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[2013] ZACT 61
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Competition Commission v Cargill RSA (Pty) Ltd (016923) [2013] ZACT 61 (17 July 2013)
COMPETITION
TRIBUNAL
REPUBLIC
OF SOUTH AFRICA
Case
No: 016923
In
the matter between:
The
Competition Commission and
Cargill
RSA (Pty) Ltd
Panel:
A
Wesseis (Presiding Member), M Mokuena (Tribunal Member) and A Ndoni
(Tribunal Member)
Heard
on:
16
July 2013
Decided
on:
17
July 2013
Order
The
Tribunal hereby confirms the order as agreed to and proposed by the
Competition Commission and the respondent attached hereto
marked
Annexure “A”, to be read with the addendum to the
settlement agreement, attached hereto as Annexure “B”.
Presiding
Member A Wessels
Concurring:
M Mokuena and A Ndoni
IN
THE COMPETITION TRIBUNAL OF SOUTH AFRICA
HELD
IN PRETORIA
CC
Case No: 2012Sep0553
In
the matter between:
THE
COMPETITION COMMISSION
Applicant
and
CARGILL
RSA (PTY) LTD
Respondent
CONSENT
AGREEMENT IN TERMS OF SECTION 49D READ WITH SECTION 58 (1) (a)
(iii)
AS
READ WITH SECTION 58 (1) (b) OF THE COMPETITION ACT, 1998 (ACT NO. 89
OF 1998), AS AMENDED, BETWEEN THE COMPETITION COMMISSION
AND CARGILL
RSA (PTY) LTD IN REGARD TO A CONTRAVENTION OF
SECTION 13A
(3) OF THE
COMPETITION ACT, 1998
The
Competition Commission (“the Commission”) and Cargill RSA
(Pty) Ltd (“Cargill RSA”) hereby agree that
application
be made to the Competition Tribunal (“the Tribunal") for
the confirmation of this Consent Agreement as an
order of the
Tribunal in terms of
section 49D
as read with
sections 58
(1) (a)
(iii),
section 58
(1) (b) and
section 59
(1)
(d)
(i) of the
Competition Act, 1998
, on the terms set out below:
1.
DEFINITIONS
For
the purposes of this Consent Agreement the following definitions
shall apply:
1.1.
“Act” means the Competition Act, 1998 (Act No. 89 of
1998), as amended;
1.2.
“Cargill RSA” means Cargill RSA ( Pty) Ltd, a company
registered and incorporated under the laws of the Republic
of South
Africa, with its primary place of business at Building No.
2,
Montagu Office Park, Cnr Cedar Road & Cedar Lakes Boulevard,
Broadacres, Gauteng;
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 the dti Campus, Building
C, Mulayo,
77
Meintjies
Street, Sunnyside, Pretoria, Gauteng;.
1.4.
“Consent Agreement” means this agreement duly signed and
concluded between the Commission and Cargill RSA (Pty)
Ltd;
1.5.
"KoroFrance SAS” means KoroFrance SAS, the holding company
of the Provimi Group, with its principal place of business
at, Parc
D’activites de Ferchaud 35320, Crevin, France;
1.6.
“NuTec” means NuTec Southern Africa (Pty) Ltd, a private
company incorporated in accordance with the laws of the
Republic of
South Africa, with its principal place of business at, 234 Royston
Road, Willowtown, Pietermaritzburg, Kwa-Zulu Natal;
1.7.
“Parties” means the Commission and Cargill RSA;
1.8.
“Respondent” means Cargill RSA;
1.9.
“Sugar Direct” means Sugar Direct (Pty) Ltd, a private
company incorporated in accordance with the iaws of the
Republic of
South Africa, with its principal place of business at 33 Williams
Way, Racing Park, Killarney, Cape Town, 7441;
1.10.
“The Transaction” means the transaction wherein Cargil!
RSA intended to acquire 100% of the entire Issued share
capital of
Sugar Direct
1.11.
“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, the dti Campus,
Building C, Mulayo, 77 Meintjies Street, Sunnyside, Pretoria,
Gauteng
2.
