Commission welcomes Tribunal’s dismissal of WBHO application

Thembinkosi BonakeleThe Competition Commission has welcomed a decision by the Competition Tribunal which prevents WBHO Construction Ltd (WBHO) from accessing legally privileged documents from the Commission in its case against the construction company.

WBHO’s application for the documents stems from the Commission’s industry-wide case against several construction firms for bid rigging, including Group Five Construction Limited (Group Five) and WBHO.

The WBHO case is the last matter arising from the Commission’s 2009 investigation into bid-rigging in the construction sector. The Commission invited WBHO to settle as part of a fast-track settlement process to speed up the finalisation of the cases. However, WBHO rejected the offer.

Group Five and WBHO were accused of entering into a collusive agreement to fix the trading conditions for an N17 Project in relation to a Sanral tender. Group Five approached the Commission in 2009 and applied for leniency in terms of the Commission’s Corporate Leniency Policy (CLP). When the two were referred to the Tribunal for prosecution, the Commission only sought an administrative penalty against WBHO and not Group Five, given its role as the corporate leniency applicant.

The Commission said WBHO brought its application against the Commission and Group Five in December 2016 for an order declaring that certain documents produced by Group Five, and claimed as legally privileged by the Commission, are not so and should be made available. This included certain annexures to Group Five’s CLP application and the transcript of Group Five’s first meeting as the CLP applicant.

Following arguments in the matter, the Tribunal has found that the documents in question were indeed privileged and that the Commission was not legally obliged to provide the documents to WBHO.

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