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: CO159Jan22
In the matter between:
The Competition Commission of South Africa Applicant
And
Mokgatshelwa Projects and Trading CC Respondent
Panel: AW Wessels (Presiding Member)
E Daniels (Tribunal Member)
L Mncube (Tribunal Member)
Heard on: 27 January 2022
Decided on: 27 January 2022
CONSENT AGREEMENT
The Tribunal hereby confirms, in terms of section 58(1)(b) of the Competition Act,
89 of 1998 as amended, the consent agreement concluded between the Competition
Commission and Mokgatshelwa Projects and Trading CC annexed hereto.
Date: 27 January 2022
Presiding Member: Mr Andreas Wessels
Concurring: Mr Enver Daniels and Dr. Liberty Mncube
IN THE COMPETITION TRIBUNAL OF SOUTH AFRICA
CT CASE NO:
CC CASE NO: 2021FEB0014
In the matter between:
COMPETITION COMMISSION OF SA Applicant
And
MOKGATSHELWA PROJECTS AND TRADING CC 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 MOKGATSHELWA PROJECTS AND
TRADING CC, IN RESPECT OF A CONTRAVENTION OF SECTION 4(1)(b)(iii) OF
THE COMPETITION ACT 89 OF 1998
Preamble
The Competition Commission (“Commission”) and Mokgatshelwa Projects and
Trading CC (“Mokgatshelwa”) 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 49D read with section 58(1)(b) of the Competition Act no. 89 of
1998, as amended (“the Act”), in respect of a contravention of section 4(1)(b)(iii) of
the Act.
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. “Mokgatshelwa Projects and Trading CC” means a close corporation duly
registered in accordance with the laws of the Republic of South Africa, with its
registered place of business situated at 12 Botana Office Park, Embankment Road,
Centurion.
1.3. “Monnye and Khomo Construction CC” means a close corporation duly
registered in accordance with the laws of the Republic of South Africa, with its
registered place of business situated at 12 Botana Office Park, Embankment Road,
Centurion.
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. “Commissioner” means the Commissioner of the Competition Commission (the
Commissioner) in terms of section 24(1) of the Act.
1.6. “Consent Agreement” means this agreement duly signed and concluded
between the Commission and Monnye.
1.7. “Gauteng Provincial Treasury” means a Treasury Department for the Gauteng
Province, with its principal place of business at 75 Fox Street, Imbumba, House,
Johannesburg
1.8. “GPT Tender” means tender issued by the Gauteng Provincial Treasury under
tender number: GT/GPT/069/2018 for the supply and delivery of groceries and
toiletries to the Gauteng Provincial Government (“GPG”) Institutions and State
Information Technology Agency (“SITA”).
1.9. “Parties” means the Commission and Monnye.
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
the 1st Floor, Mulayo building (Block C), the DTI Campus, 77 Meintjies Street,
Sunnyside, Pretoria, Gauteng.
2. COMMISSION’S INVESTIGATION AND FINDINGS
2.1. On 24 February 2021, the Commission received a complaint from the Gauteng
Provincial Treasury (“GPT”) in terms of section 49B(2)(b) of the Competition Act 89
of 1998, as amended (“the Act”). The GPT alleged that Mokgatshelwa and Monnye
and Khumo Construction CC (“Monnye”) being firms in a horizontal relationship
colluded when tendering for the GPT Tender.
2.2. The GPT Tender was for the supply and delivery of groceries and toiletries to
the GPG Institutions and SITA.
2.3. This complaint was investigated under case number 2016MAR0077.
2.4. The Commission’s investigation found that on or about February 2021,
Mokgatshelwa and Monnye assisted each other when completing tender documents
for GT/GPT/069/2018 Tender as evidenced by, inter alia, the similarities in their bid
documents including pricing.
2.5. The conduct between Mokgatshelwa and Monnye amounts to collusive
tendering in contravention of section 4(1)(b)(iii) of the Act.
3. ADMISSION
3.1. Mokgatshelwa does not admit that it has acted in contravention of section
4(1)(b)(iii) of the Act as described in paragraph 2 above.
3.2. The Commission has agreed to enter into the Consent Agreement without
admission of liability with Mokgatshelwa based on the following factors:
3.2.1 Mokgatshelwa is a small firm;
3.2.2 Given the small size of Mokgatshelwa as well as the small size of the
tender, the Commission does not consider it worthy to engage in protracted and
costly litigation with Mokgatshelwa;
3.2.3 Mokgatshelwa has not won the tender in question; and
3.2.4 Mokgatshelwa has never contravene the Act before.
4. CO-OPERATION
4.1. Mokgatshelwa has provided full and expeditious co-operation to the
Commission concerning the prohibited practice.
5. AGREEMENT REGARDING FUTURE CONDUCT
5.1. Mokgatshelwa undertakes to refrain from engaging in any anti-competitive
conduct in contravention of the Act in future.
5.2. Mokgatshelwa will develop, implement and monitor a competition law
compliance programme as part of its corporate governance policy, which is designed
to ensure that all its members and board of directors do not engage in future
contraventions of the Act. In particular, such compliance programme will include
mechanisms for the identification, prevention, detection and monitoring and detection
of any contraventions of the Act.
5.3. Mokgatshelwa shall circulate a statement summarising the contents of this
Consent Agreement to all its members and board of directors within 60 (sixty)
business days from the date of confirmation of this Consent Agreement by the
Tribunal.
6. ADMINISTRATIVE PENALTY
6.1. Mokgatshelwa agrees that it is liable to pay an administrative penalty of R499
669 (Four Hundred and Ninety-Nine Thousand, Six Hundred and Sixty-Nine Rand).
This amount does not exceed 10% of Mokgatshelwa’s annual turnover for the
financial year ending February 2021
6.2. Mokgatshelwa will pay R499 669 (Four Hundred and Ninety-Nine Thousand,
Six Hundred and Sixty-Nine Rand) to the Commission within 6 months in two equal
instalments after the confirmation of the Consent Agreement as an order of the
Tribunal. The first payment to be made within 30 (thirty) days after confirmation of
the settlement agreement as an order of the Tribunal.
6.3. The payment shall be made 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: Current Account
Branch Code: 632005
Reference: 2021FEB0014/MOKGATSHELWA
6.4. The penalty will be paid over by the Commission to the National Revenue Fund
in accordance with section 59(4) of the Act.
7. MONITORING
7.1. Mokgatshelwa undertakes to submit a copy of the compliance programme
referred to in clause 5.2 to the Commission within 60 calendar days of the date of
confirmation of this Consent Agreement as an order to the Tribunal.
7.2. 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 to the
Commission at CartelSettlements@compcom.co.za.
8. FULL AND FINAL SETTLEMENT
8.1. This Consent Agreement is entered into in full and final settlement of the
Commission’s investigation under case number: 2021FEB0014 and upon
confirmation as an order of the Tribunal, concludes all proceedings between the
Commission and Mokgatshelwa relating to the conduct that is the subject of the
Commission’s investigation under case number: 2021FEB0014.
FOR MOKGATSHELWA
Dated and signed at _Pretoria on the _7th day of December 2021.
FOR THE COMMISSION: Commissioner TEMBINKOSI BONAKELE
Dated and signed at _PRETORIA on the _14 day of _DECEMBER 2021.