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[2010] ZACT 43
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Competition Commission v Anix Trading 799 CC and Others (07/CR/Mar10) [2010] ZACT 43; [2010] 2 CPLR 254 (CT) (7 July 2010)
COMPETITION
TRIBUNAL
REPUBLIC OF SOUTH
AFRICA
Case No: 07/CR/Mar10
In the matter between:
The
Competition Commission
….....................................................
Applicant
and
Anix
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
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 739 CC
….........................................................
1
st
Respondent
ZEDEX
TRADING 799 CC
….....................................................
2
nd
Respondent
In
re:
COMPETITION COMMISSION
….............................................
Applicant
and
ANIX
TRADING 739 CC
…........................................................
1
st
Respondent
ZEDEX
TRADING 799 CC
….....................................................
2
nd
Respondent
SETTLEMENT
AGREEMENT BETWEEN THE COMPETITION COMMISSION AND ANIX TRADING
739
CC IN RESPECT OF CONTRAVENTIONS OF
SECTION 4(1)(b)
OF THE
COMPETITION
ACT NO 89 OF 1998
The Competition
Commission and Anix Trading 739 CC ("Anix") hereby agree
that application be made to the 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 indicates otherwise, the following
definitions shall apply:
1.1.
"Anix"
or
"Respondent"
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, Cultura 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 Building,
DTI Campus, 77 Meintjies
Street, Sunnyside, Pretoria, South Africa;
1.3.
"Commissioned
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 Zedex for alleged contravention of
section
4(1)(b)(iii)
of the Act under case number 2009Mar4335;
1.5.
"Respondents"
means
Zedex and Anix.
1.6.
"Settlement Agreement'
means
this settlement agreement duly signed and concluded between the
Commission and Anix;
1.7
.
"the
Act'
means
the
Competition Act No. 89 of 1998
, 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, DT! Campus, 77 Meintjies
Street, Sunnyside, Pretoria;
1.9.
"Zedex"
means
Zedex Trading 799 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 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 summoned and
interviewed those alleged to be involved in the alleged
conduct. Of
those summoned, Mrs Reineth Masemola of Anix Trading provided
evidence of the alleged collusion. She confirmed that
Anix and Zedek
had 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 01 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
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, Anix's representative approached the Commission
with the view of settling the matter.
She indicated that Anix 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
Anix admits that it has
contravened
section 4(1)(b)(iii)
of the Act in that it and Zedex
discussed with each other their respective bids and prices in
respect of Government tender number
RT11-2009R for the supply and
delivery of animal feed to all nine provinces of the Republic.
5.
Agreement
concerning future conduct
Anix agrees and
undertakes to refrain from engaging in collusive tendering in
contravention of
section 4(1)(b)(iii)
of the Act.
6.
Administrative
penalty
Anix agrees that it is
liable for an administrative penalty in terms of
sections
58(1)(a)(m)
,
59
(2) and (3) of the Act Anix shall pay an amount of R
20 000.00 within 90 days of the confirmation of this agreement as
an order
of the Tribunal. .
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 a consent order by the
Tribunal, concludes all proceedings between the
Commission and Anix
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
31
day
of
May
2010
MASEMOLA
REINETH LEKAKE
Duly
Authorised signatory of Anix
DATED
at
Pretoria
on
this the
27
day
of
May
2010
Shan
Ramburuth
Commissioner,
Competition Commission