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[2013] ZACT 80
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Competition Commission v Glass South Africa (Pty) Ltd (017293) [2013] ZACT 80 (24 July 2013)
COMPETITION
TRIBUNAL
REPUBLIC
OF SOUTH AFRICA
Case
No: 017293
In
the matter between:
The
Competition Commission Applicant
And
Glass
South Africa (Pty) Ltd Respondent
Panel: A
Wessels (Presiding Member), M Mazwai (Tribunal Member) and A Roskam
(Tribunal Member)
Heard
on: 24 July 2013
Decided
on: 24 July 2013
Order
The
Tribunal hereby confirms as an order in terms of section 58(1 )(a) of
the Competition Act, 1998 (Act No. 89 of 1998) the settlement
agreement reached between the Competition Commission and the
respondent which is attached hereto, including Addendum A.
Presiding
Member
A
Wessels
Concurring:
M Mazwai and A Roskam
IN
THE COMPETITION TRIBUNAL OF SOUTH AFRICA
HELD
AT PRETORIA
CC
Case No: 2010Feb4941
In
the matter between:
THE
COMPETITION COMMISSION Applicant
And
GLASS
SOUTH AFRICA (PTY) LTD Respondent
CONSENT
AGREEMENT BETWEEN THE COMPETITION COMMISSION AND GLASS SOUTH AFRICA
(PTY) LTD 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^Glass South Africa (Pty) Ltd hereby agree
that an 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.
1.
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, DTI 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.
“Consent Agreement
•
means this consent agreement duly signed and concluded between the
Commission and Glass SA;
1.7.
“
Days”
means calendar days;
1.8.
“Glass
SA” means Glass South Africa (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
situated at 112 Koornhoff Street, Meadowdale, Johannesburg. Glass SA
is a
wholesale division of PG Group (Pty) Limited (“PG Group”);
1.9.
“Parties’’
means, collectively, the Commission and Glass SA;
1.10.
“
Prohibited
Practice”
means a practice prohibited in terms of Chapter 2 of the Act;
1.11.
“Relevant period”
means the period from 1993 to April 2007;
1.12.
“
Respondents”
collectively refers to Glass SA, National Glass (Pty) Ltd, Northern
Hardware and Glass (Pty) Ltd, Furman Glass Company (1964) (Pty)
Ltd,
McCoy’s Glass, and AF-FSL Glass and Windscreen Centre (Pty) Ltd
(“AF- FSL Glass"); and
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.
2.
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
terms 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)(b)(i) and 4(1)(b)(ii) 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 ffat glass,
laminated
glass and toughened glass.
2.3.
The agreements entered into between the respondents remained in force
intermittently between 1993 and 2007. The Commission
investigation
revealed that the prohibited conduct took place mainly in Gauteng,
Free State and Western Cape.
3.
Admission
Glass
SA 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.
4.
Agreement Concerning Future Conduct
4.1.
The parties record that Glass SA’s participation in the conduct
that forming the subject matter of the complaint has
ceased.
4.2.
Glass SA agrees and undertakes to refrain from engaging in price
fixing, fixing of trading conditions, and the division of
markets in
contravention of sections 4(1 )(b)(i) and 4(1 )(b)(ii) of the Act.
4.3.
The parties record that the PG Group has put in place a competition
law compliance programme which is applied throughout the
operations
of the PG Group, including Glass SA.
4.4.
Glass SA undertakes not to engage in any conduct which constitutes a
prohibited practice in contravention of Chapter 2 of the
Act.
4.5.
Glass SA 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 witnesses and giving
evidence before the Tribunal.
4.6.
The parties record that Glass SA co-operated with the Commission in
that it made 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, Glass SA accepts that it is liable
to pay an
administrative penalty.
5.2.
The Parties agree that Glass SA will pay an administrative penalty in
the amount of R4 395 023, 02 (four million three hundred
and
ninety-five thousand and twenty three rand and two cents) being 3%
(three per cent) of Glass SA's affected turnover for the
financial
year ending 31 December 2011.
6.
Administrative penalty
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
6.2.
Glass SA shall pay the administrative penalty within 6 (six) months
of the date of the confirmation of this Consent Agreement
by the
Tribunal on the following terms:
6.2.1.
50% (fifty percent) of the penalty within 3 (three) months from the
date of confirmation of this Consent Agreement by the
Tribunal; and
6.2.2.
the remaining 50% (fifty percent) within 6 (six) months from the date
of confirmation of this Consent Agreement by the Tribunal.
6.3.
The Commission will pay the administrative penalty received from
Glass SA into the National Revenue Fund as contemplated by
section
59(4) of the Act.
7.
Full and Fina! 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 Glass SA relating to any
alleged contravention by Glass SA of sections 4(1)(b)(i) and
4(1)(b)(ii) of the Act that are the subject of the Complaint and the
Commission’s investigations under case number 2010Feb4941,
Dated
and signed in BEDFORDVIEW on this the 5
TH
day
of JULY
2013.
Managing
Member:
Glass
South Africa (Pty) Ltd
Dated
and signed in PRETORIA on this the 10
TH
day
of JULY
2013
Shan
Ramburuth
The
Commissioner
Competition
Commission
IN
THE COMPETITION TRIBUNAL OF SOUTH AFRICA
HELD
AT PRETORIA
CT
Case No: 017293 CC Case No: 2010Feb4941
In
the matter between:
THE
COMPETITION COMMISSION Applicant
And
GLASS
SOUTH AFRICA (PTY) LTD Respondent
ADDENDUM
TO CONSENT AGREEMENT BETWEEN THE COMPETITION COMMISSION AND GLASS
SOUTH AFRICA (PTY) LTD 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 Glass South Africa (Pty) Ltd hereby agree
to amend the Consent Agreement concluded on 10 July 2013
by
substituting the existing clause 4.3 with the following:
“
4.3.
The parties record that the PG Group has put in place a competition
law compliance programme which is applied throughout the
operations
of the PG Group, including Glass SA. Glass SA shall submit a copy of
this compliance
programme
to the Commission within thirty (30) days of the date of the
confirmation of this Consent Agreement by the Tribunal.”
Dated
and signed at BEDFORDVIEW on this 23
RD
Day of July 2013.
Director
Glass
South Africa (Pty) Ltd
The
Commissioner Competition Commission