JOHANNESBURG (miningweekly.com) – In the first incident of its kind, South Africa’s Competition Tribunal has laid a criminal charge against a person for not adhering to a summons issued by it.
The tribunal on Monday announced that it had, on August 13, laid a charge with the South African Police Service (SAPS) against Rory Cole, a financial accountant of JSE- and TSX-listed First Uranium, as he allegedly failed to respond to a summons issued by the tribunal.
Cole had been expected to be present at a merger hearing, or to submit certain relevant information, in the acquisition of the Letaba, Numbi and De Kaap businesses of Mondi by Bedrock Mining Support, in July.
Bedrock is one of two major suppliers of timber and related supports to the mining industry. The purchase of the plantations from Mondi was intended to secure part of its timber supply.
The merger between these businesses had initially been prohibited by the Competition Commission, after which an appeal into the prohibition was filed with the tribunal in a reconsideration process.
At this time, the commission and the merging parties had proposed a set of behavioural conditions to be imposed on the merger to deal with concerns raised by third parties.
Subsequent to the proposal being made, the tribunal requested, through the assistance of the commission, further information from a number of customers of underground mining support products.
However, the commission had indicated that it was unable to obtain the information it sought from First Uranium.
The tribunal indicated that it had made numerous attempts to compel Cole to comply with a summons issued on July 12, 2010.
Tribunal member André Wessels said that Cole had been expected to provide information related to tenders for the provision of products and services in the stand-up mining support market.
The merger had been adjudicated and approved by the tribunal on July 21, without the information from First Uranium.
Wessels told Mining Weekly Online that the competition processes were legal processes and that people had to adhere to these. A failure to comply with any summons was a criminal offence and the tribunal viewed this in a very serious light.
He noted that the tribunal had decided to proceed with the criminal charges against Cole, given that such an incident could seriously impact on the competition authorities’ proceedings, although it had not had that impact in this case.
Martin Versfeld, a partner at law firm Webber Wentzel, said that the action taken by the tribunal was an extraordinary and significant step.
“The tribunal clearly decided that it was important to send a strong message to the market [that] it will not stand for a party ignoring a process issued by it,” he said.
He added that, when issued with a summons, persons or organisations who were unable to comply with the summons, could approach the tribunal, either directly or through an attorney, to secure alternative terms, for example, narrowing the information or the documents sought under the summons if it is too broad, or for an extension of time.
Versfeld said that the tribunal has, in the past, always sought to act reasonably when such requests were made.
If found guilty of the charge, Cole could face a fine of up to R2 000, six months imprisonment or a combination of the two.