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
REPUBLIC OF SOUTH AFRICA
Case No: CR011Apr19/SA010Apr24
In the matter between:
The Competition Commission Applicant
And
Mix Telematics International (Pty) Ltd Respondent
Panel M Mazwai (Presiding Member)
A Ndoni (Tribunal Member)
G Budlender (Tribunal Member)
Heard on 27 June 2024
Decided on 27 June 2024
Settlement Agreement
The Tribunal hereby confirms the settlement agreement as agreed to and proposed by
the Competition Commission and Mix Telematics International (Pty) Ltd annexed hereto
marked "A".
Presiding Member 27 June 2024
Ms Mondo Mazwai Date
Concurring: Ms Andiswa Ndoni and Adv. Geoff Budlender SC
IN THE COMPETITION TRIBUNAL OF SOUTH AFRICA
(HELD IN PRETORIA)
CT Case No: CR011APR19
CC Case No: 2016Nov0601
In the matter between
COMPETITION COMMISSION APPLICANT
And
MIX TELEMATICA INTERNATIONAL (PTY) LTD RESPONDENT
CONSENT AGREEMENT IN TERMS OF SECTION 49D AS READ WITH SECTIONS
58(1)(a)(iii) AND 58(1)(b) OF THE COMPETITION ACT, NO. 89 OF 1998, AS
AMENDED, BETWEEN THE COMPETITION COMMISSION AND MIX TELEMATICS
INTERNATIONAL PROPRIETARY LIMITED (MIX TELEMATICS), IN RESPECT OF
ALLEGED CONTRAVENTIONS OF SECTION 4(1)(b)(II) OF THE COMPETITION
ACT, 1998, AS AMENDED
The Competition Commission and MiX Telematics hereby agree that an
application be made to the Competition Tribunal for the confirmation of this
Consent Agreement as an order of the Tribunal in terms of section 49D read with
section 58(1)(a)( iii) and 58(1)(b) of the Competition Act, No. 89 of 1998, as
amended, In respect of alleged contraventions of section 4(1 )(b)(II) of the Act, on
the terms set out below.
A
1. DEFINITIONS
For the purposes of this Consent Agreement, the following definitions shall
apply:
1.1 “Act” means the Competition Act, No. 89 of 1998, as amended;
1.2. "Basic product” means the combination of black box and basic software
(delivered as Software as a Service) which Is sold by MiX Telematics to the MIX Dealers.
MIX Telematics manufactures and supplies vehicle tracking hardware (black box or
computer box) and also develops vehicle tracking software that gives real time vehicle
tracking data and performs other functions;
1.3. "Commission" means the Competition Commission of South
Africa, a statutory body established in terms of section 19 of the Act, with its principal
business address at 1st Floor, Mulayo Building (Block C), the DTI campus, 77
Meintjies Street, Sunnyside, Pretoria, Gauteng;
1.4. “Commissioner” means the Commissioner of the Competition
Commission, appointed in terms of section 22 of the Act;
1.5. "Complaint" means the complaint initiated by the Commissioner in terms of
section 498(1) of the Act under case number: 2016Nov0601;
1.6. "Consent Agreement" means this Agreement duly signed and concluded
between the Commission and MiX Telematics in full and final settlement of
Commission case number 2016Nov0601;
1.7. "Day” means any calendar day other than a Saturday, a Sunday or an official
public holiday in South Africa;
1.8. "MIX Dealer" means any firm that purchases the Basic product from
MiX Telematics;
1.9. "MIX Telematics" means MDC Telematics International Proprietary Limited, a
private company duly registered and incorporated under the laws of South Africa, with
its principal place of business situated at Blaauwkl ip Office Park, 2 cnr Strand &
Webersvallel Streets, Stellenbosch, Western Cape;
1.10. ""Parties" means the Commission and MIX Telematlcs:
1.11. “Value added fleet management products” means the adaptation of
the Basic p roduct (including through the addition of peripheral equipment or
services), by either MIX Telematics or any MiX Dealer, Into various customised fleet
management packages in accordance with the specific requirements of end user
customers;
1.12. “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 1st
Floor, Mulayo Building (Block C), the DTI Campus, 77 Meintjies Street, Sunnyside,
Pretoria, Gauteng.
2. THE COMMISSION'S INVESTIGATION AND FINDINGS
2.1 On 08 November 2016, the Commissioner of the Competition Commission
Initiated a complaint against MIX Telematics and various MIX Dealers fer
allegedly dividing the markets by allocating customers In the market for the supply
of value-added fleet management solutions to the end user customers in
contravention of section 4(1)(b)(li) of the Act. This complaint was investigated
under case number 2016NOV0601.
