About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Competition Tribunal
SAFLII
>>
Databases
>>
South Africa: Competition Tribunal
>>
2013
>>
[2013] ZACT 17
|
|
Competition Commission v MVA Bricks (Pty) Ltd (2009May4419) [2013] ZACT 17; [2013] 1 CPLR 98 (CT) (20 March 2013)
COMPETITION
TRIBUNAL
REPUBLIC
OF SOUTH AFRICA
Case
No: 016337
In
the matter between:
The
Competition Commission
...........................................................................................
Applicant
and
MVA
Bricks (Pty) Ltd
.....................................................................................................
Respondent
Panel:
T Madima (Presiding Member),
A
Ndoni (Tribunal Member) and
A
Roskam (Tribunal Member)
Heard
on: 20 March 2013
Decided
on: 20 March 2013
Order
The
Tribunal hereby confirms the order as agreed to and proposed by the
Competition Commission and the respondent annexed hereto
marked “A”.
Presiding
Member
T
Madima
Concurring:
A Ndoni and A
Roskam
IN
THE COMPETITION TRIBUNAL OF SOUTH AFRICA
(HELD
IN PRETORIA)
CT
Case No: 30/CR/Mar12
CC
Case No: 2009May4419
In
the matter between:
THE
COMPETITION
COMMISSION
.
...............................................................................
Applicant
and
MVA
BRICKS
(PTY)
LIMITED
.....................................................................................
Respondent
SETTLEMENT
AGREEMENT BETWEEN THE COMPETITION COMMISSION AMD MVA BRICKS (PTY)
LIMITED IN REGARD TO A CONTRAVENTION OF SECTION 4(1
)(b)(i) OF THE
COMPETITION ACT, MO, 89 Of 1998 (AS
AMENDED)
The
Competition Commission ("Commission") and MVA Bricks (Pty)
Limited ("MVA Bricks”) hereby agree that an
application be
made to the Competition Tribunal (“Tribunal'
1
)
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
For
the purposes of this Settlement Agreement the following definitions
shall apply-
1.1.
“
Bosun Brick”
means Bosun Brick Midrand (Pty) Ltd, a company duly registered and
incorporated in terms of the company laws of the Republic of
South
Africa, with its principal place of business at corner Cresset and
Musket Roads, Midrand Industrial Park, Midrand;
1.2.
“Cast Industries"
means
Cast Industries (Pty) Ltd, a company duly registered and incorporated
in terms of the company laws of the Republic of South
Africa, with
its principal place of business at 38 Spanner Road, Ciayville
Industrial, Midrand;
1.3.
""
CLF
""
means the corporate leniency policy of the Commission published in
the Government Notice No. 628 of 23 May 2008, in Government
Gazette
No. 31064 of 23 May 2008.
1.4.
“
Commission”
means the Competition Commission of South Africa, a statutory body,
established in terms of section 19 of the Act, wfth its principal
place of business at Building C, Mulayo Building, dti Campus, 77
Meintjies Street, Sunnyside, Pretoria, Gauteng;
1.5.
" “
Commissioner”
means the Commissioner of the Competition Commission, appointed in
terms of section 22 of the Act;
1.6.
“
Concor Technicrete”
means Murray & Roberts Building Products (Pty) Ltd t/a Concor
Technicrete a company duly incorporated in terms of the company
laws
of the Republic of South Africa, with its principal place of business
at corner Main Reef and Houtkapper Street, Rooderpoort,
Johannesburg;
1.7.
“
Complaint*
means the
complaint initiated by the Commissioner on 07 May 2009 in terms of
section 49B(1) of the Act under case number 2009May4419
against tire
respondents
for alleged contravention of section 4{lXb)(i) of the Act;
1.8.
“
Gmertc
paving
blocks
” means paving blocks
which include interlocking and bevelled paving blocks used in the
industrial, commercial and residential
markets in South Africa;
1.9.
“Infrasef’ means Aveng (Africa) Limited Infraset, 'a
company duly registered- and incorporated in terms of the
company
lam'of the Republic of South Africa, with its principal place of
business at 204 Rivonia Road, Momingside, Sandton;
1.10.
“
MVA Bricks”
means MVA Bricks (f%)
!
Limited*
a-company duly registered and incorporated in terms of the company
laws of the Republic of South ’ Africa, with
It
principal place of business at Roger Dyson -Road, Pretoria West
industrial, Pretoria.
1.11.
“Respondents” means
infraset,
Bosun Brick
,
Cast Industries, Concor
Technicrete, Vitro Bricks and MVA Bricks.
1.12.
“
Settlement
Agreement*
means this agreement duly signed. and concluded between the
Commission and MVA Bricks;
1.13.
“
The
Act”
means the Competition Act,
Ho.
89 of 1998, as amended;
1.14.
“
Tribunaf'
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 Building C, (Vluiayo Building, DTI Campus, 77 Meintjies
Street, Sunnyaide, Pretoria, Gauteng;
1.15.
“
Vibro
Bricks”
means Vibro Bricks (Pty) Ltd, a company duly registered and
incorporated in terms of the company laws of the Republic of South
Africa, with it principal place of business at Schurweburg Street,
Mooiplaas Laudium, Pretoria.
