgency and proximity rather than considerations such as price, driven by urgency and proximity rather than considerations such as price, reputation or prior preference. In such circumstances, patients will, out of reputation or prior preference. In such circumstances, patients will, out of reputation or prior preference. In such circumstances, patients will, out of reputation or prior preference. In such circumstances, patients will, out of reputation or prior preference. In such circumstances, patients will, out of reputation or prior preference. In such circumstances, patients will, out of necessity, seek treatment at the nearest hospital capable of providing necessity, seek treatment at the nearest hospital capable of providing necessity, seek treatment at the nearest hospital capable of providing necessity, seek treatment at the nearest hospital capable of providing necessity, seek treatment at the nearest hospital capable of providing necessity, seek treatment at the nearest hospital capable of providing immediate stabilisation, because timely treatment as opposed to mode of immediate stabilisation, because timely treatment as opposed to mode of immediate stabilisation, because timely treatment as opposed to mode of immediate stabilisation, because timely treatment as opposed to mode of immediate stabilisation, because timely treatment as opposed to mode of immediate stabilisation, because timely treatment as opposed to mode of service delivery determines the patient’s ultimate choice.service delivery determines the patient’s ultimate choice.service delivery determines the patient’s ultimate choice.service delivery determines the patient’s ultimate choice.service delivery determines the patient’s ultimate choice. 7676 [112]From a demand-side substitution perspective, this shows that hospitals within From a demand-side substitution perspective, this shows that hospitals within From a demand-side substitution perspective, this shows that hospitals within From a demand-side substitution perspective, this shows that hospitals within From a demand-side substitution perspective, this shows that hospitals within From a demand-side substitution perspective, this shows that hospitals within a reasonable geographic radius exert competitive constraint on one another in a reasonable geographic radius exert competitive constraint on one another in a reasonable geographic radius exert competitive constraint on one another in a reasonable geographic radius exert competitive constraint on one another in a reasonable geographic radius exert competitive constraint on one another in a reasonable geographic radius exert competitive constraint on one another in respect of catastrophic events (and by implication in respect of dialysis respect of catastrophic events (and by implication in respect of dialysis respect of catastrophic events (and by implication in respect of dialysis respect of catastrophic events (and by implication in respect of dialysis respect of catastrophic events (and by implication in respect of dialysis respect of catastrophic events (and by implication in respect of dialysis services), as patients regard these facilities as interchangeable in the face of services), as patients regard these facilities as interchangeable in the face of services), as patients regard these facilities as interchangeable in the face of services), as patients regard these facilities as interchangeable in the face of services), as patients regard these facilities as interchangeable in the face of services), as patients regard these facilities as interchangeable in the face of urgency. In this instance, the relevant competitive constraint therefore arises urgency. In this instance, the relevant competitive constraint therefore arises urgency. In this instance, the relevant competitive constraint therefore arises urgency. In this instance, the relevant competitive constraint therefore arises urgency. In this instance, the relevant competitive constraint therefore arises urgency. In this instance, the relevant competitive constraint therefore arises from the availability of alternative hospitals. from the availability of alternative hospitals. from the availability of alternative hospitals. from the availability of alternative hospitals. [113]The Commission’s final findings and recommendations report in the HMI stated The Commission’s final findings and recommendations report in the HMI stated The Commission’s final findings and recommendations report in the HMI stated The Commission’s final findings and recommendations report in the HMI stated The Commission’s final findings and recommendations report in the HMI stated The Commission’s final findings and recommendations report in the HMI stated that acute private hospitals compete on the basis of specialties and sub-that acute private hospitals compete on the basis of specialties and sub-that acute private hospitals compete on the basis of specialties and sub-that acute private hospitals compete on the basis of specialties and sub-that acute private hospitals compete on the basis of specialties and sub-that acute private hospitals compete on the basis of specialties and sub- specialties. 7777 Further that “there is competition for patients at the local level”“there is competition for patients at the local level”“there is competition for patients at the local level”“there is competition for patients at the local level”. 7878 We also understand from the HMI that the HMI focused on multidisciplinary We also understand from the HMI that the HMI focused on multidisciplinary We also understand from the HMI that the HMI focused on multidisciplinary We also understand from the HMI that the HMI focused on multidisciplinary We also understand from the HMI that the HMI focused on multidisciplinary We also understand from the HMI that the HMI focused on multidisciplinary acute facilities and day facilities which provide primarily in-hospital care, since acute facilities and day facilities which provide primarily in-hospital care, since acute facilities and day facilities which provide primarily in-hospital care, since acute facilities and day facilities which provide primarily in-hospital care, since acute facilities and day facilities which provide primarily in-hospital care, since acute facilities and day facilities which provide primarily in-hospital care, since both private acute facilities and day facilities provide a range of in-hospital both private acute facilities and day facilities provide a range of in-hospital both private acute facilities and day facilities provide a range of in-hospital both private acute facilities and day facilities provide a range of in-hospital both private acute facilities and day facilities provide a range of in-hospital both private acute facilities and day facilities provide a range of in-hospital healthcare services within certain geographic areas and, therefore, compete healthcare services within certain geographic areas and, therefore, compete healthcare services within certain geographic areas and, therefore, compete healthcare services within certain geographic areas and, therefore, compete healthcare services within certain geographic areas and, therefore, compete healthcare services within certain geographic areas and, therefore, compete with one another.with one another. 7979 7676 Hearing transcripts, page 76. Hearing transcripts, page 76. 7777 Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, September 2019, page 64. September 2019, page 64. 7878 Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, September 2019, page 67.September 2019, page 67. 7979 Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, Competition Commission’s final findings and recommendations report in the Health Market Inquiry, September 2019, page 247.September 2019, page 247. [114]Life described crash landers as patients who experience “Life described crash landers as patients who experience “Life described crash landers as patients who experience “Life described crash landers as patients who experience “Life described crash landers as patients who experience “a sudden unexplained deterioration in their health and are for the first time diagnosed unexplained deterioration in their health and are for the first time diagnosed unexplained deterioration in their health and are for the first time diagnosed unexplained deterioration in their health and are for the first time diagnosed unexplained deterioration in their health and are for the first time diagnosed unexplained deterioration in their health and are for the first time diagnosed with kidney disease”.with kidney disease”. 8080 Further that a crash lander is a Further that a crash lander is a Further that a crash lander is a “patient who has not “patient who has not historically received chronic dialysis treatment is admitted, for example, to historically received chronic dialysis treatment is admitted, for example, to historically received chronic dialysis treatment is admitted, for example, to historically received chronic dialysis treatment is admitted, for example, to historically received chronic dialysis treatment is admitted, for example, to historically received chronic dialysis treatment is admitted, for example, to Mediclinic Vergelegen owing to an acute episodeMediclinic Vergelegen owing to an acute episodeMediclinic Vergelegen owing to an acute episodeMediclinic Vergelegen owing to an acute episode 8181 when it is discovered for the when it is discovered for the when it is discovered for the first time that the patient has a condition which will necessitate them obtaining first time that the patient has a condition which will necessitate them obtaining first time that the patient has a condition which will necessitate them obtaining first time that the patient has a condition which will necessitate them obtaining first time that the patient has a condition which will necessitate them obtaining first time that the patient has a condition which will necessitate them obtaining dialysis treatment for the duration of their admission but also ongoing, chronic dialysis treatment for the duration of their admission but also ongoing, chronic dialysis treatment for the duration of their admission but also ongoing, chronic dialysis treatment for the duration of their admission but also ongoing, chronic dialysis treatment for the duration of their admission but also ongoing, chronic dialysis treatment for the duration of their admission but also ongoing, chronic dialysis treatment post-discharge.”dialysis treatment post-discharge.”dialysis treatment post-discharge.” 8282 [115]To our understanding, when patients of this nature seek medical attention, they To our understanding, when patients of this nature seek medical attention, they To our understanding, when patients of this nature seek medical attention, they To our understanding, when patients of this nature seek medical attention, they To our understanding, when patients of this nature seek medical attention, they To our understanding, when patients of this nature seek medical attention, they do not at that stage know that they have kidney disease. This was explained do not at that stage know that they have kidney disease. This was explained do not at that stage know that they have kidney disease. This was explained do not at that stage know that they have kidney disease. This was explained do not at that stage know that they have kidney disease. This was explained do not at that stage know that they have kidney disease. This was explained by Mr Blou on behalf of Mediclinic during the proceedings. by Mr Blou on behalf of Mediclinic during the proceedings. by Mr Blou on behalf of Mediclinic during the proceedings. by Mr Blou on behalf of Mediclinic during the proceedings. by Mr Blou on behalf of Mediclinic during the proceedings. “MR BLOU: … But he was not even admitted for that, he was admitted for a But he was not even admitted for that, he was admitted for a But he was not even admitted for that, he was admitted for a But he was not even admitted for that, he was admitted for a But he was not even admitted for that, he was admitted for a cardiac problem because the cardiologist of his choice or the choice of his cardiac problem because the cardiologist of his choice or the choice of his cardiac problem because the cardiologist of his choice or the choice of his cardiac problem because the cardiologist of his choice or the choice of his cardiac problem because the cardiologist of his choice or the choice of his cardiac problem because the cardiologist of his choice or the choice of his GP which happens to be at that hospital, that is what dictated his choice to GP which happens to be at that hospital, that is what dictated his choice to GP which happens to be at that hospital, that is what dictated his choice to GP which happens to be at that hospital, that is what dictated his choice to GP which happens to be at that hospital, that is what dictated his choice to GP which happens to be at that hospital, that is what dictated his choice to go to Mediclinic or Life in the first place. He now happens to need - because go to Mediclinic or Life in the first place. He now happens to need - because go to Mediclinic or Life in the first place. He now happens to need - because go to Mediclinic or Life in the first place. He now happens to need - because go to Mediclinic or Life in the first place. He now happens to need - because go to Mediclinic or Life in the first place. He now happens to need - because there is a relationship between cardiac problems and kidney problems, he there is a relationship between cardiac problems and kidney problems, he there is a relationship between cardiac problems and kidney problems, he there is a relationship between cardiac problems and kidney problems, he there is a relationship between cardiac problems and kidney problems, he there is a relationship between cardiac problems and kidney problems, he now happens to need dialysis which he was not admitted for, an acute now happens to need dialysis which he was not admitted for, an acute now happens to need dialysis which he was not admitted for, an acute now happens to need dialysis which he was not admitted for, an acute now happens to need dialysis which he was not admitted for, an acute now happens to need dialysis which he was not admitted for, an acute dialysis.” [116]From the oral evidence it would appear as though crash lander patients (who From the oral evidence it would appear as though crash lander patients (who From the oral evidence it would appear as though crash lander patients (who From the oral evidence it would appear as though crash lander patients (who From the oral evidence it would appear as though crash lander patients (who From the oral evidence it would appear as though crash lander patients (who after being discharged become chronic outpatients) make a decision on which after being discharged become chronic outpatients) make a decision on which after being discharged become chronic outpatients) make a decision on which after being discharged become chronic outpatients) make a decision on which after being discharged become chronic outpatients) make a decision on which after being discharged become chronic outpatients) make a decision on which hospital or general practitioner before they know the extent of their medical hospital or general practitioner before they know the extent of their medical hospital or general practitioner before they know the extent of their medical hospital or general practitioner before they know the extent of their medical hospital or general practitioner before they know the extent of their medical hospital or general practitioner before they know the extent of their medical condition. Mr Blou on behalf of Mediclinic made this point during the hearing condition. Mr Blou on behalf of Mediclinic made this point during the hearing condition. Mr Blou on behalf of Mediclinic made this point during the hearing condition. Mr Blou on behalf of Mediclinic made this point during the hearing condition. Mr Blou on behalf of Mediclinic made this point during the hearing condition. Mr Blou on behalf of Mediclinic made this point during the hearing stating that: 8080 Life’s founding affidavit, para 38.1.2. Life’s founding affidavit, para 38.1.2. Life’s founding affidavit, para 38.1.2. 8181 In medical terms, an acute episode describes a health issue with a sudden onset, rapid progression, In medical terms, an acute episode describes a health issue with a sudden onset, rapid progression, In medical terms, an acute episode describes a health issue with a sudden onset, rapid progression, In medical terms, an acute episode describes a health issue with a sudden onset, rapid progression, In medical terms, an acute episode describes a health issue with a sudden onset, rapid progression, In medical terms, an acute episode describes a health issue with a sudden onset, rapid progression, In medical terms, an acute episode describes a health issue with a sudden onset, rapid progression, and usually a short duration, requiring prompt attention but often resolving fully with treatment, unlike and usually a short duration, requiring prompt attention but often resolving fully with treatment, unlike and usually a short duration, requiring prompt attention but often resolving fully with treatment, unlike and usually a short duration, requiring prompt attention but often resolving fully with treatment, unlike and usually a short duration, requiring prompt attention but often resolving fully with treatment, unlike and usually a short duration, requiring prompt attention but often resolving fully with treatment, unlike and usually a short duration, requiring prompt attention but often resolving fully with treatment, unlike chronic conditions which develop slowly and last long-term.chronic conditions which develop slowly and last long-term.chronic conditions which develop slowly and last long-term.chronic conditions which develop slowly and last long-term. 8282 Life’s founding affidavit, para 95.6. Life’s founding affidavit, para 95.6. Life’s founding affidavit, para 95.6. “MR BLOU: … there might be a situation where in-hospital I have to get there might be a situation where in-hospital I have to get there might be a situation where in-hospital I have to get there might be a situation where in-hospital I have to get there might be a situation where in-hospital I have to get radiology done urgently. That is not a market. That is a customer need that radiology done urgently. That is not a market. That is a customer need that radiology done urgently. That is not a market. That is a customer need that radiology done urgently. That is not a market. That is a customer need that radiology done urgently. That is not a market. That is a customer need that radiology done urgently. That is not a market. That is a customer need that arises after he has already made his choice.”arises after he has already made his choice.”arises after he has already made his choice.”arises after he has already made his choice.” 8383 [117]Life argued that acute and chronic inpatients become ‘captive’ to Mediclinic Life argued that acute and chronic inpatients become ‘captive’ to Mediclinic Life argued that acute and chronic inpatients become ‘captive’ to Mediclinic Life argued that acute and chronic inpatients become ‘captive’ to Mediclinic Life argued that acute and chronic inpatients become ‘captive’ to Mediclinic Life argued that acute and chronic inpatients become ‘captive’ to Mediclinic Renal for in-hospital dialysis treatment.Renal for in-hospital dialysis treatment.Renal for in-hospital dialysis treatment. 