SAFLII Note: Certain personal/private details of
parties or witnesses have been redacted from this
document in compliance with the law and SAFLII
Policy
COMPETITION TRIBUNAL OF
SOUTH AFRICA
Case No: CR150Oct13/SA 155Dec23
In the matter between:
The Competition
Commission
Applicant
And
Leo Constantin Pistorius
N.O.
First
Respondent
Hermine Pistorius N.O.
Second
Respondent
Arnoldus Kurt Pistorius
N.O.
Third
Respondent
Daniel Hendrik Du
Plessis N.O.
Fourth
Respondent
Sanette Fourie N.O.
Fifth
Respondent
H Pistorius and CO (Pty) Ltd Sixth Respondent
Panel L Mncube (Presiding Member)
T Vilakazi (Tribunal Member)
A Ndoni (Tribunal Member)
Heard on 13 February 2024
Decided on 13 February 2024
Settlement Agreement
The Tribunal hereby confirms the settlement
agreement as agreed to and proposed by the
Competition Commission and Leo Constantin
Pistorius; Hermine Pistorius N.O; Arnoldus Kurt
Pistorius; Daniel Hendrik Du Plessis N.O; Sanette
Fourie N.O; H Pistorius & CO (Pty) Ltd annexed
hereto.
Signed by Liberty Mncube
Signed at 2024-02-13 14:46:32 +02 00
Reason Witnessing Liberty Mncube
Presiding Member
13 February
2024
Professor Liberty
Mncube Date
Concurring: Professor Thando Vilakazi and Ms
Andiswa Ndoni
IN THE COMPETITION TRIBUNAL OF SOUTH
AFRICA
(HELD IN PRETORIA)
CC Case No 2008Aug3929
CT Case No: .....................
In the matter between
THE COMPETITION
COMMISSION
Applicant
And
LEO CONSTANTIN PISTORIUS
N.O.
First Respondent
HERMINE PISTORIUS N.O.
Second
Respondent
ARNOLDUS KURT PISTORIUS
N.O.
Third Respondent
DANIEL HENDRIK DU PLESSIS
N.O.
Fourth
Respondent
SANETTE FOURJE N.O.
Fifth Respondent
H PISTORIUS & CO (PTY) LTD
Sixth respondent
SETTLEMENT AGREEMENT BETWEEN THE
COMPETITION COMMISSION AND THE FIRST TO
SIXTH RESPONDENTS IN RESPECT OF AN
ALLEGED CONTRAVENTION OF SECTION 6(2) OF
THE COMPETITION ACT, 1998 (ACT NO.
89 OF 1998), AS AMENDED
1. PREAMBLE
The Competition Commission and the Hendrik
Pistorius Trust as represented by the trustees (first to
sixth Respondents) hereby agree that an application
be made to the Competition Tribunal for the
confirmation of this Settlement Agreement as an
order of the Competition Tribunal in terms of section
27(1)(d) read with section 58(1)(a)(iii) of the
Competition Act 89 of 1998, as amended ("the Act•),
in respect of a contravention of section 5(2) of the
Act.
2. DEFINITIONS
For the purposes of this Settlement Agreement, the
following definitions shall apply:
2.1 "Act" means the Competition
Act, 1998 (Act No. 89 of 1998), as amended;
2.2 “Aglime” means a soil
additive produced from pulverised limestone
or chalk, and Includes calcitic agricultural
lime (“CAL") and dolomitic agricultural lime
(“DAL”);
2.3 "Arnoldus Kurt Pistorius
N.O.” means Arnoldus Kurt Pistorius in his
capacity as a trustee for the time being of the
Hendrik Pistorius Trust;
2.4 "CAL" means calcitic
agricultural lime which is one of the two types
of aglime;
2.5 “Commission" means the
Competition Commission of South Africa, a
statutory body established In terms of section
19 of the Act, with its principal place of
business at Mulayo Building (Block C), the
DTI Campus, 77 Meintjies Street, Sunnyside,
Pretoria, Gauteng;
2.6 "Commissioner" means the
Commissioner of the Commission, as
appointed by the Minister of Trade and
Industry and Competition In terms of section
22(1) of the Act;
2.7 "Complaint" means the
complaint submitted by Enviro Lime (Pty) Ltd
on 20 August 2008 in terms of section 49B(2)
(b) of the Act and investigated by the
Commission under CC case number.
