Competition Commission v Retail Capital (Pty) Ltd and Another (CO078Jul20) [2020] ZACT 64 (5 August 2020)

Competition Commission v Retail Capital (Pty) Ltd and Another (CO078Jul20) [2020] ZACT 64 (5 August 2020)

The Tribunal confirmed that Retail Capital and First Asset Finance contravened section 13A(3) of the Competition Act by implementing the merger prior to approval. The parties voluntarily disclosed the contravention and cooperated with the Commission. The administrative penalty of R742,500, payable in ten monthly instalments, was deemed appropriate and proportionate, considering the voluntary disclosure and absence of aggravating factors. The undertakings to notify future mergers, refrain from prior implementation, and implement a compliance programme were accepted as sufficient to prevent recurrence. The consent agreement was confirmed as an order, concluding all proceedings related to...

Citation
[2020] ZACT 64
Parties
Applicant: Competition Commission; Respondent: Retail Capital (Pty) Ltd; Respondent: First Asset Finance (Pty) Ltd
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
5 August 2020
Case Number
CO078Jul20
Procedural Posture
Consent Order / Confirmation of Consent Agreement
Outcome
Consent agreement confirmed as an order of the Tribunal; administrative penalty imposed; proceedings concluded.
Judges
Y Carrim, AW Wessels, F Tregenna
Legal Topics
Prior Implementation of Merger, Administrative Penalty, Merger Notification, Consent Agreement
Competition Law Commercial and Corporate Prior Implementation of Merger Administrative Penalty Merger Notification Consent Agreement

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Parties

Competition Commission

Applicant

Retail Capital (Pty) Ltd

Respondent

First Asset Finance (Pty) Ltd

Respondent

Procedural Posture

Consent Order / Confirmation of Consent Agreement

Legal Issues

  1. 1 Did the respondents contravene section 13A(3) of the Competition Act by implementing the merger prior to approval by the Commission?
  2. 2 Is the administrative penalty agreed upon appropriate under section 59 of the Competition Act?
  3. 3 Are the undertakings regarding future conduct and compliance sufficient to address the contravention?

Ratio Decidendi

The Tribunal confirmed that Retail Capital and First Asset Finance contravened section 13A(3) of the Competition Act by implementing the merger prior to approval. The parties voluntarily disclosed the contravention and cooperated with the Commission. The administrative penalty of R742,500, payable in ten monthly instalments, was deemed appropriate and proportionate, considering the voluntary disclosure and absence of aggravating factors. The undertakings to notify future mergers, refrain from prior implementation, and implement a compliance programme were accepted as sufficient to prevent recurrence. The consent agreement was confirmed as an order, concluding all proceedings related to...

Court Disposition

Consent agreement confirmed as an order of the Tribunal; administrative penalty imposed; proceedings concluded.

Orders

  • The consent agreement is confirmed as an order of the Competition Tribunal.
  • Retail Capital shall pay an administrative penalty of R742,500 in ten equal monthly instalments of R74,250, with the first instalment due within 30 days of confirmation.