BACKGROUND
2.1.
On 4 July 2012 Cargill RSA filed an intermediate merger with the
Commission wherein Cargill RSA intended to acquire 100% of
the entire
issued share capital of NuTec (“the NuTec transaction”).
2.2.
During its investigation of the NuTec transaction, the Commission
found that Cargill RSA acquired Sugar Direct on 1 September
2011.
This transaction, being a transaction that requires notification in
terms of
section 13A
of the
Competition Act, had
not been notified to
the Commission.
2.3.
On 17 September 2012 the transaction was subsequently notified to the
Commission as an intermediate merger under case number
2012Sep0553.
The transaction was unconditionally approved by the Commission on
December 2012
3.
INVESTIGATION AND FINDINGS OF THE COMMISSION
3.1.
The Commission investigated the alleged contravention and found the
following;
3.1.1.
The transaction resulted in Cargill RSA acquiring 100% of the entire
issued .share capital of Sugar Direct which constituted
a merger in
terms of section 12 (1) of the Act;
3.1.2.
The threshold for an intermediate merger as defined in section 11 (5)
(b), read with section 11 (1) of the Act and Notice
216 of 2009 was
met in respect of the transaction;
3.1.3.
The
parties implemented the merger prior to notification and approval
by
the Commission, in contravention of section 13A (3) of the Act;
3.2.
Cargill
cooperated
with the Commission’s investigation and engaged
the
Commission with a view to settling the contravention. This agreement
is the product of those engagements.
4.
ADMISSION
4.1.
The Respondent admits that the Sugar Direct transaction constituted a
notifiable intermediate merger as defined in section
11 (5) (b) of
the Act.
4.2.
The Respondent further admits that the merger was implemented prior
to notification and approval by the Commission in contravention
of
section 13A (3) of the Act.
4.3.
The Respondent further admits that it and Sugar Direct were
responsible for notifying the merger to the Commission in terms
of
the Act.
5.
COMPLIANCE WITH THE ACT
5.1.
The Respondent agrees and undertakes to:
5.1.1.
Refrain from engaging in the implementation of notifiable mergers
without
the prior approval of the Commission, in contravention of section 13A
(3) of the Act; and
5.1.2.
Develop, implement and monitor a competition law compliance
programme
incorporating corporate governance, designed to ensure that all its
relevant employees, management and directors are aware
of
the
provisions of the
Competition Act and
do not contravene them; and
5.1.3.
Submit a copy of the aforementioned compliance programme to the
Commission within 60 days of the date of confirmation of
this Consent
Agreement as an order by the Tribunal.
6.
ADMINISTRATIVE PENALTY
6.1.
Having regard to the provisions of
sections 58
(1) (a) (iii) as read
with sections 59 (1) (d), 59 (2) and 59 (3) of the Act, Cargill RSA
is liable for and will pay an administrative
penalty in the amount of
R100, 000.00 (One hundred thousand rand), which amount constitutes
less than 1% of the relevant turnover
in 2011
7
TERMS OF PAYMENT
7.1.
Cargill RSA shall pay the amount set out above to the Commission
within
7
(seven)
days from the date of confirmation of this Consent Agreement as an
order of the Tribunal;
7.2.
The payment shall be made into the Commission’s bank account,
details of which are as follows:
Bank: ABSA
Bank
Branch
Name: Pretoria
Account
Holder: Competition Commission
Account
number: 4050778576
Account
type: Current Account
Branch
code:
323345
7.3.
The penalty will 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
8.1.
This Consent Agreement is entered into in full and final settlement
and, upon confirmation as an order by the Tribunal, concludes
all
proceedings between the Commission and Cargill RSA in relation to a
contravention of section 13A(3) of the Act, and that is
the subject
of the investigation of the Commission under Case No, 2012Sep0553.
Signed
at JOHANNESBURG on the 20
th
day of JUNE 2013
Cargill
RSA (Pty) Ltd
Signed
at PRETORIA on the 21
st
day of JUNE 2013
Mr
Shan Ramburuth, The Commissioner
Competition
Commission