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[2010] ZACT 42
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Competition Commission v Zedek Trading 799 CC (07/CR/Mar10) [2010] ZACT 42; [2010] 2 CPLR 287 (CT) (7 July 2010)
COMPETITION
TRIBUNAL
REPUBLIC
OF SOUTH AFRICA
Case
No: 07/CR/Mar10
In
the matter between:
The Competition
Commission
…................................................................
Applicant
and
Zedek Trading 799 CC
…............................................................................
Respondent
Panel N Manoim (Presiding
Member), Y Carrim (Tribunal
Member), and A Wessels
(Tribunal Member)
Heard on 9 June 2010 and
7 July 2010
Decided on : 7 July 2010
Order
The Tribunal hereby
confirms the order as agreed to and proposed by the Competition
Commission and the respondent, annexed hereto
marked "A".
N Manoim
Y Carrim and A Wessels
Concurring
BEFORE
THE COMPETITION TRIBUNAL OF SOUTH AFRICA
(HELD
IN PRETORIA)
CT
CASE NO: 07/CR/Mar10
CC
CASE NO: 2009Mar4335
In
the matter between:
COMPETITION
COMMISSION
….........................................................................................................
Applicant
and
ANIX
TRADING 799 CC
….............................................................................................................
1
st
Respondent
ZEDEK
TRADING 799 CC
…..........................................................................................................
2
nd
Respondent
In
re:
COMPETITION
COMMISSION
......................................................................................................
Applicant
and
ANIX
TRADING 739 CC
….........................................................................................................
1
st
Respondent
ZEDEK
TRADING 799 CC
…......................................................................................................
2
nd
Respondent
SETTLEMENT
AGREEMENT BETWEEN THE COMPETITION COMMISSION AND ZEDEK TRADING 799
CC IN RESPECT OF CONTRAVENTIONS OF SECTION (4)1(b)
OF THE
COMPETITION ACT NO 89 OF 1998
The
Competition Commission and Zedek Trading
799
CC
("Zedek") hereby agree that application be made to die
Competition Tribunal for confirmation of this Settlement Agreement
as an order of the Tribunal in terms of
sections 58(1)(a)(iii)
and
59
(1 )(a) of the
Competition Act No.89 of 1998
, as amended, on the
terms set out below:
1.
Definitions
In
this Settlement Agreement, unless the context indicate s otherwise,
the fallowing definitions shall apply:
1.1.
"Anix"
means
Anix Trading 739 cc.
a
close
corporation duly registered in terms of the company laws of the
Republic of South Africa, With its principal place of business
at
Fo-Kuang Road, Cultural Park, Bronkhorspruit ("Anix").
1.2.
"Commission"
means
the Competition Commission of South Africa, a statutory body
established in terms of
section 19
of the Act as a] juristic person,
with its principal place of business at Building C, Mulayo Euilding,
DTI Campus, 77 Meintjies
Street, Sunnyside, Pretoria, South Africa
1.3.
"Commissioner*
means
the Commissioner of the Competition Commission appointed in terms of
section
22
of
the Act;
1.4.
"Complaint
means
the complaint lodged by Mesele Thulare in terms of
section 49
B of
the Act against Anix and Zedek for alleged contranvention of
section
4(1)(b)(iii)
of the Act under case number 2009Mar4335;
1.5.
"Respondents"
means
Zedek and Anix.
1.6.
"Settlement Agreement'
means
this settlement agreement duly signed and concluded between
the
Commission
and Zedek;
1.7.
"the Act
means
the Competition Act No. 89 of 1995, as amended;
1.8.
"Tribunal"
means
the Competition Tribunal of South Africa, a statutory body
established in terms of section 26 of the Act as a Tribunal of
record, with its principal place of business at Building C, Mulayo
Building, DTI Campus, 77 Meintjies Street, Sunnyside, Pretoria;
1.9.
"Zedek"
means
ZedeK Trading 799 cc, a close corporation duly re) jistered in terms
of the company laws of the Republic of South Africa,
with its
principal place of business at number 79 Simonsberg, Bosendal Street
Equestria.
2.
Complaint
investigation and findings
2.1.
During March 2009, the Commission received
a
complaint
from
the
National Treasury concerning allegations of collusive tendering
against the Respondents. Following from this, the Commission
summonned
and
interviewed those alleged to be involved in the alleged conduct. Of
those summoned, Mrs Reinetfi Masemoia of Anix Trading
provided
evidence of the alleged collusion. She confirmed that Anix and Zedek
h;id had discussions on pricing relating to their
tender submissions
for State Tender RT11-2009 R, for the supply and delivery of animal
feed to the state for the period 61 May
2009 to 30 April 2011.
2.2.
The Commission's investigation established that
(i)
the Respondents discussed the cost price of the goods that were the
subject of the tender as well as their respective tender
prices.
(ii)
this conduct had persisted for a considerable period of time as the
respondents normally discussed their respective tender
prices
whenever they responded to an invitation to tender.
2.3
The Commission referred its findings to the Tribunal on 8 March 2010
3.
Settlement
discussions
Shortly
after receiving the referral papers, Zedek's representative
approached the Commission with the view of settling the matter.
He
indicated that Zedek has no defence to the Commission's allegations
and that it had contravened the Act in ignorance as the
Respondents
did not know that their conduct amounted to a contravention and that
It would not be putting up a defence or an answer
to the referral.
4.
Admissions
Zedek
admits that it has contravened section 4(1)(b)(iii) of the Act in
that it and Anix discussed their respective bids and prices
in
respect of Government tender number RT11-2O09R for the supply and
delivery of animal feed to all nine provinces of the Republic.
5.
Agreement
concerning future conduct
Zedek
agrees and undertakes to refrain from engaging in collusive
tendering
in
contravention of section 4(1)(b)(iii) of the Act.
6.
Administrative penalty
6.1
Zedek
agrees that it is liable for an administrative penalty in terms of
sections 58(1)(a)(iii), 59(2) and (3) of the Act. It
shall pay an
amount of R 40 000.00 within 90 days of the confirmation of this
agreement as an
order of the Tribunal.
6.2
The
penalty will be paid over by the Commission to the National Revenue
Fund in accordance with the provisions of section 59(4)
of
the Act.
7.
Full and final settlement
This
Settlement Agreement, upon confirmation thereof
as
an
order
by
the
Tribunal,
concludes all proceedings between the Commission and
Zedex
in
relation to the contravention of section 4(1)(b)(iii)
of
the
Act investigated under the Commission's case number- 2009Mar4335.
DATED
at
Pretoria
on
this the
06
th
day
of
July
2010
Duly
authorized signatory of Zedek
DATED
at
Pretoria
on
this the
06
th
day
of
July
2010
Shan
Ramburuth
Commissioner,
Competition Commission'