Continental CC

The judgment

The court's own file

f competitiontribunal sawth africa THE COMPETITION TRIBUNAL OF SOUTH AFRICA Case No: CR053Aug10/INSO79Sep12 & In the application of: Goodyear South Africa (Pty) Ltd The Competition Commission And In the application of: Continental Tyres South Africa (Pt) Ltd The Competition Commission In re the complaint referral between: The Competition Commission Apollo Tyres South Africa (Pty) Ltd Goodyear South Africa (Pty) Ltd Continental South Africa (Pty) Ltd Bridgestone South Africa (Pty) Ltd South African Tyre Manufacturers Conference (Pty) Ltd CR053Aug10/DSC073Aug12 Applicant Respondent Applicant Respondent Applicant First Respondent Second Respondent Third Respondent Fourth Respondent Fifth Respondent Panel : Yasmin Carrim (Presiding Member) Medi Mokuena (Tribunal Member) Andreas Wessels (Tribunal Member) Heard on : 17 March 2016 Last submission received on : 11 April 2016 Order issued on : 25 May 2016 Reasons issued on : 25 May 2016 DECISION AND ORDER

[1]On 17 March 2016 the Competition Tribunal of South Africa (“the Tribunal”) heard two applications filed by Goodyear South Africa (Pty) Ltd (“Goodyear”) and Continental Tyres South Africa (Pty) Ltd (“Continental”) (also referred to as the “applicants”). The applications were brought in terms of High Court Rule 35(12)' against the Competition Commission of South Africa (“the Commission”) in relation to documents which the applicants alleged were referred to by the Commission in its founding affidavit and supplementary affidavit of a complaint referral.

[2]This matter has a long and convoluted history dating as far back as 2010 when the Commission conducted an investigation into the conduct of the applicants.

[3]We discuss only the salient and relevant facts for purposes of this decision.

[4]The Commission initiated an investigation into the applicants and others following a complaint lodged by a Mr Parsons during October 2006. Aspects of the Commission’s investigation involved a leniency application filed by Bridgestone Tyres South Africa (Pty) Ltd (“Bridgestone”) and raids that had been conducted by the Commission on the offices of Apollo Tyres South Africa (Pty) Ltd (“Apollo”) and the industry association, the South African Tyre Manufacturers Conference (Pty) Ltd (“SATMC’).

[5]The Commission’s referral under section 50 of the Competition Act? (“the Act”) was filed with the Tribunal on 31 August 2010. In the complaint referral the Commission alleges that the applicants together with Bridgestone, Apollo and the SATMC discussed and agreed to fix the prices of passenger, light truck, bus, off-the-road, agricultural and earthmover tyres over a period of years from 1999 to 2007. 1 HCR 35(12) 2 Act 89 of 1998 as amended

[6]

[7]

[9]Almost six years later, Continental and Goodyear have failed to file their respective answering affidavits. The apparent reason for their failure to file their answering affidavits, as can be gleaned from the correspondence to date is that they require certain documents from the Commission which they allege they are entitled to on the basis of inter alia HCR 35(12).° Prior to these applications being lodged, and over the last number of years, numerous requests for documents by Goodyear and Continental have been met by the Commission. Significantly the Commission has handed over to the applicants a copy of the Bridgestone leniency application together with all annexures thereto which amounts to a voluminous 1171 items. Prior to the hearing of these two applications a number of additional documents sought by Continental and Goodyear, have been provided by the Commission. In order to assist the evaluation of the remaining requests the parties were asked to draw up schedules of outstanding requests which schedules were then reconciled by the Commission with the list of documents that had already been provided. The reconciled schedules were submitted to the Tribunal by the Commission on 11 April 2016 and are attached hereto as Annexures A (“Goodyear Schedule”) and B (“Continental Schedule”) respectively.

