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[2013] ZACT 82
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Competition Commission v The Dorper Sheep Breeders Society of South Africa (017301) [2013] ZACT 82 (31 July 2013)
COMPETITION
TRIBUNAL OF SOUTH AFRICA
Case
No: 017301
In
the matter between:
The
Competition Commission Applicant
And
The
Dorper Sheep Breeders Society of South Africa Respondent
Panel: A
Wessels (Presiding Member)
A
Ndoni (Tribunal Member)
A
Roskam (Tribunal Member)
Heard
on: 31 July 2013
Decided
on: 31 July 2013
Order
The
Tribunal hereby confirms the order as agreed to and proposed by the
Competition Commission and the Respondent, attached hereto
as
“Annexure
A”,
to
be read with the addendum to the Settlement Agreement, attached
hereto as
“Annexure
B”.
A
Wessels
Presiding
Member
Concurring:
A
Ndoni and A Roskam
IN
THE COMPETITION TRIBUNAL OF SOUTH AFRICA
HELD
AT PRETORIA
CC
Case No: 2010Aug5303/2011 July01 31
in
the matter between:
THE
COMPETITION COMMISSION
Applicant
And
THE
DORPER SHEEP BREEDERS SOCIETY OF SOUTH AFRICA Respondent
CONSENT
AGREEMENT BETWEEN THE COMPETITION COMMISSION AND THE DORPER SHEEP
BREEDERS SOCIETY OF SOUTH AFRICA IN REGARD TO THE ALLEGED
CONTRAVENTION OF SECTIONS 4 (1)
(b)(1)
AND (ii) OF THE
COMPETITION ACT, NO. 89 OF 1998
, AS AMENDED
The
Competition Commission
and
The
Dorper Sheep
Breeders
Society
of South Africa 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(l)(a)(tii)
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.
"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.
“Complaints”
means the complaint lodged on 12 August 2010 by three dorper sheep
farmers namely John Deli, Mickey Phillips and Leroy Phillips,
and the
complaint initiated by the Commissioner against the Society on 07
July 2011 under case numbers 201 OAug5303 and 2011 July0131
respectively.
1.6.
"Consent Agreement
"
means this consent agreement duly signed and concluded between the
Commission and the Society.
1.7.
“Days" means calendar days.
1.8.
“Parties”
means, collectively, the Commission and the Society.
1.9.
"Prohibited
Practice*' means a practice prohibited in terms of Chapter 2 of the
Act.
1.10.
"
Society
"
means The Dorper Sheep Breeders Society of South Africa a nonprofit
organisation registered in temis of
section 8{7)(a)(ii)
of the
Animal
Improvement Act No. 62 of 1998
C'the.
Animal Improvement Act
1
>
’)
under registration number: 62/98/B-18.
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 Building C, Mulayo Building, DTI Campus, 77
Meintjies Street, Sunnyside, Pretoria,
Gauteng.
2.
The Complaint investigation
2.1.
On 12 August 2010, the Commission received
a
complaint
in terms of
section 49B(2)(b)
of the Act from three members of the
Society ("the third party complaint’'), The complaint
concerned Rufe C of Rules
of Sale issued by the Society. Rule C
restricted members of the Society to conduct private sales of dorper
sheep only within the
province or region in which that member resides
or that member’s farm is situated. In terms of Rule C, members
of the Society
were required request permission from the Society
before they could conduct private sales of dorper sheep outside the
province
or region in which they reside or their farms are located.
This conduct was investigated by the Commission as an alleged
contravention
of section 4(1)(b)(ii) of the Act
2.2.
During the Investigation of the third party complaint, the Commission
established that the Society's Rules of Sale contained
another rule,
Rule 7.1, which stipulated that the minimum sale price of rams is two
thousand five hundred rand (R250G) and the
minimum price for ewe is
seven hundred and fifty rand (R750). Consequently, on 07 July 2011
Commissioner initiated a complaint
in terms of section 49B(1) against
the Society for contravening the provisions of section 4(1)(b)(i) of
the Act (“the initiated
complaint").
2.3.
The Commission investigated the complaints and found that:
2.3.1.
