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[2011] ZACAC 7
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Competition Commission of South Africa v Gralio (Pty) Ltd (107/CAC/Dec10) [2011] ZACAC 7; [2011] 2 CPLR 225 (CAC) (20 October 2011)
IN THE COMPETITION APPEAL COURT OF SOUTH AFRICA
CASE
NUMBER
: 107/CAC/Dec10
DATE
: 20 October 2011
In the
matter between:
THE
COMPETITION COMMISSION OF SOUTH AFRICA
…............................
Appellant
and
GRALIO (PTY) LTD
…...................................................................................
Respondent
J U D G M E N T
DAMBUZA, JA
:
The
appellant referred a complaint to the Competition Tribunal (the
Tribunal) against the respondent, alleging that the respondent,
together with various other companies, participated in a cartel
which engaged in price fixing, division of markets and collusive
tendering, in contravention of section 4(1)(b)(i), (ii) and (iii) of
the Competition Act (Act No 89 of 1998, as amended, (“the
Act”)). The complaint wasdismissed by the Tribunal; hence this
appeal against the judgment and order of the Tribunal.
The original complaint referral by the appellant
was against ten companies (including the respondent)
1
which
operated in the manufacture and supply of concrete products. By the
time of the hearings before the Tribunal the ninth and
tenth
companies had since been absorbed, through corporate mergers, into
two of the other companies. All exceptthe respondent
in this appeal
admittedto having participated in anti-competitive activities in
contravention of the Act as alleged.All except
two of those
whoadmitted having participated in the acts which triggered the
complaint, concluded settlement agreements with
the appellant,in
terms of which they agreed to pay various amounts of moneys as
administrative penalties. A hearing was held
on the quantum of
administrative penalties payable by the two and an appeal against
the amounts determined by the Tribunal as
administrative penalties
payable by the two respondents was heard by this Court.
2
Only
the complaint against the respondent in this appeal was heard on the
merits.
The
complaintemanated from receipt by the appellant, on 7 December 2007,
of information on a long-running cartel in the market
of pre-cast
concrete products. According to the referral, the information was
provided by
Rocla (Pty)(Ltd), (first respondent in the complaint
referral).
During its leniency application
Rocla
explained
to the appellanthow the cartel operated in prescribing pricing
methods, and in allocating contracts, tenders and customers
in
Gauteng, KwaZulu – Natal and the Western Cape.The cartel
operated both nationally and in the stated regions.
The appellant alleged in the referral that the
cartel started operating in 1973, at the instance of Rocla and
Infraset.
3
Over
time other players in the concrete manufacturing and supply sector,
such as the respondent, also joined the cartel. Cartel
members
attended regular meetings around the country whereat they discussed
and reached agreements on details of cartel activities
in pursuance
of the cartel objectives. To ensure that participants did not exceed
their allocated tonnage, at these meetings
one of the cartel
members, referred to as the banker, would present a comprehensive
list of all contracts available in the various
regions and a summary
of tons of products supplied by each member over a period. The
participants were identified at the meetings
by number, rather than
name, to conceal their identity. The venues at which meetings were
held, changed each time to avoid detection.
The participants agreed
on an applicable price list and price increments. The allegation in
the referral was that the respondent
was represented at the cartel
meetings by one
Hedley Hansen
.
In
the main, the cartel agreements related to supply of concrete pipes
and culverts to construction companies involved in building
roads,
pipelines, bridges, sewerage systems and other major infrastructural
developments. The participants split the pre-cast
products and sizes
thereof which each firm could produce and sell to the market. In
respect of some of the products, payments
were made to firms to keep
them out of the market. Contracts were allocated among cartel
members in accordance with agreed market
shares in the various
designated regions.
In
pursuing the terms of the allocation arrangement, the participant,
to whom a contract was allocated, would offer to a building
contractor, in its tender or quote, higher discounts whilst the
non-allocatees would offer less or no discounts.
