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: CR143Nov14/SA241Jan19
In the matter between:
The Competition Commission Applicant
And
GD Irons Construction (Pty) Ltd Respondent
Panel : Y Carrim (Presiding Member)
M Mazwai (Tribunal Member)
I Valodia (Tribunal Member)
Heard on : 06 February 2019
Decided on : 06 February 2019
Settlement Agreement
The Tribunal hereby confirms the settlement agreement as agreed to and proposed
by the Competition Commission and GD Irons Construction (Pty) Ltd annexed hereto
marked "A".
Presiding Member Ms Yasmin Carrim
06 February 2019 Date
Concurring: Ms Mondo Mazwai and Prof. lmraan Valodia
IN THE COMPETITION TRIBUNAL OF SOUTH AFRICA
(HELD IN PRETORIA)
CT CASE NO: CR143Nov14/020149 CC
CASE NO: 2009Sep4641
In the matter between:
THE COMPETITION COMMISSION Applicant
and
GD IRONS CONSTRUCTION (PTY) LTD Respondent
CONSENT AGREEMENT IN TERMS OF SECTION 490 READ WITH SECTION
58(1)(b) OF THE COMPETITION ACT, NO. 89 OF 1998, AS AMENDED,
BETWEEN THE COMPETITION COMMISSION AND GD IRONS CONSTRUCTION
(PTY) LTD, IN RESPECT OF A CONTRAVENTION OF SECTION 4(1)(b) (i) (ii) and
(iii) OF THE COMPETITION ACT, 1998
Preamble
The Competition Commission and GD Irons Construction (Pty) Ltd hereby agree that
an application be made to the Competition Tribunal for the confirmation of this
Consent Agreement as an order of the Tribunal i n terms of section 490 read with
section 58(1)(b) of the Competition Act No. 89 of 1998, as amended, in respect of a
contravention of section 4(1)(b) (i) (ii) and (iii).
1. DEFINITIONS
For the purposes of this consent agreement, the following definitions shall apply:
1.1 "Act" means the Competition Act No. 89 of 1998, as amended;
1.2 "BEE Company" means a company which meet the criteria set out in the
Broad Based Black Economic Empowerment Act, 53 of 2003 and the codes of
good practice thereunder;
1.3 "BATSA" means the British American Tobacco South Africa, a public
company duly registered in accordance with the company laws of the
Republic of South Africa, with its principal place of business at Waterway
House South, No 3 Dock Road, V&A Waterfront, Cape Town;
1.4 "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 1st Floor, Mulayo Building (Block C), the DTI Campus, 77
Meintjies Street, Sunnyside. Pretoria, Gauteng;
1.5 "Consent Agreement" means this agreement duly signed and concluded
between the Commission and GD Irons;
1.6 "CLP" means the Commission's Corporate Leniency Policy (Government
Notice No. 628 of 23 May 2008, published in Government Gazette No.31064
of 23 May 2008);
1.7 "GD Irons" means GD Irons Construction (Pty) Ltd, a private company duly
registered in accordance with the company laws of the Republic of South
Africa, with its principal place of business at 430 Skilder Street, Silvertondale,
Pretoria, 0127;
1.8 "Giuricich" means Giuricich Brothers (Pty) Ltd, a private company duly
registered in accordance with the company laws of the Republic of South
Africa, with its principal place of business at Cedarwood Office Park, Mount
Lebanon Road, Off Western Service Road, Woodmead, Sandton;
1.9 "Parties" means the Commission and GD Irons collectively;
1.10 "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 1st Floor, Mulayo building (Block C), the DTI Campus, 77
Meintjles Street, Sunnyside, Pretoria, Gauteng.
2. THE COMMISSION'S INVESTIGATION AND FINDINGS
2.1 On 01 September 2009, the Commissioner initiated a complaint against firms
in the construction industry for collusive practices in construction industry as
in the construction industry for collusive practices in construction industry as
regards price fixing, market division and collusive tendering in contravention
of section 4(1)(b) (i), (ii) and (iii) of the Act GD Irons and Giuricich are part of
the respondents in this complaint
2.2 The Commission's investigation under Case No. 2009Sept4641 revealed that
around November 2006 GD Irons entered into an agreement with Guiricich to
tender collusively. More specifically the investigation found that during
November 2006, Giuricich provided a cover price to GD Irons in respect of a
tender issued in relation to the construction of a new distribution depot for
British American Tobacco South Africa ("BATSA Project") and, in return,
during or about September 2007 Giuricich paid GD Irons a losers fee.
