Tourvest Holdings (Pty) Ltd v Competition Commission and Siyazisiza Trust

The Airports Company of South Africa (ACSA) issued a tender for retail opportunities at OR Tambo International Airport. Tourvest Holdings (Pty) Ltd, an established airport curio retailer, and Siyazisiza Trust, a non-profit trust supporting rural craft producers, collaborated in relation to one of the tender opportunities (Opportunity 3). The Trust lacked the experience and capacity to tender independently and entered into a Memorandum of Understanding with Tourvest, under which Tourvest would provide management, infrastructure, pricing and operational support, with skills transfer envisaged over time. Both Tourvest and the Trust submitted bids for the same opportunity, with identical rental figures, fully disclosing their relationship. The Trust’s bid was disqualified on procedural grounds. ACSA later disqualified Tourvest’s bids for alleged collusive tendering. The Competition Tribunal found Tourvest and the Trust guilty of collusive tendering under section 4(1)(b)(iii) of the Competition Act 89 of 1998 and imposed an administrative penalty on Tourvest. Tourvest appealed to the Competition Appeal Court.

The appeal was upheld. The Competition Tribunal’s finding that Tourvest and the Siyazisiza Trust contravened section 4(1)(b)(iii) of the Competition Act and the administrative penalty imposed on Tourvest were set aside.

The judgment clarifies the proper application of the characterisation inquiry under section 4(1)(b) of the Competition Act, reaffirming that horizontality must be assessed using a counterfactual analysis absent the impugned agreement. It limits an expansive approach to collusive tendering and provides guidance on collaborations involving enterprise development and vertical elements, reinforcing economic principles in South African competition law.