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: CR152Dec14/SA156Dec23
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
Sanette Fourie N.O. Fourth Respondent
Daniel Hendrik Du Plessis N.O. Fifth 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 t o and proposed
by the Competition Commission and Leo Constantin Pistorius; Hermine Pistorius
N.O; Arnoldus Kurt Pistorius; Sanette Fourie N.O; Daniel Hendrik Du Plessis N.O
annexed hereto.
Signed by Liberty Mncube
Signed at 2024-02-13 14:4719 +0200
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: 2009DEC4847 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
SANETTE FOURIE N,O. Fourth Respondent
DANIEL
HENDRIK DU PLESSIS N.O. Fifth Respondent
SETTLEMENT AGREEMENT BETWEEN THE COMPETITION COMMISSION AND THE
FIRST TO FIFTH RESPONDENTS IN RESPECT OF AN ALLEGED CONTRAVENTION
OF SECTION 4(1)(b)(I) OF THE COMPETITION ACT, 1998 (ACT NO. 89 OF 1998), AS
AMENDED.
1. PREAMBLE
The Competition Commission and the first to fifth Respondents hereby agree that an
application be mad& 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)(lii) of the Competition Act 89 of 1998, as amended
("the Act"), in respect of a contravention of section 4(1)(b) ) 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 Amoldus Kurt Pistorius in his
capacity as a trustee for the time being of the Hendrik Pistorius Trust;
2.4. “Amended Referral" means the notice of motion and supplementary
referral affidavit together with annexures, filed by the Commission on 26 March
2018 under CT case number: 020230/CR152Dec14;
2.5. "CAL" means calcitic agricultural lime which is one of the two types of
aglime;
2.6. “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;
2.7. "Commissioner" means the Commissioner of the Commission, as
appointed by the Minister of Trade, Industry and Competition in terms of section
22(1) of the Act;
2.8. “Complaint” means the complaint initiated by the Commissioner In terms of
section 498(1) of the Act on 21 December 2009 under CC case number:
20090ec4847;
2.9. “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;
2.10. "Days" means business days, being any day, which Is not a Saturday,
Sunday or publlc holiday gazetted in the Republic of South Africa from time to
time;
2.11. "FSSA” means the Fertilizer Society of South Africa;
2.12. "H Pistorius & Co” means the trade name used by the Hendrik Pistorius
Trust to conduct its business as a supplier of CAL at the time of the alleged
contravention;
2.13. "Hendrik Pistorius Trust" refers to the trust duly registered in terms of the
laws of the Republic of South Africa under trust deed number IT1[…] and is
represented by the trustees as reflected In the Letter of Authority. The Hendrik
Pistorius Trust trades as “H Pistorius & Co.” at 50 Frances Street, Colbyn, Pretoria,
Gauteng;
2.14. "Hermine Pistorius N.O” means Hermine Pistorius in her capacity as a
trustee for the time being of the Hendrik Pistorius Trust;
2.15. "Leo Constantin Pistorius N.O.” means Leo Constantin Pistorius in his
capacity as a trustee for the time being of the Hendrik Pistorius Trust;
2.18. "Parties” means the Commission and the first to fifth respondents;
2.17. "Respondents” means the following firms as cited in the Commission's
Referral Affidavit of 4 December 2014 and Supplementary Referral Affidavit of
26 March 2018, namely, the trustees of the Hendrik Pistorius Trust (Leo
Constantin Pistorius N.O., Hermine Pistorius N.O., A rnoldus Kurt Pistorius
N.O., Daniel Hendrik Du Plessis N.O., Sanetta Fourie N.O.), Kalkor (Pty) Ltd,
CML Taijaard & Son (Pty) Ltd, PBO Boeredienste (Pty) Ltd, Grasland
Ondememings (Ply) Ltd and FSSA;
2.18. “Sanette Fourle N.O.” means Sanette Fourie in her capacity as a trustee
for the time being of the Hendrik Pistorius Trust;
2.19. "Settlement Agreement” means this agreement duly
sign and
concluded between the Commission and the trustees of the Hendrik Pistorius
Trust;
2.20. •settlement Amount means the amount agreed upon in full and final
settlement of the abovementioned matter between the parties;
2.21. 8Trlbuna1• means the Competition Tribunal of South Africa, a
statutory body established in terms of section 28 of the Act, with its principal
place of business at the 1st Floor, Mulayo Building (Block C), the DTI
Campus, 77 Meintjies Street, Sunnyside, Pretoria, Gauteng; and
2.22. “Trustees" are the most recent trustees of the Hendrik Pistorius Trust as
reflected in the recent Letter of Authority attached hereto as Annexure “A".