2008Aug3929;
2.8 “Daniel Hendrik Du Plessis
N.O.” means Daniel Hendrik Du Plessis in his
capacity as a trustee for the time being of the
Hendrik Pistorius Trust;
2.9 "Days” means business days,
being any day, which Is not a Saturday,
Sunday or public holiday gazetted In the
Republic of South Africa from time to time;
2.10 "H Pistorius & Co (Pty) Ltd"
means H Pistorius & Co (Pty) Ltd, a company
duly registered In accordance with the laws of
the Republic of South Africa, with its principal
place of business situated at SO Frances Street,
Colbyn, Pretoria, Gauteng;
2.11 “H Pistorius & Co” means the
tradename used by the Hendrik Pistorius Trust
to conduct its business as a supplier of CAL at
the time of the alleged contravention;
2.12 “Hendrik Pistorius Trust"
refers to the trust duly registered in terms of
the laws of the Republic of South Africa under
trust deed number IT11463 and is represented
by the trustees as reflected in the most recent
and amended Letter of Authority dated 22
June 2022. The Hendrik Pistorius Trust trades
as “H Pistorius & Co.'' at 50 Frances Street,
Colbyn, Pretoria, Gauteng;
2.13 “Hermine Pistorius N.O."
means Hermine Pistorius in her capacity as a
trustee for the time being of the Hendrik
Pistorius Trust;
2.14 "Leo Constantin Pistorius
N.O.” means Leo Constantin Pistorius in his
capacity as a trustee for the time being of the
Hendrik Pistorius Trust;
2.15 “Parties" means the
Commission and the first to sixth respondents;
2.16 “Respondents” means the first
to sixth respondents;
2.17 "Sanette Fourie N.O.” means
Sanette Fourie in her capacity as a trustee for
the time being of the Hendrik Pistorius Trust;
2.18 "Settlement Agreement"
means this agreement duly signed and
concluded between the Commission and the
Respondents;
2.19 "Settlement Amount" means
the amount agreed upon in full and final
settlement between the parties;
2.20 "Tribunal” means the
Competition Tribunal of South Africa, a
statutory body established in terms of section
26 of the Act, with its principal place of
business at the 1st Floor, Mulayo Building
(Block C), the DTJ Campus, n Meintjies Street,
Sunnyside, Pretoria, Gauteng; and
2.21 "Trustees" are the most recent
trustees of the Hendrik Pistorius Trust as
reflected In the most recent Letter of
Authority attached hereto as Annexure
3. COMPLAINT INITIATION AND
INVESTIGATION
3.1 On 20 August 2008, the
Commission received a complaint in terms of
section 49B(2)(b) of the Act from Enviro Lime
(Pty) Ltd (“Enviro Lime”), a distributor of CAL
In the complaint, Enviro Lime alleged that H
Pistorius & Co., a supplier of CAL, was
engaged in restrictive vertical practices and
abuse of dominance.
3.2 Enviro Lime, inter alia,
alleged that H Pistorius & Co. was engaged in
the practice of resale price maintenance of
CAL in contravention of section 5(2) of the
Competition Act. According to Enviro Lime, H
Pistorius & Co. was imposing minimum resale
prices at which the distributors of CAL were
required to sell or market CAL that they
purchased from it, and that distributors could
not sell or market CAL below the price
prescribed by H Pistorius Co. As stated above,
agtime is a soil additive produced from
pulverised limestone or chalk and Includes
calcitic agricultural lime-and dolomitic
agricultural lime.
3.3 H Pistorius & Co. is vertically
integrated. It operates in the upstream market
as a manufacturer of aglime which It supplies
to distributors, agents and fanners, and also
operates in the downstream market as a
distributor of aglime. H Pistorius & Co.
competes with other distributors of CAL such
as Kalkor (Pty) Ltd (“Kalkor”), Enviro Lime
and SA Lime and Gypsum (Pty) Ltd ("SA Lime
& Gypsum”).
