About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Competition Tribunal
SAFLII
>>
Databases
>>
South Africa: Competition Tribunal
>>
2015
>>
[2015] ZACT 121
|
|
Competition Commission v H & M Removals CC (CO069Jul15) [2015] ZACT 121; [2015] 2 CPLR 403 (CT) (16 September 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
COMPETITION
TRIBUNAL
REPUBLIC
OF SOUTH AFRICA
Case
No: C0069Jul15
In
the matter between:
The
Competition
Commission
Applicant
And
H
& M Removals
CC
Respondent
Panel
: M Mazwai (Presiding Member)
: A Roskam (Tribunal
Member)
: A Ndoni (Tribunal
Member)
Heard
on
: 16 September 2015
Decided
on
: 16 September 2015
Consent
Agreement
The
Tribunal hereby confirms the consent agreement as agreed to and
proposed by the Competition Commission and H & M Removals
CC
annexed hereto marked "A".
16
September 2015
Date
__________
Presiding
Member
Ms
M
Mazwai
Concurring:
Mr A Roskam and Ms A Ndoni
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
H&
M
REMOVALS
CC Respondent
CONSENT
AGREE
M
E
N
T
I
N
TERMS
OF
S
ECTION
490
AS
READ
WITH
SECTIONS
58(1)(a)(i
i
)
and
58(
1
)
(b) OF
THE
COMPET TION
ACT,
N
O.
89
OF
1
998,
AS AM
E
ND
E
D
,
BETWEEN
THE COMPETITION COMM
I
S
S
I
ON AND
H
&M RE
M
OVALS CC,
I
N
RESPECT
OF
CONTRAVE
N
TIONS
OF
SECTION .4(1)(b) (iii)
OF
THE COMPETITION
ACT, NO
89
OF
1
998
Preamble
The
Competition Commission and H&M Removals CC hereby agree that
application be made to the Competition Tribunal for !he con1irmatlon
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
Cooipe!ition Act, No. 89 of 1996 as amended (!he Act), in respect of
contraventions of section 4(1))(b) (iii) Of the Act, on the
terms set
out below.
1.
Definitions
For
the purposes of this Consent Agreemen!the following definitions shall
apply:
1.1
“Act"
means the competition Act. No. 89 of
1998, as amended;
1.2
“
Commission”
means the Competitlon
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 Meinljies 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 49B(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 H&M
Removals CC;
1.6
"
Cover Pr
i
ce"
means generally, a price
that ls 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 thelender may submit a higher price; or Cape Town, Western Cape
Province; and
1.8
“Trib
u
nal"
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 THECOMMISSION'SINVESTIGATION AND FINDINGS
2.1
On 3 November 2010, the Commission initiated a complaint in terms of
section 49(9}(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 Relief Transport CC, Patrick
Removals (Pty) Ud, Cape Express Removals (Pty) Ltd, Sillkile
Transport
CC, Gloway Transport CC, De Wet Human CC t/a Viking
Furniture, Stuttaford Van Lines (Ply) 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 (Ply)
Ltd; Crown Relocations (Ply) Ltd; De Lange Transport (Ply) Ltd;
Elliot International CC; Execu-Move
CC; Joel Transport (Pty) Llrl;
Langs Fumiture Removals; Lowe Lines CC; Majorshe!f; Matthee Removals;
North Western Transport CC;
Plckfords Removals (Ply) Ltd; Pulse
International Removals; Stanley's Removals CC; Transfreight
International CC; Western Transport
Services; JNK Transport Services;
Trapezium Removals; Elite International; City to City Transport;
Wlets Removals; H&M Removals;
AGS Frasers International (Ply)
Ltd; 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 Sole Proprietorship t/a AD Transport;
Bear Transport (Pty) Ltd; J&H Removals (Ply)
Ltd; Mini Maxi
Movers CC; Baxter lntema!lonal Movers CC; Louis du Preez Sole
Proprietorship t/
a
Removals 4 Less;A to Z Relocation Services
tla The Moving Campany; and
AKA
Loading & Transport CC.
2.4
The firms listed in paragraphs 2.1, 2.2 and 2.3 above shall
hereinafter be relerred 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 December 2012, the firms
identified in paragraphs 2.1, 2.2 and 2.3 above, being
competitnrs in
the market for the provision of furniture removal services agreed In
lender 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 directly to the customer or to
the competitor wishing to win the tender for onward submission
to the
customer,
2.5.4H&M
Removals colluded With Gape Express Removals (Pty) Ltd and Pro Pack
Removals CC 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, H&M Removals engaged in approximately 9
instances of
cover pricing.
2.5.6
This conduct constitutes collusive tendering In contravention of
section 4(1)(b) (iii) ofthe Act.
3.
ADMISSION
H&M
Removals admits that it engaged in approximately 9 instances of cover
pricing in contravention of section 4(1}(b) (iii)
of the Act.
4,
CO-OPERATION
H&M
Removals agrees to fully cooperate with the CommlSSlon 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
H&M
Removals agrees to:
5.1.
prepare and circulate a statement summarising the
contents of this Consent Agreement to Its employees, managers
and directcrs within fourteen (14) days of the date of confirmation
of!his Consent Agreement as an order of the Tribunal;
5.2.
refrain from engaging in conduct In contraventionof the Act in
future;
5.3.
develop, implement and monitor a competition !aw compffance programme
as part of its corporate govemance policy, which is designed
to
ensure that its employees, management, directors and agents do not
engage in future contraventions of !he Act. In particular,
such
compliance programme should include mechanisms for the
ldentification,prevention, detection and monitoring of any
contravention
of the Ac!;
5.4.
submit a copy of such compl ance 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 competitive bidding.
6.
AD
M
I
NI
STRATIVE
PENALTY
6.1.
Having regard to the provisions of seollons 58(1)(a)(lii} as read
with sections 59(1)(a}, 59(2) and 59(3) of the Act, H&M
Removals
is liable to pay an administrative penalty.
6.2.
H&M Removals agrees and undertakes to pay an administrative
penalty in I the amount of R196 364.15 (One Hundred and Nlnety..Six
Thousand, Three Hundred and Sixty-Four Rand, and Fifteen Cents). This
administrative penalty represents 4% of H&M Removals'
household
local and long distance divislon's turnover for!he financial year
ended February 2013.
6.3.
H&M Removals shall pay the administrative penalty set out in
paragraph
6.2
above to the Commission within thirty (30) days of the confirmation
of this Consent Agreement as an order of the Tribunal.
6.4.
The administrative penalty payable by H&M Removals in terms of
this Consent Agreement shall be paid into the Commission's
bank
account whichis as follows;
Name:
The Competition Commission Fee Account
Bank;
Absa Bank, Pretoria
Account
Number; [….....]
Branch
Code:323 345
Ref:
2
.
01
1
Jun00691H&M
R
e
movals
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.
Fulland FinalSettlement
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
H&M Removals in respect of this conduct only.
Dated
and signed at
CAPE TOWN
on the
6
day of
JULY
2015
For
H&M Removals
______________
Member
Name
in Full:
ANTHONY JOHN HEALEY
Dated
and signed at
PRETORIA
on the
9
th
day of
JULY
2015
______________
Thembinkosi
Bonakele
Competition
Commissioner