The Competition Tribunal has dismissed applications sought by Goodyear South Africa (“Goodyear”) and Continental Tyre South Africa (“Continental”) to order a portion of the Competition Commission's complaint referral be set aside in a price fixing complaint.
In 2010 the Commission referred a complaint to the Tribunal against four tyre manufacturers namely Goodyear, Continental, Apollo Tyres South Africa Ltd (“Apollo”), Bridgestone South Africa Ltd (“Bridgestone”) and the South African Tyre Manufacturers Conference Ltd (SATMC), which is the industry association.
The referral was sparked by a complaint lodged to the Commission on 02 October 2006 by Parsons Transport.
The Commission’s referral implicated tyre companies Continental Tyre South Africa and Goodyear South Africa in the fixing of prices of passenger, light truck, bus, off-road, agricultural and earthmoving tyres in the period between 1999 and 2007.
It is alleged that the two companies, as well as Apollo Tyres and Bridgestone South Africa, agreed to fix prices through the SATMC.
Since the Commission's referral in 2010, various interlocutory applications have taken place, which have resulted in Goodyear, Continental and SATMC only filing their answering affidavits to the main matter in 2016 respectively.
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In its application, Continental had questioned whether complainant Parsons Transport had validly authorised all the extensions received by the Commission during its investigation. Continental argued that not all the extension agreements were duly signed by the complainant – some were signed by the complainant's legal representative while others were signed by the complainant's financial manager.
The Tribunal found that the Competition Act (“the Act”) does not stipulate that an agreement to extend should be reduced to writing and that it has become a practice by the Commission that it requests extensions from complainants by first obtaining these verbally and then submitting them in writing. It could be the case that the signed document would be sent back by the complainant after the date on which the agreement was obtained rather than the date on which the agreement had been obtained.
Goodyear and Continental had also alleged that the referral against them was lodged out of time, having been filed after the 15h30 time period (stipulated in the Tribunal rules) at 16h50, and should be rejected.
The Tribunal held that a reading of the Tribunal rules shows, amongst other things, that the registrar can accept documents within or outside office hours of the Tribunal, in his or her discretion as well as at the direction of the Tribunal or member of the Tribunal assigned by its chairperson.
The Tribunal will hear discovery applications on 13 June 2017 from Continental and Goodyear seeking yet again documents from the Commission. A new timetable is also to be agreed on for when the main matter will be heard.
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