8484 [118]We agree that once a patient is admitted to a particular hospital the patient is We agree that once a patient is admitted to a particular hospital the patient is We agree that once a patient is admitted to a particular hospital the patient is We agree that once a patient is admitted to a particular hospital the patient is We agree that once a patient is admitted to a particular hospital the patient is We agree that once a patient is admitted to a particular hospital the patient is We agree that once a patient is admitted to a particular hospital the patient is effectively confined to a hospital bed for the duration of their admission and will effectively confined to a hospital bed for the duration of their admission and will effectively confined to a hospital bed for the duration of their admission and will effectively confined to a hospital bed for the duration of their admission and will effectively confined to a hospital bed for the duration of their admission and will effectively confined to a hospital bed for the duration of their admission and will be curtailed from exercising choice in respect of which service provider be curtailed from exercising choice in respect of which service provider be curtailed from exercising choice in respect of which service provider be curtailed from exercising choice in respect of which service provider be curtailed from exercising choice in respect of which service provider be curtailed from exercising choice in respect of which service provider administers dialysis services. However, Life’s purported market definitions administers dialysis services. However, Life’s purported market definitions administers dialysis services. However, Life’s purported market definitions administers dialysis services. However, Life’s purported market definitions administers dialysis services. However, Life’s purported market definitions administers dialysis services. However, Life’s purported market definitions ignore the pre-admission decisions made by patients in the broad market for ignore the pre-admission decisions made by patients in the broad market for ignore the pre-admission decisions made by patients in the broad market for ignore the pre-admission decisions made by patients in the broad market for ignore the pre-admission decisions made by patients in the broad market for ignore the pre-admission decisions made by patients in the broad market for the provision of acute multidisciplinary private hospital services (particularly as the provision of acute multidisciplinary private hospital services (particularly as the provision of acute multidisciplinary private hospital services (particularly as the provision of acute multidisciplinary private hospital services (particularly as the provision of acute multidisciplinary private hospital services (particularly as the provision of acute multidisciplinary private hospital services (particularly as explained in relation to acute inpatients owing to catastrophic events and crash explained in relation to acute inpatients owing to catastrophic events and crash explained in relation to acute inpatients owing to catastrophic events and crash explained in relation to acute inpatients owing to catastrophic events and crash explained in relation to acute inpatients owing to catastrophic events and crash explained in relation to acute inpatients owing to catastrophic events and crash landers). (b)Role of nephrologists and specialist physicians Role of nephrologists and specialist physicians Role of nephrologists and specialist physicians Role of nephrologists and specialist physicians [119]It is common cause that the decision as to which dialysis service provider to It is common cause that the decision as to which dialysis service provider to It is common cause that the decision as to which dialysis service provider to It is common cause that the decision as to which dialysis service provider to It is common cause that the decision as to which dialysis service provider to It is common cause that the decision as to which dialysis service provider to use is dictated by the referring nephrologist.use is dictated by the referring nephrologist.use is dictated by the referring nephrologist.use is dictated by the referring nephrologist. 8585 Life submitted that Life submitted that “the decision as to which dialysis services provider a patient is referred to typically rests with as to which dialysis services provider a patient is referred to typically rests with as to which dialysis services provider a patient is referred to typically rests with as to which dialysis services provider a patient is referred to typically rests with as to which dialysis services provider a patient is referred to typically rests with as to which dialysis services provider a patient is referred to typically rests with the relevant patient's nephrologist or specialist physician, and that referral the relevant patient's nephrologist or specialist physician, and that referral the relevant patient's nephrologist or specialist physician, and that referral the relevant patient's nephrologist or specialist physician, and that referral the relevant patient's nephrologist or specialist physician, and that referral the relevant patient's nephrologist or specialist physician, and that referral decision is primarily informed by the nephrologist or specialist physician's decision is primarily informed by the nephrologist or specialist physician's decision is primarily informed by the nephrologist or specialist physician's decision is primarily informed by the nephrologist or specialist physician's decision is primarily informed by the nephrologist or specialist physician's decision is primarily informed by the nephrologist or specialist physician's perception of the quality of care provided by particular dialysis services perception of the quality of care provided by particular dialysis services perception of the quality of care provided by particular dialysis services perception of the quality of care provided by particular dialysis services perception of the quality of care provided by particular dialysis services perception of the quality of care provided by particular dialysis services providers.” 8686 [120]It is also common cause that once a patient is discharged from a Mediclinic It is also common cause that once a patient is discharged from a Mediclinic It is also common cause that once a patient is discharged from a Mediclinic It is also common cause that once a patient is discharged from a Mediclinic It is also common cause that once a patient is discharged from a Mediclinic It is also common cause that once a patient is discharged from a Mediclinic hospital it will be referred by their nephrologist to standalone facilities (which hospital it will be referred by their nephrologist to standalone facilities (which hospital it will be referred by their nephrologist to standalone facilities (which hospital it will be referred by their nephrologist to standalone facilities (which hospital it will be referred by their nephrologist to standalone facilities (which hospital it will be referred by their nephrologist to standalone facilities (which administer dialysis to chronic outpatients) or other in-hospital chronic facilities. administer dialysis to chronic outpatients) or other in-hospital chronic facilities. administer dialysis to chronic outpatients) or other in-hospital chronic facilities. administer dialysis to chronic outpatients) or other in-hospital chronic facilities. administer dialysis to chronic outpatients) or other in-hospital chronic facilities. administer dialysis to chronic outpatients) or other in-hospital chronic facilities. administer dialysis to chronic outpatients) or other in-hospital chronic facilities. During the hearing proceedings, Mr Wesley, on behalf of Life, stated that: During the hearing proceedings, Mr Wesley, on behalf of Life, stated that: During the hearing proceedings, Mr Wesley, on behalf of Life, stated that: During the hearing proceedings, Mr Wesley, on behalf of Life, stated that: During the hearing proceedings, Mr Wesley, on behalf of Life, stated that: During the hearing proceedings, Mr Wesley, on behalf of Life, stated that: 8383 Hearing transcript, page 135. Hearing transcript, page 135. 8484 Life’s founding affidavit, paras 78, 81 and 112. Life’s founding affidavit, paras 78, 81 and 112. Life’s founding affidavit, paras 78, 81 and 112. 8585 Hearing transcripts page 150. Hearing transcripts page 150. 8686 Life’s founding affidavit, para 44. Life’s founding affidavit, para 44. Life’s founding affidavit, para 44. “MR WESLEY: … “MR WESLEY: … Ms Ndoni, what we said and I think what Mediclinic agrees Ms Ndoni, what we said and I think what Mediclinic agrees Ms Ndoni, what we said and I think what Mediclinic agrees Ms Ndoni, what we said and I think what Mediclinic agrees Ms Ndoni, what we said and I think what Mediclinic agrees is that those patients who are out-patients, they get their first treatment in the is that those patients who are out-patients, they get their first treatment in the is that those patients who are out-patients, they get their first treatment in the is that those patients who are out-patients, they get their first treatment in the is that those patients who are out-patients, they get their first treatment in the is that those patients who are out-patients, they get their first treatment in the hospital and that is done by the referring doctor. But obviously, it can only be hospital and that is done by the referring doctor. But obviously, it can only be hospital and that is done by the referring doctor. But obviously, it can only be hospital and that is done by the referring doctor. But obviously, it can only be hospital and that is done by the referring doctor. But obviously, it can only be hospital and that is done by the referring doctor. But obviously, it can only be to a provider in the hospital, because they cannot leave.”to a provider in the hospital, because they cannot leave.”to a provider in the hospital, because they cannot leave.”to a provider in the hospital, because they cannot leave.”to a provider in the hospital, because they cannot leave.” 8787 [121]According to Life, prior to Mediclinic’s decision to revoke its access to According to Life, prior to Mediclinic’s decision to revoke its access to According to Life, prior to Mediclinic’s decision to revoke its access to According to Life, prior to Mediclinic’s decision to revoke its access to According to Life, prior to Mediclinic’s decision to revoke its access to According to Life, prior to Mediclinic’s decision to revoke its access to Mediclinic’s premises, nephrologists or specialist physicians could freely refer Mediclinic’s premises, nephrologists or specialist physicians could freely refer Mediclinic’s premises, nephrologists or specialist physicians could freely refer Mediclinic’s premises, nephrologists or specialist physicians could freely refer Mediclinic’s premises, nephrologists or specialist physicians could freely refer Mediclinic’s premises, nephrologists or specialist physicians could freely refer inpatients at Mediclinic hospitals for dialysis by third-party providers, who would inpatients at Mediclinic hospitals for dialysis by third-party providers, who would inpatients at Mediclinic hospitals for dialysis by third-party providers, who would inpatients at Mediclinic hospitals for dialysis by third-party providers, who would inpatients at Mediclinic hospitals for dialysis by third-party providers, who would inpatients at Mediclinic hospitals for dialysis by third-party providers, who would administer the dialysis treatment on a mobile basis at the Mediclinic hospital in administer the dialysis treatment on a mobile basis at the Mediclinic hospital in administer the dialysis treatment on a mobile basis at the Mediclinic hospital in administer the dialysis treatment on a mobile basis at the Mediclinic hospital in administer the dialysis treatment on a mobile basis at the Mediclinic hospital in administer the dialysis treatment on a mobile basis at the Mediclinic hospital in question. 8888 [122]It appears as though nephrologists and specialist physicians are the main It appears as though nephrologists and specialist physicians are the main It appears as though nephrologists and specialist physicians are the main It appears as though nephrologists and specialist physicians are the main It appears as though nephrologists and specialist physicians are the main It appears as though nephrologists and specialist physicians are the main channel through which demand side substitutability operates, given that the channel through which demand side substitutability operates, given that the channel through which demand side substitutability operates, given that the channel through which demand side substitutability operates, given that the channel through which demand side substitutability operates, given that the channel through which demand side substitutability operates, given that the decision regarding which hospital a patient is admitted at is largely based on decision regarding which hospital a patient is admitted at is largely based on decision regarding which hospital a patient is admitted at is largely based on decision regarding which hospital a patient is admitted at is largely based on decision regarding which hospital a patient is admitted at is largely based on decision regarding which hospital a patient is admitted at is largely based on the nephrologist or specialist physician’s discretion.the nephrologist or specialist physician’s discretion.the nephrologist or specialist physician’s discretion.the nephrologist or specialist physician’s discretion. 8989 [123]Other factors which may affect nephrologist / specialist physician’s choice of Other factors which may affect nephrologist / specialist physician’s choice of Other factors which may affect nephrologist / specialist physician’s choice of Other factors which may affect nephrologist / specialist physician’s choice of Other factors which may affect nephrologist / specialist physician’s choice of Other factors which may affect nephrologist / specialist physician’s choice of services providers when referring patients are briefly set out below. services providers when referring patients are briefly set out below. services providers when referring patients are briefly set out below. services providers when referring patients are briefly set out below. services providers when referring patients are briefly set out below. 123.1 Perverse incentives:Perverse incentives: Mediclinic alleged that Fresenius (prior to the Mediclinic alleged that Fresenius (prior to the Mediclinic alleged that Fresenius (prior to the Mediclinic alleged that Fresenius (prior to the Life-Fresenius MergerLife-Fresenius Merger) adopted a practise where nephrologists are ) adopted a practise where nephrologists are ) adopted a practise where nephrologists are ) adopted a practise where nephrologists are incentivised for referring patients to certain service providers.incentivised for referring patients to certain service providers.incentivised for referring patients to certain service providers.incentivised for referring patients to certain service providers.incentivised for referring patients to certain service providers. 9090 Mediclinic submitted that such perverse incentives are prohibited in Mediclinic submitted that such perverse incentives are prohibited in Mediclinic submitted that such perverse incentives are prohibited in Mediclinic submitted that such perverse incentives are prohibited in Mediclinic submitted that such perverse incentives are prohibited in Mediclinic submitted that such perverse incentives are prohibited in terms of the Ethical and Professional Rules of the Health Professions terms of the Ethical and Professional Rules of the Health Professions terms of the Ethical and Professional Rules of the Health Professions terms of the Ethical and Professional Rules of the Health Professions terms of the Ethical and Professional Rules of the Health Professions terms of the Ethical and Professional Rules of the Health Professions Council of South Africa (“HPCSA”) as these incentives may threaten Council of South Africa (“HPCSA”) as these incentives may threaten Council of South Africa (“HPCSA”) as these incentives may threaten Council of South Africa (“HPCSA”) as these incentives may threaten Council of South Africa (“HPCSA”) as these incentives may threaten Council of South Africa (“HPCSA”) as these incentives may threaten the independence of the practitioner. Mediclinic alleges that these the independence of the practitioner. Mediclinic alleges that these the independence of the practitioner. Mediclinic alleges that these the independence of the practitioner. Mediclinic alleges that these the independence of the practitioner. Mediclinic alleges that these perverse incentives would inhibit independent service providers perverse incentives would inhibit independent service providers perverse incentives would inhibit independent service providers perverse incentives would inhibit independent service providers perverse incentives would inhibit independent service providers perverse incentives would inhibit independent service providers ability to compete with Life in Mediclinic hospitals.ability to compete with Life in Mediclinic hospitals.ability to compete with Life in Mediclinic hospitals.ability to compete with Life in Mediclinic hospitals. 9191 Life denies these Life denies these 8787 Hearing transcripts, page 25. Hearing transcripts, page 25. 8888 Life’s founding affidavit, para 11. Life’s founding affidavit, para 11. Life’s founding affidavit, para 11. 8989 Life’s replying affidavit, para 9.3.4. Life’s replying affidavit, para 9.3.4. Life’s replying affidavit, para 9.3.4. 9090 Mediclinic alleges that it does not believe that this practice has stopped since Fresenius was acquired Mediclinic alleges that it does not believe that this practice has stopped since Fresenius was acquired Mediclinic alleges that it does not believe that this practice has stopped since Fresenius was acquired Mediclinic alleges that it does not believe that this practice has stopped since Fresenius was acquired Mediclinic alleges that it does not believe that this practice has stopped since Fresenius was acquired Mediclinic alleges that it does not believe that this practice has stopped since Fresenius was acquired Mediclinic alleges that it does not believe that this practice has stopped since Fresenius was acquired by Life. Mediclinic’s answering affidavit, para 88. by Life. Mediclinic’s answering affidavit, para 88. by Life. Mediclinic’s answering affidavit, para 88. by Life. Mediclinic’s answering affidavit, para 88. 9191 Mediclinic answering affidavit, para 88. Mediclinic answering affidavit, para 88. Mediclinic answering affidavit, para 88. claims and state that payment to nephrologists are remuneration for claims and state that payment to nephrologists are remuneration for claims and state that payment to nephrologists are remuneration for claims and state that payment to nephrologists are remuneration for claims and state that payment to nephrologists are remuneration for claims and state that payment to nephrologists are remuneration for legitimate work undertaken.legitimate work undertaken.legitimate work undertaken. 9292 123.2 Admission rights:Admission rights: Life also submitted that Life also submitted that “in circumstances where a “in circumstances where a nephrologist or physician operating from a Mediclinic hospital wishes nephrologist or physician operating from a Mediclinic hospital wishes nephrologist or physician operating from a Mediclinic hospital wishes nephrologist or physician operating from a Mediclinic hospital wishes nephrologist or physician operating from a Mediclinic hospital wishes nephrologist or physician operating from a Mediclinic hospital wishes to refer an acutely ill patient to receive in-hospital dialysis from a Life to refer an acutely ill patient to receive in-hospital dialysis from a Life to refer an acutely ill patient to receive in-hospital dialysis from a Life to refer an acutely ill patient to receive in-hospital dialysis from a Life to refer an acutely ill patient to receive in-hospital dialysis from a Life to refer an acutely ill patient to receive in-hospital dialysis from a Life Renal Dialysis Mobile Unit but as a result of the Respondents' Renal Dialysis Mobile Unit but as a result of the Respondents' Renal Dialysis Mobile Unit but as a result of the Respondents' Renal Dialysis Mobile Unit but as a result of the Respondents' Renal Dialysis Mobile Unit but as a result of the Respondents' Renal Dialysis Mobile Unit but as a result of the Respondents' foreclosure strategy is unable to do so, that nephrologist or physician foreclosure strategy is unable to do so, that nephrologist or physician foreclosure strategy is unable to do so, that nephrologist or physician foreclosure strategy is unable to do so, that nephrologist or physician foreclosure strategy is unable to do so, that nephrologist or physician foreclosure strategy is unable to do so, that nephrologist or physician cannot simply have the relevant patient admitted at another cannot simply have the relevant patient admitted at another cannot simply have the relevant patient admitted at another cannot simply have the relevant patient admitted at another cannot simply have the relevant patient admitted at another cannot simply have the relevant patient admitted at another multidisciplinary hospital for treatment. This is because doctors multidisciplinary hospital for treatment. This is because doctors multidisciplinary hospital for treatment. This is because doctors multidisciplinary hospital for treatment. This is because doctors multidisciplinary hospital for treatment. This is because doctors multidisciplinary hospital for treatment. This is because doctors require admission rights to have patients admitted at particular require admission rights to have patients admitted at particular require admission rights to have patients admitted at particular require admission rights to have patients admitted at particular require admission rights to have patients admitted at particular require admission rights to have patients admitted at particular hospitals, and doctors very seldom have admission rights at hospitals, and doctors very seldom have admission rights at hospitals, and doctors very seldom have admission rights at hospitals, and doctors very seldom have admission rights at hospitals, and doctors very seldom have admission rights at hospitals, and doctors very seldom have admission rights at numerous hospitals.”numerous hospitals.” 9393 This is not disputed by Mediclinic.This is not disputed by Mediclinic.This is not disputed by Mediclinic. 