Regarding
the respondent, the allegation was that it had participated in the
KwaZulu Natal regional cartel by concluding an agreement
with Rocla,
Infraset and Cobro in terms of which Rocla would supply culverts in
KwaZulu Natal, within a designated area,without
competition from the
others (i.e. Infraset, Cobro and the respondent).In this way the
respondent agreed not to participate in
the manufacture and supply
of culverts. These companies also agreed to share the market for
production of pipes in KwaZulu Natal
as follows: Rocla-54%,
Infraset-19%, the respondent-10% and Cobro-17%.
In
2007, subsequent to Rocla’s leniency application to the
appellant, the cartel disbanded and ceased operating.
Before
the Tribunal the issue was whether the respondent had, in fact,
concluded an agreement and participated in a concerted
practice of
cartel activities as alleged.
The Tribunal accepted that the mere conclusion of
the agreement (if proved) constituted contravention of the Act. But
it found
the evidence before it insufficient to prove that the
respondent had concluded the agreement.The Tribunal then considered
whether
the respondent had participated in a concerted practice, and
whether it could be held liable on the basis of Hansen’s
conduct.
4
The
Tribunal found that there was
no
evidence that the respondent
had participated in the alleged concerted practice and further that
the appellant had not proved
that
Hansen
had authority to
represent the respondent and to agree andbind it to participation in
the cartel activities. The Tribunal also
found no basis in the
evidencefrom which it could be inferredthat
Hansen
had or
would have conveyed the resolutions and agreements concluded at the
cartel meetings to those in authority within the respondent.
The
appellant contended before us on appeal that the Tribunal should
have found that the evidence proved that both prior to and
subsequent to change of share ownership and control of the
respondent, the respondent had participated in the cartel.
It
was common cause before the Tribunal that, prior to October 2003,
the shares in the respondent were owned by a company known
as Ukumba
Brick and Quarry(Pty)(Ltd). In October 2003 a family Trust
controlled by Jagadasan “Jay” Singh (“Singh”)
acquired all the shares in the respondent and Singh became the Chief
Executive Officer of the respondent.
Singh’s
evidence before the Tribunal was that the respondent never
participated in cartel activities during the time that
the business
was under his controland that he only became aware of the existence
of the cartel in KwaZulu Natal when he was confronted
by the
appellant pursuant to information furnished to the appellant by
Rocla. According to Singh, Hansen and two other personswere
respondent’s sales agents when the Trust acquired shares to
the respondent. They operated independently and were not employed
by
the respondent and they jointly earned commission of 5% on all sales
of concrete pipes sold by the respondent. During Singh’s
control the relationship between the respondent and the three sales
agents continued as before.
Singh
maintained that neither he nor the directors of respondent ever
authorized Hansen to attend cartel meetings and that since
the Trust
acquired the shares in the respondent, he (Singh) had always
personally set the respondent’s prices for pipes.
Francois
Myburgh (“Myburgh”) and Daniel Greeff(“Greeff”)testified
on behalf of the appellant. Myburgh
was the general manager of
infrastructure projects at Infraset (which had since been absorbed
into Aveng). His evidence was that
Hansen “appeared to be”
the respondent’s representative in the KwaZulu-Natalprovincial
cartel and that he (Hansen)
would attend the cartel meetings and
declare sales figures on behalf of the respondent. Hansen had
toldMyburgh that he was an
“agent” who sold pipes for
the respondent. Myburgh had also been told that the respondent had
joined the cartel in
about 2002 at the invitation of Rocla, when the
respondent was owned by a construction group known as Stefanutti
Bressan (i.e.
prior to the Singh’s control).
Greeffwas
one of Rocla’s managers in the Western Cape,but for some time
he worked in Durban and in that capacity he attended
the KwaZulu
Natal Regional cartel meetings from 2004 until mid 2005. It is at
these meetings that he met Hansen whom he understood
to be
representing the respondent.
