Tourvest Holdings (Pty) Ltd v Competition Commission and Another

The Competition Commission referred a complaint alleging collusive tendering under section 4(1)(b)(iii) of the Competition Act 89 of 1998 arising from a tender issued by Airports Company of South Africa (ACSA) for retail space at OR Tambo International Airport. Tourvest, an established airport curio retailer, and Siyazisiza Trust, a non-profit rural craft supplier, collaborated in relation to Opportunity 3 of the tender. The Trust lacked the capacity and mandatory requirements to bid independently and relied on Tourvest’s expertise, infrastructure and management under a disclosed memorandum of understanding (MoU). Both Tourvest and the Trust submitted bids with identical rental figures, expressly disclosed their relationship, and Tourvest submitted its own bid as a fallback in case the Trust was disqualified. The Trust’s bid was eliminated at the outset for failure to meet mandatory administrative requirements. Despite this, ACSA later disqualified all Tourvest bids alleging collusion. The Competition Tribunal found both parties guilty of collusive tendering 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 Trust contravened section 4(1)(b)(iii) of the Competition Act was set aside, together with the administrative penalty imposed on Tourvest.

The case clarifies the proper application of the characterisation inquiry under section 4(1)(b) of the Competition Act and affirms that horizontality cannot be inferred from the impugned conduct itself. It reinforces the requirement, grounded in competition economics, that actual or potential competition must be assessed absent the agreement. The judgment provides important guidance on collaborative bidding, enterprise development arrangements, and the limits of the per se prohibition on collusive tendering in South African competition law.