---

COMPETITION TRIBUNAL REPUBLIC OF SOUTH AFRICA
	Case No: 016543
In the matter between:
The Competition Commission	Applicant
and
Mccoy’s Glass Wholesalers CC	Respondent
Panel:	N Manoim (Presiding Member), T Madima (Tribunal Member) and A Ndoni (Tribunal Member)
Heard on:	12 June 2013
Decided on:	12 June 2013
Order

The Tribunal hereby confirms the order as agreed to and proposed by the Competition Commission and the respondent, annexed hereto marked “A” and the addendum thereto marked “B”.

Presiding Member

N Manoim

Concurring: T Madima and N Ndoni

BEFORE THE COMPETITION TRIBUNAL OF SOUTH AFRICA

(HELD IN PRETORIA)

CT CASE NO: 016451

CC CASE NO: 2010Feb4941

In the matter between:

COMPETITION COMMISSION ...............................................................................................Applicant

and

MCCOY’S GLASS WHOLESALERS CC ...........................................................................Respondent

FILING SHEET

DOCUMENT FILED: CONSENT AGREEMENT BETWEEN THE COMPETITION COMMISSION AND MCCOY’S GLASS WHOLESALERS CC IN RESPECT OF THE CONTRAVENTION OF SECTIONS 4(1) (b) (i) AND (ii) OF THE COMPETITION ACT NO. 89 OF 1998, (AS AMENDED).

FILED BY:

IN THE COMPETITION TRIBUNAL OF SOUTH AFRICA

HELD AT PRETORIA

CC Case No: 2010Feb4941

In the matter between:

THE COMPETITION COMMISSION .........................................................................................Applicant

And

MCCOY’S GLASS WHOLESALERS CC ..............................................................................Respondent

CONSENT AGREEMENT BETWEEN THE COMPETITION COMMISSION AND MCCOY’S GLASS WHOLESALERS CC IN REGARD TO THE ALLEGED CONTRAVENTION OF SECTIONS 4 (1) (b) (i) AND (ii) OF THE COMPETITION ACT, NO. 89 OF 1998, AS AMENDED

The Competition Commission and McCoy's Glass Wholesalers CC hereby agree that application be made to the Competition Tribunal (“the Tribunal”) for an order confirming this Consent Agreement as an Order of the Tribunal in terms of section 49D read with section 58(1)(a)(iii) and (b) as well as section 59(1 )(a) of the Competition Act, No. 89 of 1998 as amended, on the terms set out more below.

Definitions

For the purposes of this Consent Agreement the following definitions shall apply:

1.1. “the Act” means the Competition Act No. 89 of 1998, as amended;

1.2. "CLP" means the Corporate Leniency Policy issued by the Commission in terms of the Act to clarify the Commission’s policy approach on matters falling within its jurisdiction in terms of the Act as published in the Government Gazette Notice 628 of 2008;

1.3. “Commission" means the Competition Commission of South Africa, a statutory body, established in terms of section 19 of the Act, with its principal place of business at Building C, Mulayo Building, DT! Campus, 77 Meintjies Street, Sunnyside, Pretoria, Gauteng.

1.4. “Commissioner” means the Commissioner of the Competition Commission, appointed in terms of section 22 of the Act.

1.5. “Complaint" means the Complaint initiated by the Commissioner of the Commission against the Respondents on (23 February 2010 under case number 2010Feb4941.

1.6. “McCoy’s Glass" means McCoy's Glass Wholesalers CC, a close corporation duly registered and incorporated in terms of the company laws of the Republic of South Africa, with its principal place of business situated at 18 Jurie Street, Alrode, Alberton, South Africa.

1.7.. “Days” means calendar days.

1.8. “Parties” means, collectively, the Commission and McCoy’s Glass.

1.9. "Relevant period" means the period from 1998 to April 2007.

1.10. “Prohibited Practice” means a practice prohibited in terms of Chapter 2 of the Act.

1.11. “Respondents” collectively refers to McCoy’s Glass, Glass South Africa (Pty) Ltd, National Auto Glass (Pty) Ltd, AF-FSL Glass and Windscreen Centre (Pty) Ltd "AF-FSL Glass"), Northern Hardware and Glass (Pty) Ltd, Furman Glass (Pty) Ltd, National Giass (Pty) Ltd.

1.12. “Consent Agreement” means this agreement duly signed and concluded between the Commission and McCoy’s Glass.

1.13. “Tribunal” means the Competition Tribunal of South Africa, a statutory body, established in terms of section 26 of the Act, with its principal place of business at Building C, Mulayo Building, DTI Campus, 77 Meintjies Street, Sunnyside, Pretoria, Gauteng.

