Gauteng High Court Judge Margaret Victor has tread a groundbreaking path through the legal fraternity — smashing glass ceilings, egos and presumptions of white male superiority where she can.
Addressing members of the judiciary and the Johannesburg Bar at the latter’s annual dinner two years ago she tackled head on the lack of transformation within the sector following lawyer Richard Spoor’s disturbing remarks tha there were no black lawyers worth adding to the case seeking class action certification to allow mineworkers to launch claims against mining companies for illnesses they suffered.
“The time for talking transformation is over, the time for doing is here,” she challenged those gathered.
“The transformation programmes implemented are laudable and so important but that juxtaposed to the utterances referred to requires this august institution [the Johanneburg Bar] to once again utilise its internal courage and fearlessness when hearing such brutal public utterances to see what can be done and how this can be healed.”
The first woman to be elected to the Johannesburg Bar Council in 1996, Victor urged senior counsels to use more juniors “who suffer historical disadvantage”.
Recalling her own time as an advocate, she said: “When at the Bar I managed to persuade my attorneys to brief women juniors and to appear with me. It is an active commitment and decision that every member must make. Postulate a situation where say 400 silk and senior juniors are able to persuade their attorneys to brief either with them or alone, a counsel who needs a springboard, even say five times a year. Consider the arithmetic.”
Victor has acted several times at the Competition Appeal Court. In the 2015 matter of Lekoa Fitment Centre v Altech Netstar she was part of a full Bench asked to review a Competition Tribunal decision against the fitment centre. The centre had raised several complaints against Netstar on the grounds of unfair commercial practise and Netstar had opposed the claim via an exception, arguing that Lekoa had failed to disclose a cause of action. The tribunal had found against Lekoa.
With her colleagues agreeing, Victor found that “[m]ore is required than the mere fact of dominance by a firm in the upstream market based on vertical restriction. Lekoa did not pass the hurdle of demonstrating Netstar’s dominance in the market.”
After evaluating the complaints and perusing the fitment centre agreement, she found there was no evidence to show that the alleged price discrimination had the effect of lessening competition. Concluding that the tribunal was correct in upholding the exception, she further found that the appeal ought to be dismissed with costs.
She did so because the tribunals findings “could not have been clearer” and reasoned that the fitment centre “should have considered its position more carefully”. Especially “in the light of its continued failure to try and prove its case in the absence of some form of objectively ascertainable evidence necessary to sustain a cause of action in the field of competition jurisprudence”.
In Oceana Group Ltd and FoodCorp (Pty) (Ltd) v The Competition Commission, she upheld, with costs, an appeal against a decision of the Competition Commission to halt the merger of two famous South African tinned pilchard brands, Lucky Star and Glenryk.
Oceana owned Lucky Star and wanted to acquire the total allowable catch quota of pelagic fish from Foodcorp, which owned the latter brand. Oceana did not wish, however, to purchase the Glenryk label. The issue of the appeal before the appeal court was the condition imposed by the tribunal that Foodcorp’s pelagic total allowable catch be disposed of together with the Glenryk brand.
Both companies controlled approximately 80% of the market share and the tribunal had found that the deal would lead to less competition — despite both parties’ contention that Glenryk would remain in business importing pelagic fish.
In view of the parties’ hefty combined market share (approximately 80%), it found that the transaction would result in the abolishing of an effective competitor because it found that, despite the parties’ contentions that Glenryk would remain a viable business through pelagic imports, its market share percentage would diminish and Lucky Star’s would be boosted.
Victor criticised the commission for “not run[ning] with one coherent theory of harm” and for drawing “inferences from speculative evidence” which ultimately led to it making conclusions “not based on the facts” which included import numbers and small-scale fishing contributions.
The appeal was upheld with costs, and the merger was approved subject to the appeal court’s own conditions provided as an annexure to the judgment.
Victor was appointed as a judge of the Gauteng High Court in 2008. She holds a B.Soc.Sci and an LLB from the University of Cape Town and has diplomas in arbitration and advanced tax law. She is the vice-president of the South African Chapter of the International Association of Women Judges, which nominated her for appointment.
April 2018 Interview Synopsis:
A judge of the Gauteng High Court, Margaret Victor told the Judicial Service Commission (JSC) that while she found competition law “dealt with complex issues”, these were “not insurmountable”.
Victor has acted at the Competition Appeal Court for four years and said she found the various training workshops where judgments were assessed and basic principles tested very useful in honing her skills.
She deftly handled all lines of questioning, from those dealing with the more technical aspects of the law to others which addressed the philosophical and socio-economic consequences of private sector corruption on the broader public. Victor was duly appointed.
She agreed with Chief Justice Mogoeng Mogoeng that the fines for corporate corruption — capped by legislation at ten percent of the company’s turn-over — may be too low and that these could be increased if “based on the correct facts”.
Advocate Dali Mpofu asked Victor what needed to be done to “demystify” competition law and make it more accessible for the public to understand the work of these niche courts. Victor suggested that writing judgments “that are easy to read and understandable” was the most basic redress. She added that television programmes and newspaper articles regarding corporate malfeasance and the avenues and steps available to the public, media and investigative units, to reign this in may also assist in the “demystification” process.
On the role of economic experts giving testimony on legal issues and the effect these had on judgments, Victor said it was essential that these experts did not dominate the court’s thinking and that they were required to “steer very far away from what the facts are”.