2.2 The Commission Investigation found that from around 1998 MiX Telematics;
Fleetco SA; Carrus Information Technologies; Hyper Auto; Soltrack and Tecta
Telematics ( “the Respondents") agreed not to compete with each other for
customers in the market for the supply of value- added fleet management
solutions to the end user customers. The Commission alleged that the agreement
between the Respondents entailed the following:
2.2.1 They agreed that MiX Telematics must not approach the MIX Dealers'
customers;
2.2.2 They agreed on the concept of ring fencing of prospective customers.
This concept entailed MIX Telematics not competing with the MIX Dealers
In the negotiation of contracts with prospective customers, including an
understanding that MiX Telematics shall not market its Basic product and
Value added fleet management products to customers of MiX Dealers;
2.2.3 In order to achieve this, MiX Dealers were required to disclose
to MIX Telematics a list of all their customers Including prospective customers.
This disclosure would enable MiX Telematics to know which customers not to
approach; and
2.2.4 They held regular meetings to discuss amongst others compliance with
their agreement to not compete for each other's customers.
2.3 The Commission concluded that above conduct between the Respondents
amounts to an agreement to divide the market by allocating customers In
contravention of section 4(1)(b)(il) of the Act.
3. ADMISSION OF LIABILITY
3.1. MIX Telematics does not admit liability in respect of the conduct described in
paragraph 2 above.
4, AGREEMENT REGARDING FUTURE CONDUCT
4.1. MIX Telematics agrees and undertakes to:
4.1.1 Refrain from engaging in any conduct that may be in contravention of
section 4(1)(b) of the Act, and from engaging in any prohibited practice in future;
4.1.2 Specifically, MIX Telematics also agrees and undertakes to refrain from any
discussions, or entering into any arrangements, with MIX Dealers, its dealers
about Value added fleet management products that may be offered to customers
by any MiX Dealer (or MIX Telematics as the case may be) which may, or
reasonably could, result in any allocation of any Value added fleet management
products to a particular MIX Dealer or MIX Telematics.
4.1.3 This undertaking excludes legitimate Interactions between MIX
Telematics and MIX Dealers In regard to the provision of "secondary and tertiary level
support" (this means the support provided by MIX Telematics to the MiX Deafer).
4.1.4 Prepare and circulate a statement summarising the content of this
Consent Agreement to Its employees, managers and directors within 30 (thirty)
days of the date of confirmation of this Consent Agreement as an order of the
Tribunal;
4.1.5 Develop, implement. and monitor a competition law compliance
programme as part of Its corporate governance policy, which is designed to ensure that
its employees, management, directors, and agents do not engage in future
contraventions of the Act. In particular, such compliance programme should i nclude
mechanisms for the i dentification, prevention, detection and monitoring of any
contravention of the Act; and
4.1.6 Submit a copy of such compliance programme to the Commission within
60 (sixty) days of the date of confirmation of this Consent Agreement as an order by
the Tribunal.
5. ADMINISTRATIVE PENALTY
5.1. MIX Telematics agrees and undertakes to pay an administrative penalty In the
amount of R250,000.00 (Two hundred and fifty thousand rand). This amount
does not exceed 10% of MiX Telematics' annual turnover for the financial year ended
31 March 2018.
5.2. MIX Telematics will pay the amount of the administrative penalty set out in
paragraph 5.1 above to the Commission within 30 (thirty) days of this Consent
Agreement being confirmed as an order of the Tribunal.
5.3. The payment shall be made into the Commission's bank account, details of
which are as follows:
Bank name: Absa Bank
Branch name: Pretoria
Account holder: Competition Commission Fees Account
Account number: 4[…]
Account type: Current Account
Branch Code: 632005
Reference: 2016Nov0601/MIX
5.4. The penalty will then be paid over by the Commission to the National Revenue
Fund in accordance with section 59(4) of the Act.
8. FULL AND FINAL SETTLEMENT
This Consent Agreement, upon confirmation as an order of the Tribunal, is entered into In
full and final settlement and concludes all proceedings between the Commission and MiX
Telematics relating to the conduct that Is the subject matter of the Commission
investigation under Case No. 2016Nov0601 and Tribunal case number CR011Apr19.
For MIX Telematics International (Pty) Ltd
Dated and signed at Midrand on the 23 day of April 2024
Director
MiX Telematics International (Pty) Ltd
Name in Full:
For the Commission
Dated and signed at Pretoria on the 26
th day of April 2024
Doris Tshepe
Commissioner