Competition Commission v Primedia Limited and Another (CR191Mar12) [2018] ZACT 11; [2018] 1 CPLR 144 (CT) (5 February 2018)

Competition Commission v Primedia Limited and Another (CR191Mar12) [2018] ZACT 11; [2018] 1 CPLR 144 (CT) (5 February 2018)

The Tribunal found that the settlement agreement between Ster-Kinekor and Nu Metro was concluded before the Competition Act came into operation. For a contravention of section 4(1)(b)(ii) to be established, there must be evidence of actions or discussions directed at implementing the agreement after the Act commenced. The evidence did not support the Commission's contention that the settlement agreement was implemented post-commencement. Witnesses from Ster-Kinekor credibly testified that they were unaware of the agreement and did not act in accordance with it, and the only attempt to enforce the agreement by Nu Metro occurred in December 2008, which was not followed by compliance. The...

Citation
[2018] ZACT 11
Parties
Applicant: Competition Commission; Respondent: Primedia Limited; Respondent: Avusa Limited
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
5 February 2018
Case Number
CR191Mar12
Procedural Posture
Complaint Referral / Final Order
Outcome
The Commission's complaint referral is dismissed.
Judges
Anton Roskam, lmraan Valodia, Enver Daniels
Legal Topics
Market Allocation, Horizontal Agreements, Section 4 Competition Act, Corporate Leniency Policy, Successor Liability
Competition Law Market Allocation Horizontal Agreements Section 4 Competition Act Corporate Leniency Policy Successor Liability

Case Brief

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Parties

Competition Commission

Applicant

Primedia Limited

Respondent

Avusa Limited

Respondent

Procedural Posture

Complaint Referral / Final Order

Legal Issues

  1. 1 Did Ster-Kinekor and Nu Metro implement a market allocation agreement after the Competition Act came into force?
  2. 2 Is Primedia Limited liable as the economic successor of Ster-Kinekor for any contravention of section 4(1)(b)(ii)?
  3. 3 Was there sufficient evidence of implementation of the settlement agreement post-commencement of the Competition Act?

Ratio Decidendi

The Tribunal found that the settlement agreement between Ster-Kinekor and Nu Metro was concluded before the Competition Act came into operation. For a contravention of section 4(1)(b)(ii) to be established, there must be evidence of actions or discussions directed at implementing the agreement after the Act commenced. The evidence did not support the Commission's contention that the settlement agreement was implemented post-commencement. Witnesses from Ster-Kinekor credibly testified that they were unaware of the agreement and did not act in accordance with it, and the only attempt to enforce the agreement by Nu Metro occurred in December 2008, which was not followed by compliance. The...

Court Disposition

The Commission's complaint referral is dismissed.

Orders

  • The Commission's complaint referral under case number CR191Mar12 is dismissed.
  • There is no order as to costs.