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: CR079Aug16/SA166Nov16
In the matter between:
The Competition Commission Applicant
And
Today's Destiny Trading and Project 81 CC First Respondent
Raite Security Services and Consulting CC Second Respondent
Panel : N Manoim (Presiding Member)
A Wessels (Tribunal Member)
M Mokuena (Tribunal Member)
Heard on : 30 November 2016
Decided on : 30 November 2016
Settlement Agreement
The Tribunal hereby confirms the settlement agreement as agreed to and proposed by the
Competition Commission and Raite Security Services and Consulting CC annexed hereto
marked "A".
30 November 2016
Date
__________________
Presiding Member
Mr Norman Manoim
Concurring: Mr Andreas Wessels and Ms Medi Mokuena
IN THE COMPETITION TRIBUNAL OF SOUTH AFRICA
HELD IN PRETORIA
CT CASE NO. CR079Aug16/SA166Nov16
CC CASE NO. 20150CT0556
In the matter between:
THE. COMPETITION COMMISSION Appli cant
and
TODAY'S DESTINY TRADING AND PROJECTS 81 CC Respondent
I n r e :
C O M PETITION COMMI S S ION Applicant
and
TODAY'S DESTINY TRADING AND PROJECT 81 CC First Respondent
RAITE SECURITY SERVICES AND CONSULTING CC Second Respondent
SETTLEMENT AGREEMENT BETWEEN THE COMPETITION COMMISSION ANO
TODAY'S DESTINY TRADING AND PROJECT 81 CC IN REGARD TO ALLEGED
CONTRAVENTION OF SECTION 4(1)(b)(i) ANO (iii) OF THE COMPETITION ACT 89 Of
1998,AS AMENDED.
The Commission and Today's Destiny hereby agree that application be made lo the Tribunal
for the confirmation of this Settlement Agreement as an order of the Tribunal in terms of
section 49D as read with section 58 (1)(b) and 59(1)(a) of the Act on the terms set out
below.
1 . DEFINITIONS
For the purposes of this Settlement Agreement the following definitions shall apply;
1.1 "Act” means the Competition Act, 1998 (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, the DTI Campus, 77 Meinies Street,
Sunnyside, Pretoria, South Africa;
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 submitted by the Council for Geoscience
("Geoscience') in terms of section 49B(2)(b) of the Act under case number:
20150ct0556;
1.5 "Today's Destiny" means a close corporation duly incorporated In
accordance with the laws of the Republic of South Africa, With Its principal place of
business at 154 Pine Street, Arcadia, Pretoria.
1.6 "Parties" means the Commission and Today's Destiny;
1.7 "Respondents" means all the firms that are cited as the respondents in
the Commission's complaint referral filed under competition Tribunal Case number:
CR079Aug16; respectively, namely Today's Destiny Trading and Projects 81 CC
("Today's Destiny") and Raite Security Services and Consulting CC ("Raite").
1.8 "Settlement Agreement" means this settlement agreement duly signed
and concluded between the Commission and Today's Destiny;
1.9 "Tribunal" means the Competition Tribunal of South Africa, a statutory
body established In terms of section 26 of the Act, with its place of business at
Building C, Mulayo Building, the DTI Campus, 77 Meintjies Street, Sunnyside,
Pretoria, South Africa;
2. THE COMMISSION'S INVESTIGATIONS AND FINDINGS
2.1 On 9 October 2015, the Commission received a complaint from Geoscience
against Today's Destiny and Raite, collectively referred to as ("the Respondents"), in
terms of which Geoscience alleged that both respondents have contravened section
4(1)(b)(I) and (iii) of the Act, in that whilst being competitors in the market for the
provision of security services, they have entered into an agreement and/or
alternatively engaged in a concerted practice to lender collusively when bidding for
tender number CGS-2015-014 Issued by Geoscience. The tender was for the provision
of security services at the Geoscience 's offices.