One
of the submissions made to us on appeal was that the Tribunal erred
in failing to insist that Hansen attend the Tribunal hearing
and
give evidence thereat. The contention was that, in light of this
error on the part of the Tribunal, we should direct that
the matter
revert to the Tribunal for Hansen’s evidence to be heard.
The
record reveals that the respondent had subpoenaed Hansen to give
evidence before the Tribunal.However according to correspondence
from Hansen’s attorney, Hansen’s doctor had advised that
his health did not permit that he attend the hearing before
the
Tribunal. We learnt a few days after the hearing of the appeal that
Hansen was already deceased at the time of the hearing
of the
appeal. For that reason I deem it unnecessary to deal any further
with the appellant’s submission in this regard,
save to agree
that the Tribunal is, as a specialist administrative tribunal and a
fact seeking authority, entitled to play an
active role in its
conduct of the hearings before it, subject of course, to the
requirements of fairness.
As Sutherland and Kemp write:
“
The Tribunal does not function in the same
way as an ordinary court, refereeing a dispute based only on the
material presented by
the adversaries before it and in accordance
with fixed rules of play. In contrast to ordinary civil proceedings,
competition proceedings
always involve the public interest and, under
the Act, the Tribunal is given an active role in protecting that
interest. As a result,
the Tribunal conducts its proceedings in an
inquisitorial manner, potentially calling its own witnesses,
accepting evidence not
normally admissible in a court of law,
allowing a broad range of participants, and adjusting its procedures
as it sees fit. This
should always be tempered, however, by the
requirement that the Tribunal conduct its hearings expeditiously and
in accordance with
the principles of natural justice.”
5
I
do not agreethat the Tribunal was wrong in its finding that there
was insufficient evidence before it to concludethat the respondent
had agreed to and participated in cartel conduct as alleged.
Firstly, the appellant relied for its submission that the respondent
had agreed to participate in the cartel,on a document referred to in
the record as the “
modus operandi”.
This document
purports to set outthe terms of the KwaZulu Natal cartel. It refers,
amongst others, to the area of operation of
the cartel, the price
fixing method, price lists, the method of dealing withcontracts and
tenders and market share allocation
between the relevant
participants.
The
modus
operandi
,on the face of it, appears to
have been drawnon 19 January1988 and thereafter was amended on a
number of occasions; with the
last amendment having been effected on
27 June 2001.
6
None of those who gave evidence at the Tribunal
hearing testified to having personal knowledge of the circumstances
in which the
terms of the
modus
operandi
were concluded.
In
particular, neither Myburgh nor Greeff had any personal involvement
in the drawing or amendment of the
modus operandi
or at the
negotiations leading thereto, nor were they signatories or witnesses
thereto or to the amendments thereto.
The
only evidence linking the respondent to the
modus operandi
was Myburgh’s evidence that at the cartel meetings he
understood participant number 3 to be the respondent. But, apart
from the fact that Myburgh had initially testified that the
respondent was participant number 4 in the cartel, the value to be
attached to his evidence is inextricably linked to Hansen’s
attendanceat the cartel meetings, to which I revert later in
this
judgment.
Further,
contrary to Myburgh’s evidence that he had been told that the
respondent joined the cartel in 2002, the
modus operandi
records that cartel member 3 was already participating in the cartel
as far back as 1988, when the document was drawn, or in
2001 when
the last amendment to the
modus operandi
was effected.
It
is significant that the terms of the
modus operandi
appear to
have been concluded prior to the change of ownership of the
respondent. No evidence was led on who represented the respondent
whenthe terms of this documentwere negotiated and concluded or when
it was amended.
The
appellant further relied, in its case that the respondent agreed to
participate on the cartel,on a note recordedonthe minutes
of a
meeting held by members of the cartel at the Oude Werf Hotel on
23
June 2006
, reading “
at present 90% distribution with
Gralio out”.