[10]| The Commission has refused to hand over any more documents on the basis

[11]that the applicants are not entitled to them prior to them filing their answering affidavits (i.e. for purposes of pleading). The Commission submits that it will only discover any further documents as part of the pre-trial discovery process and that Goodyear and Continental are pursuing these requests as a dilatory tactic. The Commission argued further that the applicants are not entitled to bring an application in terms of HCR 35(12) without first seeking leave of the Tribunal. 3 Continental had previously relied on rule 14 and 15 of the Commission’s Rules but declined to persist with this after the ruling in the Group Five Ltd vs Competition Commission: case number: CR229Mar15/DSC124Sep15 Tribunal decision. 3 Legal Framework

[12]| The Commission argued that the applicants were not permitted to rely on HCR 35(12) because the Tribunal's rules in relation to complaint procedures under Part 4 of the Competition Tribunal Rules (“CT Rules”) made no provision for discovery of documents prior to the filing of answering affidavits as provided in CT Rule 16. If parties wished to rely on any other rule or procedure not provided for in the CT Rules they should first seek leave from the Tribunal. The Commission asked that we should establish a principle in this matter that parties could not as a matter of entitlement bring applications under HCR 35(12) without first seeking the leave of the Tribunal.

[13]| The applicants argued that they were entitled to rely on HCR 35(12) as a matter of right because the Tribunal has previously granted applications brought under it as permitted by section 55 and Tribunal Rule 55(1). HCR 35(12) did not require the applicants to show relevance for a discovery request and nor should the Tribunal consider whether these were necessary documents for purposes of pleading. This is because, as a matter of right, once the Commission referred to a document in its founding and supplementary affidavits in support of an allegation, the provisions of HCR 35(12), as applied in the high courts, required that these documents must be handed over. {14] In our view there is no need for us to make a decision such as that requested by the Commission nor is it necessary for us to apply HCR 35(12) in the manner urged by the applicants.

[15]Tribunal Rule 55(1)(b) confers a discretion on this Tribunal to have regard to the high court rules if a question arises as to the practice or procedure to be followed in cases not provided for in the Tribunal! Rules. The Tribunal has previously exercised this discretion but in so doing has emphasised that it is in the first instance discretionary and in the second requires us only to “have regard”. In other words the rule does not require us to adopt without due consideration to the sui generis nature of our proceedings, the application and jurisprudence pertaining to a rule as applied in the high courts.* This is because we enjoy a wide discretion in the conduct of our proceedings. Our proceedings are adversarial in form but we are vested with inquisitorial powers to arrive at the truth. We are required to conduct our proceedings with fairness and to guard against elevating form over substance. Fairness is context driven and we must have regard to the circumstances of each case to make such a determination.

[16]| Thusin the context of our proceedings high court rules in relation to discovery, which include HCR 35(12), are not rights-based but serve to provide guidance to the Tribunal in its assessment of fairness to the parties when requests for documents are made.

[17]This has been the approach adopted by the Tribunal in Allens Meshco,° BMW South Africa vs Fourier Holdings® and more recently in Group Five’.

[18]In relation to a request for discovery prior to the filing of answering affidavits, the Tribunal in Allens Meshco established two principles. The first principle is that where a document is relied on to support a relevant allegation in a pleading it should be provided, The allegation may quote from or make references to specific contents of such documents or may even summarize the content of the document. If the document is not provided as an annexure or an attachment to the pleading, it should be handed over when requested by a respondent.

[19]The second principle is that the inference of the existence of a document is not sufficient to create an obligation to disclose such a document.

[20]Both these principles are reflected in HCR 35(12). We turn to consider the specific requests made by the applicants which remain in dispute. 4 See in general Allens Meshco & others vs Competition Commission & Others, page 4, paragraph 6, case number: 63/CR/Sep09; BMW South Africa (Pty) Ltd t/a BMW Motorrad vs Fourier Holdings (Pty) Ltd t/a Bryanston Motorcycles, page 7, paragraph 22; case number: 97/CR/Sep08, and Group Five Ltd vs Competition Commission, page 8, paragraph 21: case number: CR229Mar15/DSC124Sep15 Tribunal decisions. 5 Allens Meshco & others vs Competition Commission & Others, page 4, paragraph 6 case number: 63/CR/Sep09g. 8 BMW South Africa (Pty) Ltd ta BMW Motorrad v Fourier Holdings (Pty) Ltd t/a Bryanston Motorcycles, page 7, paragraph 22, unreported judgment of 1 February 2011, 97/CR/Sep08 [2011] ZACT. 7 Group Five Ltd vs Competition Commission, page 8, paragraph 21: case number: CR229Mar15/DSC124Sep15. 5 Goodyear Schedule (with reference to Annexure A)

