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[2013] ZACT 51
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Competition Commission v Mccoyâs Glass Wholesalers CC (016543) [2013] ZACT 51 (12 June 2013)
COMPETITION
TRIBUNAL
REPUBLIC
OF SOUTH AFRICA
Case
No: 016543
In
the matter between:
The
Competition Commission
Applicant
and
Mccoy’s
Glass Wholesalers CC
Respondent
Panel:
N
Manoim (Presiding Member), T Madima (Tribunal Member) and A
Ndoni (Tribunal Member)
Heard
on:
12
June
2013
Decided
on:
12
June
2013
Order
The
Tribunal hereby confirms the order as agreed to and proposed by the
Competition Commission and the respondent, annexed hereto
marked “A”
and the addendum thereto marked “B”.
Presiding
Member
N
Manoim
Concurring:
T Madima and N Ndoni
BEFORE
THE COMPETITION TRIBUNAL OF SOUTH AFRICA
(HELD
IN PRETORIA)
CT
CASE NO: 016451
CC
CASE NO: 2010Feb4941
In
the matter between:
COMPETITION
COMMISSION
...............................................................................................
Applicant
and
MCCOY’S
GLASS WHOLESALERS CC
...........................................................................
Respondent
FILING
SHEET
DOCUMENT
FILED: CONSENT AGREEMENT BETWEEN THE COMPETITION COMMISSION AND
MCCOY’S GLASS WHOLESALERS CC IN RESPECT OF THE CONTRAVENTION
OF
SECTIONS 4(1) (b) (i) AND (ii) OF THE COMPETITION ACT NO. 89 OF 1998,
(AS AMENDED).
FILED
BY:
IN
THE COMPETITION TRIBUNAL OF SOUTH AFRICA
HELD
AT PRETORIA
CC
Case No: 2010Feb4941
In
the matter between:
THE
COMPETITION COMMISSION
.........................................................................................
Applicant
And
MCCOY’S
GLASS WHOLESALERS CC
.
.............................................................................
Respondent
CONSENT
AGREEMENT BETWEEN THE COMPETITION COMMISSION AND MCCOY’S GLASS
WHOLESALERS CC IN REGARD TO THE ALLEGED CONTRAVENTION
OF SECTIONS 4
(1) (b) (i) AND (ii) OF THE
COMPETITION ACT, NO. 89 OF 1998
, AS
AMENDED
The
Competition Commission and McCoy's Glass Wholesalers CC hereby agree
that application be made to the Competition Tribunal (“the
Tribunal”) for an order confirming this Consent Agreement as an
Order of the Tribunal in terms of
section 49D
read with
section
58(1)(a)(iii)
and (b) as well as
section 59(1
)(a) of the
Competition
Act, No. 89 of 1998
as amended, on the terms set out more below.
Definitions
For
the purposes of this Consent Agreement the following definitions
shall apply:
1.1.
“
the
Act
”
means
the
Competition Act No. 89 of 1998
, as amended;
1.2.
"
CLP
"
means
the Corporate Leniency Policy issued by the Commission in terms of
the Act to clarify the Commission’s policy approach
on matters
falling within its jurisdiction in terms of the Act as published in
the Government Gazette Notice 628 of 2008;
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
place of business at Building C, Mulayo Building, DT! 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
of
the
Commission
against
the
Respondents
on (23 February 2010
under
case number 2010Feb4941.
1.6.
“
McCoy’s
Glass
"
means McCoy's Glass Wholesalers CC, a close corporation duly
registered and incorporated in terms of the company laws of
the
Republic of South Africa, with its principal place of business
situated at 18 Jurie Street, Alrode, Alberton, South Africa.
1.7..
“
Days”
means calendar days.
1.8.
“
Parties”
means,
collectively, the Commission and McCoy’s Glass.
1.9.
"Relevant
period
"
means the period from 1998 to April 2007.
1.10.
“
Prohibited
Practice”
means
a practice prohibited in terms of Chapter 2 of the Act.
1.11.
“
Respondents”
collectively
refers to McCoy’s Glass, Glass South Africa (Pty) Ltd, National
Auto Glass (Pty) Ltd, AF-FSL Glass and Windscreen
Centre (Pty) Ltd
"AF-FSL Glass"), Northern Hardware and Glass (Pty) Ltd,
Furman Glass (Pty) Ltd, National Giass (Pty)
Ltd.
1.12.
“Consent
Agreement”
means
this agreement duly signed and concluded between the Commission and
McCoy’s Glass.
1.13.
“
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 Building C, Mulayo Building, DTI Campus, 77
Meintjies Street, Sunnyside, Pretoria, Gauteng.
The
Complaint investigation
2.1.
On 08 June 2009 AF-FSL Glass applied for immunity in terms of the CLP
for,
inter alia
,
its role in concluding an agreement to fix prices, fix trading
conditions and divide markets for the wholesale of glass products
in
contravention of section 4(1 )(b)(i) and (ii) of the Act. On 30 March
2010 the Commissioner granted conditional immunity in
term of the
CLP.
2.2.
On 23 February 2010 the Commissioner initiated the complaint against
the respondents for alleged contraventions of
.
inter alia,
sections 4(1)(bj(i) and
4(1)(b)(it) of the Act The Commission duly investigated the complaint
and found that the respondents entered
into agreements to fix minimum
prices and trading conditions and to divide markets for the supply
and wholesale of flat glass,
laminated glass and toughened glass.
