P114m tender rigging case dismissed on technicalities
Isaac Pinielo | Friday May 15, 2015 15:47
l Cites lack of jurisdiction
l CA vows to appeal ruling
When delivering the ruling, presiding commissioner Tendekani Malebeswa said the commission has no jurisdiction to hear the matter since the Competition Authority (CA) filed the case after the prescribed date.
“We find that an investigation in this matter started on or about 21st November 2012, and a referral to the commission should have been made by the 20th November 2013,” he said.
Malebeswa also indicated that a person with no authority to do so referred the matter to the commission.
According to the Competition Act, the chief executive officer of the CA, also known as the executive secretary, should do the referral.
The decision to dismiss the matter means that a hearing to discuss the merits of the CA’s investigations would not proceed. Under the Competition Act, the CA investigates and prosecutes cases of anti-competitive behaviour before passing them on to the commission for adjudication.
The CA was accusing the Bread & Butter Foods and Rabbit group of colluding to divide tenders worth a combined P114 million amongst themselves and conspired to fix prices, in contravention of section 25(b) and (c) of the Competition Act.
The Authority had acted on a tip-off from an informer alleging that the companies, in response to the tenders, had colluded in terms of pricing.
The tender was for the supply of 7,530 metric tonnes of sugar beans to the Ministry of Local Government.
Creative Business Solutions trading as Bread & Butter Foods was awarded tenders for Palapye, Selebi -Phikwe, Francistown and Maun areas, at a total value of P58.1 million, while Rabbit Group was awarded tenders for Lobatse, Gaborone and Mahalapye areas valued at P55.9 million.
When the matter was brought before the commission two months ago, both parties argued on legal technicalities with the respondents arguing that the matter should be dismissed as it was filed later than the prescribed date. The commission upheld this view.
Reacting to the decision of the commission, CA director of legal and enforcement, Duncan Morotsi indicated that they would file an appeal against the ruling, stating that they have a chance of victory.
“We are going to appeal and the matter will now be heard at the high court where we have a better chance of winning,” he said.
The case was before a panel of four commissioners, including Malebeswa, Dr Jay Salkin, Thembisile Phuthego and Jaylard Kombani.
Thembani Jeremiah and Otto Itumeleng represented Creative Business Solutions, while Godsglory Ifezue of Collins, Chilisa Legal Consultants stood for the Rabbit Group.