Competition Commission of South Africa v Mokgatshelwa Projects and Trading CC (CO159Jan22) [2022] ZACT 44; [2022] 1 CPLR 4 (CT) (27 January 2022)

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,

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

COMPETITION COMMISSION OF SA

Applicant

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.