9494 [124]We do not pronounce on the impact of the alleged perverse incentives on We do not pronounce on the impact of the alleged perverse incentives on We do not pronounce on the impact of the alleged perverse incentives on We do not pronounce on the impact of the alleged perverse incentives on We do not pronounce on the impact of the alleged perverse incentives on We do not pronounce on the impact of the alleged perverse incentives on nephrologists’ ability to influence demand side substitution as this falls outside nephrologists’ ability to influence demand side substitution as this falls outside nephrologists’ ability to influence demand side substitution as this falls outside nephrologists’ ability to influence demand side substitution as this falls outside nephrologists’ ability to influence demand side substitution as this falls outside nephrologists’ ability to influence demand side substitution as this falls outside the ambit of our scope. We further note that the submissions regarding the ambit of our scope. We further note that the submissions regarding the ambit of our scope. We further note that the submissions regarding the ambit of our scope. We further note that the submissions regarding the ambit of our scope. We further note that the submissions regarding the ambit of our scope. We further note that the submissions regarding admission rights were not pursued during oral argument and no further admission rights were not pursued during oral argument and no further admission rights were not pursued during oral argument and no further admission rights were not pursued during oral argument and no further admission rights were not pursued during oral argument and no further admission rights were not pursued during oral argument and no further submissions on the effect of admission rights on the nephrologists’ choice of submissions on the effect of admission rights on the nephrologists’ choice of submissions on the effect of admission rights on the nephrologists’ choice of submissions on the effect of admission rights on the nephrologists’ choice of submissions on the effect of admission rights on the nephrologists’ choice of submissions on the effect of admission rights on the nephrologists’ choice of service providers was put before us.service providers was put before us.service providers was put before us. [125]Based on the evidence before us, we are unable to determine whether the Based on the evidence before us, we are unable to determine whether the Based on the evidence before us, we are unable to determine whether the Based on the evidence before us, we are unable to determine whether the Based on the evidence before us, we are unable to determine whether the Based on the evidence before us, we are unable to determine whether the discretion exercised by nephrologists or specialist physicians in referring discretion exercised by nephrologists or specialist physicians in referring discretion exercised by nephrologists or specialist physicians in referring discretion exercised by nephrologists or specialist physicians in referring discretion exercised by nephrologists or specialist physicians in referring discretion exercised by nephrologists or specialist physicians in referring patients to dialysis service providers enhances or constrains demand-side patients to dialysis service providers enhances or constrains demand-side patients to dialysis service providers enhances or constrains demand-side patients to dialysis service providers enhances or constrains demand-side patients to dialysis service providers enhances or constrains demand-side patients to dialysis service providers enhances or constrains demand-side substitution. (c)Bundling of hospital services Bundling of hospital services Bundling of hospital services [126]Mediclinic primarily argued that patients choose hospitals based on an Mediclinic primarily argued that patients choose hospitals based on an Mediclinic primarily argued that patients choose hospitals based on an Mediclinic primarily argued that patients choose hospitals based on an Mediclinic primarily argued that patients choose hospitals based on an Mediclinic primarily argued that patients choose hospitals based on an integrated bundle of services (including dialysis) and that competition occurs integrated bundle of services (including dialysis) and that competition occurs integrated bundle of services (including dialysis) and that competition occurs integrated bundle of services (including dialysis) and that competition occurs integrated bundle of services (including dialysis) and that competition occurs integrated bundle of services (including dialysis) and that competition occurs 9292 Life’s replying affidavit, para 9.3.15. Life’s replying affidavit, para 9.3.15. Life’s replying affidavit, para 9.3.15. 9393 Life’s founding affidavit, para 96.8. Life’s founding affidavit, para 96.8. Life’s founding affidavit, para 96.8. 9494 Mediclinic’s answering affidavit, paras 164-166. Mediclinic’s answering affidavit, paras 164-166. Mediclinic’s answering affidavit, paras 164-166. Mediclinic’s answering affidavit, paras 164-166. between these bundles.between these bundles. 9595 Life however argued that there is a separate, Life however argued that there is a separate, Life however argued that there is a separate, Life however argued that there is a separate, hospital-specific, relevant market for in-hospital dialysis services. hospital-specific, relevant market for in-hospital dialysis services. hospital-specific, relevant market for in-hospital dialysis services. hospital-specific, relevant market for in-hospital dialysis services. hospital-specific, relevant market for in-hospital dialysis services. [127]According to Life, patients do not typically consider quality, choice and/or cost According to Life, patients do not typically consider quality, choice and/or cost According to Life, patients do not typically consider quality, choice and/or cost According to Life, patients do not typically consider quality, choice and/or cost According to Life, patients do not typically consider quality, choice and/or cost According to Life, patients do not typically consider quality, choice and/or cost of dialysis services when choosing a hospital (and as such, the upfront of dialysis services when choosing a hospital (and as such, the upfront of dialysis services when choosing a hospital (and as such, the upfront of dialysis services when choosing a hospital (and as such, the upfront of dialysis services when choosing a hospital (and as such, the upfront of dialysis services when choosing a hospital (and as such, the upfront competitive constraints at the hospital-level do not translate into constraints at competitive constraints at the hospital-level do not translate into constraints at competitive constraints at the hospital-level do not translate into constraints at competitive constraints at the hospital-level do not translate into constraints at competitive constraints at the hospital-level do not translate into constraints at competitive constraints at the hospital-level do not translate into constraints at the dialysis services-level), and second that, once they have been admitted to the dialysis services-level), and second that, once they have been admitted to the dialysis services-level), and second that, once they have been admitted to the dialysis services-level), and second that, once they have been admitted to the dialysis services-level), and second that, once they have been admitted to the dialysis services-level), and second that, once they have been admitted to a given hospital, patients are ‘locked in’ to the services available at that a given hospital, patients are ‘locked in’ to the services available at that a given hospital, patients are ‘locked in’ to the services available at that a given hospital, patients are ‘locked in’ to the services available at that a given hospital, patients are ‘locked in’ to the services available at that a given hospital, patients are ‘locked in’ to the services available at that hospital. 9696 [128]In our view, although patients may be locked into a hospital once admitted and In our view, although patients may be locked into a hospital once admitted and In our view, although patients may be locked into a hospital once admitted and In our view, although patients may be locked into a hospital once admitted and In our view, although patients may be locked into a hospital once admitted and In our view, although patients may be locked into a hospital once admitted and do not typically select hospitals based on dialysis services alone, it is plausible do not typically select hospitals based on dialysis services alone, it is plausible do not typically select hospitals based on dialysis services alone, it is plausible do not typically select hospitals based on dialysis services alone, it is plausible do not typically select hospitals based on dialysis services alone, it is plausible do not typically select hospitals based on dialysis services alone, it is plausible that inpatient dialysis is an inseparable component of a broader suite of acute that inpatient dialysis is an inseparable component of a broader suite of acute that inpatient dialysis is an inseparable component of a broader suite of acute that inpatient dialysis is an inseparable component of a broader suite of acute that inpatient dialysis is an inseparable component of a broader suite of acute that inpatient dialysis is an inseparable component of a broader suite of acute hospital services. This is especially true in respect of acute inpatients who do hospital services. This is especially true in respect of acute inpatients who do hospital services. This is especially true in respect of acute inpatients who do hospital services. This is especially true in respect of acute inpatients who do hospital services. This is especially true in respect of acute inpatients who do hospital services. This is especially true in respect of acute inpatients who do not know that they have kidney disease upon admission. These patients seek not know that they have kidney disease upon admission. These patients seek not know that they have kidney disease upon admission. These patients seek not know that they have kidney disease upon admission. These patients seek not know that they have kidney disease upon admission. These patients seek not know that they have kidney disease upon admission. These patients seek medical treatment for illness and injury often not even knowing the type of medical treatment for illness and injury often not even knowing the type of medical treatment for illness and injury often not even knowing the type of medical treatment for illness and injury often not even knowing the type of medical treatment for illness and injury often not even knowing the type of medical treatment for illness and injury often not even knowing the type of hospital service they will eventually need. hospital service they will eventually need. hospital service they will eventually need. hospital service they will eventually need. [129]It stands to reason that the patient’s choice is based on the overall general suite It stands to reason that the patient’s choice is based on the overall general suite It stands to reason that the patient’s choice is based on the overall general suite It stands to reason that the patient’s choice is based on the overall general suite It stands to reason that the patient’s choice is based on the overall general suite It stands to reason that the patient’s choice is based on the overall general suite of services offered by an acute multidisciplinary hospital. Once a patient is of services offered by an acute multidisciplinary hospital. Once a patient is of services offered by an acute multidisciplinary hospital. Once a patient is of services offered by an acute multidisciplinary hospital. Once a patient is of services offered by an acute multidisciplinary hospital. Once a patient is of services offered by an acute multidisciplinary hospital. Once a patient is discharged and requires dialysis as a chronic outpatient, the patient will then discharged and requires dialysis as a chronic outpatient, the patient will then discharged and requires dialysis as a chronic outpatient, the patient will then discharged and requires dialysis as a chronic outpatient, the patient will then discharged and requires dialysis as a chronic outpatient, the patient will then discharged and requires dialysis as a chronic outpatient, the patient will then be able to exercise choice with respect to a dialysis service provider as this can be able to exercise choice with respect to a dialysis service provider as this can be able to exercise choice with respect to a dialysis service provider as this can be able to exercise choice with respect to a dialysis service provider as this can be able to exercise choice with respect to a dialysis service provider as this can be able to exercise choice with respect to a dialysis service provider as this can be done at standalone clinics or in-hospital units.be done at standalone clinics or in-hospital units.be done at standalone clinics or in-hospital units.be done at standalone clinics or in-hospital units. 9797 [130]Life also does not adduce evidence on patients’ choice in circumstances where Life also does not adduce evidence on patients’ choice in circumstances where Life also does not adduce evidence on patients’ choice in circumstances where Life also does not adduce evidence on patients’ choice in circumstances where Life also does not adduce evidence on patients’ choice in circumstances where Life also does not adduce evidence on patients’ choice in circumstances where multiple hospital services are required simultaneously. We can safely assume multiple hospital services are required simultaneously. We can safely assume multiple hospital services are required simultaneously. We can safely assume multiple hospital services are required simultaneously. We can safely assume multiple hospital services are required simultaneously. We can safely assume multiple hospital services are required simultaneously. We can safely assume that there may be instances where acute inpatients receive a range of services that there may be instances where acute inpatients receive a range of services that there may be instances where acute inpatients receive a range of services that there may be instances where acute inpatients receive a range of services that there may be instances where acute inpatients receive a range of services that there may be instances where acute inpatients receive a range of services which could include for example, amongst others, dialysis, orthopaedic care, which could include for example, amongst others, dialysis, orthopaedic care, which could include for example, amongst others, dialysis, orthopaedic care, which could include for example, amongst others, dialysis, orthopaedic care, which could include for example, amongst others, dialysis, orthopaedic care, which could include for example, amongst others, dialysis, orthopaedic care, and oncology services as part of a single instance of being treated upon and oncology services as part of a single instance of being treated upon and oncology services as part of a single instance of being treated upon and oncology services as part of a single instance of being treated upon and oncology services as part of a single instance of being treated upon and oncology services as part of a single instance of being treated upon 9595 Described as a “system market” which is a unified market for the primary product and the secondary Described as a “system market” which is a unified market for the primary product and the secondary Described as a “system market” which is a unified market for the primary product and the secondary Described as a “system market” which is a unified market for the primary product and the secondary Described as a “system market” which is a unified market for the primary product and the secondary Described as a “system market” which is a unified market for the primary product and the secondary Described as a “system market” which is a unified market for the primary product and the secondary product (i.e., a market for razor heads and replacement heads). OFT Guidance on Market Definition product (i.e., a market for razor heads and replacement heads). OFT Guidance on Market Definition product (i.e., a market for razor heads and replacement heads). OFT Guidance on Market Definition product (i.e., a market for razor heads and replacement heads). OFT Guidance on Market Definition product (i.e., a market for razor heads and replacement heads). OFT Guidance on Market Definition product (i.e., a market for razor heads and replacement heads). OFT Guidance on Market Definition product (i.e., a market for razor heads and replacement heads). OFT Guidance on Market Definition (2004), p. 21, para 6.1. Also see Mediclinic’s answering affidavit, para 40. (2004), p. 21, para 6.1. Also see Mediclinic’s answering affidavit, para 40. (2004), p. 21, para 6.1. Also see Mediclinic’s answering affidavit, para 40. (2004), p. 21, para 6.1. Also see Mediclinic’s answering affidavit, para 40. (2004), p. 21, para 6.1. Also see Mediclinic’s answering affidavit, para 40. 9696 Life’s replying affidavit, para 18. Life’s replying affidavit, para 18. Life’s replying affidavit, para 18. 9797 Hearing transcripts, page 26. Hearing transcripts, page 26. admission. Would the implication be that the patient is locked in with respect to admission. Would the implication be that the patient is locked in with respect to admission. Would the implication be that the patient is locked in with respect to admission. Would the implication be that the patient is locked in with respect to admission. Would the implication be that the patient is locked in with respect to admission. Would the implication be that the patient is locked in with respect to each of these distinct hospital services?each of these distinct hospital services?each of these distinct hospital services? [131]In our view, it is more plausible that competitive constraints operate at the level In our view, it is more plausible that competitive constraints operate at the level In our view, it is more plausible that competitive constraints operate at the level In our view, it is more plausible that competitive constraints operate at the level In our view, it is more plausible that competitive constraints operate at the level In our view, it is more plausible that competitive constraints operate at the level of the hospital bundle rather than at the level of distinct individual hospital of the hospital bundle rather than at the level of distinct individual hospital of the hospital bundle rather than at the level of distinct individual hospital of the hospital bundle rather than at the level of distinct individual hospital of the hospital bundle rather than at the level of distinct individual hospital of the hospital bundle rather than at the level of distinct individual hospital services. Mr Blou on behalf of Mediclinic captures this stating that: services. Mr Blou on behalf of Mediclinic captures this stating that: services. Mr Blou on behalf of Mediclinic captures this stating that: services. Mr Blou on behalf of Mediclinic captures this stating that: services. Mr Blou on behalf of Mediclinic captures this stating that: “MR BLOU: … But the choice that is made here is not tested by the patient But the choice that is made here is not tested by the patient But the choice that is made here is not tested by the patient But the choice that is made here is not tested by the patient But the choice that is made here is not tested by the patient on his bed as to which he would like a range of nephrology services from on his bed as to which he would like a range of nephrology services from on his bed as to which he would like a range of nephrology services from on his bed as to which he would like a range of nephrology services from on his bed as to which he would like a range of nephrology services from on his bed as to which he would like a range of nephrology services from which to choose and which X-ray definition. He has gone to a hospital that if which to choose and which X-ray definition. He has gone to a hospital that if which to choose and which X-ray definition. He has gone to a hospital that if which to choose and which X-ray definition. He has gone to a hospital that if which to choose and which X-ray definition. He has gone to a hospital that if which to choose and which X-ray definition. He has gone to a hospital that if an eventuality arises, that hospital will be able to treat all of his ills.an eventuality arises, that hospital will be able to treat all of his ills.an eventuality arises, that hospital will be able to treat all of his ills.an eventuality arises, that hospital will be able to treat all of his ills.an eventuality arises, that hospital will be able to treat all of his ills.an eventuality arises, that hospital will be able to treat all of his ills.” 9898 [132]Accepting a hospital-specific market for in-hospital services on the basis of a Accepting a hospital-specific market for in-hospital services on the basis of a Accepting a hospital-specific market for in-hospital services on the basis of a Accepting a hospital-specific market for in-hospital services on the basis of a Accepting a hospital-specific market for in-hospital services on the basis of a