[21]In relation to the request pertaining to paragraph 22 of the Commission’s Founding Affidavit (“FA”) the application is refused for the following reasons. In paragraph 22, the Commission states as follows - “22. As a result of the complaint filed by Parsons, the applicant applied for and was granted a search warrant for the premises of Bridgestone, Apollo and the SATMC. The search was conducted on 4 April 2008 and numerous documents were seized. The investigation revealed the following:” 22.1 Representatives of the tyre manufacturers discussed the reduction of dealer price list; 22.2 Tyre manufacturers discussed and agreed on the timing for requesting price adjustments from the STB; 22.3 That during 2006 representatives of the tyre manufacturers discussed price increases; and 22.4 The tyre manufacturers coordinated the percentage and timing of price increases.

[22]The Commission’s FA is structured in a number of sections each with its own heading. In this paragraph read in context of the entire FA, what the Commission is doing is merely providing a description of the steps it took in its investigation as a whole. As prefaced by the heading of the section, the Commission lists the steps it took in its investigation following the complaint by Parsons. These steps involved obtaining warrants, searches of premises and the seizure of “numerous documents”. It then goes on to conclude what “the investigation” revealed in paragraphs 22.1-22.4. The remarks in para 22.1-22.4 summarise the broad findings of the Commission’s the investigation - and not what the numerous documents - revealed. The investigation of the Commission is clearly broader than the raids it had conducted. It includes as gleaned from these paragraphs the complaint by Parson, and presumably any statements or documents he may have provided to the Commission, as well as product of the raids conducted by the Commission. The concluding remarks in 22.1-22.4 are couched at the level of 6 generality and no reference to any particular document, whether seized in the raid or provided by Parsons, is made.

[23]We see then that the Commission’s specific findings and further details are then pleaded in the subsequent paragraphs under the sections “Application for Immunity’ and “Contraventions of the Act”. In relation to these specific findings and allegations the Commission has already discovered a raft of documents which include the application for leniency, ail the annexures thereto, including witness statements.

[24]Applying the first principle articulated in Allens Meshco the request relating to para 22 of the FA, we find that Goodyear is not entitled, as a matter of fairness, to the “numerous documents” that were seized in the raids conducted by the Commission simply because the Commission does not rely upon them to make its concluding general remarks about its investigative process. The Commission's investigation is broader than the raids it had conducted. The mere fact that an investigation may be premised on documents does not suffice to trigger a request for productions of those documents.

[25]The position would be the same if we had regard to the jurisprudence pertaining to HCR 35(12). The intention of that rule is quite clear. It is meant to cover a situation where an averment flows from or is related to something contained in a document. However inspection cannot be demanded of documents not referred to but the existence of which can be inferred from an affidavit or pleading. This was clearly stipulated in Nedbank Limited vs Jean-Pierre Jordaan® wherein the court held that the wording of HCR 35(12) is clear in that it only refers to “documents referred” to by a party in an affidavit. We are of the view that in relation to paragraph 22 of the Commission’s FA there is no “reference to a document” as contemplated in HCR 35(12) which warrants production as argued by the applicants.

[26]Our conclusion on Goodyear’s request in relation to para 22 of the Commission’s founding affidavit also applies to the request made by Continental under item 2 of its Schedule (see our discussion on Continental's application below). 8 Nedbank Limited vs Jean-Pierre Jordaan N.O, page 5, paragraph 9-10: Case no: 16335/2014. 7

[27]The request in relation to paragraphs 6, 7, 9, 11 and 13 of the Commission’s Supplementary Affidavit (“CSA”)? are denied. Goodyear has couched its requests as “the price increase announcements” referred to in these paragraphs. However in these paragraphs the Commission makes no reference to price increase announcements or that these were contained in documents. All that is alleged is that the manufacturers “agreed to increase prices”.

