South Africa: Dawn Raids on fresh produce markets

By AAT Senior Contributor, Michael-James Currie

The South African Competition Commission (SACC) conducted yet another set of dawn raids, this time on the premises of nine of South Africa’s largest fresh produce market agents.

SAgrocery.jpgThe agents raided, which had operations at the Tshwane Market in Pretoria and the Joburg Market in Johannesburg, include the Botha Roodt Group (Botha Roodt); Subtropico (Pty) Ltd (Subtropico); RSA Group (Pty) Ltd (RSA Group); Dapper Market Agents (Pty) Ltd (Dapper); DW Fresh Produce CC (DW Fresh); Farmers Trust CC (Farmers Trust); Noordvaal Market Agents (Pty) Ltd (Noordvaal); Marco Fresh Produce Market Agency (Marco); and Wenpro Market Agents CC (Wenpro).

Although South Africa has about 30 fresh produce markets agents, the 6 largest agents allegedly account for approximately 80% of the fresh produce intermediaries. This means that the SACC included 3 agents in its raid which would not ordinarily be regarded as ‘large agents’.

The raid, according to the SACC’s media release, follows from a complaint which the SACC received from the Department of Agriculture, Forestry and Fisheries. The media release alleges that the agents engaged in prohibited cartel conduct, in contravention of Section 4(1)(b) of the South African Competition Act, in that they:

  • entered into an agreement and/or engaged in a concerted practice to fix the price and trading conditions for the supply of freshly produced fruits and vegetables in South Africa;
  • are involved in prohibited coordinated activities aimed at undercutting the prices charged by smaller intermediaries by charging way below the market price for certain agreed periods of a trading day;
  • keep their prices unsustainably low during these periods where after they (by agreement) quickly increase prices significantly as soon as the smaller agents run out of stock. Accordingly, certain volumes of fresh produce are sold during the late hours of trading with the sole aim of manipulating prices;
  • further make decisions regarding the actual timing of the price increases; and
  • reserve certain fresh produce grades for particular buyers, therefore, engaging in price discrimination based on the identity of buyers.

These agents facilitate the selling of fresh produce on behalf of farmers, for a commission (which rate they have allegedly also fixed over the years), to wholesalers, retailers and hawkers. Accordingly, the alleged conduct is considered particularly harmful as it affects the most vulnerable households. Additionally, SACC Commissioner Tembinkosi Bonakele stated that “…cartel activities in this sector serve to keep out emerging black farmers and agents out of the market. It is for these reasons that this sector ranks high in our priority list, and cartels, big or small, will be rooted out”.

Notably, the SACC in its statement indicated that the alleged conduct is believed to be ongoing. This may raise serious issues for the agents concerned as the SACC has not yet clarified how they intend on dealing with ongoing conduct for purposes of constituting an offence under section 73A of the Competition Amendment Act (In terms of the section 73A, any director or person with management authority may be held criminally liable for ‘causing’ or ‘knowingly acquiescing’ in cartel conduct). Accordingly, how this uncertainty will impact on the SACC’s corporate leniency policy remains to be seen. For more info on this, see South African Competition Commission… More Dawn Raids!

In conclusion, the timing of this dawn raid coincides with the SACC’s recent (ongoing) Market Inquiry into the Grocery Retail Market Sector. However, to what extent, if any, the Market Inquiry has had any relevance or impact on this dawn raid is unclear and remains a matter of mere speculation.

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South African Competition Commission… More Dawn Raids!

By AAT Senior Contributor, Michael-James Currie.

On 28 September 2016, the South African Competition Commission (SACC) conducted a further set of dawn raids. This time, on various cargo shipping liners based in the provinces of Kwa-Zulu Natal and the Western Cape.

The SACC indicated that “Hamburg Sud South Africa (Pty) Ltd, Maersk South Africa (Pty) Ltd, Safmarine (Pty) Ltd, Mediterranean Shipping Company (Pty) Ltd, Pacific International Line South Africa (Pty) Ltd and CMA CGM Shipping Agencies South Africa (Pty) Ltd have engaged in collusive practices to, inter alia, fix the incremental rates for the shipment of cargo from Asia to South Africa in contravention of the Competition Act”.

