From: Simba Chitando
Sent: 16 April 2013 07:16 PM
To: Petra Krusche
Subject: OFFER TO SETTLE DISPUTE: CHITANDO/FITZGERAL & OTHERS
"WITHOUT PREJUDICE" "STRICTLY PRIVATE & CONFIDENTIAL"
1. 1. The matter between your clients and myself refers. I have written this message, without prejudice, solely in an attempt to settle this matter, amongst ourselves, outside the Tribunal.
2. 2. Your clients, and yourself, have had an opportunity to digest the contents of my application for interim relief.
3. 3. I feel very strongly about the anti-competitive conduct by your clients, and believe that I am entitled, by the Competition Act, for justice and relief. Your clients have killed my ambitions of a shipping law livelihood in Cape Town. This commercial injustice cannot go without recourse. I have initiated these proceedings for that reason alone.
4. 4. Notwithstanding the above, I am prepared to withdraw proceedings at the Commission and Tribunal if your clients compensate me in the amount R300 000, by each Respondent, for the anti competitive conduct. I am prepared to negotiate the settlement amount. I know !hat there are white juniors, with whom your clients have anti-competitive relationships, who have made much more than that on several shipping briefs over the years.
5. 5. Whether your clients agree or not with the merits of my claim they should all consider the following risks:
(a) The possibility !hat the Commission takes this matter to the Tribunal and they find your clients conduct anti-competitive. There could be a fine involved, an order they may not enjoy, and I may claim damages, in future, for anti-competitive conduct.
(b) I take the matter to the Tribunal directly, if the Commission gives a notice of non-referral, and I am successful there. There could be a fine, a difficult order, and I may claim damages down the line.
(c) If the Tribunal does not find in my favour I will appeal the decision as far as one can. This matter involves racial and xenophobic interpretation of the Competition Act. It is political as much as it is legal. It is ripe for Constitutional Court precedent. It is unlikely, in this dispensation, !hat all judicial forums would find in favour of the protection of older white male economic power over !hat of a young black African. Especially if one considers the circumstances of this matter. Your clients will appear to be bullies, which is what I consider of them.
(d) The total financial costs, to your clients, in litigation, and possible fines, may be considerably more than what I'm looking for to settle.
(e) Your clients may be forever be associated with the racial and xenophobic anti-competitive limitation of young a black foreign lawyers from practicing in the field of law to which he is capable. I remind you that the papers in this matter are of public record. Anybody and everybody are entitled to them. I cannot be found liable for their publication.
(f) If I am successful in litigation, it may open the door to several other similar complaints from black Advocates, not just from the Bar. Shortly after I successfully challenged the Ministry of Horne Affairs to practice in South Africa, there was a flood of other foreign claimants.
6. If your clients do not accept my offer to resolve this matter I guarantee that I will take this as far as one can, to the net detriment of your clients, until I have the justice.
7. I look forward to hearing whether your clients find my offer agreeable. If it is agreeable, everything will go away in an instant, and I will make an undertaking that this matter will go no further, and your clients will not hear from me again. I hope that this matter can be resolved outside the Tribunal. Its sad I have had to resort to this but I feel as though I have no choice. If there is no agreement you may ignore this email and proceedings will follow its course with uncertain conclusions, consequences and ramifications.
Faithfully,
Simba Chitando.
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