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Citation
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Judgment date
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| July 2010 |
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Reported
Tribunal confirms consent settlement where respondent admitted collusive tendering and agreed to pay R20,000 penalty.
Competition law – Collusive tendering – Section 4(1)(b)(iii) – Admission of contravention; Consent settlement – Administrative penalty; Undertaking to desist from collusion; Confirmation of settlement by Tribunal under sections 58 and 59.
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7 July 2010 |
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Reported
Tribunal confirmed settlement where respondent admitted collusive tendering and agreed to pay R40,000 penalty.
Competition law – Collusive tendering – Contravention of s 4(1)(b)(iii) – Settlement agreement – Confirmation by Tribunal under ss 58 and 59 – Administrative penalty payable to National Revenue Fund.
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7 July 2010 |
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The applicant’s acquisition of sole control over the respondent raises no competition or public interest concerns.
Competition law – merger notification – change from joint to sole control – financial investor acquiring additional shares – no horizontal overlap – no substantial lessening of competition – no public interest concerns.
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7 July 2010 |
| June 2010 |
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Tribunal grants limited access to confidential market-share data in a merger review by allowing redacted ranges, denying access to certain items.
Competition law – merger review – confidentiality and access to Commission records – provisional confidentiality orders – limited disclosure of market-share and volume figures by permitted percentage/tonnage ranges – denial of access to specified documents – direction to Commission to explain market-share calculations.
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30 June 2010 |
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Tribunal ordered targeted discovery from merging firm in merger review, requiring documents and sworn explanations if unavailable.
* Competition law – merger review – discovery – order compelling production of internal memos, business plans, financial projections, marketing documentation and market studies (2008–2010).
* Competition law – merger review – production of commercial agreements with third parties – requirement to produce or give sworn explanation.
* Procedure – discovery timetable and sworn explanations authorised to ensure compliance in merger investigations.
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30 June 2010 |
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Reported
Tribunal confirms consent settlement finding respondent liable for price-fixing and imposing a R13 million administrative penalty.
* Competition law – section 4(1)(b)(i) – horizontal price-fixing and concerted practices in bitumen market (WLSP/BPAF) * Settlement/consent order – confirmation under section 58(1)(a)(iii) and imposition of administrative penalty under sections 59 * Corporate leniency cooperation, compliance programme and remedial obligations
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23 June 2010 |
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Replacing empowerment shareholders with a new investor did not substantially lessen competition or raise public interest concerns.
Merger control – definition of relevant product markets for PGMs and gold; horizontal overlap and market shares; vertical foreclosure concerns relating to chromite tailings supply; public interest (employment) considerations – approval of merger.
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23 June 2010 |
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Tribunal orders wide discovery of brewery's strategic and pricing documents concerning differential treatment of distributors.
* Competition law – discovery – order for further and better discovery of strategic, board-level and commercial documents relating to differential pricing between appointed distributors and independent wholesalers.
* Categories ordered: board minutes, Channel Advocacy Strategy, bi‑modal and DSD distribution strategies, volume and margin analyses, pricing/discount policies, Projects Khula and Gaudi, MISI/MIM studies, territory allocation, Tailored Service Packages, and retailer pricing agreements.
* Certain documents tendered by respondent recorded as produced; affidavit required if documents not in possession; compliance date set.
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15 June 2010 |
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Reported
A complaint may be initiated against a prohibited practice (conduct); the Commission can later amend and join additional respondents if a rational link exists.
Competition law – complaint initiation under s49B(1) – initiation is of an alleged prohibited practice (conduct), not necessarily specific entities – purposive test: a rational/cognizable link to the prohibition required; Amendment and joinder – Tribunal’s permissive approach to amendments in public-interest prosecutions – amendments allowed unless uncured prejudice or excipiable pleadings; Section 67 limitation – does not require naming every respondent at initiation; procedural directions for amended complaint and responses.
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8 June 2010 |
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Reported
Applicant lacked demonstrated shareholder-authorisation to institute competition litigation; matter struck from the roll.
* Competition law – Procedural – Authorisation to litigate – Effect of shareholders' agreement clause requiring unanimous consent for instituting legal proceedings. * Competition law – Tribunal powers – Agreement may only be declared void if it is integral to a prohibited practice; Tribunal's voiding power constrained by sections 4,5,8,9 and 58(1)(a)(vi) of the Act. * Procedural law – Institution of legal proceedings distinguished from lodging administrative complaints with the Competition Commission. * Corporate law – Director's authority to litigate assessed against shareholders' agreement and evidence of authorisation.
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7 June 2010 |
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Acquisition of a small independent hospital by a large group posed no substantial lessening of competition; merger approved unconditionally.
