Tribunal Dismisses Collusion Case Against Crossmoor Transport

The Competition Tribunal (“Tribunal”) has dismissed a price fixing and collusive tendering case against X-Moor Transport, trading as Crossmoor Transport (Pty) Ltd (“Crossmoor”), brought by the Competition Commission. At the close of the Commission’s case, Crossmoor applied for absolution from the instance. The Tribunal granted the application.

In its reasons, the Tribunal states: “On a holistic assessment of the evidence, we are not persuaded that the Commission has established an effective answer to the application for absolution. If instead of applying for absolution Crossmoor had simply closed its case, the Tribunal would have had to find in its favour, and dismiss the Commission’s application. That conclusion would have been inescapable. Under the circumstances, we exercised our discretion in favour of granting absolution from the instance. This does not prevent the Commission from initiating fresh proceedings if it comes into possession of evidence which supports its allegations.”

The allegations

The case stemmed from a 2012 tender issued by Pikitup SOC Ltd, Johannesburg’s municipal waste management company. The tender, worth approximately R350 million, was for the supply, operation and maintenance of plant and equipment at landfill sites, garden sites and depots around Johannesburg for a period of three  years.

The Commission alleged that two bidders (Waste Rite and Crossmoor) colluded on pricing for nine items (including landfill compactor, tipper truck, excavator and water tanker, among others), thereby contravening sections 4(1)(b)(i) and (iii) of the Competition Act, which prohibit price-fixing and collusive tendering.

While Waste Rite admitted liability in a 2018 settlement agreement with the Commission, Crossmoor denied the allegations. The Commission’s case relied on the similarities in the bids, including identical pricing to the cent, same-day collection of tender documents and similar formatting. The Commission’s witness called was the former COO of Pikitup.

The Commission chose not to call witnesses from Waste Rite, despite having settled with the firm, which included an undertaking to cooperate in the prosecution against Crossmoor. In particular, a statement from a former Waste Rite official revealed that he had illicitly copied Crossmoor’s prices during document preparation without Crossmoor’s knowledge.

The Tribunal granted absolution from the instance in favour of Crossmoor. While this brings the case to a close, the Tribunal emphasised that the Commission remains free to initiate new proceedings should fresh evidence emerge.

The full reasons are available on the Tribunal website at www.comptrib.co.za

Issued by:

Gillian de Gouveia, Communications Manager
On behalf of the Competition Tribunal of South Africa
Cell: +27 (0) 82 410 1195
E-Mail: GillianD@comptrib.co.za
Twitter: @comptrib