By Kelly Baker
Introduction
The South African Competition Tribunal (“Tribunal”) recently handed down its reasons in the X-Moor Transport case, granting absolution from the instance in favour of X-Moor Transport t/a Crossmoor Transport (Pty) Ltd (“Crossmoor”) and dismissing the South African Competition Commission’s (“Commission”) complaint referral at the close of its case.
The Tribunal’s decision, issued on 25 June 2025, provides important guidance on the evidentiary threshold required to establish collusive tendering prohibited under section 4(1)(b) of the South African Competition Act 89 of 1998 (as amended (“Act”), particularly where the Commission relies exclusively on circumstantial evidence and inferences drawn from parallel pricing.
Background to the Complaint
The matter arose from a tender issued in October 2012 by Pikitup SOC Ltd (“Pikitup”) for the supply, operation, and maintenance of plant and equipment at designated landfill sites and depots in Johannesburg. The tender covered a three-year period and closed on 12 November 2012.
During the evaluation process, Pikitup identified several similarities between the tenders submitted by Casalinga Investments CC t/a Waste Rite (“Waste Rite”) and Crossmoor, including:
- nearly identical overall bid prices of R350 million and R351 million; [1]
- fixed costs that were identical to the cent across multiple line items and years; [2]
- tender documents that appeared to have been printed and bound by the same service provider;[3] and
- similarities in the manner in which the bids were completed and signed.[4]
Following a forensic investigation by Gobodo Forensic Investigative Accounting, Pikitup referred the matter to the Commission.[5] The Commission subsequently alleged that Waste Rite and Crossmoor had engaged in collusive tendering and price fixing in contravention of sections 4(1)(b)(i) and (iii) of the Act.[6]
Waste Rite settled with the Commission in 2018, admitting liability. Crossmoor did not settle, and the matter proceeded to a contested hearing before the Tribunal in April 2025.
The Commission’s Case
The Commission argued that that the respondents were competitors in the market for waste management and that the similarities between their tenders could only be explained by an agreement to collude.
The Commission called a single witness, Ms Christa Venter, a former Chief Operations Officer of Pikitup and a member of the Bid Adjudication Committee. Ms Venter gave detailed evidence on the tender process and explained why, in her view, it was highly improbable for two independent bidders to arrive at identical fixed pricing across numerous items, given the variability inherent in fuel costs, maintenance, fleet age, tyre usage, operator wages and operating conditions at landfill sites.
Notably, the Commission did not call any witnesses from Waste Rite, despite Waste Rite having settled and undertaken to cooperate with the Commission. Witness statements contained in the record from Waste Rite representatives did not support the Commission’s theory of a bilateral agreement and instead suggested a unilateral copying of Crossmoor’s pricing (i.e., without any bilateral agreement or understanding to price the same).
Application for Absolution from the Instance
At the close of the Commission’s case, Crossmoor applied for absolution from the instance. The Tribunal was then required to determine whether there was evidence upon which it could reasonably find that:
- an agreement or concerted practice had been concluded between Crossmoor and Waste Rite; and
- the similarities in pricing constituted collusive conduct prohibited by section 4(1)(b).
While acknowledging that the threshold for resisting absolution is low, the Tribunal emphasised that the Commission was nevertheless required to establish a prima facie case on every element of the alleged contravention.
Key Findings
The Tribunal made the following key findings.
No evidence of an agreement
The Tribunal found that the Commission had led no direct evidence of an agreement, arrangement or understanding between Crossmoor and Waste Rite. While the Act defines an “agreement” broadly, it nevertheless requires consensus between firms.
The Tribunal held that identical or near-identical pricing may give rise to suspicion, but it does not, without more, establish that consensus was reached. The Tribunal identified several possible explanations for the similarities, including unilateral copying by one party, and noted that the Commission’s own witness statements undermined the inference of a bilateral agreement.
Importantly, the Tribunal rejected the Commission’s invitation to speculate that cross-examination of Crossmoor’s witnesses might later yield evidence of collusion. Absolution could not be refused on the basis of conjecture or the hope that a case might be made later.
Parallel pricing and “plus factors”
The Tribunal reaffirmed that parallel pricing is not per se unlawful and requires “plus factors” to justify an inference of collusion. While the Commission argued that the similarities in tender presentation and pricing constituted such factors, the Tribunal found that these commonalities were capable of innocent explanation and did not establish conscious parallelism on the part of Crossmoor.
The Tribunal emphasised that while the pricing similarities were unusual, there was no evidence that they were the result of an agreement, and that alone was not enough.
Impact of the Judgement – our insights
The Competition Tribunal granted absolution from the instance in favour of Crossmoor and dismissed the Commission’s case at the close of its evidence. The Tribunal clarified, however, that the Commission was not precluded from instituting the complaint referral afresh should it find new evidence to support its allegations.
The significance of the judgment lies in what it does not do. The Tribunal did not endorse collusive tendering or suggest that identical pricing is permissible. Rather, the decision turns on whether the Commission put forward sufficient evidence to establish a prima facie case of an agreement or concerted practice between the respondents. In the Tribunal’s view, it did not. Despite the striking similarities in pricing, the Commission failed to show that those similarities were the result of consensus rather than unilateral conduct.
The shortcomings in the Commission’s case are evident from the Tribunal’s findings. The Commission relied almost entirely on inference drawn from parallel pricing and common features in the tender submissions, without leading direct or supporting evidence of an agreement. This was compounded by the Commission’s decision not to call witnesses from Waste Rite, despite Waste Rite having settled and undertaken to cooperate. As a result, the Commission was unable to overcome alternative explanations for the pricing similarities or meet even the low threshold required to resist absolution.
John Oxenham, director at Primerio International, describes that ultimately, the Tribunal’s decision underscores the importance of solid evidence in cartel enforcement. While the Commission remains entitled to pursue cases based on circumstantial evidence, this judgment confirms that suspicion, no matter how strong, cannot substitute for proof of agreement. The outcome therefore reflects not a limitation on the Tribunal’s approach to cartel conduct, but rather the consequences of an evidentially weak case.
[1] X-Moor para 9.4.
[2] X-Moor para 9.4.
[3] X-Moor para 9.3.
[4] X-Moor para 9.5.
[5] X-Moor para 6.
[6] Sections 4(1)(b)(i) and (iii) of the Competition Act 89 of 1998.
African Antitrust & Competition Law 