Competition Commission Roadspan Surfaces (Pty) Ltd and Another (CR163Nov16) [2019] ZACT 72 (25 July 2019)

Competition Commission Roadspan Surfaces (Pty) Ltd and Another (CR163Nov16) [2019] ZACT 72 (25 July 2019)

The Tribunal found that the Commission failed to discharge its onus to prove, on a balance of probabilities, that a geographic market division agreement was concluded between Roadspan Surfaces (Pty) Ltd and Much Asphalt (Pty) Ltd at the meeting on 22 May 2008. The earliest contemporaneous board minute from Much Asphalt recorded that no clear answers were given at the meeting and that the situation would be monitored, which supports the respondents' version that no agreement was reached. The documentary evidence from Roadspan also indicated that its acquisition of asphalt production assets was motivated by strategic supply concerns in outlying regions, not an intention to enter the Gauteng...

Citation
[2019] ZACT 72
Parties
Applicant: Competition Commission; Respondent: Roadspan Surfaces (Pty) Ltd; Respondent: Much Asphalt (Pty) Ltd
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
25 July 2019
Case Number
CR163Nov16
Procedural Posture
Complaint Referral / Final Order and Reasons
Outcome
Complaint referral dismissed. No order as to costs.
Judges
Norman Manoim, Yasmin Carrim, Andreas Wessels
Legal Topics
Horizontal Agreements, Market Division, Section 4 1 B Ii, Burden of Proof, Documentary Evidence
Competition Law Horizontal Agreements Market Division Section 4 1 B Ii Burden of Proof Documentary Evidence

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Parties

Competition Commission

Applicant

Roadspan Surfaces (Pty) Ltd

Respondent

Much Asphalt (Pty) Ltd

Respondent

Procedural Posture

Complaint Referral / Final Order and Reasons

Legal Issues

  1. 1 Did Roadspan Surfaces (Pty) Ltd and Much Asphalt (Pty) Ltd enter into a market division agreement in contravention of section 4(1)(b)(ii) of the Competition Act?
  2. 2 Was the correct Roadspan entity cited in the complaint referral?
  3. 3 Does the time delay between the alleged conduct and referral render the proceedings unfair?

Ratio Decidendi

The Tribunal found that the Commission failed to discharge its onus to prove, on a balance of probabilities, that a geographic market division agreement was concluded between Roadspan Surfaces (Pty) Ltd and Much Asphalt (Pty) Ltd at the meeting on 22 May 2008. The earliest contemporaneous board minute from Much Asphalt recorded that no clear answers were given at the meeting and that the situation would be monitored, which supports the respondents' version that no agreement was reached. The documentary evidence from Roadspan also indicated that its acquisition of asphalt production assets was motivated by strategic supply concerns in outlying regions, not an intention to enter the Gauteng...

Court Disposition

Complaint referral dismissed. No order as to costs.

Orders

  • The complaint referral under case number CR163Nov16 is hereby dismissed.
  • There is no order as to costs.