South Africa: Motorized vehicle finance establishments referred to the Competitors Tribunal for alleged collusion


By Gina Lodolo

On 3 February 2022, the South African Competitors Fee (“SACC”), launched a press assertion confirming that the SACC has made a referral to the Competitors Tribunal (“Tribunal”) to prosecute FirstRand Financial institution Restricted (“First Rand”), Wesbank, and Toyota Monetary Companies South Africa Restricted (“TFS”) (collectively “Motor Automobile Finance Establishments”) for allegations of a violation of Part 4(1)(b)(ii) of the Competitors Act 89 of 1998, as amended (“Act”).

On this regard, Part 4(1)(b)(ii) of the Act supplies that :

an settlement between, or concerted apply by, companies, or a call by an affiliation of companies, is prohibited whether it is between events in a horizontal relationship and if-(b) it entails any of the next restrictive horizontal practices: (ii) dividing markets by allocating clients, suppliers, territories, or particular forms of items or providers”

Typically, as soon as the SACC has initiated a grievance and located {that a} prohibited apply has  been established, it should refer the grievance to the  Competitors Tribunal. Wesbank (as a division of FirstRand) and TFS allegedly prevented competitors by getting into right into a shareholders settlement containing non-compete clauses. The SACC press assertion supplies that the Motor Automobile Finance Establishments allotted markets as a result of they’re ‘suppose to compete’, which implies that they’re companies in a horizontal relationship.  Specifically, the shareholders settlement included clauses ‘that prohibit[ed] WesBank from providing automobile finance to clients searching for to buy automobiles at authorised Toyota dealerships’. Additional, Wesbank was additionally prohibited from financing particular automobiles, being ‘the “new” TOYOTA, LEXUS and HINO automobiles and any “used” automobiles offered by any authorised Toyota dealership, besides McCarthy Group’.

Ought to the Competitors Tribunal certainly discover that the Motor Automobile Finance Establishments violated the Act, Part 59 of the Act supplies that the Competitors Tribunal can impose an administrative penalty of as much as 10% of the agency’s annual turnover for participating in a prohibited apply. Additional, if the identical companies are discovered to repeat the conduct, an administrative penalty for a repeat offence will be as much as 25% of the agency’s annual turnover.  

Primerio Director Michael-James Currie notes that cartel conduct in South Africa constitutes a legal offence and respondents discovered liable are additionally doubtlessly liable to follow-on civil damages.

To view the total press assertion click on right here

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