SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
competitiontribunal
COMPETITION TRIBUNAL
REPUBLIC OF SOUTH AFRICA
Case No: CR079Aug16/SA167Nov16
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 Today's Destiny Trading and Project 81 CC annexed
hereto marked "A".
30 November 2016
Date
___________________
Presising Member
Mr Norman Manoim
Concurring: Mr Andreas Wessels and Ms Medi Mokuena
ANNEXURE “A”
IN THE COMPETITION TRIBUNAL OF SOUTH AFRICA
HELD IN PRETORIA
CT CASE NO. CR079Aug16/SA167NOV16
CC CASE NO. 20150CT0556
ln the matter between:
THE COMPETITION COMMISSION Applicant
and
RAITE SECURITY SERVICES AND CONSULTING CC Respondent
In re:
COMPETITION COMMISSION Applicant
TODAY'S DESTINY TRADING AND PROJECT 81 CC First Respondent
RAITE SECURITY SERVICES AND CONSULTING CC Second Respondent
SETTLEMENT AGREEMENT BETWEEN THE COMPETITION COMMISSION AND RAITE
SECURITY SERVICES AND CONSULTING CC IN REGARD TO ALLEGED
CONTRAVENTION OF SECTION 4(1)(b)(i) AND (iii) OF THE COMPETITION ACT 89 OF
1998, AS AMENDED.
The Commission and Raite hereby agree that application be made to the Tribunal for the
confirmation of this Settlement Agreement as an order of the Tribunal in terms of section 490
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 Meintjies 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 "Complain” means the complaint submitted by the Council for
Geoscience ("Geoscience") in terms of section 49B(2)(b) of the Act under case
number: 2015Oct0556;
1.5 "Raite" 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 Raite;
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 Raite;
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 tender 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 detailing the following;
2.2.1 1 The contingency plan document and key contact sheet attached
to the respondents' tender 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 their 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 constituted a contravention of section 4(1)(b)(i) and (iii) of
the Act, i n that they 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 determination. The complaint was finally referred to the
Tribunal on 11 August 2016.'
4. AGREEMENTS
4.1 Admissions
4.1.1 Raite admits that its conduct amounts to a contravention of section 4(1)(b)
(i) and (iii) of the Act.
4.2. Future Conduct
4.2.1 Raite 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, Raite
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 out in the Commission's referral affidavit;
4.2.1.3 Desist from engaging in the conduct complained of.
4.2.2 Raite 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 Raite will attend a competition law compliance !raining programme
incorporating corporate governance to be provided by the Commission and
designed to ensure that
its employees, management, directors and agents does not engage in future
contravention of the Act.
4.2.4 Raite will ensure that such training materials will be made available to
all new employees joining Raite.
4.2.5 Furthermore, Raite will update and repeat such 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, Raite agrees to pay an administrative penalty in the sum of
R 1, 593 820,00 (One Million Five Hundred And Ninty Three Thousand Eight
Hundred And Twenty Rand) which is equivalent to 2.1% of Raite'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: ASSA Bank, Pretoria
Account no: [4…..]
Branch code: 323 345
Ref: CC 20150ct0556 (Raite)
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
Raite relating to any alleged contravention by the respondents of the Act that is the
subject of the Commission's investigation (CC Case no. 2015Oct0556).
Dated and signed at Pretoria on this the 07 day of Nov 2016
For Raite
______________________
[title]
Managing Member
Dated and signed at Pretoria on this the 14 day of November 2016
For the Commission
________________________
Competition Commission