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[2013] ZACT 81
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Competition Commission v National Glass Distributors (Pty) Ltd (017400) [2013] ZACT 81 (24 July 2013)
COMPETITION
TRIBUNAL
REPUBLIC
OF SOUTH AFRICA
Case
No: 017400
In
the matter between:
The
Competition Commission Applicant
and
National
Glass Distributors (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
NATIONAL
GLASS DISTRIBUTORS (PTY) LTD
Respondent
CONSENT
AGREEMENT BETWEEN THE COMPETITION COMMISSION AND NATIONAL GLASS
DISTRIBUTORS (PTY) LTD IN REGARD TO THE ALLEGED CONTRAVENTION
OF
SECTIONS 4(1)(b)(i) AND (ii) OF THE COMPETITION ACT, NO. 89 OF 1990,
AS AMENDED.
The
Competition Commission and National Glass Distributors (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(l)(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 Us 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 2010Feb494;
1.6.
“Consent Agreement” means this agreement duly signed and
concluded between the Commission and National Glass;
1.7.
“Days” means calendar days;
1.8.
“National Glass” means National Glass Distributors (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 39 Newton Street, Newton
Park, Port
Elizabeth;
1.9.
“Parties* means, collectively, the Commission and National
Glass;
1.10.
“Prohibited Practice” means a practice prohibited in
terms of Chapter 2 of the Act;
1.11.
“Relevant period” means the period from 1995 to April
2007;
1.12.
“Respondents” collectively refers to Glass South Africa
(Pty) Ltd, 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 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 )(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 float
glass, laminated
glass and toughened glass. National Glass was a participant thereof
as far as the conduct related to float 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. National Glass joined
the cartel in 1995
and was a participant thereof as far as the conduct related to
Gauteng.
3.
Admission
National
Glass admits that, during the relevant period, it entered into
agreements with
the
respondents which contravened section 4(1 )(b)(i> of the Act.
4.
Agreement Concerning Future Conduct
4.1.
The parties record that the conduct forming the subject matter of the
complaint has ceased.
:
4.2.
National 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) of the Act.
4.3.
Within
six (6) months from the date of confirmation of this Consent
Agreement,
National
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.
National Glass undertakes not to engage in any conduct which
constitutes a prohibited practice in contravention of chapter
2 of
the Act.
i
i
4.5.
National 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 witnesses and giving
evidence before the Tribunal.
4.6.
The parties record that National Glass cooperated 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)(tu) read with sections 59(1 }(a), 59(2)
and 59(3) of the Act, National Glass accepts that it is
liable pay an
administrative penalty.
5.2.
The parties agree that National Glass will pay an administrative
penalty in the
amount
of R 414 615.00 (four hundred and fourteen thousand six hundred and
fifteen rand).
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
!
5.4.
National Glass shall pay the administrative penalty within three (3)
months of the date of the confirmation of this Consent
Agreement by
the Tribunal
5.5.
The Commission will pay the administrative penalty received from
National Glass into the National Revenue Fund as contemplated
by
section 59(4) of the Act.
6.
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 National Glass relating to any
alleged contravention by National Glass of sections 4(1)(b)(i)
of the
Act that are the subject of the complaint and the Commission's
investigations under case number 2010Feb4941.
Dated
and signed in PORT ELIZABETH on this the 11
th
day of JULY 2013.
Anthony
Adler
Managing
Member:
National
Glass Distributors (Pty) Ltd
Dated
and signed in PRETORIA on this the 16
th
day of JULY 2013
Shan
Ramburuth
The
Commissioner Competition Commission
IN
THE COMPETITION TRIBUNAL OF SOUTH AFRICA
HELD
AT PRETORIA
CT
Case No: 017400 CC Case No: 2010Feb4941
in
the matter between:
THE
COMPETITION COMMISSION Applicant
And
NATIONAL
GLASS (PTY) LTD Respondent
ADDENDUM
TO CONSENT AGREEMENT BETWEEN THE COMPETITION COMMISSION AND NATIONAL
GLASS (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 National Glass (Pty) Ltd hereby agree to
amend the Consent Agreement concluded on 16 July 2013
by
substituting the existing clause 4.3 with the following:
4.3.
National 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. National Glass shall submit
a copy of its
compliance programme to the Commission within six (6) months of the
date of the confirmation of this Consent Agreement
by the Tribunal.”
Dated
and signed at
10:30pm
on this the
22
nd
day of July 2013
Anthony
Adler
Managing
Director
National
Glass (Pty) Ltd
Dated
and signed at PRETORIA on this the
23
rd
day of July 2013
Shan
Ramburuth
The
Commissioner
Competition
Commission