Tsutsumani Business Enterprises CC v Competition Tribunal and Others

During the Covid-19 national state of disaster, the South African Police Service (SAPS) issued a request for quotations for the supply of 3-ply surgical face masks. Tsutsumani Business Enterprises CC, a firm primarily engaged in waste disposal but diversified into other services, responded and supplied 500,000 masks at a unit price of R32.50, generating R16.25 million in revenue. The masks were procured at an average cost of approximately R17.50 per unit. The Competition Commission investigated and referred a complaint to the Competition Tribunal, alleging that Tsutsumani, as a dominant firm during the crisis, charged excessive prices contrary to section 8(1)(a) of the Competition Act 89 of 1998 read with Regulation 4 of the Consumer Protection Regulations issued during the national disaster. The Tribunal found Tsutsumani guilty of excessive pricing, imposed an administrative penalty of R3,441,689.10, and declined to grant an interdict. Tsutsumani sought to review the Tribunal’s decision in the Competition Appeal Court, filing its review application out of time and seeking condonation.

The review application was dismissed with costs.

The case reinforces South African competition law principles applicable during crisis conditions, particularly that multiple firms can simultaneously hold market power and be dominant. It affirms the application of the Consumer Protection Regulations in assessing excessive pricing during a national disaster and clarifies that the turnover threshold for dominance under section 6 of the Competition Act is not limited to turnover in the affected product market. The judgment also underscores the strict enforcement of procedural time limits for reviews before the Competition Appeal Court.