[28]The requests in relation to paragraphs 16 and 18 of the CSA are denied. In both these paragraphs the Commission details dates on which tyre manufacturers “announced price increases” pursuant to their agreement. The Commission does not allege that these announcements were in writing. In some paragraphs the increases are stated as a range between two percentages, in others, the word “approximately” is used, both suggesting the Commission was not relying on any documents to plead these allegations but very likely the testimony of a witness. On the same basis the requests in relation to paragraphs 25, 26, 27 and 28 of the CSA are denied.

[29]Notwithstanding the fact that no obligation arises on the part of the Commission to hand over any documents in relation to the averments made in any of the abovementioned paragraphs, the Commission has, in a spirit of co-operation, already handed over to Goodyear a number of price increase letters which have to date come into its possession in the course of the leniency application. The Commission has indicated in the third column of the Goodyear Schedule where it has handed over relevant price increase letters in its possession to date. Thus Goodyear is already in possession of a number of documents which the Commission has indicated would serve to support the allegations in these paragraphs. Continental Schedule (with reference to Annexure B)

[30]In relation to items 1 and 3 of the Continental Schedule, the Commission has already provided a copy of the search warrant. ° The CSA was filed by the Commission in response to an exception by SATMC that the FA did not disclose a cause of action against the SATMC. In its Supplementary Affidavit the Commission seeks to make its case out against the SATMC.

[31]In relation to item 2 of the Continental Schedule, we have already decided in our discussion regarding the same request made by Goodyear above that paragraph 22 of the FA does not give rise to any obligation on the part of the Commission to hand over the numerous documents that were seized in the raids conducted simply because the Commission places no reliance on any specific document in arriving at its concluding remarks about its broader investigative process.

[32]in item 4 of the Schedule, Continental requests a copy of the agreement referred to in paragraph 26 of the FA. in this para the Commission states that “The tyre manufacturers have contravened section 4(1)(b)(i) in that they entered into an agreement, in terms of which..:’. The Commission does not allege that the agreement was in writing. On the contrary, the allegations that follow in the subsequent sub-paragraphs suggest that there was no written agreement but that such agreement came into existence through meetings and discussions. By no stretch of the imagination can the Commission be ordered to produce a document it has not alleged to be in existence.

[33]In item 5, Continental requests a copy of the escalation formula referred to in para 26.15 of the FA. In that paragraph the allegation is that ‘the tyre manufacturers discussed and agreed on the escalation components to be inserted into the escalation formula’. Once again there is no reference to a document in the allegation and no suggestion that the Commission relies upon the escalation formula itself to allege an agreement on the escalation components of it. Again no obligation arises on the part of the Commission to provide a document that may or may not exist and on which the Commission does not rely to make its allegation.

[34]In items 6 and 7 of the schedule requests are made for “electronic mail discussions” and “electronic communication” respectively. Continental alleges that the Commission has partially provided these. It has received copies of SATMC and Apollo emails but requires “all electronic mail discussions and electronic communications referred to in paragraphs 4.3 and 4.4 of the CSA. We agree that a reference to “electronic mail discussions” and “electronic communication” might prima facie suggest that these exist and the Commission has had sight of them. The Commission has already provided the applicants with copies of some email communications. To the extent that the Commission has copies of any other 9 electronic mail discussions and electronic communications it should provide these. If it is not in possession of any other such communications/discussions at this stage, it should state this under oath.

[35]The request under item 8 of the Schedule is for the “standard format for reporting industry statics” referred to in paras 12 and 15 of the CSA. However we see that in para 12 the emphasis is on the “agreement” arrived at among named individuals to have a standard format for reporting industry statistics. There is no reference to a document containing industry statistics. In para 15 the allegation is that named individuals exchanged price lists in pursuance of their earlier agreement to “have a standard format for reporting industry statistics’. This is clearly not a reference to a document in existence but rather that there was an agreement reached amongst tyre manufacturers to produce such standard format. This is not to say that a standard format reporting document exists at ail which may or may not be in the possession of the Commission or for that matter the Applicants. But what is clear from the wording in these paragraphs is that the Commission is not relying on any document when it alleges that the named individuals agreed to “have a standard format for reporting industry statistics’. There is no obligation for the Commission to provide a copy of a document it has not referred to in making its allegations in paras 12 and 15 of the CSA.