3. COMPLAINT INITIATION AND INVESTIGATION
3.1. In 2008, the Commission received a complaint from Enviro Lime (Ply) Ltd
("Enviro lime”) wherein it alleged that H Pistorius & Co., a supplier of CAL, was
engaged in restrictive vertical practices and abuse of dominance.
3.3 The Commission investigated Enviro Lime's complaint . During the
Investigation, the Commission found information that suggested that the conduct
by certain members of the FSSA lime committee could be in contravention of
section 4(1)(a) and (b)(I) and (ii) of the Act. On this basis, the Commission decided to
Initiate the complaint as set out below.
3.4 On 21 December 2009, the Commissioner initiated a complaint against
certain members of the FSSA lime committee, including H Pistorius & Go., (the
2009 Complaint"). The 2009 Complaint alleged, Inter alia, that:
3.4.1 Certain members of the lime committee of the FSSA met quarterly
at the offices of the FSSA to discuss matters that include quarterly sales of
aglime, total provincial sales of aglime, net prices of the lime and
transport components and gypsum sales for agricultural uses;
3.4.2 The members of the FSSA lime committee met to discuss the
average prices and transport costs of calcitic lime, dolomitic lime,
aglime and gypsum, in contravention of sections 4(1)(a), 4(1)(b)(i) and
4(1)(b)(ii) of the Act;
3.4.3 The members of the FSSA lime committee exchanged/submitted
sales and pricing information by region, through the FSSA. This served
to Increase transparency and allowed for the monitoring of price fixing
or market allocation agreements or concerted practices between the
members of the FSSA; and
3.4.4 The above sales and pricing Information distributed by the FSSA
to the members of the FSSA lime committee was in contravention of
section 4(1)(a) of the Act.
3.5 On 10 August 2010, the Commissioner amended its 2009 Complaint to
add Rozie Agencies CC, as a respondent in the Complaint.
3.6 On 18 November 2010, the Comml88ion conducted a search and
seizure operation ("dawn raid") at the premises of Kalkor (Pty) Ltd (“Kalkor”),
Grasland Ondememings (Pty) Ltd ("Grasland"), PBD Boeredienste (Pty) Ltd
("PBD"), H Pistorius & Co. and the FSSA. After the dawn raid, on 20
December 2010, Grasland applied for leniency in terms of the Commission's
Corporate Leniency Policy and was granted conditional immunity.
3.7 On 27 January 2012, following further investigation, the Commission
amended its 2009 Complaint to include an allegation about the fixing of
commission rat es payable to fertilizer companies ("The 2012 Complaint”). The
Commission amended the 2009 Complaint to expressly include the allegation that the
Respondents, being members of the FSSA, agreed on the amount of or trading
condition in respect of commissions that each would pay to fertilizer companies that
employ agents who distribute aglime, In contravention of section 4(1)(b)(i) of
the Act.
4 THE COMPLAINT REFERRAL
4.1 On 4 December 2014, the Commission referred the Complaint to the
Tribunal against the Hendrik Pistorius Trust (as then represented by Hendrik
Wilhelm Carl Pistorius, Leo Constantin Pistorius, Hermine Pistorius and Arnoldus Kurt
Pistorius), Kalkor, CML Taljaard & Son (Pty) Ltd, PBD, Grasland and FSSA. The
Referral was based on the Commission's findings during its Complaint
Investigation. The Commission’s referral alleged that:
4.1.1 during the period between January 1995 and May 2008, the
Respondents met annually and agreed to fix the rates of the agents'
commission;
4.1.2 the meetings of the Respondents to agree on the rates of
agents' commission were generally held before, during an adjournment
of, or after the Annual General Meeting of the FSSA;
4.1.3 the meetings took place at the offices of the FSSA and other
restaurants outside the premises of1he FSSA;
4.1.4 the Respondents used FSSA as a platform for the above
conduct; and
4.1.5 the agreements reached by the Respondents in respect of
agents' commissions were effective for a period of one year and were
revised on an annual basis during the Annual General Meeting of the
FSSA.
4.2 Accordingly, the allegations in the Commission's Referral were
confined to the allegations in the Commission's amended initiation of 27
January 2012, namely, an alleged contravention of section 4(1)(b)(l) of the Act.
