Johannesburg - Group Five has been partially successful in its appeal against a Competition Tribunal order compelling it to plead to charges of alleged collusive tendering on a SA National Road Agency Limited (Sanral) contract before it was given access to the Competition Commission’s investigation record of the case.
The appeal follows the tribunal order handed down in January in terms of which the listed construction and engineering group was given 20 business days to plead to charges that it had entered into a collusive tendering agreement with WBHO and Concor, a wholly-owned subsidiary of Murray & Roberts, on a tender for the rehabilitation of a section of the national road between Senekal and Vaalpenspruit in the Free State in 2006 or face default judgment.
Incorrect views
Competition Appeal Court (CAC) Judge Owen Rogers, with two others concurring, said in a judgment handed down last week he could not find fault with the tribunal’s decision in terms of High Court rules in refusing Group Five’s application for an order compelling the commission to produce the documents.
But Rogers said Group Five also did not show that it reasonably required the investigation record to prepare its answering papers. Rogers said both the commission and Group Five did not comply with their respective obligations because of their incorrect views.
He said that the commission did not elaborate on its claims that certain documents listed in its record were “legally privileged” or “confidential” because it wrongly believed it only had to produce its record at the post pleading discovery stage.
By the same token, Group Five was wrong in linking its obligations to file answering papers to the commission’s obligations because Group Five’s entitlement to the record in terms of one of the commission’s rules vested in it as an ordinary member of the public and not as a litigant, he said.
Rogers said that there was therefore no logical connection between Group Five’s right to the record and its obligation to plead to the charges.
He said the only practical way to resolve the situation was to treat the obligations of the two parties as running from the date of the CAC order.
“This means the commission must produce its record within a reasonable period of time from the date of our judgment and Group Five must file its answering papers within 20 business days from the date of our judgment,” he said.
No reason
Rogers added that since the commission had already prepared an index of its record and identified parts of that record as “not restricted”, there was no reason why those parts should not be made available forthwith.
This would result in Group Five obtaining access to those parts of the record before the expiry of 20 business days from the date of our judgment, Rogers said.
Roger said disputes about those parts of the record that were said to be “legally privileged” or “confidential” would have to be resolved by a process that was independent of Group Five’s obligations to file its answering papers.
“If this means that Group Five has to file its answering papers before disputes about production are resolved, so be it,” he said.
Rogers also ordered that if Group Five had not filed its answering affidavit within the designated time period, the commission might approach the tribunal’s registrar to set down its application for default judgment.
Each of the parties was ordered to bear their own costs in the appeal.
Uncertain point
Guy Mottram, the Group Five executive responsible for risk, said the CAC agreed with Group Five and ruled that it was entitled to access certain documents in the commission’s possession.
Mottram said Group Five sought clarity from CAC on an uncertain point of law.
He added that Group Five had always questioned the factual and evidential foundations of the commission’s case against it and it was in this context that the group sought access to the commission’s investigation record to meaningfully respond to the allegations made against it.
“The Appeal Court has now ruled that the commission must forthwith produce the non-restricted portions of its record to Group Five. Group Five welcomes the clarity provided by the Competition Appeal Court,” he said.
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