[36]In items 9 and 10 of the Schedule the request is for the “price lists” referred to in the aforesaid paras 12 and 15 of the CSA. The Commission argues that it has not relied on any documents and that it is merely recording the fact that the named individuals exchanged price lists pursuant to their agreement to have a standard format for reporting industry statistics. However the ordinary meaning of a price /ist clearly contemplates some written form, in hard or soft copy, of a firm’s prices. To the extent that the Commission is in possession of these it should provide them, and if it is not, it should file an affidavit to that effect.

[37]The request under item 11 has already been complied with as indicated by the Commission in the last column of the Schedule. 10 Conclusion

[38]In light of the above, the application by Goodyear is dismissed. The application by Continental is granted only in relation to items 6, 7, 9 and 10 of the Continental Schedule.

[39]We note however that Goodyear and Continental both know what case the Commission is alleging against them, as can be gleaned from the contents of the Commission’s founding affidavit and its supplementary affidavit, as well as from the myriad of documents that have been handed over to them by the Commission, as reflected in annexures A and B. Both applicants have already been placed in a position by the Commission that would enable them to file their answering affidavits and thereby permit the matter to proceed to trial. This matter has been dragging on for a considerable period of time. Any further delays in the applicants’ filing of their answering affidavits would not be in accordance with the principles of justice. in order to prevent any further delays we have included in our order provisions for the further conduct of proceedings. ORDER

[40]The application for documents in respect of all items listed on the Goodyear Schedule is dismissed.

[41]| The application in relation to items 1, 2, 3, 4, 5, 8 and 11 of the Continental Schedule is dismissed.

[42]The application in relation to items 6, 7, 9 and 10 of the Continental Schedule is granted and the following documents must be provided by the Commission within 10 business days of this order: 42.1. All electronic mail discussions or electronic communications referred to in paras 4.3 and 4.4 of the Commission’s Supplementary Affidavit (items 6 and 7 of the Continental Schedule); 42.2. All price lists referred to in paras 12 and 15 of the Commission’s Supplementary Affidavit (items 9 and 10 of Continental's Schedule). 11

[43]In the event that the documents in paras 42.1 and 42.2 above do not exist or are not in the possession of the Commission this should be stated under oath within 10 business days of this order.

[44]Goodyear and Continental must file their answering affidavits within 20 business days of receipt of the documents or the affidavit, as the case may be, referred to in paragraph 42 and 43 above.

[45]The Commission may if it so elects file its replying affidavit within 10 days thereafter.