The Complaint investigation

2.1. On 08 June 2009 AF-FSL Glass applied for immunity in terms of the CLP for, inter alia, its role in concluding an agreement to fix prices, fix trading conditions and divide markets for the wholesale of glass products in contravention of section 4(1 )(b)(i) and (ii) of the Act. On 30 March 2010 the Commissioner granted conditional immunity in term of the CLP.

2.2. On 23 February 2010 the Commissioner initiated the complaint against the respondents for alleged contraventions of. inter alia, sections 4(1)(bj(i) and 4(1)(b)(it) of the Act The Commission duly investigated the complaint and found that the respondents entered into agreements to fix minimum prices and trading conditions and to divide markets for the supply and wholesale of flat glass, laminated glass and toughened glass.

2.3. The agreements entered into between the respondents remained in force intermittently between 1993 and 2007 (in the case of McCoy’s Glass, between 1998 and April 2007). The Commission investigation revealed that the prohibited conduct took place mainly in Gauteng, Free State and Western Cape. McCoy’s Glass joined the cartel in 1998, approximately one year after it (McCoy’s Glass) was established, and operated only in Gauteng.

Admission

McCoy’s Glass admits that, during the relevant period, it'entered into agreements with

the respondents which contravened section 4(1)(b)(i) and (ii) of the Act.

Agreement Concern Eng Future Conduct

4.1. The Parties record that McCoy's Glass’ participation in the conduct that formed the subject matter of the complaint ceased in or about April 2007 when it voluntarily left the cartel

4.2. McCoy’s Glass agrees and undertakes to refrain from engaging in price fixing, fixing of trading conditions, market division in contravention of sections 4{1)(b)(i) and 4(1)(b)(ii) of the Act.

4.3. Within six (6) months from the date of confirmation of this Consent Agreement, McCoy’s Glass agrees to develop, implement, monitor and enforce a competition law compliance programme in order to ensure that its employees, management, members and agents do not engage in future contraventions of the Act.

4.4. McCoy’s Glass undertakes not to engage in any conduct which constitutes a prohibited practice in contravention of chapter 2 of the Act.

4.5. McCoy's Glass agrees to co-operate with the Commission in the prosecution of the remaining respondents in relation to the complaint This includes, but is not limited to providing relevant evidence, witness statements and giving evidence before the Tribunal.

4.6. The parties record that McCoy’s Glass cooperated with the Commission's investigation and that it made immediate, full and frank disclosure of the nature and extent of its participation in the cartel.

5.

Administrative Penalty

5.1. In terms of section 58{1)(a)(iii) read with sections 59(1)(a)! 59(2) and 59(3} of the Act, McCoy’s Glass accepts that it is liable pay an administrative penalty.

5.2. The Parties agree that McCoy's Glass will pay an administrative penalty in the amount of R2 487 450.70 (two million four hundred and eighty seven thousand, four hundred and fifty rand and seventy cents), being 3% of McCoy’s Glass3 affected turnover for the financial year ending 30 June 2011.

5.3. The administrative penalty will be paid into the following account:

NAME: COMPETITION COMMISSION FEE ACCOUNT

BANK: ABSA BANK, PRETORIA

ACCOUNT NO: 405 077 8576

BRANCH CODE: 323345

6.3. McCoy’s Glass shall pay the administrative penalty within three (3) months of the date of the confirmation of this Consent Agreement by the Tribunal.

6.4. The Commission will pay the administrative penalty received from McCoy’s Giass into the National Revenue Fund as contemplated by section 59(4) of the Act.

Full and Final Settlement

This Consent Agreement is entered into in full and final' settlement and upon confirmation as a Consent Order by the Tribunal, concludes all proceedings between the Commission and McCoy's Glass relating to any alleged contravention by McCoy's Glass of sections 4(1 )(b) (i) and 4(1)(b)(ii) of the Act that are the subject of the Complaint and the Commissions investigations under case number 2010Feb4941.

Dated and signed in Alrode on this the 8 day of April 2013

Steve McCoy

Managing Member:

McCoy’s Glass Wholesalers CC

Dated and signed in Pretoria on this the 9 day of April 2013

Shan Ramburuth

The Commissioner

Competition Commission

IN THE COMPETITION TRIBUNAL OF SOUTH AFRICA

HELD AT PRETORIA

CC Case No: 2010Feb4941

CT Case No: 016451

In the matter between:

THE COMPETITION COMMISSION

And

MCCOY’S GLASS WHOLESALERS CC

ADDENDUM TO CONSENT AGREEMENT BETWEEN THE COMPETITION COMMISSION AND MCCOY’S GLASS WHOLESALERS CC IN REGARD TO THE ALLEGED CONTRAVENTION OF SECTIONS 4 (1) (b) (i) AND (ii) OF THE COMPETITION ACT, NO. 89 OF 1998, AS AMENDED

---