2.2 The Commission investigated the alleged conduct and found that the
respondents' pricing pattern for the tender is the same in that they each priced their
respective bids for each of the three years without escalation, despite the provision
for escalation being made in the tender specification. The Commission had amongst
others found evidence detaillng the following;
2.2.1 The contingency plan document and key contact sheet attached to the
respondents' lender documents are identical and are similar In content and form;
and
2.2.2 The respondents submitted the same letter from the bank for the provision of
credit facilities, same cars in !heir inventory of vehicles that were to be used In
carrying out the services tendered for and same postal address.
3. THE COMMISSION'S REFERRAL
3.1 Following its investigation, the Commission concluded that the conduct by
Today's Destiny and Raite c onstituted a contravention of section 4(1)(b)(I) and (iii) of
the Act, in that the engaged in a conduct referred to in paragraph 2 above.
3.2 In light of it's findings, the Commission decided to refer the complaint on 9
June 2016 to the Tribunal for delermination. The complaint was finally referred to the
Tribunal on 11 August 2016.'
4. AGREEMENTS
4.1 Admissions
4.1.1 Today 's Destiny admits that its conduct amounts to a contravention
of section 4( 1)(b)0) and (iii) of the Act
4.2. Future Conduct
4.2.1 Today's Destiny agrees to fully co-operate with the Commission in
relation to the prosecution of any other respondent who is the subject of Its
investigations and referral to the Tribunal. Without limiting the generality of the
foregoing, Today's Destiny specifically agrees to:
4.2.1.1 Testify before the Tribunal regarding the conduct and events
forming the factual basis of the Commission's referral affidavit and
which are covered by this Settlement Agreement; and
4.2.1.2 To the extent that it is in existence, provide evidence,
written or otherwise, which is in its possession or under its control;
concerning the alleged contraventions set Commission's referral affidavit;
out in the
4.2.1.3 Desist from engaging in the conduct complained of.
4.2.2 Today's Destiny agrees that it will in future refrain from engaging in a
cartel conduct which may lead to a possible contravention of section 4(1)(b) of
the Act.
4.2.3 Today's Destiny will attend a competition law compliance training
programme incorporating corporate governance to be provided by the
Commission and designed to ensure that its empolyees, management,
directors and agents does not engage in future contravention of the Act.
4.2.4 Today's Destiny will ensure that such training materials will be made
available to all new employees joining Today's Destiny.
4.2.5 Furthermore, Today's Destiny will update and repeat su.ch training
materials annually to ensure on an ongoing basis that its employees,
management, directors and agents do not engage in any future contraventions
of the Competition Act.
5. Administrative Penalty
5.1 In accordance with the provisions of section 58(1)(a)(iii) as read with 59(1)
(a). 59(2) and 59(3) of the Act, Today's Destiny agrees to pay an administrative penalty
in the sum of R 50 000.00 (Fifty Thousand Rand) which is equivalent to 2.1% of
Today's Destiny's annual turnover for the financial year ended February 2016.
5.2 This payment shall be made into the Commission's bank account, details of
which are as follows:
Name: Competition Commission Fee Account
Bank: ABSA Bank, Pretoria
Account no:[4…..]
Branch code: 323 345
Ref: CC 20150ct0556 (Today's Destiny)
5.3 The Commission will pay this sum to the National Revenue Fund in
terms of section 59(4) of the Act
6. Terms of Payment
Payment of the amount referred to in paragraph 5.1 above will be made within a period of
12 months from the date of confirmation of this agreement as an order of the Tribunal.
7. Full and Final Settlement
This agreement, upon confirmation as an order by the Tribunal, Is entered into in full and
final settlement and concludes all proceedings between the Commission and Today's
Destiny relating to any alleged contravention by the respondents of the Act that is the
subject of the Commission's investigation (CC Case no'fO 50cto556).
Dated and signed at PRETORIA on this 14 day of NOVEMBER 2016
For Today's Destiny
_________________________
[title]
Dated and signed at PRETORIA on this 14 day of NOVEMBER 2016
For the Commission
__________________________
Competition Commissioner