* Competition law – mergers – private hospital services – product market defined as private hospital services. * Geographic market – dual approach (national and local) – application of fixed and variable radius tests. * Non-overlap – absence of local overlap where hospitals are geographically distant and specialists do not serve both sites. * Countervailing power – medical aid schemes’ national bargaining reduces risk of price increase. * Public interest – no retrenchments or other adverse effects anticipated.
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2 June 2010 |
| May 2010 |
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Acquisition creating a merged firm with negligible market share approved as unlikely to substantially lessen competition or affect jobs.
Competition law – merger approval – horizontal overlap in supply of petrol generators (≤15 KVA) – merged entity insignificant (≈3% market share) – competition from established suppliers and imports – no substantial lessening of competition – no public interest/job loss concerns – unconditional approval.
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18 May 2010 |
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Separation ordered: distribution-related complaints tried separately from the section 8 abuse complaint to avoid unfair prejudice.
* Procedure – Separation of issues – High Court Rule 33(4) applied by Tribunal where Rules silent – exercise guided by convenience and fairness. * Competition law – separation of distribution-related complaints (sections 4(1)(b)(ii), 5(1), 5(2), 9(1)) from abuse of dominance complaint (section 8) – overlap of evidence not dispositive. * Discovery – scope may be limited to separated complaint. * Stay – Tribunal may stay hearing of separated complaints pending further directions.
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13 May 2010 |
| April 2010 |
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Reported
Industry association SVR performance criteria, driven by dominant incumbents, unlawfully constrained competition (Sept 1999–Aug 2003).
Competition law – restrictive horizontal practices – industry‑association standards – performance criteria set and implemented by an SVR sub‑committee driven by dominant incumbents – exclusionary effect – section 4(1)(a) – association liable where sub‑committee sets and enforces standards – R2 million financial‑guarantee alternative reduced exclusionary effect – contravention period Sept 1999–Aug 2003.
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19 April 2010 |
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A bank’s acquisition of sole control of a shelf company with scaffolding interests was approved as unlikely to lessen competition.
Merger review – acquisition of sole control of a shelf company – no product overlap with acquiring firm's activities – scaffolding/formwork market – unlikely to substantially lessen competition – no significant public interest issues.
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14 April 2010 |
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The Tribunal approved the applicant’s purchase of a light-industrial property, finding no substantial lessening of competition.
Merger control – relevant market: rentable light industrial space in Jet Park; competitive assessment – market shares and HHI change; tenant impacts; no substantial lessening of competition; approval of transaction.
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14 April 2010 |
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Reported
Interim relief granted against publisher’s upfront-payment requirement as exclusionary conduct by a directory gate‑keeper.
Competition — interim relief under s49C — alleged abuse of dominance under s8 (exclusionary/discriminatory acts) — relevant markets: official telephone directories and upstream solicitation of entries — gate-keeper/licensed monopoly — balance of convenience and irreparable harm — limited interim relief granted.
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8 April 2010 |
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Tribunal confirmed consent agreement: respondent admitted price‑fixing and was ordered to pay R6.73m and implement compliance measures.
Competition law – Price‑fixing and fixing trading conditions – contravention of section 4(1)(b)(i); Consent agreement confirmed under section 49D (read with sections 58 and 59); Administrative penalty set at 3% of turnover; Leniency/cooperation and mandatory compliance programme.
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7 April 2010 |
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Acquisition unlikely to substantially lessen competition in national outsourced road-based petrochemical distribution; merger approved.
* Competition — Merger control — Acquisition in road-based, outsourced secondary distribution of petrochemicals — National market definition — Market shares post-merger approx. 10–20% with negligible accretion — Bidding market dynamics and presence of large competitors — No substantial lessening of competition — Public interest: no employment effects; BEE status maintained.
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7 April 2010 |
| March 2010 |
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Tribunal approved the acquisition, finding minimal market share accretion and low foreclosure risk.
Competition law — merger approval; horizontal overlaps in manufacture and distribution of resins and fibreglass; vertical relationship — input and customer foreclosure assessment; market share accretion immaterial; import and brand‑loyalty constraints; no significant public interest concerns.
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24 March 2010 |
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The applicant was permitted to join a third respondent and amend its referral and notice under Rules 18 and 45.
* Competition law — Procedure — Joinder of parties — Application under Rules 18 & 45 of the Competition Tribunal Rules to join a third respondent and amend pleadings — Leave granted.
* Civil procedure — Amendment of referral affidavit and notice of motion — Specific textual amendments permitted to clarify targeted respondents and alternatives.
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10 March 2010 |
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Merger approved unconditionally—unlikely to substantially lessen competition in thermal coal markets; no public interest concerns.