Accepting a hospital-specific market for in-hospital services on the basis of a patient being locked in would assume the existence of separate hospital-patient being locked in would assume the existence of separate hospital-patient being locked in would assume the existence of separate hospital-patient being locked in would assume the existence of separate hospital-patient being locked in would assume the existence of separate hospital-patient being locked in would assume the existence of separate hospital- specific monopolies for each inpatient service. specific monopolies for each inpatient service. specific monopolies for each inpatient service. specific monopolies for each inpatient service. Conclusion on demand-side substitutability Conclusion on demand-side substitutability Conclusion on demand-side substitutability Conclusion on demand-side substitutability [133]Based on the above, we are of the view that acute inpatients are able to Based on the above, we are of the view that acute inpatients are able to Based on the above, we are of the view that acute inpatients are able to Based on the above, we are of the view that acute inpatients are able to Based on the above, we are of the view that acute inpatients are able to Based on the above, we are of the view that acute inpatients are able to exercise choice and choose between alternative acute multidisciplinary exercise choice and choose between alternative acute multidisciplinary exercise choice and choose between alternative acute multidisciplinary exercise choice and choose between alternative acute multidisciplinary exercise choice and choose between alternative acute multidisciplinary exercise choice and choose between alternative acute multidisciplinary hospitals in response to changes in factors such as price and quality before hospitals in response to changes in factors such as price and quality before hospitals in response to changes in factors such as price and quality before hospitals in response to changes in factors such as price and quality before hospitals in response to changes in factors such as price and quality before hospitals in response to changes in factors such as price and quality before their admission to a hospital. their admission to a hospital. their admission to a hospital. [134]We find Mediclinic’s purported broader market definition more plausible as We find Mediclinic’s purported broader market definition more plausible as We find Mediclinic’s purported broader market definition more plausible as We find Mediclinic’s purported broader market definition more plausible as We find Mediclinic’s purported broader market definition more plausible as We find Mediclinic’s purported broader market definition more plausible as patients are able to exercise choice before admission based on a general suite patients are able to exercise choice before admission based on a general suite patients are able to exercise choice before admission based on a general suite patients are able to exercise choice before admission based on a general suite patients are able to exercise choice before admission based on a general suite patients are able to exercise choice before admission based on a general suite of hospital services offered in instances where they are not certain of the extent of hospital services offered in instances where they are not certain of the extent of hospital services offered in instances where they are not certain of the extent of hospital services offered in instances where they are not certain of the extent of hospital services offered in instances where they are not certain of the extent of hospital services offered in instances where they are not certain of the extent of their medical condition. The above supports defining the relevant market of their medical condition. The above supports defining the relevant market of their medical condition. The above supports defining the relevant market of their medical condition. The above supports defining the relevant market of their medical condition. The above supports defining the relevant market of their medical condition. The above supports defining the relevant market more broadly. more broadly. 9898 Hearing transcript, page 86. Hearing transcript, page 86. Supply side substitutability Supply side substitutability Supply side substitutability [135]Supply side substitution in the present instance is uncontentious. It is common Supply side substitution in the present instance is uncontentious. It is common Supply side substitution in the present instance is uncontentious. It is common Supply side substitution in the present instance is uncontentious. It is common Supply side substitution in the present instance is uncontentious. It is common Supply side substitution in the present instance is uncontentious. It is common cause that dialysis can be administered to patients admitted to a cause that dialysis can be administered to patients admitted to a cause that dialysis can be administered to patients admitted to a cause that dialysis can be administered to patients admitted to a cause that dialysis can be administered to patients admitted to a cause that dialysis can be administered to patients admitted to a multidisciplinary hospital by an in-hospital unit that is located within the relevant multidisciplinary hospital by an in-hospital unit that is located within the relevant multidisciplinary hospital by an in-hospital unit that is located within the relevant multidisciplinary hospital by an in-hospital unit that is located within the relevant multidisciplinary hospital by an in-hospital unit that is located within the relevant multidisciplinary hospital by an in-hospital unit that is located within the relevant hospital, or by a mobile unit that is capable of providing renal services at the hospital, or by a mobile unit that is capable of providing renal services at the hospital, or by a mobile unit that is capable of providing renal services at the hospital, or by a mobile unit that is capable of providing renal services at the hospital, or by a mobile unit that is capable of providing renal services at the hospital, or by a mobile unit that is capable of providing renal services at the relevant hospital in a short period of time.relevant hospital in a short period of time.relevant hospital in a short period of time.relevant hospital in a short period of time. 9999 There are further no technical There are further no technical There are further no technical barriers preventing mobile units from providing dialysis services within their barriers preventing mobile units from providing dialysis services within their barriers preventing mobile units from providing dialysis services within their barriers preventing mobile units from providing dialysis services within their barriers preventing mobile units from providing dialysis services within their barriers preventing mobile units from providing dialysis services within their barriers preventing mobile units from providing dialysis services within their operating areas because there is no material differences in processes, staff operating areas because there is no material differences in processes, staff operating areas because there is no material differences in processes, staff operating areas because there is no material differences in processes, staff operating areas because there is no material differences in processes, staff operating areas because there is no material differences in processes, staff and equipment used to administer in-hospital dialysis to acute and chronic and equipment used to administer in-hospital dialysis to acute and chronic and equipment used to administer in-hospital dialysis to acute and chronic and equipment used to administer in-hospital dialysis to acute and chronic and equipment used to administer in-hospital dialysis to acute and chronic and equipment used to administer in-hospital dialysis to acute and chronic inpatients, or to administer in-hospital dialysis treatments in different inpatients, or to administer in-hospital dialysis treatments in different inpatients, or to administer in-hospital dialysis treatments in different inpatients, or to administer in-hospital dialysis treatments in different inpatients, or to administer in-hospital dialysis treatments in different inpatients, or to administer in-hospital dialysis treatments in different multidisciplinary hospitals.multidisciplinary hospitals.multidisciplinary hospitals. 100 [136]Even in instances where a mobile unit does not presently operate within a given Even in instances where a mobile unit does not presently operate within a given Even in instances where a mobile unit does not presently operate within a given Even in instances where a mobile unit does not presently operate within a given Even in instances where a mobile unit does not presently operate within a given Even in instances where a mobile unit does not presently operate within a given multidisciplinary hospital, they can quickly, and without incurring significant multidisciplinary hospital, they can quickly, and without incurring significant multidisciplinary hospital, they can quickly, and without incurring significant multidisciplinary hospital, they can quickly, and without incurring significant multidisciplinary hospital, they can quickly, and without incurring significant multidisciplinary hospital, they can quickly, and without incurring significant multidisciplinary hospital, they can quickly, and without incurring significant cost, begin administering treatment to inpatients within that particular cost, begin administering treatment to inpatients within that particular cost, begin administering treatment to inpatients within that particular cost, begin administering treatment to inpatients within that particular cost, begin administering treatment to inpatients within that particular cost, begin administering treatment to inpatients within that particular multidisciplinary hospital.multidisciplinary hospital. [137]Lastly, an external dialysis services provider that administers treatment in a Lastly, an external dialysis services provider that administers treatment in a Lastly, an external dialysis services provider that administers treatment in a Lastly, an external dialysis services provider that administers treatment in a Lastly, an external dialysis services provider that administers treatment in a Lastly, an external dialysis services provider that administers treatment in a standalone clinic (to chronic outpatients) can also readily reallocate existing standalone clinic (to chronic outpatients) can also readily reallocate existing standalone clinic (to chronic outpatients) can also readily reallocate existing standalone clinic (to chronic outpatients) can also readily reallocate existing standalone clinic (to chronic outpatients) can also readily reallocate existing standalone clinic (to chronic outpatients) can also readily reallocate existing capacity to provide in-hospital, mobile dialysis services via Mobile Unit without capacity to provide in-hospital, mobile dialysis services via Mobile Unit without capacity to provide in-hospital, mobile dialysis services via Mobile Unit without capacity to provide in-hospital, mobile dialysis services via Mobile Unit without capacity to provide in-hospital, mobile dialysis services via Mobile Unit without capacity to provide in-hospital, mobile dialysis services via Mobile Unit without incurring significant additional costs; any such additional costs would be incurring significant additional costs; any such additional costs would be incurring significant additional costs; any such additional costs would be incurring significant additional costs; any such additional costs would be incurring significant additional costs; any such additional costs would be incurring significant additional costs; any such additional costs would be primarily limited to the purchase of a portable reverse-osmosis water primarily limited to the purchase of a portable reverse-osmosis water primarily limited to the purchase of a portable reverse-osmosis water primarily limited to the purchase of a portable reverse-osmosis water primarily limited to the purchase of a portable reverse-osmosis water primarily limited to the purchase of a portable reverse-osmosis water purification machine, and the purchase or lease of a vehicle to transport staff purification machine, and the purchase or lease of a vehicle to transport staff purification machine, and the purchase or lease of a vehicle to transport staff purification machine, and the purchase or lease of a vehicle to transport staff purification machine, and the purchase or lease of a vehicle to transport staff purification machine, and the purchase or lease of a vehicle to transport staff and equipment.and equipment. 101 [138]We also understand from the oral submissions by Life that outpatient facilities We also understand from the oral submissions by Life that outpatient facilities We also understand from the oral submissions by Life that outpatient facilities We also understand from the oral submissions by Life that outpatient facilities We also understand from the oral submissions by Life that outpatient facilities We also understand from the oral submissions by Life that outpatient facilities could be located close to acute multidisciplinary hospitals. Mr Wesley on behalf could be located close to acute multidisciplinary hospitals. Mr Wesley on behalf could be located close to acute multidisciplinary hospitals. Mr Wesley on behalf could be located close to acute multidisciplinary hospitals. Mr Wesley on behalf could be located close to acute multidisciplinary hospitals. Mr Wesley on behalf could be located close to acute multidisciplinary hospitals. Mr Wesley on behalf of Life submitted that Mediclinic has an outpatient facility, Rochester Place, of Life submitted that Mediclinic has an outpatient facility, Rochester Place, of Life submitted that Mediclinic has an outpatient facility, Rochester Place, of Life submitted that Mediclinic has an outpatient facility, Rochester Place, of Life submitted that Mediclinic has an outpatient facility, Rochester Place, of Life submitted that Mediclinic has an outpatient facility, Rochester Place, which is located 350 m away from the Mediclinic Morningside hospital.which is located 350 m away from the Mediclinic Morningside hospital.which is located 350 m away from the Mediclinic Morningside hospital.which is located 350 m away from the Mediclinic Morningside hospital.which is located 350 m away from the Mediclinic Morningside hospital.which is located 350 m away from the Mediclinic Morningside hospital. 102 9999 Life’s founding affidavit, para 59.2 Life’s founding affidavit, para 59.2 Life’s founding affidavit, para 59.2 100 Life’s founding affidavit, para 59.2. Life’s founding affidavit, para 59.2. Life’s founding affidavit, para 59.2. 101 Life’s founding affidavit, para 59.4. Life’s founding affidavit, para 59.4. Life’s founding affidavit, para 59.4. 102 Hearing transcripts, page 24. Hearing transcripts, page 24. [139]According to Life, however supply-side substitution can only take place if third According to Life, however supply-side substitution can only take place if third According to Life, however supply-side substitution can only take place if third According to Life, however supply-side substitution can only take place if third According to Life, however supply-side substitution can only take place if third According to Life, however supply-side substitution can only take place if third party service providers have access to the hospital and on-site storage facilities party service providers have access to the hospital and on-site storage facilities party service providers have access to the hospital and on-site storage facilities party service providers have access to the hospital and on-site storage facilities party service providers have access to the hospital and on-site storage facilities party service providers have access to the hospital and on-site storage facilities which is considers the two key inputs for dialysis service providers to render in-which is considers the two key inputs for dialysis service providers to render in-which is considers the two key inputs for dialysis service providers to render in-which is considers the two key inputs for dialysis service providers to render in-which is considers the two key inputs for dialysis service providers to render in-which is considers the two key inputs for dialysis service providers to render in-which is considers the two key inputs for dialysis service providers to render in- hospital services.hospital services. 103 [140]Mediclinic did not make any explicit submissions in relation to supply-side Mediclinic did not make any explicit submissions in relation to supply-side Mediclinic did not make any explicit submissions in relation to supply-side Mediclinic did not make any explicit submissions in relation to supply-side Mediclinic did not make any explicit submissions in relation to supply-side Mediclinic did not make any explicit submissions in relation to supply-side substitution. [141]The conclusion with respect to supply side substitution is thus affected by the The conclusion with respect to supply side substitution is thus affected by the The conclusion with respect to supply side substitution is thus affected by the The conclusion with respect to supply side substitution is thus affected by the The conclusion with respect to supply side substitution is thus affected by the The conclusion with respect to supply side substitution is thus affected by the conclusion reached with respect to the relevant market definition(s). conclusion reached with respect to the relevant market definition(s). conclusion reached with respect to the relevant market definition(s). conclusion reached with respect to the relevant market definition(s). conclusion reached with respect to the relevant market definition(s). conclusion reached with respect to the relevant market definition(s). Geographic market Geographic market [142]With respect to the geographic markets, Life submitted that because patients With respect to the geographic markets, Life submitted that because patients With respect to the geographic markets, Life submitted that because patients With respect to the geographic markets, Life submitted that because patients With respect to the geographic markets, Life submitted that because patients With respect to the geographic markets, Life submitted that because patients With respect to the geographic markets, Life submitted that because patients admitted on an inpatient basis (including both acute and chronic inpatients) are admitted on an inpatient basis (including both acute and chronic inpatients) are admitted on an inpatient basis (including both acute and chronic inpatients) are admitted on an inpatient basis (including both acute and chronic inpatients) are admitted on an inpatient basis (including both acute and chronic inpatients) are admitted on an inpatient basis (including both acute and chronic inpatients) are confined to hospital beds (and cannot travel to receive dialysis treatment), the confined to hospital beds (and cannot travel to receive dialysis treatment), the confined to hospital beds (and cannot travel to receive dialysis treatment), the confined to hospital beds (and cannot travel to receive dialysis treatment), the confined to hospital beds (and cannot travel to receive dialysis treatment), the confined to hospital beds (and cannot travel to receive dialysis treatment), the choice of dialysis services provider is limited to in-hospital units and mobile choice of dialysis services provider is limited to in-hospital units and mobile choice of dialysis services provider is limited to in-hospital units and mobile choice of dialysis services provider is limited to in-hospital units and mobile choice of dialysis services provider is limited to in-hospital units and mobile choice of dialysis services provider is limited to in-hospital units and mobile units capable of travelling to, and operating effectively at, the relevant hospital units capable of travelling to, and operating effectively at, the relevant hospital units capable of travelling to, and operating effectively at, the relevant hospital units capable of travelling to, and operating effectively at, the relevant hospital units capable of travelling to, and operating effectively at, the relevant hospital units capable of travelling to, and operating effectively at, the relevant hospital at which the patient is admitted.at which the patient is admitted.at which the patient is admitted. 