The investigation is allegedly a result of a complaint received from a member of public.

south_africaThe SACC has not provided an indication of the period over which conduct took place and whether this investigation relates to historical or on-going conduct. This is an important consideration in light of the introduction of criminalisation of cartel conduct, which came into effect as of 1 May 2016. In terms of the Section 73A of the Competition Amendment Act, any director or person with management authority may be held criminally liable for ‘causing’ or ‘knowingly acquiescing’ in cartel conduct.

Since the notion of criminal liability was put raised as far back as 2008, there have been substantial concerns raised about the effectiveness of the SACC’s corporate leniency policy which in effect, offers immunity to a company who whistle blows, from an administrative penalty only. The CLP does not offer immunity to any individual from criminal prosecution, as the discretion to prosecute an individual under Section 73A, rests solely with the National Prosecuting Authority.

The interplay between the introduction of criminal liability and dawn raids will, in our view, be quite significant as there have been a number of respondents who have thought to approach the SACC for leniency, off the back of a dawn raid. A decision which a company may think twice about if its directors may potentially be held criminally liable.

Regardless of the impact which the criminalisation of cartel conduct may have on the whistleblowing regime, the SACC remains committed to utilising dawn raids as one of its most powerful investigative tools.

The SACC has been strong proponent of dawn raids and despite having conducted its first dawn raids in the early 2000’s, the past 18 months has seen a marked spike in the number of dawn raids conducted across a broad range of sectors.

The shipping industry in particular has been the subject of significant attention from the South African Competition Authorities and last year saw substantial administrative penalties, of over R95 million, levied by way of a settlement agreement on WWL and NYK Shipping Liners respectively for having engaged cartel conduct in relation to certain shipping routes. This investigation, however, remains on-going.

Namibian Competition Commission Conducts Dawn Raid in the Oil & Gas sector

namibiaBy AAT Senior Contributor, Michael-James Currie.

Dawn raids are gaining significant traction throughout the African agencies following the Namibian Competition Commission (NaCC) very recent (16 September 2016), raid conducted at the operations at Puma Energy in Windhoek. The raid follows the NaCC having received numerous third party complaints alleging that Puma Energy was abusing its dominance by engaging in excessive pricing practices in the aviation fuel supply market.

The NaCC had recently published Guidelines in relation to Restrictive Practices. The Guidelines focus primarily on the NaCC’s investigative powers and in particular, search and seizure operations. Africanantitrust suspected that the Guidelines would result in a move by the agency to be more proactive in its efforts to detect, prosecute and ultimately combat anti-competitive practices.

Africanantitrust had noted that search and seizure operations by competition law agencies across Africa were on the rise. The South African Competition Commission has drastically increased its utilisation of dawn raids as an investigative tool in its arsenal. The SACC has, furthermore, provided guidance and training to a number of other African jurisdictions respective agencies on search and seizure operations and how to conduct effective dawn raids under the auspices of the African Competition Forum.  Says John Oxenham, competition practitioner with Pr1merio: “2016 saw Kenya conduct its first dawn raid in the fertiliser sector as well as Zambia increasing the number of dawn raids conducted.”

The South African Competition Commission’s advocacy efforts should be considered in light of the number of recently concluded Memoranda of Understanding which the SACC has entered into with other regional agencies as well, including the NaCC.

In terms of the MoU with Namibia, it is envisaged that there will be greater cooperation in relation to information exchanges and assistance with common investigations between the NaCC and the SACC.

The NaCC is yet to prosecute an abuse of dominance case and we will ensure that Africanantrust continues to monitor this case and provide our followers with timeous updates should any significant further developments take place.

Dawn raids on the increase across Africa

By Michael-James Currie and Jenna Foley

March 2016 has been a busy month for the competition agencies of South Africa and Kenya respectively. Both agencies carried out search and seizure operations as a result of alleged collusion within various sectors of the economy. While the March dawn raids are not connected, the South African Competition Authority, as part of its advocacy outreach, provided training to the Competition Authority of Kenya relating to inter alia, search and seizure operations.

South Africa

On 23 March 2016, the South African Competition Commission carried out search and seizure operations in the automotive glass fitment industry, as part of its continued investigation into alleged collusion within this sector.

Accordingy to the SACC, the raid was carried out “at the Gauteng premises of PG Glass, Glasfit, Shatterprufe and Digicall as part of its investigation of alleged collusion. PG Glass and Glasfit are automotive glass fitment and repair service providers; Shatterprufe supplies PG Glass and Glasfit with automotive glass while Digicall processes and administers automotive glass related insurance claims on behalf of PG Glass and Glasfit.”