2.3 The Commission submits that this conduct is in contravention of section
4(1)(b)(i), (ii) and (iii) of the Act.
3. ADMISSION
GD Irons admits that it engaged in the conduct set out in clause 2 above in
contravention of section 4(1)(b)(i)(ii) and (iii) of the Act.
4. CO-OPERATION
Insofar as the Commission is aware, GD Irons:
4.1 has provided the Commission with truthful and timely disclosure, including
information in its possession or under its control, relating to the prohibited
practice:
4.2 has ceased engaging in the prohibited conduct set out in clause 2 above;
4.3 has not destroyed, fals ified or concealed information, evidence and
documents relating to the prohibited practice; and
4.4 has not misrepresented or made a wilful or negligent misrepresentation
concerning the material fc1cts of any prohibited practice or otherwise acted
dishonestly.
5. FUTURE CONDUCT
GD Iron agrees and undertakes to:
5.1 refrain from engaging in conduct in contravention of section 4(1)(b) of the Act,
and from engaging in any prohibited practice in future;
5.2 circulate a statement summarising the contents of this Consent Agreement to
its managers and directors within 30 days (thirty) from the date of confirmation
of this Consent Agreement by the Tribunal;
5.3 to implement and monitor a competition law complia nce programme. Such
programme shall incorporate corporate governance designed to ensure the
employees, management, directors and agents do not engage in future
contraventions of the Act. In particular, such compliance programme will
include mechanisms for the monitoring and detection of any contraventions of
the Act;
5.4 as regards the competition law compliance programme referred to above, GD
Irons undertakes to submit to the Commission a copy thereof within 90 days
of confirmation of the Settlement Agreement as an Order of the Tribunal.
6. ADMINISTRATIVE PENALTY
6.1. Having regard to the provision of section 58(1)(a)(iii) as read with
section 59(1)(a), 59(2) and 59(3) of the Act, GD Irons is Hable to pay an
administrative penalty.
6.2. GD Irons agrees and undertakes to pay an administrative penalty in the
amount of R4 000 000 (Four Million Rand). This arnount is less than 10% of
GD Iron's annual turnover in the Republic of South Africa for the financial year
ended 2013.
6.3. GD Irons shall pay the abovementioned amount to the Commission in
2 (two) instalments. The first instalment equal to 30% of the administrative
penalty in the amount of R1 200 000 (one million two hundred thousand rand)
shall be paid within 30 days from the date of confirmation of this consent
agreement as an order of the Tribunal.
6.4. The remaining instalment equal to 70% of the administrative penalty in
the amount of R2 800 000 (two million eight hundred thousand rand) shall be
paid in full on the anniversary of the confirmation date of this consent
agreement as an order of the Tribunal.
6.5. GD Irons, in its current ownership and its current shareholders, are
jointly and severally liable for payment of the administrative penalty.
6.6. The administrative penalty shall be paid into the Commission's bank
account, details of which are as follows:
Bank name: Absa Bank
Branch name: Pretoria
Account holder: Competition Commission Fees Account
Account number: […]
Account type: Branch Code: Reference:
Current Account 632005
Case Number: 2009Sep4641/GD Irons
6.7. The penalty will then be paid over by the Commission to the National
Revenue Fund in accordance with section 59(4) of the Act.
7. COMPLIANCE
7.1. All compliance reports and proof of payments relating to this matter
shall be forwarded to the Commission at CartelSettlements@compcom.co.za;
8. FULL AND FINAL SETTLEMENT
This Consent Agreement is entered into in full and final settlement of the
Commission's investigation under Case No. 2009Sep4641 and upon confirmation as
an order of the Tribunal, concludes all proceedings between the Commission and
GD Irons relating to the conduct that is the subject of the Commission's investigation
under Case No. 2009Sep4641, including the complaint referral under Competition
Tribunal Case No. CR143Nov14/020149.
FOR GD IRONS CONSTRUCTION (PTY) LTD
Dated and signed at Pretoria on the 27th day of November 2018
_________________
Full names: Geoffrey David Irons
Designation: Chief Executive Officer
FOR THE COMMISSION
Dated and signed at PRETORIA on the 19th day of December 2018
__________________________
TEMBINKOSI BONAKELE
Commissioner