In this regard, theappellant contended that
this note falls to be construed to mean that at some stage the
respondent had been
“
in”
the cartel.
But
again, no evidence was led of the author of the note regarding the
meaning thereof and/or the source of the information relayed
therein. Myburgh’s evidence was that he had been
told
that the respondent had left or was getting out of the cartel due to
dissatisfaction with the size of its allocated quota in
the cartel.
No evidence was led of the person(s) who had personal knowledge of
the respondent’s participation in the cartelor
who had told
Myburgh that the respondent was getting out of the cartel. Even if
it were to be accepted that such allegation was
made about the
respondent, one can only conclude that it was based on Hansen’s
conduct and/or utterances at the cartel
meeting(s), whose authority
is in dispute. The Tribunalremarked at paragraph 65 of the judgment
that:
“
What Hansen’s true business was in
the cartel is obscure. The Tribunal is left confronting the strange
spectacle of Hansen
participating for some time, possibly a number of
years, in the meeting and procedures of the cartel, to all intents
and purposes
as a representative of Gralio, when in fact Gralio was,
at least after its acquisition by the Singh family trust, wholly
outside
the cartel. One is reminded of Mata Hari and other double
agents of legend.”
It
was common cause before the Tribunal that the respondent did not
manufacture or supply culverts.The appellant’s contention
was
that such non-participation could only be in pursuance of the cartel
objectives, since the appellant had the capacity to
participate in
that market. But there was no evidence to support this contention.
There was, for example, no evidence that the
respondent had been
manufacturing culverts until the time of the agreement, or that from
the time of the agreement it received
money from one or more of the
other cartel members which falls to be construed as a payment for
not participating in the culvert
markets.
On
the other hand,Singh’s uncontested evidence was that the
Family Trust bought the business or shares therein primarily
as a
“baseload” to his civils and construction business which
was already in operation at the time. According to
him he was not
interested in the culvert market. A further motivation for acquiring
the respondent was that the respondent already
had an SABS
accreditation. All this, in my view, rather supports the
respondent’s contention that there was no incentive
for the
respondent to agree to the restricting terms of the cartel. The
evidence was that,after the acquisition of the shares,
the
respondent’s business was relocated from Richard’s Bay
where it had been operating when the Trust acquired it,
to Verulam,
outside Durban where Singh acquired a bigger plant with the aim of
increasing production. The submission by Mr Marnewick,
on behalf of
the respondent, that the respondent would not agree to limit itself
to allocated markets, after having expanded
its business, is, in my
view, persuasive.
There was no evidence before the Tribunal to
gainsay Singh’s version that, contrary to the terms of the
modus operandi
and
Hansen’s activities within the cartel, the respondent supplied
pipes to contractors outside its purported area of allocation,
in
the Eastern Cape and the Free State.
7
In
the end, as the Tribunal found,there was no credible evidence before
the Tribunal on which it could conclude that the respondent
had
agreed to participate in the cartel.
But
the matter did not end there.At paragraph 59 of its judgment the
Tribunal found that:
“
... if the evidence falls short of
establishing that such an agreement existed, that is not the end of
the matter since Hansen’s
participation in the meetings of the
KwaZulu Natal cartel might indicate that Gralio was engaged as a
participant in a concerted
practice of the cartel, and hence have
been contravening Section 4 on that basis.”
The
question of whether Hansen’s participation in the meetings of
the cartel signified the respondent’s participation
in a
concerted effort depended on his authority to represent the
respondent at the meetings.
Both
Myburgh and Greeff had assumed that Hansen had the requisite
authority to attend the meetings. They however, had no personal
knowledge of the derivation of such authority. Myburgh’s
evidence was that his colleague Chris Blake would know more about
the capacity in which Hansen attended the meetings. Blake never gave
evidence before the Tribunal. Another person who, according
to the
evidence would have had personal knowledge of the events referred to
was
Ted Brown.
