With more than enough Latin being trafficked back and forth between lawyers at the P114 million bid-rigging case before the Competition Commission, those who sat through the entire hearing would certainly have internalised enough Latin to qualify for full citizenship of ancient Rome. Of course the Latin takes a little getting used to: what at first sounded to the untrained ear like the name of an American R&B singer (Fantasia) actually turned out to be “functus officio.”
In one respect, the venue might well be ancient Rome. In accordance with the Commission rules, the proceedings are being audio-recorded which becomes problematic when the electromagnetic field created by cellphones in the room causes loudspeakers to give off intermittent jarring static. That was reason for the chairperson of the Commission, Tendani Malebeswa, to ask everyone in the room to switch their cellphones off. When the static mysteriously recurred after some time, its source later turned out to be one of those fancy, T-bone-sized phones which ironically, belonged to one of the commissioners. There was an awkward moment (and some embarrassment for the owner) when the phone chirped into life midway a lawyer’s submission and had to be dug out of a handbag placed on the floor. As regards the life of the case itself, there is precious little beyond technical points, some based on semantics. At a hearing last year, a fair bit of time was spent on dissecting the meaning of the word “day”.
The parties in the matter are Creative Business Solutions and Rabbit Group which the Authority says colluded on a P114 million tender to supply schools across the country with sugar beans. The companies are alleged to have divided up markets between themselves thus rigging the bid. The Authority’s founding affidavit is deposed to by Goitseone Modungwa who is a research analyst. She alleges that both respondents had agreed to divide the tender amongst themselves along geographic lines in such manner that one party would predominantly supply the depots in the northern part of the country and the other in the southern part. The Authority’s case is that while the two bids were submitted by two different companies, in actual fact the supply was a collaborative effort between the respondents.
“There is further evidence that the two companies had, subsequent to the award of the tender, jointly approached the First National Bank of Botswana Limited and Stanbic Bank Botswana Limited to apply for performance bond for the project as well as letters of credit for supply of the product from abroad,” Modungwa’s affidavit says.
The Competition Act expressly prohibits collusion which it terms an anti-competitive practice.
Throughout the defence has maintained that the matter is, in legal jargon, “not properly before the Commission.”
When the case resumed on Monday, attorney Mboki Chilisa, who is representing Rabbit Group, said that the matter was brought out of time. 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. Chilisa submitted that the matter was brought to the Commission after the prescribed period had lapsed.
The Authority didn’t fare too well the first time it filed the case before the Commission ÔÇô it was thrown out on technical points. It refiled but Chilisa’s contention is that the latter was done out of time as the one-year prescription had lapsed. The counterargument by the Authority’s attorney, Abel Modimo, was that by allowing it to refile, the Commission was granting the Authority an extension.
“We are here because the complainant was given leave to reinstitute the proceedings. You are bound by that decision; you can’t change it,” he said to the commissioners, invoking the principle of functus officio, which prevents the re-opening of a matter before the same court, tribunal or other statutory actor which has rendered a final decision.
In buttressing the latter point, the lawyer quoted a Court of Appeal judgement which explicitly states that once a court has made a decision, it cannot reverse it.
Modimo’s interpretation of Section 39(2) is that an investigation starts when its target is given notice by the Authority. Naturally, that interpretation yields a timeframe that favours his case.
Otto Itumeleng, who is representing Creative Business Solutions, also parsed Section 39(2) but from a different perspective. This provision says that proceedings against suspect parties shall be instituted by the Executive Secretary who is the Chief Executive Officer of the Authority. Itumeleng’s argument was that the case doesn’t comply with this section because it was instituted not by the Executive Secretary but by Modungwa who is a research analyst. He added that the latter position is not one mentioned in the Act. Harping on this point, he pointed out that one of the documents before the Commission is signed off “Authorised Officer” when the fact of the matter is that no designation for such office in the Act.
“The Commission can only handle matters that comply with the Act; any other divest it of such power,” he argued.
Itumeleng also took issue with Modungwa’s statement that she was delegated by the Executive Secretary, contending that there was no documentary proof of such delegation.
To use a wrestling analogy, the lawyers are operating as a tag team. Launching into his own submission, Modimo told the Commission that he would respond to Chilisa’s arguments while a colleague of his, Mike Rasetshwane, would taken on Itumeleng.
Rasetshwane countered the delegation argument by quoting a section of the Competition Act that says that the Executive Secretary can delegate his powers to “any officer of the Authority.” He invoked the “ostensible authority” principle which holds that an association of two parties should lead a reasonable person to conclude that one party is acting as an agent for the other party. That notwithstanding, he submitted that the onus of proof was still on the defence. He also pointed out that “Authorised Officer” that Itumeleng made an issue of was actually language used in another part of the Act.
Rasetshwane had prefaced his submission by telling the Commission that the points that the defence was raising were of “a sophisticated level of technicality.” Modimo is none too pleased with this technicality and wants the matter to proceed to the hearing of evidence. He told the Commission that thus far and at separate times, the defence has submitted three sets of technical points. Modimo deems this to be “a strategy to stall the proceedings” for as long as possible for the defence.
“This must be the last set of points in limine to deal with because otherwise we shall never stop dealing with them,’ he said, adding that what the defence was doing was not permitted by the law. “The Commission shouldn’t entertain this and it must come to an end.”