2.3.
The agreements entered into between the respondents remained in force
intermittently between 1993 and 2007 (in the case of
McCoy’s
Glass, between 1998 and April 2007). The Commission investigation
revealed that the prohibited conduct took place
mainly in Gauteng,
Free State and Western Cape. McCoy’s Glass joined the cartel in
1998, approximately one year after it
(McCoy’s Glass) was
established, and operated only in Gauteng.
Admission
McCoy’s
Glass
admits that, during the
relevant period, it'entered into agreements with
the
respondents which contravened section 4(1)(b)(i) and (ii) of the Act.
Agreement
Concern Eng Future Conduct
4.1.
The
Parties
record that
McCoy's Glass’
participation in the conduct that formed the subject matter of the
complaint ceased in or about April 2007 when it voluntarily
left the
cartel
4.2.
McCoy’s
Glass
agrees
and undertakes to refrain from engaging in price fixing, fixing of
trading conditions, market division in contravention of
sections
4{1)(b)(i) and 4(1)(b)(ii) of the Act.
4.3.
Within six (6) months from the date of confirmation of this
Consent
Agreement, McCoy’s Glass
agrees
to develop, implement, monitor and enforce a competition law
compliance programme in order to ensure that its employees,
management, members and agents do not engage in future contraventions
of the Act.
4.4.
McCoy’s
Glass
undertakes
not to engage in any conduct which constitutes a prohibited practice
in contravention of chapter 2 of the Act.
4.5.
McCoy's
Glass
agrees
to co-operate with the
Commission
in
the prosecution of the remaining respondents in relation to the
complaint This includes, but is not limited to providing relevant
evidence, witness statements and giving evidence before the
Tribunal.
4.6.
The parties record that McCoy’s Glass cooperated with the
Commission's investigation and that it made immediate, full
and frank
disclosure of the nature and extent of its participation in the
cartel.
5.
Administrative
Penalty
5.1.
In terms of section 58{1)(a)(iii) read with sections 59(1)(a)! 59(2)
and 59(3} of the Act,
McCoy’s
Glass
accepts that it is liable pay
an administrative penalty.
5.2.
The
Parties
agree that
McCoy's Glass
will pay an administrative penalty in the amount of R2 487 450.70
(two million four hundred and eighty seven thousand, four hundred
and
fifty rand and seventy cents), being 3% of
McCoy’s
Glass3
affected turnover for the
financial year ending 30 June 2011.
5.3.
The administrative penalty will be paid into the following account:
NAME:
COMPETITION
COMMISSION
FEE
ACCOUNT
BANK:
ABSA BANK, PRETORIA
ACCOUNT
NO: 405 077 8576
BRANCH
CODE: 323345
6.3.
McCoy’s Glass shall pay the administrative penalty within three
(3) months of the date of the confirmation of this
Consent
Agreement
by the
Tribunal.
6.4.
The
Commission
will pay the administrative penalty received from
McCoy’s
Giass
into the National Revenue Fund
as contemplated by section 59(4) of the Act.
Full
and Final Settlement
This
Consent
Agreement
is
entered into in full and final' settlement and upon confirmation as a
Consent Order by the
Tribunal
,
concludes all proceedings between the
Commission
and
McCoy's
Glass
relating
to any alleged contravention by
McCoy's
Glass
of
sections 4(1 )(b) (i) and 4(1)(b)(ii) of the Act that are the subject
of the
Complaint
and
the
Commissions
investigations
under case number 2010Feb4941.
Dated
and signed in Alrode on this the 8 day of April 2013
Steve
McCoy
Managing
Member:
McCoy’s
Glass Wholesalers CC
Dated
and signed in Pretoria on this the 9 day of April 2013
Shan
Ramburuth
The
Commissioner
Competition
Commission
IN
THE COMPETITION TRIBUNAL OF SOUTH AFRICA
HELD
AT PRETORIA
CC
Case No: 2010Feb4941
CT
Case No: 016451
In
the matter between:
THE
COMPETITION COMMISSION
And
MCCOY’S
GLASS WHOLESALERS CC
ADDENDUM
TO CONSENT AGREEMENT BETWEEN THE COMPETITION COMMISSION AND MCCOY’S
GLASS WHOLESALERS CC IN REGARD TO THE ALLEGED
CONTRAVENTION OF
SECTIONS 4 (1) (b) (i) AND (ii) OF THE COMPETITION ACT, NO. 89 OF
1998, AS AMENDED
The
Competition Commission and McCoy’s Glass Wholesalers CC hereby
agree to amend clause 6.3 of the consent agreement concluded
on 9
April 2013 by substituting the existing clause 6.3 with the
following:
"6.3
McCoy's Glass shall pay the administrative penalty within six (6)
months of the date of the confirmation of this
Consent
Agreement
by the
Tribunal,
on the following terms:
6.3.1.
50% of the penalty within three (3) months; and
6.3.2.
the balance being the remaining 50% within six (6) months."
Steve
McCoy
Managing
Member:
McCoy’s
Glass Wholesalers CC
Dated
and signed in Pretoria on this the 12 day of April 2013
Shan
Ramburuth
The
Commissioner
Competition
Commission