3.4 The Commission Investigated Enviro
Lime's complaint and found information that
suggested that the Respondents imposed
minimum resale prices at which the
distributors of CAL were required to self or
market CAL. In particular, the Commission's
Investigation found that the Respondents,
being suppliers and distributors of CAL,
allegedly imposed minimum prices at which
distributors of CAL were required to sell or
market the CAL that the Respondents supplied
to the distributors. Distributors could not sell
or market CAL below the price prescribed by
the Respondents.
4. THE COMPLAINT
REFERRAL
4.1 On 31 October 2013, the
Commission referred the Enviro Lime
complaint to the Tribunal against H Pistorius
& Co (Pty) Ltd, Kalkor, Enviro Lime and SA
Lime & Gypsum for alleged contravention of
section 5(2) of the Act.
4.2 The Commission's complaint
referral alleged that H Pistorius & Co (Pty) Ltd
engaged in the practice of minimum resale
price maintenance during the period 2004 to
2010 in that H Pistorius & Co (Ply) Ltd:
4.2.1 would publish its
price and would require the
distributors to sell or market CAL In
accordance with the said price list;
4.2.2 would Instruct
distributors not to sell or market CAL
supplied by H Pistorius & Co (Pty) Ltd
at prices lower than those set out in H
Pistorius & Co (Pty) Ltd price list H
Pistorius & Co (Pty) Ltd price list was
compiled annually, usually around
April when the price of CAL would
increase:·and
4.2.3 would, in order to
monitor the distributors' compliance
with this practice, request dls1ributors
to submit their price lists to H
Pistorius & Co (Pty) Ltd on an ad hoc
basis. These price lists set out the
distributors' CAL prices.
4.3 In the complaint referral, the
Commission only sought relief against H
Pistorius & Co (Pty) Ltd for alleged
contravention of section 5(2) of the Act. The
other respondents (Kalkor, Enviro Lime and
SA Lime & Gypsum) were cited only for the
interest they have in the matter. The
Commission did not seek any relief against
them.
4.4 On 19 June 2017, pursuant
to a joinder application by the Commission,
the Tribunal joined the Hendrik Pistorius
Trust as represented then by the trustees
(Hendrik Wilhelm Cart Pistorius N.O., Leo
Constantin Pistorius N.O., Hermine Pistorius
N.O., Arnoldus Kurt Pistorius N.O., Ian
Mcintyre N.O. and Daniel Hendrik Du Plessis
N.O.) to the complaint referral proceedings
(CR1500ct13) as the fifth to tenth respondents
in their capacities as trustees of the Hendrik
Pistorius Trust.
4.5 Mr Hendrik Wilhelm Carl
Pistorius and Mr Ian McIntyre, who was cited
in the Commission's referral as the first and
fifth respondents, respectively, have since
passed away; hence they are not cited as
respondents in this Settlement Agreement. Mr.
Hendrik Wilhelm Carl Pistorius has not been
replaced, and Mr Ian McIntyre has been
replaced by Ms. Sanette Fourte who is cited in
this settlement Agreement as the Fourth
Respondent in her capacity as one of the
current trustees of the Hendrik Pistorius Trust.
5. RESPONDENTS' POSITION
5.1 The Respondents deny that the
conduct of H Pistorius & Co. constitutes the
practice of minimum resale price maintenance
as provided for in section 5(2) of the Act for
the following reasons:
5.1.1 The price at which
distributors provide their services and
sell their products, including H
Pistorius & Co.’s products, was
determined by the distributors
independently of H Pistorius & Co. and
was subject to each distributor's
discount structure;
5.1.2 The Respondents never
affirmed, implemented, or adhered to
any minimum resale price maintenance
policy. Their relationships with their
clients were based on independent
arrangements with retailers based on
fair market rates, reflecting the value
of the services they provided;
5.1.3 H Pistorius & Co. did not
deny any distributor any benefits or
support (whether price or non-price
related) based on Its non-compliance
with so called "minimum" resale prices;
and
5.1.4 The adjustment In
discount was purely ancillary to the
commercial decision to minimize H
Pistorius & Co’s business risk. It was
never the Respondents' intention to act
anti-competitively towards any
distributor as contemplated in the
Competition Act as the conduct was
ancillary to a legitimate commercial
concern.
