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[2015] ZACT 24
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Competition Commission v Western Granite Bricks (Pty) Ltd (020750) [2015] ZACT 24 (18 March 2015)
COMPETITION
TRIBUNAL
REPUBLIC OF SOUTH
AFRICA
Case No: 020750
in the matter
between:
The
Competition
Commission
....................................................................................
Applicant
And
Western
Granite Bricks (Pty)
Ltd
...........................................................................
Respondent
Panel: A Roskam
(Presiding Member)
I Valodia (Tribunal
Member)
F Tregenna (Tribunal
Member)
Heard on:18 March
2015
Decided on : 18
March 2015
Order
The Tribunal hereby
confirms the settlement agreement as agreed to and proposed by the
Competition Commission and Western Granite
Bricks (Pty) Ltd, annexed
hereto marked “A”.
18
March 2015
Date
Presiding
Member
Mr. A Roskam
Concurring: Mr. A
Roskam and Prof. F Tregenna
IN THE COMPETITION
TRIBUNAL OF SOUTH AFRICA
(HELD IN PRETORIA)
CT Case No:
CC Case No:
2012Feb5783
In the matter
between
COMPETITION
COMMISSION
...................................................................................
Applicant
And
WESTERN GRANITE
BRICKS (PTY)
LTD
.............................................................
Respondent
SETTLEMENT
AGREEMENT IN TERMS OF SECTION 49D AS READ WITH SECTIONS 58(1)(a)(iii)
and 58(1) (b) OF THE
COMPETITION ACT, NO. 89 OF 1998
, AS AMENDED,
BETWEEN THE COMPETITION COMMISSION AND WESTERN GRANITE (PTY) LTD, IN
RESPECT OF CONTRAVENTIONS OF
SECTION 4(1)(b)(i)
and (ii) OF THE
COMPETITION ACT, 1998
The Competition
Commission and Western Granite Bricks (Pty) Ltd) hereby agree that
application be made to the Competition Tribunal
for the confirmation
of this Settlement Agreement as an order of the Tribunal in terms of
section 49D
read with
section 58(1)(a)(iii)
and
58
(1)(b) of the
Competition Act, 1998
Act No, 89 of 1998, as amended (the Act), in
respect of contraventions of sections 4(1)(b)(i) and (ii) of the Act,
on the terms
set oat below.
1, Definitions
For the purposes of
this Settlement Agreement the following definitions shall a =pply:
1.1 “
Act
”
means the
Competition Act No, 89 of 1998
, as amended;
1.2 "
Western
Granite Bricks
” means Western Granite Bricks (Pty) Ltd
(“Western Granite*), a company duly registered and incorporated
in terms of
the laws of the Republic of South Africa with its
principal place of business at Stasle Road,. Eerstenvier, Cape Town;
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 Mulayo Building (Block C), the 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 In terms of section
49B{1) of the Act under case number 2012Feb5783;
1.6
“
Settlement Agreement”
means
this agreement duly signed by the Commission and Western Granite
Bricks;
1.7 “
Parties
”
means the Commission and Western Granite Bricks; and
1.8 “
Tribunal
”
means the Competition Tribunal of South Africa, a statutory body
established in terms of section 28 of the Act, with its
principal
place of business at Mulayo building (Block C), the DTI Campus, 77
Meintjies Street Sunnyside, Pretoria, Gauteng.
2. THE
COMMISSION'S INVESTIGATION AND FINDINGS
2.1
On 08- February 201
2,
the
Commissioner initiated a mm pi a ini In terms of section 49B (1) of
the Act against,
inter
aim,
Columbia
DBL (Pty) Ltd (“Columbia”) and Western Granite
{Pty}
Ltd
(‘Western Granite”) in relation to price fixing and the
division of markets in the production and supply of face
bricks in
the Western Cape In contravention of sections 4(1 }(bX0 and 4(1
)(b)(ii) of the Act.
2.2 Western Granite
and Columbia will be referred to collectively as the “respondents”.
