Competition Commission v Power Construction (West Cape) (Pty) and Others; In re: Power Construction (West Cape) (Pty) and Another v Competition Commission (CR166Dec14) [2016] ZACT 87 (25 August 2016)

Competition Commission v Power Construction (West Cape) (Pty) and Others; In re: Power Construction (West Cape) (Pty) and Another v Competition Commission (CR166Dec14) [2016] ZACT 87 (25 August 2016)

The Tribunal found that the September 2009 complaint initiation by the Competition Commission was valid and sufficiently broad to include Power Construction (West Cape) (Pty) Ltd under the category of 'other firms' in the construction industry. The jurisprudence from the Supreme Court of Appeal and Competition Appeal Court confirms that the Commission need not know all parties at the outset and may amend its complaint as further information becomes available. The Tribunal held that the effects of the collusive tendering continued until at least the final payment in February 2009, so the complaint had not prescribed under section 67(1). The issue of successor liability for administrative...

Citation
[2016] ZACT 87
Parties
Applicant: Competition Commission; Respondent: Power Construction (West Cape) (Pty) Ltd; Respondent: Power Construction (Pty) Ltd; Respondent: Haw and Inglis (Pty) Ltd
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
25 August 2016
Case Number
CR166Dec14
Procedural Posture
Points in Limine / Preliminary Hearing on Jurisdiction and Prescription
Outcome
All points in limine raised by the respondents are dismissed. The matter proceeds to the main hearing.
Judges
Y Carrim, M Mokuena, A Wessels
Legal Topics
Collusive Tendering, Cover Pricing, Jurisdiction of Tribunal, Prescription of Complaints, Successor Liability, Characterisation of Conduct
Competition Law Collusive Tendering Cover Pricing Jurisdiction of Tribunal Prescription of Complaints Successor Liability Characterisation of Conduct

Case Brief

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Parties

Competition Commission

Applicant

Power Construction (West Cape) (Pty) Ltd

Respondent

Power Construction (Pty) Ltd

Respondent

Haw and Inglis (Pty) Ltd

Respondent

Procedural Posture

Points in Limine / Preliminary Hearing on Jurisdiction and Prescription

Legal Issues

  1. 1 Whether the referral against Power Construction (West Cape) (Pty) Ltd is jurisdictionally valid in the absence of specific complaint initiation.
  2. 2 Whether the complaint has prescribed under section 67(1) of the Competition Act due to lapse of time since the alleged conduct.
  3. 3 Whether Power Construction (Pty) Ltd, as purchaser of Power WC, can be held liable for administrative penalties for Power WC's conduct.

Ratio Decidendi

The Tribunal found that the September 2009 complaint initiation by the Competition Commission was valid and sufficiently broad to include Power Construction (West Cape) (Pty) Ltd under the category of 'other firms' in the construction industry. The jurisprudence from the Supreme Court of Appeal and Competition Appeal Court confirms that the Commission need not know all parties at the outset and may amend its complaint as further information becomes available. The Tribunal held that the effects of the collusive tendering continued until at least the final payment in February 2009, so the complaint had not prescribed under section 67(1). The issue of successor liability for administrative...

Court Disposition

All points in limine raised by the respondents are dismissed. The matter proceeds to the main hearing.

Orders

  • The first, second, third and fourth points in limine are dismissed.
  • No order is made regarding costs.