104 [143]In relation to mobile units, Life submitted that while the precise distances a In relation to mobile units, Life submitted that while the precise distances a In relation to mobile units, Life submitted that while the precise distances a In relation to mobile units, Life submitted that while the precise distances a In relation to mobile units, Life submitted that while the precise distances a In relation to mobile units, Life submitted that while the precise distances a particular mobile unit is willing and able to travel to administer dialysis treatment particular mobile unit is willing and able to travel to administer dialysis treatment particular mobile unit is willing and able to travel to administer dialysis treatment particular mobile unit is willing and able to travel to administer dialysis treatment particular mobile unit is willing and able to travel to administer dialysis treatment particular mobile unit is willing and able to travel to administer dialysis treatment may depend on its specific capabilities and certain characteristics of the may depend on its specific capabilities and certain characteristics of the may depend on its specific capabilities and certain characteristics of the may depend on its specific capabilities and certain characteristics of the may depend on its specific capabilities and certain characteristics of the may depend on its specific capabilities and certain characteristics of the relevant area, mobile units typically operate within a 50 km, or shorter, radius relevant area, mobile units typically operate within a 50 km, or shorter, radius relevant area, mobile units typically operate within a 50 km, or shorter, radius relevant area, mobile units typically operate within a 50 km, or shorter, radius relevant area, mobile units typically operate within a 50 km, or shorter, radius relevant area, mobile units typically operate within a 50 km, or shorter, radius from their “base”.from their “base”. 105 Life concluded that the relevant geographic market is within Life concluded that the relevant geographic market is within Life concluded that the relevant geographic market is within Life concluded that the relevant geographic market is within Life concluded that the relevant geographic market is within at most a 50 km radius from the relevant multidisciplinary hospital in at most a 50 km radius from the relevant multidisciplinary hospital in at most a 50 km radius from the relevant multidisciplinary hospital in at most a 50 km radius from the relevant multidisciplinary hospital in at most a 50 km radius from the relevant multidisciplinary hospital in at most a 50 km radius from the relevant multidisciplinary hospital in question. 106 103 Life’s heads of argument, para 48. Life’s heads of argument, para 48. Life’s heads of argument, para 48. 104 Life’s founding affidavit, para 60. Life’s founding affidavit, para 60. Life’s founding affidavit, para 60. 105 Life’s founding affidavit, para 61. Life’s founding affidavit, para 61. Life’s founding affidavit, para 61. 106 Life’s founding affidavit, para 62. Life’s founding affidavit, para 62. Life’s founding affidavit, para 62. [144]In response, Mediclinic submitted that they do not dispute that renal dialysis In response, Mediclinic submitted that they do not dispute that renal dialysis In response, Mediclinic submitted that they do not dispute that renal dialysis In response, Mediclinic submitted that they do not dispute that renal dialysis In response, Mediclinic submitted that they do not dispute that renal dialysis In response, Mediclinic submitted that they do not dispute that renal dialysis services providers compete for space and patients within a particular services providers compete for space and patients within a particular services providers compete for space and patients within a particular services providers compete for space and patients within a particular services providers compete for space and patients within a particular services providers compete for space and patients within a particular catchment area. Mediclinic further accepted that mobile services providers will catchment area. Mediclinic further accepted that mobile services providers will catchment area. Mediclinic further accepted that mobile services providers will catchment area. Mediclinic further accepted that mobile services providers will catchment area. Mediclinic further accepted that mobile services providers will catchment area. Mediclinic further accepted that mobile services providers will catchment area. Mediclinic further accepted that mobile services providers will not travel excessive distances to deliver their treatment. The precise not travel excessive distances to deliver their treatment. The precise not travel excessive distances to deliver their treatment. The precise not travel excessive distances to deliver their treatment. The precise not travel excessive distances to deliver their treatment. The precise not travel excessive distances to deliver their treatment. The precise boundaries of the market will vary around the country.boundaries of the market will vary around the country.boundaries of the market will vary around the country.boundaries of the market will vary around the country.boundaries of the market will vary around the country. 107 Mediclinic further Mediclinic further submitted that the provision of renal dialysis services must be considered in its submitted that the provision of renal dialysis services must be considered in its submitted that the provision of renal dialysis services must be considered in its submitted that the provision of renal dialysis services must be considered in its submitted that the provision of renal dialysis services must be considered in its submitted that the provision of renal dialysis services must be considered in its proper context at both a regional and national level; and the market percentage proper context at both a regional and national level; and the market percentage proper context at both a regional and national level; and the market percentage proper context at both a regional and national level; and the market percentage proper context at both a regional and national level; and the market percentage proper context at both a regional and national level; and the market percentage held by the relevant parties in these geographic areas determined.held by the relevant parties in these geographic areas determined.held by the relevant parties in these geographic areas determined.held by the relevant parties in these geographic areas determined.held by the relevant parties in these geographic areas determined.held by the relevant parties in these geographic areas determined. 108 [145]Whilst Life contends that the geographic market is confined to individual Whilst Life contends that the geographic market is confined to individual Whilst Life contends that the geographic market is confined to individual Whilst Life contends that the geographic market is confined to individual Whilst Life contends that the geographic market is confined to individual Whilst Life contends that the geographic market is confined to individual hospital premises and that mobile units operating within those hospitals serve hospital premises and that mobile units operating within those hospitals serve hospital premises and that mobile units operating within those hospitals serve hospital premises and that mobile units operating within those hospitals serve hospital premises and that mobile units operating within those hospitals serve hospital premises and that mobile units operating within those hospitals serve areas within a 50 km radius of their base, the evidence before us does not areas within a 50 km radius of their base, the evidence before us does not areas within a 50 km radius of their base, the evidence before us does not areas within a 50 km radius of their base, the evidence before us does not areas within a 50 km radius of their base, the evidence before us does not areas within a 50 km radius of their base, the evidence before us does not permit a definitive determination of the appropriate geographic market. This is permit a definitive determination of the appropriate geographic market. This is permit a definitive determination of the appropriate geographic market. This is permit a definitive determination of the appropriate geographic market. This is permit a definitive determination of the appropriate geographic market. This is permit a definitive determination of the appropriate geographic market. This is particularly so in instances where we have not been persuaded that the market particularly so in instances where we have not been persuaded that the market particularly so in instances where we have not been persuaded that the market particularly so in instances where we have not been persuaded that the market particularly so in instances where we have not been persuaded that the market particularly so in instances where we have not been persuaded that the market is as narrowly defined as Life suggests. is as narrowly defined as Life suggests. is as narrowly defined as Life suggests. Artificial monopoliesArtificial monopolies [146]Adopting the narrowest approach with respect to market definition risks Adopting the narrowest approach with respect to market definition risks Adopting the narrowest approach with respect to market definition risks Adopting the narrowest approach with respect to market definition risks Adopting the narrowest approach with respect to market definition risks Adopting the narrowest approach with respect to market definition risks collapsing market definition into automatic dominance and ignores collapsing market definition into automatic dominance and ignores collapsing market definition into automatic dominance and ignores collapsing market definition into automatic dominance and ignores collapsing market definition into automatic dominance and ignores collapsing market definition into automatic dominance and ignores ex ante competition. [147]In our view, Life’s purported market definition focuses on substitution after In our view, Life’s purported market definition focuses on substitution after In our view, Life’s purported market definition focuses on substitution after In our view, Life’s purported market definition focuses on substitution after In our view, Life’s purported market definition focuses on substitution after In our view, Life’s purported market definition focuses on substitution after admission. This is evidenced by the fact that Life viewed Mediclinic’s market admission. This is evidenced by the fact that Life viewed Mediclinic’s market admission. This is evidenced by the fact that Life viewed Mediclinic’s market admission. This is evidenced by the fact that Life viewed Mediclinic’s market admission. This is evidenced by the fact that Life viewed Mediclinic’s market admission. This is evidenced by the fact that Life viewed Mediclinic’s market admission. This is evidenced by the fact that Life viewed Mediclinic’s market definition as one which definition as one which “fails to assess competition at the point where it matters “fails to assess competition at the point where it matters “fails to assess competition at the point where it matters “fails to assess competition at the point where it matters “fails to assess competition at the point where it matters most for patients - the point of care for bed-bound patients requiring dialysis most for patients - the point of care for bed-bound patients requiring dialysis most for patients - the point of care for bed-bound patients requiring dialysis most for patients - the point of care for bed-bound patients requiring dialysis most for patients - the point of care for bed-bound patients requiring dialysis most for patients - the point of care for bed-bound patients requiring dialysis within specific hospitals.”within specific hospitals.” 109 Whereas Mediclinic’s purported market definition Whereas Mediclinic’s purported market definition Whereas Mediclinic’s purported market definition Whereas Mediclinic’s purported market definition considers substitution before admission adopting a single holistic market for the considers substitution before admission adopting a single holistic market for the considers substitution before admission adopting a single holistic market for the considers substitution before admission adopting a single holistic market for the considers substitution before admission adopting a single holistic market for the considers substitution before admission adopting a single holistic market for the provision of multidisciplinary hospital services where hospitals are chosen by provision of multidisciplinary hospital services where hospitals are chosen by provision of multidisciplinary hospital services where hospitals are chosen by provision of multidisciplinary hospital services where hospitals are chosen by provision of multidisciplinary hospital services where hospitals are chosen by provision of multidisciplinary hospital services where hospitals are chosen by patients based on an integrated bundle of services.patients based on an integrated bundle of services.patients based on an integrated bundle of services.patients based on an integrated bundle of services. 110 107 Mediclinic’s answering affidavit, para 143. Mediclinic’s answering affidavit, para 143. Mediclinic’s answering affidavit, para 143. 108 Mediclinic’s answering affidavit, para 144. Mediclinic’s answering affidavit, para 144. Mediclinic’s answering affidavit, para 144. 109 Life’s replying affidavit, para 13. Life’s replying affidavit, para 13. Life’s replying affidavit, para 13. 110 Hearing transcripts, page 120. Hearing transcripts, page 120. [148]The effect of endorsing Life’s approach, in our view, is that it creates an artificial The effect of endorsing Life’s approach, in our view, is that it creates an artificial The effect of endorsing Life’s approach, in our view, is that it creates an artificial The effect of endorsing Life’s approach, in our view, is that it creates an artificial The effect of endorsing Life’s approach, in our view, is that it creates an artificial The effect of endorsing Life’s approach, in our view, is that it creates an artificial The effect of endorsing Life’s approach, in our view, is that it creates an artificial or false monopoly. In effect, the market definition in and of itself confers or false monopoly. In effect, the market definition in and of itself confers or false monopoly. In effect, the market definition in and of itself confers or false monopoly. In effect, the market definition in and of itself confers or false monopoly. In effect, the market definition in and of itself confers or false monopoly. In effect, the market definition in and of itself confers dominance, we will discuss this in the section to come. dominance, we will discuss this in the section to come. dominance, we will discuss this in the section to come. dominance, we will discuss this in the section to come. dominance, we will discuss this in the section to come. [149]Defining the market at the level of a single hospital risks treating external Defining the market at the level of a single hospital risks treating external Defining the market at the level of a single hospital risks treating external Defining the market at the level of a single hospital risks treating external Defining the market at the level of a single hospital risks treating external Defining the market at the level of a single hospital risks treating external constraints faced by Life as evidence of market power, thereby artificially constraints faced by Life as evidence of market power, thereby artificially constraints faced by Life as evidence of market power, thereby artificially constraints faced by Life as evidence of market power, thereby artificially constraints faced by Life as evidence of market power, thereby artificially constraints faced by Life as evidence of market power, thereby artificially constructing a monopoly that does not stem from exclusionary conduct or a constructing a monopoly that does not stem from exclusionary conduct or a constructing a monopoly that does not stem from exclusionary conduct or a constructing a monopoly that does not stem from exclusionary conduct or a constructing a monopoly that does not stem from exclusionary conduct or a constructing a monopoly that does not stem from exclusionary conduct or a lack of potential competition. A market defined in such a narrow sense risks lack of potential competition. A market defined in such a narrow sense risks lack of potential competition. A market defined in such a narrow sense risks lack of potential competition. A market defined in such a narrow sense risks lack of potential competition. A market defined in such a narrow sense risks lack of potential competition. A market defined in such a narrow sense risks over-stating market power and understating competitive pressure from over-stating market power and understating competitive pressure from over-stating market power and understating competitive pressure from over-stating market power and understating competitive pressure from over-stating market power and understating competitive pressure from over-stating market power and understating competitive pressure from neighbouring hospitals, specialist facilities, or potential entrants. neighbouring hospitals, specialist facilities, or potential entrants. neighbouring hospitals, specialist facilities, or potential entrants. neighbouring hospitals, specialist facilities, or potential entrants. neighbouring hospitals, specialist facilities, or potential entrants. [150]Competition in hospital markets often takes place through non-price factors, Competition in hospital markets often takes place through non-price factors, Competition in hospital markets often takes place through non-price factors, Competition in hospital markets often takes place through non-price factors, Competition in hospital markets often takes place through non-price factors, Competition in hospital markets often takes place through non-price factors, i.e., hospital/treatment quality, reputation, clinical specialisation, and medical i.e., hospital/treatment quality, reputation, clinical specialisation, and medical i.e., hospital/treatment quality, reputation, clinical specialisation, and medical i.e., hospital/treatment quality, reputation, clinical specialisation, and medical i.e., hospital/treatment quality, reputation, clinical specialisation, and medical i.e., hospital/treatment quality, reputation, clinical specialisation, and medical aid negotiations, across a network of facilities rather than at the level of an aid negotiations, across a network of facilities rather than at the level of an aid negotiations, across a network of facilities rather than at the level of an aid negotiations, across a network of facilities rather than at the level of an aid negotiations, across a network of facilities rather than at the level of an aid negotiations, across a network of facilities rather than at the level of an individual hospital. If each hospital were defined as its own market, all hospitals, individual hospital. If each hospital were defined as its own market, all hospitals, individual hospital. If each hospital were defined as its own market, all hospitals, individual hospital. If each hospital were defined as its own market, all hospitals, individual hospital. If each hospital were defined as its own market, all hospitals, individual hospital. If each hospital were defined as its own market, all hospitals, would be monopolists, thus rendering market shares uninformative and would be monopolists, thus rendering market shares uninformative and would be monopolists, thus rendering market shares uninformative and would be monopolists, thus rendering market shares uninformative and would be monopolists, thus rendering market shares uninformative and would be monopolists, thus rendering market shares uninformative and undermining the purpose of market definition as a tool to assess competitive undermining the purpose of market definition as a tool to assess competitive undermining the purpose of market definition as a tool to assess competitive undermining the purpose of market definition as a tool to assess competitive undermining the purpose of market definition as a tool to assess competitive undermining the purpose of market definition as a tool to assess competitive constraints. This approach, in our view, would be inconsistent with competition-constraints. This approach, in our view, would be inconsistent with competition-constraints. This approach, in our view, would be inconsistent with competition-constraints. This approach, in our view, would be inconsistent with competition-constraints. This approach, in our view, would be inconsistent with competition-constraints. This approach, in our view, would be inconsistent with competition- law principles, which seek to distinguish between monopoly power arising from law principles, which seek to distinguish between monopoly power arising from law principles, which seek to distinguish between monopoly power arising from law principles, which seek to distinguish between monopoly power arising from law principles, which seek to distinguish between monopoly power arising from law principles, which seek to distinguish between monopoly power arising from market structure and that arising from artificial segmentation of demand. market structure and that arising from artificial segmentation of demand. market structure and that arising from artificial segmentation of demand. market structure and that arising from artificial segmentation of demand. market structure and that arising from artificial segmentation of demand. market structure and that arising from artificial segmentation of demand. Conclusion on the relevant market Conclusion on the relevant market Conclusion on the relevant market [151]Life’s novel approach to the market definition required us to undertake