Competition law – merger approval; thermal coal markets (export, domestic to Eskom/Sasol, residual domestic); market definition and geographic scope; regional proximity to Eskom power stations; public interest (employment).
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10 March 2010 |
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Acquisition approved as unlikely to substantially lessen competition or raise public interest concerns.
Merger approval — financial services sector — horizontal overlap in advisory, CIS management, retirement products and home loans — low combined market shares — fragmented market — no substantial lessening of competition — no dominance or foreclosure — no public interest issues.
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3 March 2010 |
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Acquirer’s purchase of control over an asphalt producer/surfacing firm raised vertical concerns but was approved due to low foreclosure risk and no public interest harm.
* Competition (mergers) – vertical integration – acquisition of upstream asphalt manufacturer and surfacing services by road construction firm – assessment of input/customer foreclosure risks.
* Relevant markets – separate upstream markets for hot mix and cold mix asphalt; downstream markets for road surfacing/rehabilitation and road construction; geographic scope for hot mix may be regional but mobile plants extend supply.
* Market shares – target a small player (sub-10% nationally; <15% regionally in Gauteng) with several larger competitors.
* Public interest – no retrenchments or adverse employment effects; transaction approved without conditions.
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3 March 2010 |
| February 2010 |
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Applicant’s acquisition of target created inland chemical‑grade salt monopoly with vertical foreclosure risks; approved subject to behavioural conditions.
Competition — Merger to monopoly in inland chemical‑grade salt market; horizontal unilateral effects; vertical foreclosure risks in chlorine/caustic soda markets; geographic market split (coastal v inland) due to transport costs; behavioural remedies (supply mandate, tiered price caps, non‑discrimination, logistics facilitation, reporting) approved; no public interest concerns.
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26 February 2010 |
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Reported
The Commission may expand a third‑party referral to include cartel allegations; late amendments can be allowed and condoned.
Competition law – Commission’s investigatory and referral powers – power to add particulars to third‑party complaints – amendments to referral permitted; procedural irregularities condoned where cured and no irremediable prejudice shown.
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24 February 2010 |
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The applicants' acquisition of joint control over a mining-products manufacturer raised no competition or public interest concerns, so approved.
* Competition law – merger – acquisition of joint control – relevant market: manufacture and supply of mining products in South Africa – no horizontal overlap as applicants not active in market – no significant public interest concerns – merger approved.
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18 February 2010 |
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Reported
Tribunal declares 2001 override and trust incentive scheme exclusionary under s8(d)(i), finding dominance and substantial foreclosure.
Competition — Exclusionary practices — Override incentives and trust payments to travel agents — Ability and inducement to divert sales — Foreclosure of rivals — Market definition: travel‑agent services and scheduled domestic air travel — Dominance — Section 8(d)(i) breach — Section 67(2) (double jeopardy) does not bar prosecution for conduct in later period.
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17 February 2010 |
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Tribunal unconditionally approved the acquisition, finding no substantial lessening of competition in commercial advances.
Merger control — Market definition (national market for commercial advances) — Assessment of market shares and competitive structure — No substantial prevention or lessening of competition — No significant public interest concerns — Unconditional approval.
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10 February 2010 |
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Reported
The respondent's bread division engaged in price‑fixing and market allocation, violating s4(1)(b) and fined R195.7m.
Competition law – Cartel – Section 4(1)(b)(i) and (ii) – price‑fixing and market‑allocation – per se offence; burden under section 67(1) (prescription) on respondent to prove cessation; administrative penalties under section 59 – base turnover and aggravating/mitigating factors; litigation conduct and witness credibility relevant to penalty assessment.
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3 February 2010 |
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Merger approved with conditions — no substantial competition harm found, but one-year retrenchment protections imposed.
Competition — merger approval with conditions; market definition downstream (stockists/fabricators combined); unilateral and coordinated effects unlikely due to weakened target, rival constraints and imports; vertical foreclosure unlikely; public interest — employment and inadequate union consultation; one-year retrenchment protection and notification condition.
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3 February 2010 |
| January 2010 |
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The applicant's acquisition of sole control over a home-loans joint venture did not substantially lessen competition.
Competition law – Merger approval – Acquisition of remaining joint venture interest in home-loans business; Relevant market: provision of home loans (national); Market-share accretion <1% to ~32% post-merger; No substantial lessening of competition; No public interest concerns.
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20 January 2010 |
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Consolidation of group-controlled sugar marketing approved unconditionally; no material competition or public interest concerns.
Competition — merger of sugar marketing and packaging businesses — corporate restructuring consolidating existing group-controlled businesses — no change in market structure or market shares — national market for processed/packaged sugar; imports quota-constrained — no public interest concerns — unconditional approval.
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20 January 2010 |
