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COMPETITION TRIBUNAL
REPUBLIC OF SOUTH AFRICA
Case No: CO227Feb16
In the matter between:
The Competition Commission Applicant
And
Key Moves CC Respondent
Panel: N Manoim (Presiding Member)
I Valodia (Tribunal Member)
F Tregenna (Tribunal Member)
Heard on: 17 February 2016
Decided on: 17 February 2016
Consent Agreement
The Tribunal hereby confirms the consent agreement as agreed to and proposed by
the Competition Commission and Key Moves CC annexed hereto marked "A".
Presiding Member 17 February 2016
Mr N Manoim Date
Concurring: Prof. I Valodia and Prof. F Tregenna
IN THE COMPETITION TRIBUNAL OF SOUTH AFRICA
(HELD IN PRETORIA)
CT Case No.
CC Case No: 2011Jun0069
In the matter between
THE COMPETITION COMMISSION Applicant
And
KEY MOVES CC Respondent
CONSENT AGREEMENT IN TERMS OF SECTION 490 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 KEY
MOVES CC, IN RESPECT OF CONTRAVENTIONS OF SECTION 4(1)(b) (iii) OF
THE COMPETITION ACT, NO 89 OF 1998
Preamble
The Competition Commission and Key Moves CC hereby agree that application be
made to the- Competition Tribunal for the confim1atlon of this Consent Agreement as an
order of the Tribunal In terms of section 490 read with section 58(1)(a)(iii) and 58(1)(b)
of the Competition Act, No. 89 of 1998, as amended (t he Act), in respect. of
contraventions of section 4(1)(b) (iii) of the Act, on tl1e tem1s set out below.
1.
Definitions
For the purposes of this Consent Agreement the following 9effnitions shall
apply:
1.1 "Act' means the Competition Act, No. 89 of 1998, as amended;
1.2 “Commission ”·means that 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;
1.3 “Commissioner" means the Commissioner of the Competition
Commission, appointed in terms of section 22 of the Act;
1.4 "Complaint" means the complaint Initiated by the Commissioner in
terms of section 498(1) of the Act under case numbers 2010Nov5447 and
2011Jun0069;
1.5 "Consent Agreement" means this agreement duly signed and concluded
between the Commission and Key Moves CC;
1.6 "Cover Price" means generally, a price that is provided by a firm that
wishes to win a tender to a firm that does not wish to
do, so, in order that the
firm that does not wish to win the tender may submit a higher price; or
altematively a price that i s provided by a firm that does not wish to win a
tender to a fimi that does wish to win that tender In order that the firm that
wishes to win the tender may submit a lower price; and
1.7 "Key Moves-CC" means Key Moves, a close corporation incorporated
under the laws of the Republic of South Afiica v.1th its principal place f
business situated at 62 Modderfontein, Johannesburg, Gauteng Province;
1.8 "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 Mulayo building (Block C), the DTI Campus, 77 Meintjies street,
Sunnyside, Pretoria, Gauteng.
2. BACKGROUND TO THE COMMISSION'S INVESTIGATION AND FINDINGS
2.1 On 3 November 2010, the Commission Initiated a complaint in terms of
section 49(8}(1) of the Act into alleged prohibited practices relating to collusive
tendering in the market for the provision of furniture removal services in South
Africa against J.H Retief Transport cc, Patrick Removals (Pty) Ltd, Cape
Express Removals (Pty) Ltd, Siflkile Transport CC, Gloway Transport CC, De
Wet Human CC !/a Viking Furniture, Stuttaford Van Lines (Pty) Ltd and Pro-Pack
Removals CC.
2.2 On 1 June 2011, the Commission amended its complaint to Include other
furniture removal firms as respondents in the complaint on the basis of further
information obtained in the course of the investigation of the complaint These
furniture removal firms are A&B Movers CC; Advance Transport (Pty) Ltd;
African Palletized Storage; Afriworld Furniture Removals CC; Core Relocations
(Pty) Ltd; Crown Relocations (Pty) Ltd; De Lange Transport (Pty) Ltd; Elliott
International CC; Execu-Move CC; Joel Transport (Pty) Ltd; Langs Furniture
Removals; Lowe Lines CC; Majorshelf; Matthee Removals; North Western
Transport CC; Pickfords Removals (Pty) Ltd; Pulse International Removals;
Stanley's Removals CC; Transfre ight International CC; Western Transport
Services; JNK Transport Services; Trapezium Removals; Elite International; City
to City Transport; Wiets Removals; H&M Removals; AGS Frasers International
(Pty) Ltd; Key Moves cc and all then present members of the
Professional Movers Association.