He was also never called to give evidence
before the Tribunal.
Mr
Bhana, who appeared together with Mr Mooki on behalf of the
appellant, listed the following factors from which, as he submitted,
an inference should be drawn that the respondent participated in
cartel activities:
Hansen’s
presence at cartel meetings;
The
absence of a denial that the respondent participated in the cartel
before 2003 (presumably prior to change of ownership);
The
improbabilities that Hansen would have been attending the meetings
on a “
frolic of his own”
, given that generally
cartels do not readily admit an “
outsider”
to its
meetings;
That
the respondent was allocated a market share;
That
Hansen gave the respondents production and sales figures at the
meetings;
That
respondent benefited from participation by virtue of the market
division and exchange of information;
That
Myburgh and Greeff dealt with Hansen as if he was a representative
of the respondent;
That
Hansen was the face of the respondent;
That
at some stage Hansen agitated for increased market allocation for
the respondent; and
The
contents of the
modus operandi
.
As
already stated,Myburgh’s evidence before the Tribunal was that
before Singh’s time,hehad “heard” that
the
respondent, having been invited by Rocla, had agreed to accept a 10%
market share of the KwaZulu Natal pipes (and culverts)
market share.
But Myburgh personally only met Hansen in “
the early
2000’s”
. Even when he met him, he was never sure of
Hansen’s relationship with Gralio; Hansen had told him, that
“
he was an agent that sold concrete pipes on behalf of
Gralio
”. Apart from reliance placed on the
modus
operandi,
this was the only evidence led on the respondent’s
alleged participation in the cartel prior to Singh’s control.
Myburgh
confessed his unfamiliarity with the operation of the cartel
in KwaZulu Natal; his main area of operation having been in
Johannesburg.
In the end he did not know when exactly the respondent
joined the cartel.
Apart
from Hansen’s attendance at the cartel meetings armed with the
respondent’s production or sales figures (referred
to as
“tonnage”), much was made, on behalf of the appellant
both before the Tribunal, and before us on appeal, of
Singh’s
inability to give details of, for example, the value of a big
contract which the respondent had secured with the
Department of
Transport and the failure to list, as a separate and distinct
expenditure, in the respondent’s financial
statements, the
commission paid by the respondent to Hansen and the other sales
agents in 2008. This, so it was contended on
behalf of the
appellant, was an indication that, contrary to Singh’s
evidence, Hansen was, in fact, an employee of the
respondent who had
been in control of the respondent during the relevant period.
Hansen, so the argument went, had been the face
of the respondent
and the respondent would not have been in the business of selling
pipes if it were not for its sales agents.
This
argument, however, does not advance appellant’s case any
further. Even if the sales agentsmade most or all of the
respondent’s sales and could be seen as the “face”
of the respondent, that did not necessarily give them authority
to
conclude agreements on behalf of the respondent, other than in the
ordinary course of their agreement with the respondent
(as sales
agents).
It
would, in my view, not be proper to conclude, based on suspicion or
to infer, based solely on perceived shortcomings in Singh’s
evidence, that Hansen had the necessary authority by virtue of
having some relationship with the respondent.
That
Hansen possessed respondent’s sales or production figures, on
its own, does not justify a conclusion that Hansen had
the necessary
authority. As one of the respondent’s three sales agents,
Hansen would have had access to the respondent’s
sales or
production figures.
The
Tribunal was not entitled to ignore Singh’s evidence; nor
could it find that shortcomings in his evidence necessarily
proved
the appellant’s allegations where there was no evidence to
that effect. Singh’s evidence was that the respondent’s
income from its big venture with the Department of Transport varied
from month to month; ranging in the vicinity of R500 000
to R600
000.It is not unheard of that the execution of contracted work takes
place over a lengthy period and payment is effected
periodically,
according to work done over time. Therefore, in the absence of
evidence to the contrary, there was no basis to
find this
explanation improbable.