Life’s novel approach to the market definition required us to undertake Life’s novel approach to the market definition required us to undertake Life’s novel approach to the market definition required us to undertake Life’s novel approach to the market definition required us to undertake Life’s novel approach to the market definition required us to undertake foundational inquiries the proper determination of the relevant market. In doing foundational inquiries the proper determination of the relevant market. In doing foundational inquiries the proper determination of the relevant market. In doing foundational inquiries the proper determination of the relevant market. In doing foundational inquiries the proper determination of the relevant market. In doing foundational inquiries the proper determination of the relevant market. In doing so, we were bound to determine this on the evidence properly before us. We so, we were bound to determine this on the evidence properly before us. We so, we were bound to determine this on the evidence properly before us. We so, we were bound to determine this on the evidence properly before us. We so, we were bound to determine this on the evidence properly before us. We so, we were bound to determine this on the evidence properly before us. We are therefore not at liberty speculatively to advance or rely on theories in are therefore not at liberty speculatively to advance or rely on theories in are therefore not at liberty speculatively to advance or rely on theories in are therefore not at liberty speculatively to advance or rely on theories in are therefore not at liberty speculatively to advance or rely on theories in are therefore not at liberty speculatively to advance or rely on theories in circumstances where the case presented is not substantiated by evidence circumstances where the case presented is not substantiated by evidence circumstances where the case presented is not substantiated by evidence circumstances where the case presented is not substantiated by evidence circumstances where the case presented is not substantiated by evidence circumstances where the case presented is not substantiated by evidence presented by the Applicant. presented by the Applicant. presented by the Applicant. [152]Based on the above, we find that the Based on the above, we find that the Based on the above, we find that the prima facie relevant market is the market relevant market is the market relevant market is the market for the provision of acute multidisciplinary private hospital services. In light of for the provision of acute multidisciplinary private hospital services. In light of for the provision of acute multidisciplinary private hospital services. In light of for the provision of acute multidisciplinary private hospital services. In light of for the provision of acute multidisciplinary private hospital services. In light of for the provision of acute multidisciplinary private hospital services. In light of this, we turn to whether Mediclinic is dominant in this market.this, we turn to whether Mediclinic is dominant in this market.this, we turn to whether Mediclinic is dominant in this market.this, we turn to whether Mediclinic is dominant in this market.this, we turn to whether Mediclinic is dominant in this market. Dominance and market power Dominance and market power Dominance and market power [153]It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between It is trite that a firm is presumed to be dominant if it has market share between 35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power.35% and 45%, unless it can show that it does not have market power. 111 Conversely, Conversely, where a firm’s market share is below 35%, the onus rests on the where a firm’s market share is below 35%, the onus rests on the where a firm’s market share is below 35%, the onus rests on the where a firm’s market share is below 35%, the onus rests on the where a firm’s market share is below 35%, the onus rests on the where a firm’s market share is below 35%, the onus rests on the applicant to show that the respondent firm has market power. applicant to show that the respondent firm has market power. applicant to show that the respondent firm has market power. applicant to show that the respondent firm has market power. applicant to show that the respondent firm has market power. [154]The Act defines market power as “The Act defines market power as “The Act defines market power as “the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to the power of a firm to control prices or to exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its exclude competition or to behave to an appreciable extent independently of its competitors, customers or supplierscompetitors, customers or supplierscompetitors, customers or supplierscompetitors, customers or supplierscompetitors, customers or supplierscompetitors, customers or supplierscompetitors, customers or supplierscompetitors, customers or supplierscompetitors, customers or supplierscompetitors, customers or supplierscompetitors, customers or supplierscompetitors, customers or suppliers.”.” 112 [155]In the present circumstances, we consider whether Life has made out a In the present circumstances, we consider whether Life has made out a In the present circumstances, we consider whether Life has made out a In the present circumstances, we consider whether Life has made out a In the present circumstances, we consider whether Life has made out a In the present circumstances, we consider whether Life has made out a prima facie case that Mediclinic is dominant in the market for the provision of acute case that Mediclinic is dominant in the market for the provision of acute case that Mediclinic is dominant in the market for the provision of acute case that Mediclinic is dominant in the market for the provision of acute case that Mediclinic is dominant in the market for the provision of acute case that Mediclinic is dominant in the market for the provision of acute multidisciplinary private hospital services.multidisciplinary private hospital services.multidisciplinary private hospital services.multidisciplinary private hospital services. [156]Notwithstanding Life’s narrow market definition for the provision of reasonable Notwithstanding Life’s narrow market definition for the provision of reasonable Notwithstanding Life’s narrow market definition for the provision of reasonable Notwithstanding Life’s narrow market definition for the provision of reasonable Notwithstanding Life’s narrow market definition for the provision of reasonable Notwithstanding Life’s narrow market definition for the provision of reasonable on-site storage facilities and express access permissions to mobile dialysis on-site storage facilities and express access permissions to mobile dialysis on-site storage facilities and express access permissions to mobile dialysis on-site storage facilities and express access permissions to mobile dialysis on-site storage facilities and express access permissions to mobile dialysis on-site storage facilities and express access permissions to mobile dialysis service providers at a given acute multidisciplinary private hospital, it also service providers at a given acute multidisciplinary private hospital, it also service providers at a given acute multidisciplinary private hospital, it also service providers at a given acute multidisciplinary private hospital, it also service providers at a given acute multidisciplinary private hospital, it also service providers at a given acute multidisciplinary private hospital, it also advanced an alternative market definition.advanced an alternative market definition.advanced an alternative market definition.advanced an alternative market definition. 113 Life argued that the market for the Life argued that the market for the Life argued that the market for the provision of acute multidisciplinary private hospital services (primary market) provision of acute multidisciplinary private hospital services (primary market) provision of acute multidisciplinary private hospital services (primary market) provision of acute multidisciplinary private hospital services (primary market) provision of acute multidisciplinary private hospital services (primary market) provision of acute multidisciplinary private hospital services (primary market) functions as a related, complementary market to the market for inpatient functions as a related, complementary market to the market for inpatient functions as a related, complementary market to the market for inpatient functions as a related, complementary market to the market for inpatient functions as a related, complementary market to the market for inpatient functions as a related, complementary market to the market for inpatient dialysis services (secondary market) (“leveraging theory of harm”).dialysis services (secondary market) (“leveraging theory of harm”).dialysis services (secondary market) (“leveraging theory of harm”).dialysis services (secondary market) (“leveraging theory of harm”).dialysis services (secondary market) (“leveraging theory of harm”).dialysis services (secondary market) (“leveraging theory of harm”). 114 Accordingly to Life, Mediclinic is able to leverage its market power in the Accordingly to Life, Mediclinic is able to leverage its market power in the Accordingly to Life, Mediclinic is able to leverage its market power in the Accordingly to Life, Mediclinic is able to leverage its market power in the Accordingly to Life, Mediclinic is able to leverage its market power in the Accordingly to Life, Mediclinic is able to leverage its market power in the primary market (hospital services) once patients are ‘locked in’ into the primary market (hospital services) once patients are ‘locked in’ into the primary market (hospital services) once patients are ‘locked in’ into the primary market (hospital services) once patients are ‘locked in’ into the primary market (hospital services) once patients are ‘locked in’ into the primary market (hospital services) once patients are ‘locked in’ into the secondary market (in-hospital dialysis services at a particular hospital).secondary market (in-hospital dialysis services at a particular hospital).secondary market (in-hospital dialysis services at a particular hospital).secondary market (in-hospital dialysis services at a particular hospital).secondary market (in-hospital dialysis services at a particular hospital).secondary market (in-hospital dialysis services at a particular hospital). 115 [157]According to Life, when a patient is admitted to a Mediclinic hospital for acute According to Life, when a patient is admitted to a Mediclinic hospital for acute According to Life, when a patient is admitted to a Mediclinic hospital for acute According to Life, when a patient is admitted to a Mediclinic hospital for acute According to Life, when a patient is admitted to a Mediclinic hospital for acute According to Life, when a patient is admitted to a Mediclinic hospital for acute multidisciplinary hospital services (which are distinct from specialist disciplines, multidisciplinary hospital services (which are distinct from specialist disciplines, multidisciplinary hospital services (which are distinct from specialist disciplines, multidisciplinary hospital services (which are distinct from specialist disciplines, multidisciplinary hospital services (which are distinct from specialist disciplines, multidisciplinary hospital services (which are distinct from specialist disciplines, multidisciplinary hospital services (which are distinct from specialist disciplines, like dialysis services) (primary market), that inpatient is captive to Mediclinic for like dialysis services) (primary market), that inpatient is captive to Mediclinic for like dialysis services) (primary market), that inpatient is captive to Mediclinic for like dialysis services) (primary market), that inpatient is captive to Mediclinic for like dialysis services) (primary market), that inpatient is captive to Mediclinic for like dialysis services) (primary market), that inpatient is captive to Mediclinic for 111 Nationwide Airlines and Others v South African Airways (Pty) Ltd and OthersNationwide Airlines and Others v South African Airways (Pty) Ltd and OthersNationwide Airlines and Others v South African Airways (Pty) Ltd and OthersNationwide Airlines and Others v South African Airways (Pty) Ltd and OthersNationwide Airlines and Others v South African Airways (Pty) Ltd and Others (92/IROct00), p 9. (92/IROct00), p 9. 112 Section 1 of the Act. Section 1 of the Act. 113 Life’s founding affidavit, para 72. Life’s founding affidavit, para 72. Life’s founding affidavit, para 72. 114 Life’s founding affidavit, para 73. Life’s founding affidavit, para 73. Life’s founding affidavit, para 73. 115 Life’s replying affidavit, paras 16-17. Life’s replying affidavit, paras 16-17. Life’s replying affidavit, paras 16-17. those hospital services and Mediclinic accordingly has market power in respect those hospital services and Mediclinic accordingly has market power in respect those hospital services and Mediclinic accordingly has market power in respect those hospital services and Mediclinic accordingly has market power in respect those hospital services and Mediclinic accordingly has market power in respect those hospital services and Mediclinic accordingly has market power in respect of the inpatient healthcare services provided to that patient (secondary of the inpatient healthcare services provided to that patient (secondary of the inpatient healthcare services provided to that patient (secondary of the inpatient healthcare services provided to that patient (secondary of the inpatient healthcare services provided to that patient (secondary of the inpatient healthcare services provided to that patient (secondary market). 116 [158]Mediclinic concedes that controlling access to its own hospitals can prevent Mediclinic concedes that controlling access to its own hospitals can prevent Mediclinic concedes that controlling access to its own hospitals can prevent Mediclinic concedes that controlling access to its own hospitals can prevent Mediclinic concedes that controlling access to its own hospitals can prevent Mediclinic concedes that controlling access to its own hospitals can prevent downstream competitors from providing services in its hospitals, but that this downstream competitors from providing services in its hospitals, but that this downstream competitors from providing services in its hospitals, but that this downstream competitors from providing services in its hospitals, but that this downstream competitors from providing services in its hospitals, but that this downstream competitors from providing services in its hospitals, but that this does not confer market power.does not confer market power.does not confer market power. 117 Mediclinic also contended that the market Mediclinic also contended that the market Mediclinic also contended that the market Mediclinic also contended that the market does not consist of two tied markets (the primary hospital services market and does not consist of two tied markets (the primary hospital services market and does not consist of two tied markets (the primary hospital services market and does not consist of two tied markets (the primary hospital services market and does not consist of two tied markets (the primary hospital services market and does not consist of two tied markets (the primary hospital services market and the secondary inpatient healthcare services market) but rather that the market the secondary inpatient healthcare services market) but rather that the market the secondary inpatient healthcare services market) but rather that the market the secondary inpatient healthcare services market) but rather that the market the secondary inpatient healthcare services market) but rather that the market the secondary inpatient healthcare services market) but rather that the market is a single holistic market for multidisciplinary services. is a single holistic market for multidisciplinary services. is a single holistic market for multidisciplinary services. is a single holistic market for multidisciplinary services. is a single holistic market for multidisciplinary services. [159]Life did not adduce evidence that Mediclinic has a market share of above 35% Life did not adduce evidence that Mediclinic has a market share of above 35% Life did not adduce evidence that Mediclinic has a market share of above 35% Life did not adduce evidence that Mediclinic has a market share of above 35% Life did not adduce evidence that Mediclinic has a market share of above 35% Life did not adduce evidence that Mediclinic has a market share of above 35% in the broadly defined market for the provision of acute multidisciplinary private in the broadly defined market for the provision of acute multidisciplinary private in the broadly defined market for the provision of acute multidisciplinary private in the broadly defined market for the provision of acute multidisciplinary private in the broadly defined market for the provision of acute multidisciplinary private in the broadly defined market for the provision of acute multidisciplinary private hospital services. In this regard, Mediclinic submits that it is not dominant in this hospital services. In this regard, Mediclinic submits that it is not dominant in this hospital services. In this regard, Mediclinic submits that it is not dominant in this hospital services. In this regard, Mediclinic submits that it is not dominant in this hospital services. In this regard, Mediclinic submits that it is not dominant in this hospital services. In this regard, Mediclinic submits that it is not dominant in this market given that it is market given that it is “smaller than Life and Netcare and has a market share “smaller than Life and Netcare and has a market share “smaller than Life and Netcare and has a market share “smaller than Life and Netcare and has a market share “smaller than Life and Netcare and has a market share well below 35%.”well below 35%.” 118 [160]In its heads of argument, Mediclinic further submitted that Life operates more In its heads of argument, Mediclinic further submitted that Life operates more In its heads of argument, Mediclinic further submitted that Life operates more In its heads of argument, Mediclinic further submitted that Life operates more In its heads of argument, Mediclinic further submitted that Life operates more In its heads of argument, Mediclinic further submitted that Life operates more hospitals than Mediclinic and Life Renal generates substantially more revenue hospitals than Mediclinic and Life Renal generates substantially more revenue hospitals than Mediclinic and Life Renal generates substantially more revenue hospitals than Mediclinic and Life Renal generates substantially more revenue hospitals than Mediclinic and Life Renal generates substantially more revenue hospitals than Mediclinic and Life Renal generates substantially more revenue than Mediclinic Renal.than Mediclinic Renal. 119 [161]With respect to market power, Life contends that through its conduct, Mediclinic With respect to market power, Life contends that through its conduct, Mediclinic With respect to market power, Life contends that through its conduct, Mediclinic With respect to market power, Life contends that through its conduct, Mediclinic With respect to market power, Life contends that through its conduct, Mediclinic With respect to market power, Life contends that through its conduct, Mediclinic is able to leverage its market power from the hospital care market (primary is able to leverage its market power from the hospital care market (primary is able to leverage its market power from the hospital care market (primary is able to leverage its market power from the hospital care market (primary is able to leverage its market power from the hospital care market (primary is able to leverage its market power from the hospital care market (primary market) to the inpatient dialysis services market (secondary market).market) to the inpatient dialysis services market (secondary market).market) to the inpatient dialysis services market (secondary market).market) to the inpatient dialysis services market (secondary market).market) to the inpatient dialysis services market (secondary market).market) to the inpatient dialysis services market (secondary market). 