John Oxenham, founding director of Pr1merio, notes that “[t]his most recent dawn raid follows on from those carried out towards the latter part of 2014 and 2015 and confirms that the SACC has adopted a more robust approach to investigating alleged anti-competitive practices.” In this regard, Commissioner, Tembinkosi Bonakele, confirmed at the 9th Annual Competition, Law, Economics and Policy Conference in November last year that the Competition Commission has in the past two years, “conducted more dawn raids than those conducted in preceding years since the Competition Commission came into existence” (nearly 16 years ago).

For an overview of dawn raids and cartel investigations in South Africa, please see the following GCR Article.

Kenya

This month the Competition Authority of Kenya (“CAK”) conducted its first dawn raid. The search and seizure operations were carried out in respect of two fertiliser firms, Mea Limited and the Yara East Africa, based on the CAK’s suspicion of price fixing occurring between these two firms, who together control approximately 60% of the fertiliser market.   The CAK conducted the raid in accordance with Section 32 of the Competition Act, 2011 which provides for the Authority to enter any premises in which persons are believed to be in possession of relevant information and documents and inspect the premises and any goods, documents and records situated thereon. This follows an inquiry which was launched last year by Kenyan competition authorities into what the CAK termed “powerful trade associations exhibiting cartel-like behaviour specifically targeting banks, microfinance institutions, forex bureaus, capital markets as well as the agricultural and insurance lobbies”.  The fact that the CAK has carried out its first dawn raid demonstrates its growing stature.

The fertiliser industry appears to be a priority sector for a number of African jurisdictions as the CAK’s investigation into this sector follows the South African Competition Commission’s investigation into the fertiliser industry (which resulted in a referral before to the South African Competition Tribunal for adjudication some years back). In this regard, the South African Competition Commission’s spokesperson stated that the “fertiliser sector is viewed as a priority sector, due to the its importance as an input in the agricultural sector” (as reported here on African antitrust)

Zambia

Interestingly, the Zambian Competition and Consumer Protection Commission (“CCPC”) had, in 2012, conducted dawn raids at the premises of two fertiliser companies, as a result of alleged collusion within the industry.

On a Path to Harmonisation?

While there are a number of practical and legislative hurdles to effectively carrying out cross border search and seizure operations, it appears that cross border investigations may not be too far off. This is particularly so as the various agencies within the Southern African Region have identified similar priority sectors (as evidenced by both the investigations into the fertiliser sectors as well as the various market inquiries into the grocery retail sector).

Dawn Raids in ZA: Liquefied Petroleum Gas offices searched by Competition Commission

Five LPG firms raided

As the South African Competition Commission announced today, it raided the offices of Liquefied Petroleum Gas suppliers today, 14 October 2015, seizing documents and other evidence from African Oxygen Limited, Oryx Oil South Africa (Pty) Ltd, EasiGas (Pty) Ltd and the Liquefied Petroleum Gas Safety Association of Southern Africa (LPG Association) in Gauteng and KayaGas (Pty) Ltd as well as Totalgaz Southern Africa (Pty) Ltd in the Western Cape.

According to the Commission’s press release, “[t]he five firms are competitors in the market for the supply of Liquefied Petroleum Gas (LPG) and gas cylinders. The LPG Association is an association of firms which are active at various levels of the LPG sector. The Commission has an ongoing market inquiry into the broad LPG sector. This dawn raid operation forms part of the Commission’s investigation into alleged fixing of the price or deposit fee for gas cylinders, and is unrelated to the ongoing market inquiry. The Commission is conducting the dawn raid operation with due regard to the rights of the firms and all affected persons. During the search the Commission will seize documents and electronic data, which will be analysed together with other information gathered to determine whether a contravention of the Competition Act has taken place. In terms of section 48 of the Competition Act, the Commission is authorised to enter and search premises and seize documents which have a bearing on an investigation. The Commission duly obtained warrants authorising it to search the offices of the firms at the High Courts of South Africa, namely: Gauteng Division in Pretoria and Western Cape Division in Cape Town. Commissioner Tembinkosi Bonakele said, “The Commission believes that the information that will be obtained from today’s operation will enable the Commission to determine whether or not the firms have indeed engaged in collusive conduct. However, as part of any investigation, we also wish to urge anyone, be it business or individuals with further information to come forward and assist the Commission in concluding this investigation.”