[46]There is no order as to costs. Y 25 May 2016 Ms Yasmin Carrim DATE Ms Medi Mokuena and Mr Andreas Wessels concurring Tribunal Researcher: Caroline Sserufusa For Goodyear Tyres: Adv. Gotz instructed by Judin Combrinck Inc. For Continental Tyres: Adv. Engelbrecht instructed by Bowman Gilfillan For the Commission: Adv. Daniel Berger instructed by the State Attorney 12 ANNEXURE“A” Goodyear’s schedule of outstanding documents COMMISSION’S INITIAL REFERRAL AFFIDAVIT Paragraph | Allegation Documents Commission’s Response to Goodyear 22 Numerous documents wore seized. No jot provided. Subject to confidentiality claims. See para 70 of \Commission’s nswering affidavit. COMMISSION’S SUPPLEMENTARY AFFIDAVIT representatives of the tyre manufacturers agreed to increase prices between 3% and 5% with effect from the second half of 1999. The agreement was reached in discussion between Wustmann, Martin of Goodyear and representatives of Continental and Dunlop. Paragraph | Allegation Documents Item on Commission’s Schedule provided on 6 March 2016 6 On or about 29 July 1999 No The Commission did mot allege any price increase lannouncements in this lparagraph, Please refer to items 41; 42 and 43 of the \Commission’s schedule, Please refer to |paragtaphs 22; 22.1 land 22.2 of Shaun ‘ustmann’s statement land Annexures A and iB thereto. 13 2 1 | Paragraph | Allegation Documents Ttem ou | Commission’s | Schedule provided | on 6 March 2016 ! 7 On 27 Jannary 2000, in a meeting No The Commission did \ attended by the Managing Directors not allege any price : and certain representatives of increase Bridgestone (Yamamoto and announcements in this Wustmann), Apollo (Dreyer), paragraph. Goodyear (Murdock) and Continental Please refer to items (Swart), the tyre manufacturers agreed lst: 45 and 46 of the to increase prices between 4.5 and 9% lc commission’ S with effect from February 2000, schedule, Please refer to paras 24 and 30 of Shaun |Wustmann’s staternent land Annexures D and IE thereto. 9 On 5 April 2000 the manufacturers’ No The Commission did representatives met and agreed to inot allege any price increase prices between 5% and 12% increase with effect from June 2000, laniouncements in this paragraph. Please refer to items 41; 42 and 47 of the |Commission’s schedule. iPlease refer to jparagraphs 32 and 33 lof Shaun: Wustmann’s Istatement and t Annexures A and F : thereto. in On 7 August and 3 October 2000 the No [The Commission did manufacturers’ representatives met and at allege any price agreed on a third price increase for increase 2000. The price increase agreed upon lanniouncements in this was in the region of 3 to 5% to be paragraph. effected in November 2000, Please refer fo items 4b; 42; 50 and 51 of the Commission’s schedule. lease refer to para 42 lof Shaun Wustmann’s statement and |Annexures A; I and J thereto, 14 3 Paragraph | Allegation Documents Ttem on Commission’s Schedule provided on 6 March 2016 13 On 22 November 2000, the No |The Commission did manufacturers’ representatives met and not allege any price agreed to increase prices in January inctease 2001. ‘The price increases agreed announcements in this upon were — between 10% paragraph. and = 12% and were + implemented in March 2001. ease er ws ‘Commission’s schedule. Please refer to paragraphs 14.3.1 and 45 of Shaun Wustmann’s statement land Annexure A. . thereto. 16, In meetings and through telephone discussions in the period May to June 2061, including 9 May, 1 June, 11 June, and 15 June, the manufacturers’ representatives agreed on price increases between 4% to 10% to be effective in August or September 2001. In pursuance of this agreement, the tyre matufacturers announced increases as foliows: 16.1. Bridgestone —- On 31 July 2001 No Provided. Item 42 of announced an increase between 6% and 10% with effect from 1 August 2001; the Commission’s schedule. \Please refer to Annexure A of Shaun |Wustmatn’s statement. | | | 15 Continental ~ on 23 July 2001 representatives agreed to increase prices between 12% and 15% for the first half’ of 2002. In pursuance of the agreement, the tyre manvfactures announced increases as follows: 16.2, No lot provided. announced y" ve of [The Commission does acaba W a 1 fee mot allege that the price >ibproximate ly" 10% with etfect increase announcements Aum 2001 ere in writing or that gust . he announcements were made in the form of iprice increase letters. 16,3. Goodyear— on 25 July 2001 No INot provided, annonces an increase between 3% The Commission does and 270. ot allege that the price lincrease announcements were in writing or that the announcements were made in the form of iprice increase letters, 18. On 30 January 2002, the manufacturers' 16 Apollo ~ on 4 February 200218.1 No INot provided. announced average increases of 12% The Commission does : ae with effect from 1 March lnot allege that the price : . increase announcements were in writing or that the announcements were imade in the form of [price increase letters. 