The Competition Commission wants to introduce an additional charge, of price-fixing, to Competition Tribunal proceedings already under way against Corobrik and SmartStone Precast.
The Tribunal is already investigating a charge by the Commission that the two firms divided markets between them, by allocating customers in contravention of the Competition Act.
However, the Commission now seeks to include a price-fixing charge, after it says it uncovered new information during the discovery phase of the proceedings before the Tribunal, with the primary evidence arising out of a distribution agreement and minutes of meetings giving effect to the agreement, Katlego Monareng, investigator of the Commission, said in a hearing before the Tribunal yesterday.
The Commission had applied, at the request of the Tribunal, for an amendment of their initial referral of the case to the Tribunal.
SmartStone opposed the Commission’s application.
Its legal representative, Anthony Gotz SC, said his client would be prejudiced if the Tribunal simply accepted the new charge and evidence from the Commission, without following proper juristic procedure, in that his client would, for example, not be able to raise a “Section 67.1 defence”, as the Commission had not provided a date of the initiation of an investigation into a different charge, in the existing proceedings.
The section provides that a complaint in respect of a prohibited practice may not be initiated more than three years after the practice has ceased.
Gotz said their reading of the law was that the Commission’s role in this circumstance should ideally be to initiate a case, conduct an investigation and make a referral to the Tribunal.
“In the absence of this, the application to amend the referral must fail,” he said.
Monareng said their application to the Tribunal for an amendment was a “tacit initiation”. He said the deponent had indicated that the conduct (giving rise to price-fixing) was ongoing.
Monareng said that while a matter was under investigation for prosecution by the Tribunal, any party could bring information for the Tribunal to consider as part of the investigation, as long as the party being referenced by allegations had a right of reply, which in this case there had been.
Tribunal member Geoff Budlender questioned the parties that, assuming it were possible for the Commission to initiate, investigate and refer a charge to the Tribunal in only 24 hours, what exactly was the dispute about?
“The Tribunal is obliged to hear the complaint, if there is no unfairness,” Monareng argued.
Gotz proposed as a solution the Commission file a supplementary affidavit to the Tribunal of the new charge, to which the Monareng said it was likely that they would not be opposed to doing so.
Competition Tribunal chairperson Mondo Mazwai said the Tribunal would take time to consider the arguments before reaching a decision. The hearing was adjourned.