Competition Commission v Waco Africa (Pty) Ltd and Others

The Competition Commission referred a complaint to the Competition Tribunal alleging that Waco Africa (operating through its division SGB-Cape) and three joint ventures it formed with empowerment partners (Tedoc, Superfecta and Mtsweni) engaged in price-fixing and collusive tendering in contravention of section 4(1)(b) of the Competition Act 89 of 1998. The matter arose from Eskom’s 2015 tender (Corp3130) for scaffolding and thermal insulation services at 15 power stations. To meet Eskom’s 51% black ownership requirement, SGB-Cape submitted four bids: one stand‑alone bid by SGB‑Cape and three bids through separate joint ventures, each involving SGB‑Cape and a single black‑owned partner. SGB‑Cape unilaterally prepared all bids, which were largely identical in content, with higher prices in the JV bids reflecting additional costs and risk. The Tribunal dismissed the complaint, finding that the Commission failed to prove that SGB‑Cape and the JVs were competitors in a horizontal relationship. The Commission appealed to the Competition Appeal Court.

The appeal was dismissed. No order as to costs.

The case clarifies the application of section 4(1)(b) of the Competition Act to joint ventures and consortium bidding in public procurement. It confirms that multiple bids arising from genuine joint ventures with a common partner do not automatically amount to collusive tendering. The judgment provides guidance on distinguishing legitimate empowerment-driven joint ventures from prohibited horizontal collusion, an important issue in South African competition and procurement law.