2.3 On 13 June 2013, the Commission further amended Its complaint to
include other furniture removal firms as respondents In the complaint on the basis
of further information obtained in the course of the investigation
of the complaint.
These firms are Easy Moves CC; Reliable Removals CC; Deon Nel Sale
Proprietorship t/a AD Transport; Bear Transport (Pty) Ltd; J&H Removals (Pty)
Ltd; Mini Maxi Movers CC; Baxter International Movers CC; Louis du Preez Sole
Proprietorship t/a Removals 4 Less; A to Z Relocation Services t/a The Moving
Company; and AKA Loading & Transport CC.
Company; and AKA Loading & Transport CC.
2.4 The firms listed in paragraphs 2.1, 2.2 and 2.3 above shall hereinafter be
referred to as the Respondents.
2.5 The Commission's investigation revealed the following:
2.5.1 During or about the period 2007 to at least June 2015, Key
Moves tendered collusively in relation to the provision of furniture
removal services.
2.5.2 In terms of the agreement a firm that was contacted first
regarding a request for quotation for furniture removal services would offer
to source two or more quotations on behalf of the customer, and would then
contact two or more of Its competitors and request the competitors to submit
cover prices.
2.5.3 The cover prices would either be sent directiy to the customer or
to the competitor wishing to win the tender for onward submission to
the customer.
2.5.4 Key Moves colluded wlth Afriworld 142 (Pty} Ltd ("Afrlworfd") on
tenders issued by the South .African National Defence Force.
2.5.5 The Commission further found that, pursuant to the arrangement
set out above, Key Moves engaged In 2 Instances of cover pricing with
Afriworld.
2.5.6 This conduct constitutes collusive tendering in contravention of
sectlon 4(1)(b) (iii) of the Act.
3. ADMISSION
Key Moves admits that it engaged in 2 instances of cover pricing in contravention of
section 4(1)(b) (lii) of the Act.
4.
CO-OPERATION
Key Moves agrees to fully cooperate with the Commission in its Investigation and
prosecution of the remaining respondents in the complaint. This cooperation includes, but
is not limited to:
4.1. To the extent that it is in existence, the provision of evidence, written or
otherwise, which is In its possession or under its control, concerning the alleged
contraventions contained in this Consent Agreement
4.2. Testifying in the complaint referral (if any) in respect of the contraventions
set out In this Consent Agreement.
5. FUTURE CONDUCT
Key Moves agrees to:
5.1. prepare and circulate a statement summarising the contents of this
Consent Agreement to its employees, managers and directors within fourteen
(14) days of the date of confirmation of lhls Consent Agreement as an order of
the Tribunal;
5.2. refrain from engaging in conduct in contravention of the Act in future;
5.3. 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 Act;
5.4. submit a copy of such compliance programme to the Commission
within sixty (60) days of the date of confirmation of the Consent Agreement as an
order by the Tribunal; and
5.5. undertakes henceforth to engage in competltive bidding.
6. 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, Key Moves is liable to pay an
administrative penalty.
6.2 Key Moves agrees and undertakes to pay an administrative penalty ln
the amount of R216 249 (Two Hundred and Sixteen Thousand, Two Hundred
and Forty Nine Rands), This administrative penalty represents 4% of Key
Moves annual turnover for the financial year ended 2014.
6.3. Key Moves shall pay the administrative penalty set out in paragraph 6.2
above to the Commission in two (2) equal instalments over a period of six (6)
months, The first payment shall be made within thirty (30) days of the
confirmation of this Consent Agreement as an order of the Tribunal.
6.4. The administrative penalty payable by Key Moves in terms of this
Consent Agreement shall be paid into the Commission's bank account which is
as follows:
Name: The Competition Commission Fee Account Bank: Absa Bank,
Pretoria
Account Number: 4[… ]
Branch Code: 3[… ]
Ref: 2011Jun0069/ Key Moves
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 of the Tribunal, is entered into in full
and final settlement of the conduct set out in paragraph 2.5 above and concludes all
proceedings between the Commission and Key Moves in respect of this conduct
only.
Dated and signed at Midrand on the 6 th day of August 2015
For Key Moves CC
Member
Name in Full:
Date and signed at Pretoria on the 24
th day of August 2015
For the Commission
Tembinkosi Bonakele
Competition Commissioner