Singh’s
further evidence was that no commission was paid to the sales agents
during 2008 because moneys due in respect of
sales made by the
agents had not been collected. Once again, no evidence to the
contrary was placed before the Tribunal. On the
other hand, it seems
to have been common cause that commission had been paid by the
respondent prior to 2008. Discrepancies between
commission paid and
sales made over a particular period did not, in my view, necessarily
disprove Singh’s evidence, as
his explanation seems to imply
that payments were not necessarily received at the same time as
delivery of the product or when
sales were made.
Whilst
it is true that cartels do not readily admit outsiders, in this case
Hansen could hardly be regarded as an outsider. He
had been involved
in the precast industry since 1973. The evidence was that at some
stage, it would seem in the late 90’s
or early 2000, he
retired. He still wanted to work but could not do so on a fulltime
basis, as that would violate the terms of
his medical aid scheme.
Hence he re-joined the industry on an “agency” basis.
This much was common cause before the
Tribunal. Therefore, there
seems to be some confirmation of the evidence that he worked
somewhat independently of the respondent.
Mr
Bhanafurther submitted that there is no requirement for proof of
authority in section 4 of the Act and that the introduction
of this
requirement would defeat the purpose of the Act. He argued that, if
a party is accepted “by everyone” as
having authority to
represent his or her principal, the requirements for contravention
of the Act are satisfied. I do not agree.
A clear factual basis for
theimpression that a party has authority is crucial to the
determination of the validity of the alleged
or perceived authority.
While
the Tribunal is not a Court of law, and is entitled to afford itself
significant flexibility in its hearings,particularly
withregard to
the ordinary rules of evidence, it remains bound by the requirements
of fairness. Crisply expressed, Tribunal hearings
need to adhere to
the principles of legality and its decisions must be founded on
credible evidence. The flexibility allowed
in its proceedings is not
intended to permit abuse of the process. Thus,
“
... Circumstances will dictate the extent
to which formal rules of evidence should be adhered to or relaxed,
but the accused may
in no circumstances be deprived of his
constitutional right to a fair hearing.”
8
The
Tribunal in this case, in line with the flexibility afforded in its
proceedings,admitted hearsay evidence by Myburgh and Greeff.
But
whether such evidence constituted sufficient proof of the
allegations made is a different issue, particularly in the context
of Singh’s evidence disputing participation in the cartel.
The requirements for vicarious liability have
become settled law in our jurisprudence. As submitted on behalf of
the respondent,
a company can only act through a person imbued with
valid authority. Such authority may be express, implied or
ostensible.
9
Whether
an employee or representative of a company has the necessary
authority to bind his or her principal is often determinable
from
his or her office within the principal (implied authority) or the
principal’s conduct regarding the relevant activity
or
transaction, either prior to or subsequent to the conclusion thereof
(ostensible authority). It is the evidence relating to
such
authority that was lacking at the Tribunalhearing. Instead the
evidence was that whilst the other attendees at the cartel
meetings
were Managers, Directors or Managing Directors, Hansen was only
known to be an
“
agent”
of the respondent.
An
agent’s
authority
to represent the principal is the
basis of the agency and without that authority, the acts of an
“agent” cannot bind
the principal.Without evidence of
this authority the Tribunal could not find contravention by the
respondent.
Seldom,
if ever, does legislation refer to proof of the circumstances which
constitute a contravention thereof. This is a requirement
of our law
of evidence. Sufficiency of evidence cannot be ignored, if the
Tribunal has to make a finding concerning the existence
or non
existence of alleged facts and to pronounce on the liability of a
partyalleged to be engaged in unlawful conduct.
For
this reasonMr Bhana’s submission that allegations of
contravention of the Act are sufficient to secure a finding of
contravention of the Actfalls foul of a fundamental principle of our
law. Credible evidence of existence of the allegation must
be
provided.