Commission’s supplementary referral
4.3 In May 2016, the Commission applied for leave to supplement or emend
its referral affidavit of 2014. The Commission's Supplementary Referral
Affidavit served two purposes:
4.3.1 To clarify in the Commission's complaint referral that the
respondents' contravention of the Act endured until at least April 2009;
and
4.3.2 To provide a formal citation of two additional trustees of the
Hendrik Pistorius Trust namely, Ian McIntyre N.O. and Daniel Hendrik
Du Plessis N.O. as the Tenth and Eleventh respondents.
4.4 In August 2016, the Tribunal granted the Commission leave to file
a supplementary Referral Affidavit. The Commission filed its
Supplementary Referral Affidavit on 28 March 2018.
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 Fourie, 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. THE RESPONDENTS' POSITION
5.1. The Respondents deny the allegations of colluding with other
respondents to fix agent commissions for the following reasons:
5.1.1. The agents working with fertilizer companies (suppliers of
fertilizer such as Yara SA (Pty) Ltd, Sasol Nitro, a division of Sasol
Chemical Industries Ltd and Omnia Fertilizer (Pty) (Ltd) were not the
respondents' employees. The fertilizer companies unilaterally
demanded a commission increase for the agents, which the
Respondents learned of through Grasland's CEO.
5.1.2. The Respondents never accepted or implemented the proposed
commission rates demanded by the fertilizer companies. They had
independent arrangements with the agents and adhered to them.
5.1.3. The Respondents had no incentive to manipulate agents'
commissions, as the proposed Increase would have raised the
Respondents' own costs.
6. NO ADMISSION OF LIABILTY
6.1. The Respondents do not admit that they have acted In contravention of
section 4(1)(b)(i) or any other provision of the Act, as described in paragraph 4
above. However, the Parties have agreed to enter into the Settlement
Agreement without admission to a contravention of the Act.
6.2. The Respondents have decided to settle the legal dispute for pragmatic
reasons, including management time, legal costs, and the general drain on
resources.
6.3. The Respondents acknowledge that
6.3.1. legal proceedings can be protracted, expensive, and disruptive,
hence the desire to focus on serving their customers and expanding
their business.
6.3.2: settling the matter Is likely to be less expensive than continuing
with legal proceedings. They also recognize that the dispute creates
uncertainty and negative publicity that could harm their reputation and
business prospects.
6.3.3. settling this case would enable them to put this matter behind them
and will
enable them to move forward with a renewed commitment to
fairness, honesty, and transparency i n all their business dealings.
They are confident that their customers and stakeholders will
acknowledge their dedication to these values and continue to support
them.
7. SETTLEMENT AMOUNT
7.1. The Respondents agree to make payment of a settlement amount in the
amount of R275 000.00 (Two hundred and seventy-five thousand Rand). This amount
does not exceed 10% of the Respondents' annual turnover in Its most recent
financial year.
7.2. The Respondents will pay the settlement amount over a period of 6 (six}
months In six equal instalments of R45 833.00 (Forty-five thousand, eight
hundred and thirty-three Rand).
7.3. The first instalment shall be paid within 30 (thirty) days from the date of
confirmation of this Settlement Agreement by the Tribunal. The balance 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: 132006
PAYMENT REF: 2009Dee4847HWC Pistorius
7.5. The Commiasion 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 MENTORING
8.1. The Respondents undertakes to refrain from engaging in any anti -
competitive conduct in contravention of the Act in future
8.2. The Respondents will develop, implement and monitor a competition
law compliance programme as part of its corporate govern ance policy, which
Is designed to ensure that all employees, management and other functionaries
do not engage in contravention of the Act. In particular, such a compliance
programme will include mechanisms for the identification, prevention, detection
and monitoring of any contraventions of the Act.
8.3. The Respondents shall submit a copy of the compliance programme to
the Commission within 60 (sixty) days of the date of conf irmation of the
Settlement Agreement as an order of the Tribunal.
8.4. The Respondents 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 Settlement
Agreement as an order of the Tribunal, and report to the Commission once this
obligation has been comp lied with.
8.5. A ll 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 contempl ated In clause 7 shall be
submitted to the
Commission at Collectjons@compcom.co.za.
9. FULL AND FINAL SETTLEMENT
This Settlement Agreement Is entered i nto I n fu ll and final settlement of the
Complaint, and upon confirmation as an order of the Tribunal, concludes all
proceedings between the Commission and the Respondents In respect of conduct
contemplated under the Commission's Investigation and Referral under case number:
2009Dec4847.
FOR THE RESPONDENTS:
Duly authorised signatory
LEO C PISTORIUS
(Full names)
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 14 TH DAY OF December 2023.