Group Five loses bid for inquiry record

Group Five has failed in its bid to obtain an order from the Competition Tribunal compelling the Competition Commission to provide it with the investigation record for alleged collusive tendering on a SA National Road Agency Limited (Sanral) contract. The listed construction and engineering group has been given 20 business days by the tribunal to plead to charges that it entered into a collusive tendering agreement with WBHO and Concor, a wholly-owned subsidiary of Murray & Roberts (M&R), on a tender for the rehabilitation of a section of the national road between Senekal and Vaalpenspruit in the Free State in 2006 or face default judgment. In a separate application, the commission asked the tribunal for a default judgment against Group Five because it had not filed an answer to the charges against it and the time for doing so had lapsed.

Chantelle Benjamin, a spokeswoman for the tribunal, said yesterday that the tribunal’s order was should Group Five not file its answer in 20 working days, the commission “may approach the registrar to set down its application for a default judgment that is pending”. Group Five’s application, which was heard by the tribunal in October, followed the commission in March referring this case to the tribunal for prosecution. 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 had settled with the commission and it agreed in 2013 to pay a fine of R309 million.

WBHO is the provisional corporate leniency applicant in this case. During the commission’s construction fast-track settlement process, Group Five declared 25 rigged projects and was granted provisional corporate leniency for all of these projects. The group was implicated by other companies in four other allegedly rigged projects that it had not declared to the commission, two of which were subsequently dropped by the commission. The remaining cases against Group Five relate to alleged collusive tendering on the Senekal road tender and with WBHO, M&R, Stefanutti Stocks and Basil Read for the construction of the 2010 World Cup stadiums. Rafik Bhana, the counsel for Group Five, told the tribunal at the hearing in October that almost seven months had lapsed since Group Five had requested a complete indexed copy of the investigation record from the commission for the Senekal road case and there was no basis in law for the commission to refuse access to the copy.

Bhana 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. Tembeka Ngcukaitobi, appearing for the commission, said Group Five was not entitled to the documents at this stage of the proceedings and would only be entitled to the documents at the pre-trial stage after Group Five had filed its answering affidavit to the complaint referral.