Surve’s Sekunjalo wins stay of execution. CompCom ‘technically’ can’t rule.

Four years have pass since Independent-owned Business Report carried a story (has been pulled off the site) which questioned Sekunjalo’s bid for an R800 million marine patrol tender with the South African Government. The Public Protector referred the matter to the Competition Commission, which has only now ruled on the matter. Donwald Pressly, who was Western Cape bureau chief at Business Report at the time of the initial report, was fired from his position soon after. And while the ruling is closed, the matter is still very much open. Here is his report. – Stuart Lowman

By Donwald Pressly*

Donwald Pressly, Cape Messenger editor.
Donwald Pressly, Cape Messenger editor.

Suggestions of collusion by Sekunjalo companies associated with Dr Mohammed Iqbal Survé, now chairperson of Independent Newspapers South Africa, have been ruled upon by the Competition Commission.

It has decided that it cannot rule against Sekunjalo, the fishing company which now holds a major stake in Independent Newspapers because the ambit of the Competition Act 98 of 1999 does not apply to allegations of collusion by firms within one investment umbrella – in this case Sekunjalo Investments Limited.

Mohammed Iqbal Survé, owner of Independent Newspapers and Sekunjalo Investments Limited, has been accused of tender bid rigging. But the Competition Commission says it does not have the powers to make a ruling as the companies involved are all under one investment company’s stable.

The complaint was lodged by the Office of the Public Protector Thuli Madonsela on 12 March 2014. It called for further investigation for possible bid rigging in respect of the marine patrol tender issued by the Department of Agriculture, Forestry and Fisheries (DAFF). Sekunjalo withdrew from its position as “preferred bidder” after the competing marine company, Smit Amandla Marine, challenged it in court.

Opposition MP Pieter van Dalen, former DA fisheries spokesman and now energy deputy spokesman, put in a complaint to the commission on 5 January this year calling for a ruling by the commission on its investigation into the alleged rigging.

Iqbal_Surve
Dr Iqbal Survé

Competition Commission Cartels Division manager Makgale Mohlala has written a letter to Van Dalen in which he noted that the allegation against Sekunjalo Investments Limited, Sekunjalo Marine Services Consortium, Premier Fishing SA (Pty) Ltd and Premier Fishing Consortium was that they “colluded when bidding for the (marine patrol) tender.

The commission has concluded its investigation and found that Premier Fishing is, indeed, a wholly owned subsidiary of Sekunjalo Investments and Sekunjalo Marine Services is a division of Sekunjalo Investments. Also Sekunjalo Marine Services Consortium and Premier Fishing Consortium were also controlled by Sekunjalo Investments.

“Mohlala reported that a section of the Competition Act – section 4(1)(b) – which prohibit collusive agreements such as the one alleged in this case does not apply to constituent firms within a single economic entity”. Therefore, the commission had decided “on the basis of the information available to it, not to refer the matter to the Competition Tribunal for prosecution”.

Thus the commission has not cleared Sekunjalo, but it finds itself technically unable to  make a ruling on the case. “The commission considers this matter finalised” said Mohlala.

https://twitter.com/CraigMcKune/status/409704399410167808

“Should you disagree with the commission’s decision, you may in terms of section 51(1) of the Act read with Rule 14(1)(b) of the Rules ofr the conduct of Proceedings in the Competition Tribunal refer the complaint to the Tribunal within 20 business days,” Mohlala told Van Dalen.

Van Dalen said that Sekunjalo had managed to slip through a lacuna in the law. He remained committed to continuing his fight to prove that the tender process associated with the marine patrol vessel contract “was indeed corrupted”. He said an official in the fisheries department, who remained with the department, allegedly changed the scoring in favour of Sekunjalo.

“These people tried to corruptly get a tender. They were caught with their fingers in the cookie jar,” said Van Dalen. He said that apart from the referral to the Competition Tribunal, he could still make an application in terms of the POCA – Prevention of Corrupt Activities – legislation to the Hawks.

  • Donwald Pressly, Editor of Cape Messenger was Western Cape Bureau Chief of Business Report, now part of the Sekunjalo empire, at the time of his story in Business Report which was carried under the headline on 14 March 2014 Sekunjalo’s bid for tender questioned. He was later fired by Independent Newspapers.
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