120 [162]According to Life, when considering Mediclinic Renal’s ability to exercise According to Life, when considering Mediclinic Renal’s ability to exercise According to Life, when considering Mediclinic Renal’s ability to exercise According to Life, when considering Mediclinic Renal’s ability to exercise According to Life, when considering Mediclinic Renal’s ability to exercise According to Life, when considering Mediclinic Renal’s ability to exercise market power within the market for the provision of in-hospital dialysis services market power within the market for the provision of in-hospital dialysis services market power within the market for the provision of in-hospital dialysis services market power within the market for the provision of in-hospital dialysis services market power within the market for the provision of in-hospital dialysis services market power within the market for the provision of in-hospital dialysis services at a given Mediclinic hospital, Mediclinic Renal’s market position in this regard at a given Mediclinic hospital, Mediclinic Renal’s market position in this regard at a given Mediclinic hospital, Mediclinic Renal’s market position in this regard at a given Mediclinic hospital, Mediclinic Renal’s market position in this regard at a given Mediclinic hospital, Mediclinic Renal’s market position in this regard at a given Mediclinic hospital, Mediclinic Renal’s market position in this regard is inherently intertwined with Mediclinic's position within the related market for is inherently intertwined with Mediclinic's position within the related market for is inherently intertwined with Mediclinic's position within the related market for is inherently intertwined with Mediclinic's position within the related market for is inherently intertwined with Mediclinic's position within the related market for is inherently intertwined with Mediclinic's position within the related market for is inherently intertwined with Mediclinic's position within the related market for 116 Life’s founding affidavit, para 80. Life’s founding affidavit, para 80. Life’s founding affidavit, para 80. 117 Mediclinic’s answering affidavit, para 149. Mediclinic’s answering affidavit, para 149. Mediclinic’s answering affidavit, para 149. 118 Mediclinic’s answering affidavit, para 49. Mediclinic’s answering affidavit, para 49. Mediclinic’s answering affidavit, para 49. 119 Mediclinic’s heads of argument, para 6. Mediclinic’s heads of argument, para 6. Mediclinic’s heads of argument, para 6. 120 Life’s heads of argument, para 53. Life’s heads of argument, para 53. Life’s heads of argument, para 53. acute multidisciplinary private hospital services.acute multidisciplinary private hospital services.acute multidisciplinary private hospital services.acute multidisciplinary private hospital services. 121 This argument advanced by This argument advanced by This argument advanced by Life assumes that Mediclinic has market power in respect of inpatient Life assumes that Mediclinic has market power in respect of inpatient Life assumes that Mediclinic has market power in respect of inpatient Life assumes that Mediclinic has market power in respect of inpatient Life assumes that Mediclinic has market power in respect of inpatient Life assumes that Mediclinic has market power in respect of inpatient healthcare services provided to patients admitted to its hospitals. Effectively, healthcare services provided to patients admitted to its hospitals. Effectively, healthcare services provided to patients admitted to its hospitals. Effectively, healthcare services provided to patients admitted to its hospitals. Effectively, healthcare services provided to patients admitted to its hospitals. Effectively, healthcare services provided to patients admitted to its hospitals. Effectively, that Mediclinic is able to act independently of its competitors in the provision of that Mediclinic is able to act independently of its competitors in the provision of that Mediclinic is able to act independently of its competitors in the provision of that Mediclinic is able to act independently of its competitors in the provision of that Mediclinic is able to act independently of its competitors in the provision of that Mediclinic is able to act independently of its competitors in the provision of inpatient healthcare services for the duration of that patient’s admission.inpatient healthcare services for the duration of that patient’s admission.inpatient healthcare services for the duration of that patient’s admission.inpatient healthcare services for the duration of that patient’s admission.inpatient healthcare services for the duration of that patient’s admission.inpatient healthcare services for the duration of that patient’s admission. 122 [163]Life contends that the implication of Mediclinic’s market power as above Life contends that the implication of Mediclinic’s market power as above Life contends that the implication of Mediclinic’s market power as above Life contends that the implication of Mediclinic’s market power as above Life contends that the implication of Mediclinic’s market power as above Life contends that the implication of Mediclinic’s market power as above described, is that Mediclinic is able to influence the number of patients available described, is that Mediclinic is able to influence the number of patients available described, is that Mediclinic is able to influence the number of patients available described, is that Mediclinic is able to influence the number of patients available described, is that Mediclinic is able to influence the number of patients available described, is that Mediclinic is able to influence the number of patients available for treatment by Medical Renal and its competitors in the market for the for treatment by Medical Renal and its competitors in the market for the for treatment by Medical Renal and its competitors in the market for the for treatment by Medical Renal and its competitors in the market for the for treatment by Medical Renal and its competitors in the market for the for treatment by Medical Renal and its competitors in the market for the provision of dialysis services.provision of dialysis services.provision of dialysis services. 123 [164]At the heart of this enquiry into market power is whether one is dealing with two At the heart of this enquiry into market power is whether one is dealing with two At the heart of this enquiry into market power is whether one is dealing with two At the heart of this enquiry into market power is whether one is dealing with two At the heart of this enquiry into market power is whether one is dealing with two At the heart of this enquiry into market power is whether one is dealing with two tied markets (primary hospital services market and secondary in-hospital tied markets (primary hospital services market and secondary in-hospital tied markets (primary hospital services market and secondary in-hospital tied markets (primary hospital services market and secondary in-hospital tied markets (primary hospital services market and secondary in-hospital tied markets (primary hospital services market and secondary in-hospital dialysis treatment market) or a single holistic market being the market for dialysis treatment market) or a single holistic market being the market for dialysis treatment market) or a single holistic market being the market for dialysis treatment market) or a single holistic market being the market for dialysis treatment market) or a single holistic market being the market for dialysis treatment market) or a single holistic market being the market for hospital services. hospital services. [165]In our view, Life’s leveraging theory of harm concluded that there is a distinct In our view, Life’s leveraging theory of harm concluded that there is a distinct In our view, Life’s leveraging theory of harm concluded that there is a distinct In our view, Life’s leveraging theory of harm concluded that there is a distinct In our view, Life’s leveraging theory of harm concluded that there is a distinct In our view, Life’s leveraging theory of harm concluded that there is a distinct narrow downstream market for inpatient dialysis services. Life’s leveraging narrow downstream market for inpatient dialysis services. Life’s leveraging narrow downstream market for inpatient dialysis services. Life’s leveraging narrow downstream market for inpatient dialysis services. Life’s leveraging narrow downstream market for inpatient dialysis services. Life’s leveraging narrow downstream market for inpatient dialysis services. Life’s leveraging theory of harm rests on the fact that once patients are admitted they are theory of harm rests on the fact that once patients are admitted they are theory of harm rests on the fact that once patients are admitted they are theory of harm rests on the fact that once patients are admitted they are theory of harm rests on the fact that once patients are admitted they are theory of harm rests on the fact that once patients are admitted they are effectively locked in. Life however does not adduce evidence that Mediclinic effectively locked in. Life however does not adduce evidence that Mediclinic effectively locked in. Life however does not adduce evidence that Mediclinic effectively locked in. Life however does not adduce evidence that Mediclinic effectively locked in. Life however does not adduce evidence that Mediclinic effectively locked in. Life however does not adduce evidence that Mediclinic has market power in the primary market to leverage into the secondary market. has market power in the primary market to leverage into the secondary market. has market power in the primary market to leverage into the secondary market. has market power in the primary market to leverage into the secondary market. has market power in the primary market to leverage into the secondary market. has market power in the primary market to leverage into the secondary market. [166]On the evidence before us we are of the view that Life has not adduced On the evidence before us we are of the view that Life has not adduced On the evidence before us we are of the view that Life has not adduced On the evidence before us we are of the view that Life has not adduced On the evidence before us we are of the view that Life has not adduced On the evidence before us we are of the view that Life has not adduced sufficient evidence to make out a sufficient evidence to make out a sufficient evidence to make out a prima facie case that Mediclinic has market case that Mediclinic has market case that Mediclinic has market power (in neither of the purported primary or secondary markets). power (in neither of the purported primary or secondary markets). power (in neither of the purported primary or secondary markets). power (in neither of the purported primary or secondary markets). power (in neither of the purported primary or secondary markets). [167]Life has additionally not provided a regional assessment of competing hospitals Life has additionally not provided a regional assessment of competing hospitals Life has additionally not provided a regional assessment of competing hospitals Life has additionally not provided a regional assessment of competing hospitals Life has additionally not provided a regional assessment of competing hospitals Life has additionally not provided a regional assessment of competing hospitals in at least each of the Effected Hospitals where it has to date been excluded. in at least each of the Effected Hospitals where it has to date been excluded. in at least each of the Effected Hospitals where it has to date been excluded. in at least each of the Effected Hospitals where it has to date been excluded. in at least each of the Effected Hospitals where it has to date been excluded. in at least each of the Effected Hospitals where it has to date been excluded. This type of assessment may have been helpful in determining whether or not This type of assessment may have been helpful in determining whether or not This type of assessment may have been helpful in determining whether or not This type of assessment may have been helpful in determining whether or not This type of assessment may have been helpful in determining whether or not This type of assessment may have been helpful in determining whether or not in isolated cases (i.e., where Mediclinic hospitals exist with no rivals within a in isolated cases (i.e., where Mediclinic hospitals exist with no rivals within a in isolated cases (i.e., where Mediclinic hospitals exist with no rivals within a in isolated cases (i.e., where Mediclinic hospitals exist with no rivals within a in isolated cases (i.e., where Mediclinic hospitals exist with no rivals within a in isolated cases (i.e., where Mediclinic hospitals exist with no rivals within a reasonable proximity) Mediclinic would be able to exercise market power. reasonable proximity) Mediclinic would be able to exercise market power. reasonable proximity) Mediclinic would be able to exercise market power. reasonable proximity) Mediclinic would be able to exercise market power. reasonable proximity) Mediclinic would be able to exercise market power. reasonable proximity) Mediclinic would be able to exercise market power. 121 Life’s founding affidavit, para 77. Life’s founding affidavit, para 77. Life’s founding affidavit, para 77. 122 Life’s founding affidavit, para 78. Life’s founding affidavit, para 78. Life’s founding affidavit, para 78. 123 Life’s founding affidavit, para 79. Life’s founding affidavit, para 79. Life’s founding affidavit, para 79. [168]During the hearing, regarding market power, we noted that as in COVID cases, During the hearing, regarding market power, we noted that as in COVID cases, During the hearing, regarding market power, we noted that as in COVID cases, During the hearing, regarding market power, we noted that as in COVID cases, During the hearing, regarding market power, we noted that as in COVID cases, During the hearing, regarding market power, we noted that as in COVID cases, market power may be inferred from conduct. While those cases concerned market power may be inferred from conduct. While those cases concerned market power may be inferred from conduct. While those cases concerned market power may be inferred from conduct. While those cases concerned market power may be inferred from conduct. While those cases concerned market power may be inferred from conduct. While those cases concerned independent pricing, we noted that the total foreclosure of competitors could independent pricing, we noted that the total foreclosure of competitors could independent pricing, we noted that the total foreclosure of competitors could independent pricing, we noted that the total foreclosure of competitors could independent pricing, we noted that the total foreclosure of competitors could independent pricing, we noted that the total foreclosure of competitors could similarly be indicative of market power.similarly be indicative of market power.similarly be indicative of market power. 124 We asked the parties for their views We asked the parties for their views We asked the parties for their views on this. [169]In response to this, Mr Wesley, on behalf of Life, submitted that In response to this, Mr Wesley, on behalf of Life, submitted that In response to this, Mr Wesley, on behalf of Life, submitted that In response to this, Mr Wesley, on behalf of Life, submitted that In response to this, Mr Wesley, on behalf of Life, submitted that “… as a matter “… as a matter of practicality, Mediclinic has an ability to act independently of what like Renal of practicality, Mediclinic has an ability to act independently of what like Renal of practicality, Mediclinic has an ability to act independently of what like Renal of practicality, Mediclinic has an ability to act independently of what like Renal of practicality, Mediclinic has an ability to act independently of what like Renal of practicality, Mediclinic has an ability to act independently of what like Renal Care wants but even on its own referring doctors and its hospitals want.”Care wants but even on its own referring doctors and its hospitals want.”Care wants but even on its own referring doctors and its hospitals want.”Care wants but even on its own referring doctors and its hospitals want.”Care wants but even on its own referring doctors and its hospitals want.”Care wants but even on its own referring doctors and its hospitals want.” 125 [170]Mr Blou, on behalf of Mediclinic, however submitted that COVID cases have to Mr Blou, on behalf of Mediclinic, however submitted that COVID cases have to Mr Blou, on behalf of Mediclinic, however submitted that COVID cases have to Mr Blou, on behalf of Mediclinic, however submitted that COVID cases have to Mr Blou, on behalf of Mediclinic, however submitted that COVID cases have to Mr Blou, on behalf of Mediclinic, however submitted that COVID cases have to be considered in the context of supply and demand which were created in be considered in the context of supply and demand which were created in be considered in the context of supply and demand which were created in be considered in the context of supply and demand which were created in be considered in the context of supply and demand which were created in be considered in the context of supply and demand which were created in peculiar circumstances as a result of the pandemic. Further that the analysis peculiar circumstances as a result of the pandemic. Further that the analysis peculiar circumstances as a result of the pandemic. Further that the analysis peculiar circumstances as a result of the pandemic. Further that the analysis peculiar circumstances as a result of the pandemic. Further that the analysis peculiar circumstances as a result of the pandemic. Further that the analysis under the COVID cases is not appropriate in the present circumstances.under the COVID cases is not appropriate in the present circumstances.under the COVID cases is not appropriate in the present circumstances.under the COVID cases is not appropriate in the present circumstances.under the COVID cases is not appropriate in the present circumstances.under the COVID cases is not appropriate in the present circumstances. 126 [171]We agree with Mediclinic that the assessment of market power during the We agree with Mediclinic that the assessment of market power during the We agree with Mediclinic that the assessment of market power during the We agree with Mediclinic that the assessment of market power during the We agree with Mediclinic that the assessment of market power during the We agree with Mediclinic that the assessment of market power during the COVID-19 pandemic is not the appropriate analysis in the present case. The COVID-19 pandemic is not the appropriate analysis in the present case. The COVID-19 pandemic is not the appropriate analysis in the present case. The COVID-19 pandemic is not the appropriate analysis in the present case. The COVID-19 pandemic is not the appropriate analysis in the present case. The COVID-19 pandemic is not the appropriate analysis in the present case. The assessment of market power in COVID related matters was premised on the assessment of market power in COVID related matters was premised on the assessment of market power in COVID related matters was premised on the assessment of market power in COVID related matters was premised on the assessment of market power in COVID related matters was premised on the assessment of market power in COVID related matters was premised on the exceptional circumstances which existed. exceptional circumstances which existed. exceptional circumstances which existed. exceptional circumstances which existed. [172]For the reasons above, we are of the view that Life has not made out a For the reasons above, we are of the view that Life has not made out a For the reasons above, we are of the view that Life has not made out a For the reasons above, we are of the view that Life has not made out a For the reasons above, we are of the view that Life has not made out a For the reasons above, we are of the view that Life has not made out a prima facie case that Mediclinic is dominant in any of the markets defined. case that Mediclinic is dominant in any of the markets defined. case that Mediclinic is dominant in any of the markets defined. case that Mediclinic is dominant in any of the markets defined. case that Mediclinic is dominant in any of the markets defined. Conclusion [173]We reiterate the guidance in We reiterate the guidance in We reiterate the guidance in eMedia, where the CAC emphasised that in interim , where the CAC emphasised that in interim , where the CAC emphasised that in interim , where the CAC emphasised that in interim relief cases “whilst there will inevitably be disputes of factwhilst there will inevitably be disputes of factwhilst there will inevitably be disputes of factwhilst there will inevitably be disputes of fact”, these should not ”, these should not prevent the Tribunal from taking a “robust approach” on the evidence before it. prevent the Tribunal from taking a “robust approach” on the evidence before it. prevent the Tribunal from taking a “robust approach” on the evidence before it. prevent the Tribunal from taking a “robust approach” on the evidence before it. prevent the Tribunal from taking a “robust approach” on the evidence before it. prevent the Tribunal from taking a “robust approach” on the evidence before it. 124 Hearing transcripts, page 61. Hearing transcripts, page 61. 125 Hearing transcripts, page 61. Hearing transcripts, page 61. 