Competition Commission South Africa v Foskor (Pty) Ltd (43/CR/Aug10) [2011] ZACT 10; [2011] 1 CPLR 99 (CT) (28 February 2011)

Competition Commission South Africa v Foskor (Pty) Ltd (43/CR/Aug10) [2011] ZACT 10; [2011] 1 CPLR 99 (CT) (28 February 2011)

The Tribunal found that Foskor's pricing policy for phosphoric acid prior to August 2008 included a notional freight charge unrelated to local supply, resulting in excessive pricing and abuse of dominance in contravention of section 8(a) of the Competition Act. Foskor admitted to this conduct and, following the Commission's intervention, revised its pricing policy to remove the freight charge adjustment, thereby reducing prices for local customers. The Tribunal accepted the consent agreement, which included undertakings by Foskor to refrain from excessive pricing, implement a compliance programme, and pay an administrative penalty equivalent to 3% of its local sales in the 2009 financial...

Citation
[2011] ZACT 10
Parties
Applicant: Competition Commission South Africa; Respondent: Foskor (Pty) Ltd
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
28 February 2011
Case Number
43/CR/Aug10
Procedural Posture
Consent Order Application / Order Confirming Settlement Agreement and Addenda
Outcome
Consent agreement confirmed as a final order; administrative penalty imposed; proceedings between the parties concluded.
Judges
Y Carrim, A Wessels, M Mokuena
Legal Topics
Excessive Pricing, Dominance Abuse, Market Division, Administrative Penalty, Consent Order, Pricing Policy
Competition Law Commercial and Corporate Excessive Pricing Dominance Abuse Market Division Administrative Penalty Consent Order Pricing Policy

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Parties

Competition Commission South Africa

Applicant

Foskor (Pty) Ltd

Respondent

Procedural Posture

Consent Order Application / Order Confirming Settlement Agreement and Addenda

Legal Issues

  1. 1 Whether Foskor's pricing of phosphoric acid to local customers constituted excessive pricing in contravention of section 8(a) of the Competition Act.
  2. 2 Whether Foskor's conduct amounted to abuse of dominance and market division under the Competition Act.
  3. 3 Whether the settlement agreement and undertakings by Foskor adequately address the anti-competitive effects identified by the Commission.

Ratio Decidendi

The Tribunal found that Foskor's pricing policy for phosphoric acid prior to August 2008 included a notional freight charge unrelated to local supply, resulting in excessive pricing and abuse of dominance in contravention of section 8(a) of the Competition Act. Foskor admitted to this conduct and, following the Commission's intervention, revised its pricing policy to remove the freight charge adjustment, thereby reducing prices for local customers. The Tribunal accepted the consent agreement, which included undertakings by Foskor to refrain from excessive pricing, implement a compliance programme, and pay an administrative penalty equivalent to 3% of its local sales in the 2009 financial...

Court Disposition

Consent agreement confirmed as a final order; administrative penalty imposed; proceedings between the parties concluded.

Orders

  • The settlement agreement, amendment, and further addendum are confirmed as orders of the Tribunal.
  • Foskor shall pay an administrative penalty of R6,481,889.65, equivalent to 3% of its local sales in the 2009 financial year, into the Commission's designated account.