2.
Complaint investigation and the Commission’s findings
2.1.
On 22 October 2008
Infraset
applied for corporate leniency
In
terms of the
CLP
regarding its involvement in a cartel in the market for the
manufacture and supply of
generic
paving blocks'-
in South Africa. In
the
CLP
application,
Infraset
submitted information and documents to the
Commission
indicating,
inter alia,
the
respondents
held meetings and discussions as a result of which they,
inter
alia,
agreed to fix the selling
price of
generic paving blocks
in contravention of section 4(1 )(b}(t) of
the
Act
2.2.
Following
infrasets
application for corporate leniency, on 07 May 2009 the
Commissioner
initiated a
complaint
in terms of section 49B(1) of
the Act
against the
respondents.
The
Commission
duly investigated the
complaint
and found that the
respondents
had entered into an agreement, arrangement and understanding
involving the fixing of the selling price of
generic
paving blocks
in contravention of
section 4(1 )(b)(i) of
the Act
The fixing of the selling price included an agreement among the
respondents
on,
inter alia,
minimum prices, transport costs and price increases of
generic
paving blocks.
The
Commission’s
investigation established that the aforementioned conduct of the
respondents
commenced
in
or about 2001 and continued until at least 2008.
3.
Settlement Discussions
3.1.
On 28 November 2012
MVA Bricks
made a written settlement proposal
to
the Commission.
Following
MVA
Bricks’
settlement proposal,
the
Commission and MVA Bricks
engaged in settlement discussions.
3.2.
Eventually., on 18 February 2013 the
Commission and MVA Bricks
reached an agreement, the outcome of which is this
Settlement
Agreement
4.
Admission
MVA
Bricks
admits that it has entered
into an agreement with the
Vibro
Bricks
,
Cast
Industries
,
Bosun Brick
,
and
Concor Technicrete
which
contravened section
4{1)(b)(i) of
the Act.
5.
Agreement concerning future conduct
MVA
Bricks
agrees and undertakes to;
5.1.
prepare and circulate a statement summarising the content of this
Settlement Agreement
to its employees who are managers and to its directors and relevant
corporate governance structures within one (i) month after
the date
of confirmation of this
Settlement
Agreement
as an order of the
Tribunal;
5.2.
refrain from engaging in price fixing in contravention of section 4(1
)(b)(i) of
.the Act:
and
5.3.
develop and implement a compliance programme in order to ensure that
its employees, management and directors do not engage
in any conduct
which constitutes a prohibited practice in terms of
-the
Act.
5.4.
A copy of the compliance programme shall be submitted to the
Commission
within three (3) months after the date of confirmation of this
Settlement Agreement
as an order of the
Tribunal.
6.
Co-operation
6.1.
MVA Bricks
agrees and undertakes to
:
cooperate fully with the
Commission
in its prosecution of the remainin
g
respondents
in the
complaint
referral.
6.2.
This cooperation includes, but is not limited to:
6.2.1.
providing the
Commission
with all relevant evidence available to it that may assist the
Commission
in its prosecution of the remaining
respondents
in
the
complaint
referral; and
6.2.2.
ensuring that all
MVA Bricks’s
current employees, and to the extent possible, former employees, who
have knowledge of the meetings and discussions among the
respondents
are available to and co-operate with the
Commission,
both for purposes of consultation and to give evidence
in
proceedings before the
Tribunal.
7.
Administration Penalty
7.1.
MVA Bricks
is liable to pay an
administrative penalty in terms of section 58(1}(a)(iii}
I
read with sections 59(1)(a), 59(2) and (3) of
the
Act
in the amount of R672 565.47
(SIX HUNDRED THOUSAND SEVENTY TWO THOUSAND AND FIVE HUNDRED AND SIXTY
FIVE RAND FORTY SEVEN CENTS)
representing 2.5% of
MVA
Bricks’s
affected turnover for
the financial year ended in February 2011;
7.2.
MVA Bricks
will pay the
administrative penalty to the
Commission
within seven (7) months after the date of the confirmation of this
Settlement Agreement
as an order of the
Tribunal
;
7.3.
MVA Bricks
shall remit payment of
the administrative penalty into the following bank account:
Name
of account holder: COMPETITION COMMISSION
Bank
name: ABSA BANK PRETORIA
Account
number: 4050778576
Branch
code: 323345
7.3.
The
Commission
will pay the administrative penalty into the National Revenue Fund in
terms of section 59(4} of
the Act.
8.
Full and final settlement
This
Settlement Agreement
,
upon confirmation thereof as an order by the
Tribunal
concludes all proceedings between the
Commission
and
MVA Bricks
in relation to the contravention of section 4(1}(b)(i) of
the
Act,
referred to the
Tribunal
under case number: CT Case No: 30/CR/Mar12.
SIGNED
at
Pretoria
on this the
26th
day o
f
February
2013.
Duly
authorised signatory
MVA
Bricks (Pty) Limited
SIGNED
at
Pretoria
on this the
11th
day o
f March
2013.
Shan
Ramburuth
The
Commissioner, Competition Commission