6. NO ADMISSION OF LIABILITY
6.1 The Respondents do not admit
that they acted in contravention of section
5(2) or any other provision of the Act as
described In paragraph 4 above. Nonetheless,
the Parties have agreed to enter into the
Settlement Agreement without any such
admission.
6.2 Although the Respondents initially
opposed the complaint, they have entered
into a settlement as a pragmatic resolution to
a long-standing dispute. The Respondents
acknowledge that:
6.2.1 Legal proceedings can be
lengthy, costly, and distracting. The
Respondents prefer to focus their
resources and attention on serving
their- customers and growing their
business;
6.2.2 Settling is in the best Interest
of all parties involved and will enable
the Respondents to put this matter
behind them and move forward with a
renewed commitment to fairness,
honesty, and transparency in all their
business dealings.
7. SETTLEMENT
AMOUNT
7.1 Hendrik Pistorius Trust agrees to
make payment of a settlement amount in the
amount of R661 151.21 (Six hundred and
sixty-one thousand, one hundred and fifty-one
Rand and twenty-one cents). This amount
does not exceed 10% of H Pistorius & Co.'s
annual turnover in its most recent financial
year
7.2 Hendrik Pistorius trust will
pay the settlement amount over a period of 6
(six) months in six equal instalments of R110
191. 87 (One hundred and ten thousand, one
hundred and ninety-one Rand and eighty-
seven cents).
7.3 The first instalment shall be
paid within 30 (thirty) days from the data of
confirmation of this Settlement Agreement by
the Tribunal. The balance of the settlement
amount shall be paid in 5 (five) equal
instalments, over a period of 5 months from
the date of the first instalment. The balance of
the instalments shall be due on the last date of
each month.
7.4 The payment shall be made
into the Commission's bank account, details of
which are as follows:
NAME : THE
COMPETITION COMMISSION
BANK : ABSA
BANK BUSINESS BANK
ACCOUNT NUMBER : 4[…]
BRANCH CODE : 632005
PAYMENT REF :
2008Aug3828HWC Pistorius
7.5 The Commission shall pay
the settlement amount over to the National
Revenue Fund in accordance with section
59(4) of the Act.
8.
AGREEMENT REGARDING FUTURE CONDUCT AND
MONITORING
8.1 Hendrik Pistorius Trust undertakes to refrain from
competitive conduct In contravention of the
Act in future.
8.2 Hendrik Pistorius Trust will
develop, implement and monitor a
competition law compliance programme as
part of Its corporate governance policy, which
is designed to ensure that all employees,
management and other functionaries do not
engage in contravention of the Act. In
particular, a such compliance programme will
include mechanisms for the identification,
prevention, detection and monitoring of any
contraventions of the Act.
8.3 Hendrik Pistorius Trust shall
submit a copy of the compliance programme
to the Commission within 60 (sixty) days of
the date of confirmation of the Settlement
Agreement as an order of the Tribunal.
8.4 Hendrik Pistorius Trust shall
circulate a statement summarising the
contents of this Settlement Agreement to all
employees, management and functionaries
within 60 (sixty) days from the date of
confirmation of the Consent Agreement as an
order of the Tribunal, and report to the
Commission once this obligation has been
complied with.
8.5 All reports concerning the
conditions set out In this Settlement
Agreement, including but not limited to, the
provision of the compliance programme and
proof of payment of the settlement amount
contemplated In clause 8 shall be submitted to
the Commission at
Collections@compcom,co.za .
9. FULL AND FINAL
SETTLEMENT
This Settlement Agreement is entered into in
full and final settlement of the Complaint, and
upon confirmation as an order of the Tribunal,
concludes all proceedings between the
Commiasion and the Respondents In respect
of conduct contemplated under the
Commission's Investigation and Referral under
case number: 2008Aug3929.
FOR THE RESPONDENTS:
Duly authorized signatory
LEO CONSTANTIN PISTORIUS (Full names)
Director
DATED AND SIGNED AT PRETORIA ON THE 12TH
DAY OF DECEMBER 2023
FOR THE COMPETITION COMMISSION OF SOUTH
AFRICA:
DORIS TSHEPE
The Commissioner
DATED AND SIGNED AT PRETORIA ON THE 14TH
DAY OF DECEMBER 2023