In
my view, even in Tribunal hearings,inferences and probabilities must
be distinguished from conjecture and speculation. There
can be no
proper inferences drawn unless there are objective facts from which
to infer the facts sought to be established. If
there are no
positively proved facts from which the inference can be drawn, the
method of inference fails and what is left is
mere speculation.
I
do not suggest that the appellant’scase depended solely on the
existence of a strict binding contract between Hansen and
the
respondent for Hansen to represent the respondent in the cartel. But
it seems to me that if the appellant had conducted a
more thorough
and objective
assessment of the nature of the case it sought
to prove before the Tribunal, it would have beenmore alive to the
difficulties
it could encounter in its reliance on the
modus
operandi
and Hansen’s attendance at the cartel meetings.
A
critical evaluation of the two legs on which its case stood in the
context of Singh’s own allegations would have revealed
the
weaknesses in the evidence the appellant sought to present, such as
the lack of sufficient detail regarding the respondent’s
representative at the cartel meetings prior to and subsequent to the
change in ownership and whether representation at the cartel
prior
to the change of ownership transcended the change of ownership.
Perhaps the appellant would then have been able to fortify
its case
accordingly. The evidence presented by the appellant fell far short
of proving either an agreement to or actual participation
in cartel
activity.
In
the result, I cannot find that the Tribunal was wrong in its
conclusion that the respondent had not been shown to have been
a
party to an agreement or a concerted practice prohibited under
section 4 of the Act.
COSTS
Mr Marnewick submitted that the costs should
follow the cause. I agree. But I find no reason to interfere with
the Tribunal’s
ruling that there should be no order as to
costs. Generally each party participating in a Tribunal hearing must
bear its own
costs.
10
Consequently:
The
appeal is dismissed with costs.
___________________
DAMBUZA, J
DAVIS, J
: I agree.
__________________
DAVIS, J
ZONDI, J
: I agree.
__________________
ZONDI, J
Rocla
(Pty) Ltd (first respondent), Southern Pipeline Contractors (Pty)
Ltd (second respondent), Concrete Units (Pty) Ltd (third
respondent), Aveng (Pty) Ltd (fourth respondent), Gralio (Pty) Ltd
(fifth respondent), Cobro (Pty) Ltd (sixth respondent), Cape
Concrete Works (Pty) Ltd (seventh respondent); Conrite Walls (Pty)
Ltd (eighth respondent), Craig Concrete Products (Pty) Ltd
(ninth
respondent), D&D (Pty) Ltd (tenth respondent).
See
the judgment of this court in SPC and Another v The Competition
Commission, Case No 105/CAC/DEC10 and Case No 106/CAC/DEC10;
handed
down on 4 August 2011.
See
1 (supra)
The
Tribunal formulated its approach to the issues before it as follows:
“
These
tests devolve into the following questions:
Was
Hansen authorised by Gralio to participate (as we accept he did) in
the meetings and procedures of the KwaZulu Natal cartel,
hence
establishing the existence of an agreement prohibited under Section
4?
If
not, is there evidence to show that Hansen’s participation
brought about conduct of Gralio that amounted to acceptance
of, or
implementation of, the rules and procedures of the KwaZulu Natal
cartel, and hence Gralio’s participation in a
concerted
practice prohibited under Section 4?”
Page 59 of
the Tribunal’s judgment.
Sutherland
and Kemp: Competition Law of South Africa at 11-24 (11.4.6.1) and
the authorities cited therein.
Amendments
were effected on 9 November 1989 and on 18 May 1995.
Although
the non-adherence to allocated markets would not on its own, absolve
the respondent where there was sufficient evidence
of participation
in the cartel.
Schikkard
et v.d. Merwe
(supra)
at 15.
Tuckers
Land and Development Corporation (Pty) Ltd v Perpellief
1978
(2) SA 11
(T)
Section
57(1) of the Act, subject to section 57(2) of the Act and the
Tribunal Rules.
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