126 Hearing transcripts, pages 138-139. Hearing transcripts, pages 138-139. Hearing transcripts, pages 138-139. [174]Further that the purpose of the Competition Act serves as a guideline which Further that the purpose of the Competition Act serves as a guideline which Further that the purpose of the Competition Act serves as a guideline which Further that the purpose of the Competition Act serves as a guideline which Further that the purpose of the Competition Act serves as a guideline which Further that the purpose of the Competition Act serves as a guideline which should be followed when applying the Act. Victor J (Manoim J concurring) should be followed when applying the Act. Victor J (Manoim J concurring) should be followed when applying the Act. Victor J (Manoim J concurring) should be followed when applying the Act. Victor J (Manoim J concurring) should be followed when applying the Act. Victor J (Manoim J concurring) should be followed when applying the Act. Victor J (Manoim J concurring) stated that “the approach calls for a transformative constitutional approach and “the approach calls for a transformative constitutional approach and “the approach calls for a transformative constitutional approach and “the approach calls for a transformative constitutional approach and “the approach calls for a transformative constitutional approach and “the approach calls for a transformative constitutional approach and must be consistent with the scheme of the Competition and apply a context-must be consistent with the scheme of the Competition and apply a context-must be consistent with the scheme of the Competition and apply a context-must be consistent with the scheme of the Competition and apply a context-must be consistent with the scheme of the Competition and apply a context-must be consistent with the scheme of the Competition and apply a context-must be consistent with the scheme of the Competition and apply a context- sensitive approach.”sensitive approach.” 127 [175]In the spirit of applying a context-sensitive approach in our determination, we In the spirit of applying a context-sensitive approach in our determination, we In the spirit of applying a context-sensitive approach in our determination, we In the spirit of applying a context-sensitive approach in our determination, we In the spirit of applying a context-sensitive approach in our determination, we In the spirit of applying a context-sensitive approach in our determination, we emphasise that this matter concerns two of the three largest private hospital emphasise that this matter concerns two of the three largest private hospital emphasise that this matter concerns two of the three largest private hospital emphasise that this matter concerns two of the three largest private hospital emphasise that this matter concerns two of the three largest private hospital emphasise that this matter concerns two of the three largest private hospital emphasise that this matter concerns two of the three largest private hospital groups in South Africa, each with financial resources and institutional groups in South Africa, each with financial resources and institutional groups in South Africa, each with financial resources and institutional groups in South Africa, each with financial resources and institutional groups in South Africa, each with financial resources and institutional groups in South Africa, each with financial resources and institutional sophistication competing at the apex of the market. sophistication competing at the apex of the market. sophistication competing at the apex of the market. sophistication competing at the apex of the market. [176]It is also worth emphasizing that the hospital services at the centre of this matter It is also worth emphasizing that the hospital services at the centre of this matter It is also worth emphasizing that the hospital services at the centre of this matter It is also worth emphasizing that the hospital services at the centre of this matter It is also worth emphasizing that the hospital services at the centre of this matter It is also worth emphasizing that the hospital services at the centre of this matter are provided within the private sector, which mainly provide health services to are provided within the private sector, which mainly provide health services to are provided within the private sector, which mainly provide health services to are provided within the private sector, which mainly provide health services to are provided within the private sector, which mainly provide health services to are provided within the private sector, which mainly provide health services to high-income consumers and those with medical insurance. The matter does high-income consumers and those with medical insurance. The matter does high-income consumers and those with medical insurance. The matter does high-income consumers and those with medical insurance. The matter does high-income consumers and those with medical insurance. The matter does high-income consumers and those with medical insurance. The matter does not strictly speaking concern access to healthcare services, especially for low-not strictly speaking concern access to healthcare services, especially for low-not strictly speaking concern access to healthcare services, especially for low-not strictly speaking concern access to healthcare services, especially for low-not strictly speaking concern access to healthcare services, especially for low-not strictly speaking concern access to healthcare services, especially for low- income individuals, and it does not relate to healthcare provided in the public income individuals, and it does not relate to healthcare provided in the public income individuals, and it does not relate to healthcare provided in the public income individuals, and it does not relate to healthcare provided in the public income individuals, and it does not relate to healthcare provided in the public income individuals, and it does not relate to healthcare provided in the public sector. Instead, this matter is about competitive conduct of private hospital sector. Instead, this matter is about competitive conduct of private hospital sector. Instead, this matter is about competitive conduct of private hospital sector. Instead, this matter is about competitive conduct of private hospital sector. Instead, this matter is about competitive conduct of private hospital sector. Instead, this matter is about competitive conduct of private hospital sector. Instead, this matter is about competitive conduct of private hospital groups operating within the private healthcare market where prices are groups operating within the private healthcare market where prices are groups operating within the private healthcare market where prices are groups operating within the private healthcare market where prices are groups operating within the private healthcare market where prices are groups operating within the private healthcare market where prices are determined largely as an outcome of negotiations between suppliers (private determined largely as an outcome of negotiations between suppliers (private determined largely as an outcome of negotiations between suppliers (private determined largely as an outcome of negotiations between suppliers (private determined largely as an outcome of negotiations between suppliers (private determined largely as an outcome of negotiations between suppliers (private hospitals) and funders (medical aid schemes).hospitals) and funders (medical aid schemes).hospitals) and funders (medical aid schemes).hospitals) and funders (medical aid schemes). [177]Given the nature of the alleged contravention, our key consideration in this Given the nature of the alleged contravention, our key consideration in this Given the nature of the alleged contravention, our key consideration in this Given the nature of the alleged contravention, our key consideration in this Given the nature of the alleged contravention, our key consideration in this Given the nature of the alleged contravention, our key consideration in this matter related to whether or not Mediclinic is dominant in the relevant market(s). matter related to whether or not Mediclinic is dominant in the relevant market(s). matter related to whether or not Mediclinic is dominant in the relevant market(s). matter related to whether or not Mediclinic is dominant in the relevant market(s). matter related to whether or not Mediclinic is dominant in the relevant market(s). matter related to whether or not Mediclinic is dominant in the relevant market(s). Whilst being mindful of the above-described context, our determination of Whilst being mindful of the above-described context, our determination of Whilst being mindful of the above-described context, our determination of Whilst being mindful of the above-described context, our determination of Whilst being mindful of the above-described context, our determination of Whilst being mindful of the above-described context, our determination of Mediclinic’s is grounded in, and confined to the evidence before us. Mediclinic’s is grounded in, and confined to the evidence before us. Mediclinic’s is grounded in, and confined to the evidence before us. Mediclinic’s is grounded in, and confined to the evidence before us. Mediclinic’s is grounded in, and confined to the evidence before us. Mediclinic’s is grounded in, and confined to the evidence before us. [178]In the absence of a finding that Mediclinic holds a dominant position, its In the absence of a finding that Mediclinic holds a dominant position, its In the absence of a finding that Mediclinic holds a dominant position, its In the absence of a finding that Mediclinic holds a dominant position, its In the absence of a finding that Mediclinic holds a dominant position, its In the absence of a finding that Mediclinic holds a dominant position, its decision to insource renal dialysis services is unlikely to contravene the Act, decision to insource renal dialysis services is unlikely to contravene the Act, decision to insource renal dialysis services is unlikely to contravene the Act, decision to insource renal dialysis services is unlikely to contravene the Act, decision to insource renal dialysis services is unlikely to contravene the Act, decision to insource renal dialysis services is unlikely to contravene the Act, which is concerned with conduct that has the potential to substantially prevent which is concerned with conduct that has the potential to substantially prevent which is concerned with conduct that has the potential to substantially prevent which is concerned with conduct that has the potential to substantially prevent which is concerned with conduct that has the potential to substantially prevent which is concerned with conduct that has the potential to substantially prevent or lessen competition. Mediclinic’s decision to insource is not, in our view, in or lessen competition. Mediclinic’s decision to insource is not, in our view, in or lessen competition. Mediclinic’s decision to insource is not, in our view, in or lessen competition. Mediclinic’s decision to insource is not, in our view, in or lessen competition. Mediclinic’s decision to insource is not, in our view, in or lessen competition. Mediclinic’s decision to insource is not, in our view, in and of itself, indicative of a prohibited practice. and of itself, indicative of a prohibited practice. and of itself, indicative of a prohibited practice. and of itself, indicative of a prohibited practice. 127 eMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd and anothereMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd and anothereMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd and anothereMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd and anothereMedia Investments (Pty) Ltd v Multichoice (Pty) Ltd and another (201/CAC/JUN22) (1 August 2022) (201/CAC/JUN22) (1 August 2022) (201/CAC/JUN22) (1 August 2022) at para 84. [179]Although a robust approach involves context-sensitive considerations and Although a robust approach involves context-sensitive considerations and Although a robust approach involves context-sensitive considerations and Although a robust approach involves context-sensitive considerations and Although a robust approach involves context-sensitive considerations and Although a robust approach involves context-sensitive considerations and transformative constitutional imperatives, in the present matter, we have transformative constitutional imperatives, in the present matter, we have transformative constitutional imperatives, in the present matter, we have transformative constitutional imperatives, in the present matter, we have transformative constitutional imperatives, in the present matter, we have transformative constitutional imperatives, in the present matter, we have concluded that there are not clear, non-speculative and uncontroversial facts concluded that there are not clear, non-speculative and uncontroversial facts concluded that there are not clear, non-speculative and uncontroversial facts concluded that there are not clear, non-speculative and uncontroversial facts concluded that there are not clear, non-speculative and uncontroversial facts concluded that there are not clear, non-speculative and uncontroversial facts supporting the granting of the interim relief sought by Life.supporting the granting of the interim relief sought by Life.supporting the granting of the interim relief sought by Life.supporting the granting of the interim relief sought by Life.supporting the granting of the interim relief sought by Life. [180]Based on the evidence before us, the market defined by Mediclinic for the Based on the evidence before us, the market defined by Mediclinic for the Based on the evidence before us, the market defined by Mediclinic for the Based on the evidence before us, the market defined by Mediclinic for the Based on the evidence before us, the market defined by Mediclinic for the Based on the evidence before us, the market defined by Mediclinic for the provision of acute multidisciplinary inpatient private hospital services in South provision of acute multidisciplinary inpatient private hospital services in South provision of acute multidisciplinary inpatient private hospital services in South provision of acute multidisciplinary inpatient private hospital services in South provision of acute multidisciplinary inpatient private hospital services in South provision of acute multidisciplinary inpatient private hospital services in South Africa appears to us Africa appears to us prima facie to be the plausible relevant market in the to be the plausible relevant market in the to be the plausible relevant market in the to be the plausible relevant market in the present matter. present matter. [181]On the conspectus of evidence before us, Life has not adduced sufficient On the conspectus of evidence before us, Life has not adduced sufficient On the conspectus of evidence before us, Life has not adduced sufficient On the conspectus of evidence before us, Life has not adduced sufficient On the conspectus of evidence before us, Life has not adduced sufficient On the conspectus of evidence before us, Life has not adduced sufficient evidence to support its purported narrower market definitions. Life’s novel evidence to support its purported narrower market definitions. Life’s novel evidence to support its purported narrower market definitions. Life’s novel evidence to support its purported narrower market definitions. Life’s novel evidence to support its purported narrower market definitions. Life’s novel evidence to support its purported narrower market definitions. Life’s novel approach to the market definitions in our view has the unintended approach to the market definitions in our view has the unintended approach to the market definitions in our view has the unintended approach to the market definitions in our view has the unintended approach to the market definitions in our view has the unintended approach to the market definitions in our view has the unintended consequences of creating an artificial monopoly where Mediclinic’s hospital consequences of creating an artificial monopoly where Mediclinic’s hospital consequences of creating an artificial monopoly where Mediclinic’s hospital consequences of creating an artificial monopoly where Mediclinic’s hospital consequences of creating an artificial monopoly where Mediclinic’s hospital consequences of creating an artificial monopoly where Mediclinic’s hospital premises constitutes a market in and of itself. Whilst there may be credence to premises constitutes a market in and of itself. Whilst there may be credence to premises constitutes a market in and of itself. Whilst there may be credence to premises constitutes a market in and of itself. Whilst there may be credence to premises constitutes a market in and of itself. Whilst there may be credence to premises constitutes a market in and of itself. Whilst there may be credence to this, the evidence before us did not support a this, the evidence before us did not support a this, the evidence before us did not support a this, the evidence before us did not support a prima facie finding that this market finding that this market definition is plausible. definition is plausible. [182]Undoubtedly, the Complaint will be referred to this Tribunal where the relevant Undoubtedly, the Complaint will be referred to this Tribunal where the relevant Undoubtedly, the Complaint will be referred to this Tribunal where the relevant Undoubtedly, the Complaint will be referred to this Tribunal where the relevant Undoubtedly, the Complaint will be referred to this Tribunal where the relevant Undoubtedly, the Complaint will be referred to this Tribunal where the relevant facts relating to the market definition will be fully and properly ventilated. facts relating to the market definition will be fully and properly ventilated. facts relating to the market definition will be fully and properly ventilated. facts relating to the market definition will be fully and properly ventilated. facts relating to the market definition will be fully and properly ventilated. facts relating to the market definition will be fully and properly ventilated. [183]With respect to dominance and market power, we conclude on the basis of the With respect to dominance and market power, we conclude on the basis of the With respect to dominance and market power, we conclude on the basis of the With respect to dominance and market power, we conclude on the basis of the With respect to dominance and market power, we conclude on the basis of the With respect to dominance and market power, we conclude on the basis of the evidence before us, that, Life has not made out a evidence before us, that, Life has not made out a evidence before us, that, Life has not made out a evidence before us, that, Life has not made out a evidence before us, that, Life has not made out a prima facie case that Mediclinic is dominant in any of the aforementioned considered markets. Mediclinic is dominant in any of the aforementioned considered markets. Mediclinic is dominant in any of the aforementioned considered markets. Mediclinic is dominant in any of the aforementioned considered markets. Mediclinic is dominant in any of the aforementioned considered markets. Mediclinic is dominant in any of the aforementioned considered markets. [184]Considering the above, we do not assess the remaining factors.Considering the above, we do not assess the remaining factors.Considering the above, we do not assess the remaining factors.Considering the above, we do not assess the remaining factors.Considering the above, we do not assess the remaining factors. [185]We make the following order:We make the following order:We make the following order: ORDER [186]Mediclinic’s supplementary affidavit and Life’s response there to is admitted. Mediclinic’s supplementary affidavit and Life’s response there to is admitted. Mediclinic’s supplementary affidavit and Life’s response there to is admitted. Mediclinic’s supplementary affidavit and Life’s response there to is admitted. Mediclinic’s supplementary affidavit and Life’s response there to is admitted. Mediclinic’s supplementary affidavit and Life’s response there to is admitted. [187]For the reasons above, we dismiss Life’s application for interim relief. For the reasons above, we dismiss Life’s application for interim relief. For the reasons above, we dismiss Life’s application for interim relief. For the reasons above, we dismiss Life’s application for interim relief. For the reasons above, we dismiss Life’s application for interim relief. For the reasons above, we dismiss Life’s application for interim relief. [188]There is no order as to costs. There is no order as to costs. There is no order as to costs. 23 February2026 23 February2026 Date Prof. Imraan ValodiaProf. Imraan Valodia Ms Andiswa Ndoni (Concurring)Ms Andiswa Ndoni (Concurring)Ms Andiswa Ndoni (Concurring) Signed by:Imraan Valodia Signed at:2026-02-23 10:52:28 +02:00Signed at:2026-02-23 10:52:28 +02:00 Reason:Witnessing Imraan ValodiaReason:Witnessing Imraan Valodia A Wessels (dissenting)A Wessels (dissenting) [189]I have had the privilege of reading the reasons and order of my brother Prof I have had the privilege of reading the reasons and order of my brother Prof I have had the privilege of reading the reasons and order of my brother Prof I have had the privilege of reading the reasons and order of my brother Prof I have had the privilege of reading the reasons and order of my brother Prof I have had the privilege of reading the reasons and order of my brother Prof Imraan Valodia, which my sister Ms Andiswa Ndoni concurs with. It is with Imraan Valodia, which my sister Ms Andiswa Nd

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Life Healthcare Group And Mediclinic Southern Africa

The judgment