About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Competition Tribunal
SAFLII
>>
Databases
>>
South Africa: Competition Tribunal
>>
2019
>>
[2019] ZACT 33
|
|
Competition Commission v More Asphalt (Pty) Ltd (CR187Nov151SA052Jun19) [2019] ZACT 33 (10 July 2019)
COMPETITION
TRIBUNAL
REPUBLIC
OF SOUTH AFRICA
Case
No: CR187Nov151SA052Jun19
In
the matter between:
The
Competition
Commission
Applicant
And
More
Asphalt (Pty)
Ltd
Respondent
Panel:
N Manoim (Presiding Member)
I
Valodia (Tribunal Member)
Y
Carrim (Tribunal Member)
Heard
on: 10 July 2019
Decided
on: 10 July 2019
Consent
Agreement
The
Tribunal hereby confirms the consent agreement as agreed to and
proposed by the Commission Commission and More Asphalt (Pty)
Ltd
annexed hereto marked
"A".
_____________________
Presiding
Member
Mr
Norman Manoim
10
July 2019
Date
Concurring:
Prof. lmraan Valodia and Ms Yasmin Carrim
IN
THE COMPETITION TRIBUNAL OF SOUTH AFRICA
(HELD
IN P ETORIA)
CT
CASE NO: CR187Nov15/SA052Jun19
CC
CASE NO: 2011Nov0376
In
the matter be/ween:
THE
COMPETITION
COMMISSION
Preamble
and
MORE
ASPHALT (PTY)
LTD
Respondent
CONSENT
AGREEMENT IN TERMS OF SECTION 49D READ WITH
SECTION 58(1)(b)
OF THE
COMPETITION ACT, NO. 89 OF 1998
, AS AMENDED, BETWEEN THE COMPETITION
COMMISSION AND MORE ASPHALT (PTY) LTD, IN RESPECT OF A CONTRAVENTION
OF
SECTION 4(1)(b)(ii)
OF THE
COMPETITION ACT, 1998
Preamble
The
Competition Commission and More Asphalt (Ply) 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 in
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)
(ii).
0
cm; line-height: 150%">
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
“
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 Meintjes Street, Sunnyside,
Pretoria, Gauteng;
1.3
"Consent Agreement'
means this agreement duly signed and
concluded between the Commission and More Asphalt;
1.4
"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);
1.5
“
More Asphalt"
means More Asphalt (Pty) Ltd, a
private company duly registered and Incorporated in accordance with
the company laws of the Republic
of South Africa, with Its principal
place of business at Tygerberg Valley Road, Durbanville, Western
Cape;
1.6
“
Much Asphalt"
means Much Asphalt (Ply) Ltd, a
private company duly registered and Incorporated in accordance with
the company laws of the Republic
of South Africa, with its principal
place of business at Ryneveld Street, Eersterivier, Western Cape.
1.7
"Parties'
means the Commission and More Asphalt
collectively;
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 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 27 November 2011, Mr Robin Edward Franks, lodged a complaint
against the respondents for allegedly fixing prices, dividing
markets
and tendering collusively in the provision of hot mix asphalt
products in the Western Cape in contravention of
section 4(1)(b)(I)
,
(ii) and (iii) of the Act.
2.2.
On 27 November 2015 the Commission filed a complaint referral against
More Asphalt and Much Asphalt, to the Tribunal, under
case number
2011Nov0376.
2.3.
In respect of this complaint, the Commission alleged that its
investigation revealed the following:
2.3.1 From 1997 to 2004,
More Asphalt and Much Asphalt were a party to an agreement,
alternatively a concerted practice in terms
of which they divided
markets in respect of the provision of hot mix asphalt products in
the Western Cape.
2.3.2 As part of the
market division arrangement, the respondents also agreed to
compensate each other In the amount of R16 per
ton in the event of
either party exceeding its allocated share·or the market (i.e.
66% to Much Asphalt and 34% to More Asphalt).
2.3.3 From 1997 to 2004,
the representatives of the respondents met on a quarterly basis to
disclose and discuss the volume of hot
mix asphalt supplied by each
firm for the preceding quarter and to calculate the compensation due
to a firm that supplied less
than Its allocated share of the market.
The meetings were used to monitor compliance with the compensation
scheme in accordance
with a 66/34 market share spill arrangement.
2.4.
The Commission submits that this conduct Is in contravention of
section 4(1)(b)(li)
of the Act.
3.
ADMISSION
More
Asphalt admits that it engaged in the conduct set out in clause 2.3.1
to 2.3.3 above In contravention of
section 4(1}(b)(il)
of the Act.
4.
CO-OPERATION
Insofar
as the Commission Is aware, More Asphalt:
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, falsified 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 facts of any prohibited
practice
or otherwise acted dishonestly.
5. FUTURE CONDUCT
More
Asphalt 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 compliance 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.
with regard the competition law compliance programme referred to
above, More Asphalt 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 56(1)(a)(iii)
as read with
section 59(1)(a)
,
59
(2) and
59
(3) of the Act, More Asphalt ls liable
to pay an administrative penalty.
6.2.
More Asphalt agrees and undertakes to pay an administrative penalty
in the amount of R579 .204.57 (five hundred and seventy-nine
thousand
two-hundred-and four rand and fifty-seven cents. This amount Is less
than 10% of More Asphalt annual turnover in the Republic
of South
Africa for the financial year ended 2004.
6.3.
More Asphalt shall pay the abovementioned amount to the Commission in
2 (two) Instalments. The first instalment equal to 58%
of the
administrative penalty In the amount of R329 204.57 (three hundred
and twenty-nine thousand rand two hundred and four rand
and
fifty-seven cents) 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 42% of the administrative penalty
in the amount of R250 000 (two hundred and fifty 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.
No interest will be levied upon the administrative penalty for the
first year from the date on which this Consent Agreement
is made an
order of the Tribunal. Thereafter Interest will be levied on the
remaining outstanding balance at the prevailing Interest
rate on
debts owing to the State as prescribed by the Minister of Finance in
terms of
section 80(1)(b)
of the
Public Finance Management Act, 1 of
1999
as amended. At the time of the signature of 1hls Consent
Agreement, the applicable Interest rate Is 10,5%.
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: 4087641778
Account
type: Current Account
Branch
Code: 632005
Reference:
Case Number: 2011Nov0376/More Asphalt
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.
MONITORING
7.1.
All reports in relation to conditions set out in this agreement,
including but not limited to Compliance programmes, Proof
of
payment(s) etc. shall be submitted lo the Commission at
CartelSettlements@compcorn.co.za
8.
FULL AND FINAL SIETTLEMENT
8.1.
This Consent Agreement is concluded In full 1md final settlement of
the Commission's investigation under Case No. 2011Nov0376
and upon
confirmation as an order of the Tribunal, concludes all proceedings
between the Commission and More Asphalt relating to
the conduct that
is the subject of the Commission's investigation under Case No.
2011Nov0376, Including the complaint referral
under Competition
Tribunal Case No. CR187Nov15.
FOR
MORE ASPHALT (PTY) LTD
Dated
and signed at
Belville
on the
28
day of
May
2019.
FOR
THE COMMISSION
Dated
and signed at
Midrand
on the
2
nd
day
of
June
2019.
___________________
TEMBINKOSI
BONAKELE
Commissioner