Tourvest Holdings (Pty) Ltd v Competition Commission, Trigon Travel (Pty) Ltd v Competition Commission (CR209Feb17/EXC134Aug17, CR209Feb17/EXC132Aug17) [2018] ZACT 45 (10 January 2018)

Tourvest Holdings (Pty) Ltd v Competition Commission, Trigon Travel (Pty) Ltd v Competition Commission (CR209Feb17/EXC134Aug17, CR209Feb17/EXC132Aug17) [2018] ZACT 45 (10 January 2018)

The Tribunal held that the Commission's supplementary affidavit remedied the deficiencies in the original referral by providing additional facts that made the inference of collusion reasonable. The tender allowed for multiple winners, making identical pricing rational. Tourvest's position as incumbent and its relationship with Trigon through TAG provided a plausible motive for collusion, as both could benefit from winning at the same price. The wide range of transaction fees among bidders, contrasted with the identical fee offered by the respondents, further supported the inference. The Tribunal concluded that, on the facts alleged, a reasonable possible inference of collusive tendering...

Citation
[2018] ZACT 45
Parties
Respondent: Tourvest Holdings (Pty) Ltd; Respondent: Trigon Travel (Pty) Ltd; Applicant: Competition Commission
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
10 January 2018
Case Number
CR209Feb17/EXC134Aug17
Procedural Posture
Exception Application / Second Round of Exception Applications to Complaint Referral
Outcome
Exceptions dismissed; respondents required to answer the complaint referral.
Judges
Norman Manoim, Enver Daniels, Anton Roskam
Legal Topics
Collusive Tendering, Price Fixing, Inference of Agreement, Exception Application, Complaint Referral
Competition Law Collusive Tendering Price Fixing Inference of Agreement Exception Application Complaint Referral

Case Brief

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Parties

Tourvest Holdings (Pty) Ltd

Respondent

Trigon Travel (Pty) Ltd

Respondent

Competition Commission

Applicant

Procedural Posture

Exception Application / Second Round of Exception Applications to Complaint Referral

Legal Issues

  1. 1 Whether the Competition Commission's complaint referral, as supplemented, discloses a cause of action for collusive tendering and price fixing under sections 4(1)(b)(i) and 4(1)(b)(iii) of the Competition Act.
  2. 2 Whether the facts alleged by the Commission are sufficient to support a reasonable inference of an agreement between the respondents to tender collusively.

Ratio Decidendi

The Tribunal held that the Commission's supplementary affidavit remedied the deficiencies in the original referral by providing additional facts that made the inference of collusion reasonable. The tender allowed for multiple winners, making identical pricing rational. Tourvest's position as incumbent and its relationship with Trigon through TAG provided a plausible motive for collusion, as both could benefit from winning at the same price. The wide range of transaction fees among bidders, contrasted with the identical fee offered by the respondents, further supported the inference. The Tribunal concluded that, on the facts alleged, a reasonable possible inference of collusive tendering...

Court Disposition

Exceptions dismissed; respondents required to answer the complaint referral.

Orders

  • Tourvest's exception application under case number CR209Feb17/EXC134Aug17 is dismissed.
  • Trigon's exception application under case number CR209Feb17/EXC132Aug17 is dismissed.