Construction company Group Five is not being investigated by the National Prosecution Authority (NPA) for any anticompetitive behaviour, says Group Five CEO Mike Upton.

The media has been awash with reports in recent weeks of an NPA investigation into price fixing and collusion in the local construction industry.

Upton says Group Five has “had engagements” with the Competition Commission, which has been leading a long-standing probe into collusion in South Africa’s construction industry since the media reports first surfaced. The Competition Commission has indicated that its investigation is continuing, “proceeding to its natural conclusion”.

However, there now is “distortion” between the anticompetitive investigation by the commission into the industry and the criminal probe by the NPA.

“These two things are being mushed together, but they should not be mushed together. They are separate investigations.”

Upton says recent media reports have “confused the market”, reiterating that Group Five is not being investigated by the NPA. The company’s participation in the Competition Commission investigation, however, can be traced back to 2009.

The commission announced its intention to investigate the construction industry for anticompetitive behaviour in 2008.

Group Five realised that it would be at risk in this investigation owing to “historic industry practices”, says Upton.

In 2009, the company undertook an internal investigation, during which time staff made disclosures to protect the group’s position, he adds.

Group Five was the first major construction company to approach the commission to apply for leniency, given in return for information. This was provided, pending conclusion of the full industry investigation.

From 2010 to 2012, Group Five provided the commission with information to support its disclosures.

In 2011, the commission announced a “fast-track settlement” process for companies that had been party to collusive practices.

However, this did not include Group Five. Group Five is still in a position where it has no need to make financial provision for a fine by the commission, owing to its cooperation and position as a leniency applicant, says Upton.

He warns, though, that there is no “guarantee of zero fines” until the Competition Commission has completed its investigation.

“Management regrets the past behaviour in this industry. We trust that our early actions from 2008 have contributed to a changed industry.”