Group Five battles commission

Legal representatives for Group Five and the Competition Commission slugged it out at a Competition Tribunal hearing last week. The fight was over an application by the listed construction group for an order compelling the commission to provide it with the investigation record for alleged collusive tendering on a SA National Roads Agency contract. The application followed the commission in March referring a case against Group Five to the tribunal for prosecution related to alleged collusion with Wilson Bayly Holmes-Ovcon (WBHO) and Concor, a wholly-owned subsidiary of Murray & Roberts (M&R), on a tender for the rehabilitation of a section the national road between Senekal and Vaalpenspruit in the Free State.

The commission has alleged that WBHO and Concor entered into an agreement with Group Five, in terms of which they agreed that Group Five would submit the lowest bid for the Senekal road tender to ensure that Group Five won the tender. The Senekal road project was among the 17 cases M&R settled with the commission and agreed in 2013 to pay a fine of R309 million. WBHO is the provisional corporate leniency applicant in this case. Rafik Bhana, the counsel for Group Five, told the tribunal on Friday that almost seven months had lapsed since Group Five had requested a complete indexed copy of the investigation record from the commission and there was no basis in law for the commission to refuse such access. Bhana said the commission categorised its documents as legally privileged, confidential and non-restricted, but had failed to explain the basis on which it had claimed legal privilege over certain of the documents record despite a tribunal directive for it to do so.

He said the commission had been informed by Group Five’s attorneys that allegations contained in the commission’s complaint referral were both vague and contradictory and the lack of specificity in the complaint referral hindered Group Five’s ability to respond to the allegations levelled against it. “The commission is acting improperly in withholding the production of the record, which it is obliged to provide, until some time in the future after Group Five has pleaded. This is nothing more than tactical gamesmanship, which must not be countenanced by the tribunal. There is no basis in the rules or in law for the commission’s position,” he said. Tembeka Ngcukaitobi, appearing for the commission, questioned whether Group Five was entitled to the documents as a matter of principle and specifically whether these documents should be provided now prior to Group Five filing an answering affidavit before the stage of discovery of documents. “We submit the applicant (Group Five) is not entitled to the documents at this stage of the proceedings,” he said.

Ngcukaitobi said Group Five had failed to set out a clear and proper basis for the disclosure of the documents and failed to show that it would be prejudiced. He said it was clear from a proper understanding of the rules that the entitlement to documents only came into operation at the stage of the pre-trial after Group Five had filed its answering affidavit to the complaint referral. Responding to a question from tribunal panel chairman Norman Manoim, Ngcukaitobi confirmed a member of the public could go to the commission registrar, request the record of this case and pay the money required to copy it, but maintained Group Five was not entitled to it. Manoim remarked that this was “a bit farcical”. The tribunal adjourned the hearing.