Having lost a case against two companies it accuses of rigging a multi-million pula bid, the Competition Authority plans to appeal the Competition Commission ruling at the High Court.
“We will definitely appeal the ruling,” said Duncan Morotsi, the Authority’s Director of Legal and Enforcement. At press time (Friday afternoon), the Authority had not yet filed its papers with the court but Morotsi said that would be done tomorrow. The ruling was handed down last Tuesday and the Authority was given 14 days to appeal it if it wished to do so. It certainly does: this is its biggest case yet, it appears to have confidence in the evidence it dug up and seems determined to win it. The merits of the case were never argued because the companies in question, Creative Business Solutions and Rabbit Group, floored the Authority with a technical knock-out punch.
Lawyers acting for the two companies had argued that the matter had been referred to the Commission outside the prescribed time limit. Section 39 (2) of the Competition Act says that where the Authority determines that a party has engaged in a prohibited practice, it shall refer the case to the Commission within a year of starting its investigations. The time line is as follows. The first complaint was received on 23 October 2012, and a second complaint was received in December 2012. On 21 November 2012, the Authority wrote Bridget John, the Chief Executive Officer of the Public Procurement and Asset Disposal Board asking the Board to furnish it with any document pertaining to the tender in question.
The application for search and seizure warrants at the magistrate’s court in Gaborone, was deposed to on June 14, 2013. On July 10, 2013, four suspect offices associated with the two companies were raided simultaneously. After the search aforesaid was concluded, an investigation was opened against both companies on July 25, 2013. In June 2014, search warrants were sought and obtained from the magistrate court in Gaborone for purposes of conducting a search at the business premises of the suspected bidders. The referral from the Authority to the Commission was made on July 23, 2014. “We find that an investigation in this matter started on or about 21st November 2012, and a referral to the Commission should have been made by the 20th November 2013.
There has been a non-referral and the Commission has no jurisdiction to hear the matter,” says the ruling, adding that in terms of Section 39, if the Authority does not make a referral within one year of starting a formal investigation, it shall be considered to have issued a notice of non-referral. “A referral properly brought before the Commission, that is, within one year of the start of a formal investigation, is what confers on the Commission the jurisdiction to hear the merits of the matter.” Between them, the two companies are alleged to have rigged a P114 million tender to supply sugar beans to government primary schools in Lobatse, Gaborone, Mahalapye, Palapye, Selebi Phikwe, Francistown and Maun.