Rule 7,1 of the Society’s Rules of Sale contravened section
4(1)(b)(i) of the Act; and
2.3.2.
Rule C
of
the Society's Rules of Sate contravened section 4(l)(b)(ii) of the
Act.
3.
Admission
3.1.
The Society admits that Rule 7.1 of the Society's Rules of Sale
contravenes section 4(1)(b)(i) of the Act-
3.3.
The Society admits that Rule C of the Society's Rules of Sale
contravenes section 4(1 )(b)(jj) of the Act.
4.
Agreement Concerning Future Conduct
4.1.
The Society confirms that it has amended its Rules of Sale and has
removed Rule C and 7.1 of its Rules of Sate.
4
2. The Society 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, the Society 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.
The Society undertakes not to engage in any conduct which constitutes
a prohibited practice in contravention of chapter 2 of
the Act,
5.
Administrative Penalty
5.1.
In terms of section 5B(1)(a)(iii) read with sections 59(1)(a), 59(2)
and 59(3) of the Act, the Society accepts that is liable
pay an
administrative penalty.
5.2.
The Society agrees and undertakes to pay an administrative penalty in
the sum of twenty four thousand one hundred and seventy
one rand and
thirty cents (R24
}
171.30), being 2.5% of the total sales attributable to commissions
payable to the Society.
5.3.
The Society shall remit payment of the administrative penalty into
the following bank account:
NAME:
COMPETITION COMMISSION FEE ACCOUNT
BANK:
ABSABANK, PRETORIA
ACCOUNT
NO: 405 077 8576
BRANCH
CODE: 323345
5.4.
The Commission will pay the administrative penalty received from the
Society 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 an order by the Tribunal, concludes
all
proceedings between the Commission and the Society relating to any
alleged contraventions by the Society and Us members of
section
4(1)(b)(i) and 00 of the Act that are the subject of the Commission's
Investigation under case numbers 2010Aug5303 and
2011 July0131.
Dated
and signed in on this the day of 2013.
SIGNED
at MIDDELBURG on this the 25
th
day of JUNE 2013
Duly
authorized signatory
The
Dorper Sheep Breeders Society of South Africa
SIGNED
at PRETORIA on this the 8
th
day of JULY 2013
Shan
Ramburuth
Competition
Commissioner
IN
THE COMPETITION TRIBUNAL OF SOUTH AFRICA
HELD
AT PRETORIA
CT
Case No: 017301
CC
Case No: 2010Feb4941
In
the matter between:
THE
COMPETITION COMMISSION Applicant
And
THE
DORPER SHEEP BREEDERS SOCIETY OF SOUTH AFRICA Respondent
ADDENDUM
TO CONSENT AGREEMENT BETWEEN THE COMPETITION COMMISSION AND THE
DORPER SHEEP BREEDERS SOCIETY OF SOUTH AFRICA 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 (“the Commission”) and the Dorper
Sheep Breeders Society of South Africa (“the society”)
hereby agree to amend the Consent Agreement concluded on 08 July 2013
by substituting the existing clause 2.1 and 4.3 with the
following:
“
2.1.
On 12 August 2010, the Commission received a complaint in terms of
section 49(2)(B)
of the Act from three members of the Society (“the
third party complaint”. The complaint concerned Rule C of the
Rules
of Sale issued by the Society, Rule C restricted members of the
Society to conduct private sales of dorper sheep only within the
province or region in which that member resides or that member’s
farm is situated. In terms of Rule C, members of the Society
were
required to request permission from the Society before they could
conduct private sales of dorper sheep outside the province
or region
in which they reside or their farms are located. This conduct was
investigated by the Commission as an alleged contravention
of
section
4(1
)(b)(ii) of the Act.
4.3.
The Society 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. The Society shall submit a copy
of its
compliance programme to the Commission within six (6) months of the
date confirmation of this Consent Agreement by the Tribunal.”
Dated
and signed 31 July on this the day of JULY 2013.
Duly
authorized signatory
The
Dorper Sheep Breeders Society of South Africa
SIGNED
at PRETORIA on this the 31
st
day of JULY 2013
Shan
Ramburuth
Competition
Commissioner