2.3 The respondents
are in a horizontal relationship as contemplated in section 1 of the
Act on account of the fact that they are
in the same line of business
in the manufacture and supply of face bricks,
2.4
In
or about 2005 the respondents entered into an agreement in terms of
which they agreed to fix prices and to divide markets for
the supply
of face bricks in the Western Cape. At the time of the agreement the
respondents were both manufacturers of face bricks
in the upstream
market as well as suppliers of face bricks in the- downstream market
2.5 In terms of the
agreement, Columbia undertook to exit the upstream market for the
supply of face bricks, and as quid pro quo,
Western Granite- agreed
to supply face bricks to Columbia on favourable terms, which included
discounts and rebates. The discount
and rebates were aimed at
compensating Columbia for exiting the upstream production 'market
2.6 The respondents
agreed that Columbia will purchase its entire stock from Western
Granite on condition that Columbia will supply
its face brick stock
to the market at the same pricing structure used by Western Granite.
3. ADMISSION
Western Granite
admits that it entered into an agreement with Columbia to fix prices
and to divide markets for the manufacture and
supply of face bricks
in the Western Gape in contravention of sections 4(1 }(b)(i) and 4(1
)(b)(u) of the Act.
4. FUTURE CONDUCT
Western Granite
agrees to:
4.1 prepare and
circulate a statement which summarises the content of this agreement
to Its employees, managers and directors within
14 (fourteen) days of
the date of confirmation of this settlement agreement as an order of
the Tribunal;
4.2. refrain from
engaging in conduct in contravention of section 4<1 )<b)(i) and
4(1 Xb)<ïr) of the Act in future;
4.3 develop,
implement and monitor a competition law compliance programme as part
of its corporate governance policy, which is designed
to ensure that
its employees, management, directors and agents do not engage in
future contraventions of the Act In particular,
such compliance
programme should include mechanisms for the Identification,
prevention, detection and monitoring of any contravention
of the Ad;
4.4. submit a copy
of such compliance programme to the Commission within 80 days of the
date of confirmation of the settlement agreement
as an order by the
Tribunal
5 Administrative
Penalty
6.1 Having regard to
the provisions of sections 58(1 }(a)(iii) as read with sections 59(1
}(a), 59(2) and 59(3) of the Act, Western
Granite is liable to pay an
administrative penalty.
6.2 Western Granite
agrees and undertakes to pay an administrative penalty in the amount
of R100 000 (One hundred thousand rand)
representing 0.7% of its
annual turnover for the financial year 2011«
6.3 Western Granite
shall pay an amount R10G 000.00. (One hundred thousand rand) This
amount shall be paid in Five {5} monthly instalments
of R15 000-00
{Fifteen Thousand Rand) from January 2015 to May 2015 and followed by
the last instalment of R25 000. 00 (Twenty
thousand Rand) in June
2015, The first instalment shall be payable within 60 (sixty) days of
confirmation of this Consent Agreement
as an order of the Tribunal.
6.4 The
administrative penalty must be paid into the Commission’s bank
account which is as follows:
NAME: THE
COMPETITION COMMISSION FEE ACCOUNT
BANK: ABSA BANK,
PRETORIA
ACCOUNT NUMBER:
[...]
BRANCH CODE: 323 345
REF:
2012Feb5783/WESTERNGRANITE
6.5 The
administrative penalty will be paid over by the Commission to the
National Revenue Fund In accordance with the provisions
of section
59(4) of the Act.
7 Full and Final
Settlement
This
agreement, upon confirmation as an order by the Tribunal, is entered
into in
Ml
and
final settlement and concludes ail proceedings between the Commission
and Western Granite relating to any alleged contravention
of the Act
that Is the subject of the Commission's investigation under
Commission Case No: 2012Feb5783
Dated and signed at
Kenilworth on the 24
th
day of November 2014
For Western Granite
(Pty) Ltd
Marlies
Kappers
Manager
Dated
and signed at Pretoria
on
the
23
rd
day of January 2015
For the Commission
Competition
Commissioner