Competition Commission v Royal Bafokeng Holdings (Pty) Ltd and Others (39/X/May11) [2011] ZACT 29; [2011] 1 CPLR 118 (CT) (2 June 2011)

Competition Commission v Royal Bafokeng Holdings (Pty) Ltd and Others (39/X/May11) [2011] ZACT 29; [2011] 1 CPLR 118 (CT) (2 June 2011)

The Tribunal found that the respondents implemented a large merger prior to notification and approval, in clear contravention of section 13A(3) of the Competition Act. The respondents admitted the contravention and accepted liability for administrative penalties. The Tribunal was satisfied that the consent agreement, which included undertakings to refrain from future contraventions, implement a compliance programme, and pay administrative penalties, was appropriate and in line with the Act. Accordingly, the Tribunal confirmed the consent agreement as an order, thereby concluding all proceedings between the Commission and the respondents in relation to the contravention.

Citation
[2011] ZACT 29
Parties
Applicant: Competition Commission; Respondent: Royal Bafokeng Holdings (Pty) Ltd; Respondent: Mogs (Pty) Ltd; Respondent: Elbroc Mining Products (Pty) Ltd; Respondent: Stope Technology (Pty) Ltd
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
2 June 2011
Case Number
39/X/May11
Procedural Posture
Consent Order Application / Order Confirming Consent Agreement
Outcome
Consent agreement confirmed as an order of the Tribunal; administrative penalties imposed; proceedings concluded.
Judges
Y Carrim, A Wesseis, M Mokuena
Legal Topics
Merger Notification, Prior Implementation, Administrative Penalty, Consent Order, Section 13a Violation
Competition Law Merger Notification Prior Implementation Administrative Penalty Consent Order Section 13a Violation

Case Brief

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Parties

Competition Commission

Applicant

Royal Bafokeng Holdings (Pty) Ltd

Respondent

Mogs (Pty) Ltd

Respondent

Elbroc Mining Products (Pty) Ltd

Respondent

Stope Technology (Pty) Ltd

Respondent

Procedural Posture

Consent Order Application / Order Confirming Consent Agreement

Legal Issues

  1. 1 Did the respondents implement a notifiable large merger prior to notification and approval by the Competition Tribunal, in contravention of section 13A(3) of the Competition Act?
  2. 2 Are the respondents liable for an administrative penalty for contravening the Competition Act by failing to notify and obtain approval before implementing the merger?
  3. 3 Should the consent agreement between the Competition Commission and the respondents be confirmed as an order of the Tribunal?

Ratio Decidendi

The Tribunal found that the respondents implemented a large merger prior to notification and approval, in clear contravention of section 13A(3) of the Competition Act. The respondents admitted the contravention and accepted liability for administrative penalties. The Tribunal was satisfied that the consent agreement, which included undertakings to refrain from future contraventions, implement a compliance programme, and pay administrative penalties, was appropriate and in line with the Act. Accordingly, the Tribunal confirmed the consent agreement as an order, thereby concluding all proceedings between the Commission and the respondents in relation to the contravention.

Court Disposition

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

Orders

  • The consent agreement between the Competition Commission and the respondents is confirmed as an order of the Tribunal.
  • RBH and Mogs are jointly liable to pay an administrative penalty of R1,000,000 within seven days of confirmation of this order.