Power Construction (West Cape) (Pty) Ltd and Another v Competition Commission of South Africa (145/CAC/Sep16) [2017] ZACAC 6; [2017] 2 CPLR 589 (CAC) (2 May 2017)

Power Construction (West Cape) (Pty) Ltd and Another v Competition Commission of South Africa (145/CAC/Sep16) [2017] ZACAC 6; [2017] 2 CPLR 589 (CAC) (2 May 2017)

The court held that the Competition Commission's complaint initiation on 1 September 2009 was valid and included the appellants by reference to 'other firms' in the construction industry. The appellants voluntarily disclosed their involvement in the prohibited practice in response to the Commission's invitation, and were properly added to the complaint. The court found that the prohibited practice of collusive tendering did not cease with the award of the tender, but continued until the final payment was made on 17 February 2009. Since the initiation of the complaint occurred within three years of the cessation of the practice, the prescription defence under section 67(1) of the...

Citation
[2017] ZACAC 6
Parties
Appellant: Power Construction (West Cape) (Pty) Ltd; Appellant: Power Construction (Pty) Ltd; Respondent: Competition Commission of South Africa
Court
Competition Appeal Court
Jurisdiction
South Africa
Judgment Date
2 May 2017
Case Number
145/CAC/Sep16
Procedural Posture
Civil Appeal / Appeal Against Tribunal's Dismissal of in Limine Objections
Outcome
Appeal dismissed with costs.
Judges
Davis JP, Vally, Makgoba
Legal Topics
Collusive Tendering, Prescription Under Competition Act, Administrative Penalty, Complaint Initiation, Cover Pricing
Competition Law Civil Procedure Collusive Tendering Prescription Under Competition Act Administrative Penalty Complaint Initiation Cover Pricing

Case Brief

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Parties

Power Construction (West Cape) (Pty) Ltd

Appellant

Power Construction (Pty) Ltd

Appellant

Competition Commission of South Africa

Respondent

Procedural Posture

Civil Appeal / Appeal Against Tribunal's Dismissal of in Limine Objections

Legal Issues

  1. 1 Whether the complaint against the appellants was initiated within the three-year prescription period under section 67(1) of the Competition Act.
  2. 2 Whether the prohibited practice ceased more than three years prior to the initiation of the complaint.
  3. 3 Whether the appellants were properly added to the complaint and referral process.

Ratio Decidendi

The court held that the Competition Commission's complaint initiation on 1 September 2009 was valid and included the appellants by reference to 'other firms' in the construction industry. The appellants voluntarily disclosed their involvement in the prohibited practice in response to the Commission's invitation, and were properly added to the complaint. The court found that the prohibited practice of collusive tendering did not cease with the award of the tender, but continued until the final payment was made on 17 February 2009. Since the initiation of the complaint occurred within three years of the cessation of the practice, the prescription defence under section 67(1) of the...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.