18,2 No fot provided. announced an average increase Lhe Commissi . mission does between 14% and 16% with effect eal . from 1 March 2002 not allege that the price tom. are! . increase announcements were in writing or that he announcements were Imade in the forin of price increase letters. ! A further increase between 12% and No lot provided. 14% was announced on 29 October IThe Commission does 2002 with effect from 1 January lnot allege that the price i 2003. increase announcements ere in writing or that ithe announcements were made in the form of Iprice increase letters. 18,3 BFSA - on 25 February 2002 No Provided, announced an increase between 12 A " : tems 42 and 61 of the and 15% with effect from | Aprif {Commission’s schedule. 2002 : Please refer to |Annexures A and T of Shaun Wustinann’s jstaternent. 18.4 Goodyear ~ announced an No lot provided, increase of 11% with effect from 1 February 2002 [The Commission does inot allege that the price increase announcements vere in writing or that ithe announcements were i nade in the form of Iprice increase letters. 17 6 No Provided. | 22and | On or about October 2002, the 23 manufacturers’ representatives agreed to items 41 and 62 of the increase their prices between 12 and 4 ata . Commiss schedule. 16% with effect from 1 January nussion’s schedule 2003. Please refer to para 62 . lof Shaun Wustmann’s Pursuant to this agreement, the statement and i manufacturers announced their price Annexure U thereto increases, . 24 Tn the. first quarter of 2004, the manufacturers’ representatives agreed to and increased their prices within a range between 5 and 7%, They then went on to implement their price jnereases within the range as follows: 2A Continental — on 24 April 2004 No INot provided. announced average increases of 5% rhe Commission does and 7% with effect from 1 July otallege thatthe price 2004. inctease announcements lwere in writing or that the announcements were made in the form of [price increase letters. 242 Apollo - on 30 April 2004 No Not provided, announced increases between 5% trhe Commission does and 10% with effect from } June lat allege that the price 2004 and 5%-8% with effect from |ncrease announcements 1 Iuly 2004. ere in writing or that the announcements were made in the form of price increase letters. 24.3 Goodyear — on 4 May 2004 No INot provided. announced increases of between Sect ‘ (The Commission does 3%-7% with effect from 1 June Inot allese that the price 2004, linerease announcements were in writing or that he announcements were made in the form of price increase letters, 24.4 Bridgestone — on 26 May 2004 No Provided, announced increases between 3% and 7% with effect from 1 July 2004. Htem 42 of the ‘Commission’s schedule. Please refer Annexure A f Shaun Wustmann’s i statement. 18 25 On or about February and March 2005, the manufacturers’ —_ representatives agreed to increase prices within a range between S and 7% for the first half of 2005. Pursuant to this agreement, the tyre manufacturers announced price increases as follows: 25.1 Continental — on 23 February 2005 Trem 68 Provided, announced average increases of 5% of the litem 68 of the and 7% with effect from 1 April Commis Commission's 2005. sion’s schedule. | Schedul € Please refer to Annexure SWS of” Shaun Wostmann’s supplementary ‘affidavit. 25.2 Goodyear— on 25 February 2005 Item 67 (Provided. announced average price increases of the ° of 6% and 7% with effect from | Commis jem 67 of the : April 2005 sion’s : P Schedul schedule, e Please refer to Annexure SW4 of Shaun Wustmann’s supplementary laffidavit. 25.3 Bridgestone — on 1 March 2005 Jtem 66 Provided, announced average price’ increases of the of 4% and 7% with effect from 1] Commis [fers 66 of he : April 2005, sion’s schedule. i Schedul e Please refer to iAmexure SW3 of Shaun Wustmann’s lsipplementary laffidavit. 19 8 Apollo - on 14 March 2005 No Not provided, announced average price increases + et « of 5% and 8% with effect from L Let alle tt the prise April 2005. inorease announcements ere in writing or that the announcements were ade in the form of price increase letters. 26 On 16 May 2005, the manufacturers’ representatives discussed and agreed on a further price increase by an average of 6% for the second half of 2005. Pursuant to the agreement, the tyre manufacturers increased their prices as follows; 26.1 Bridgestone — on 1 September 2005 Hem 70 Provided, apnownced an increase of a of the maxinun of 6% with effect from 1 Commis fer 7 or the October 2005. sion’s Schedule. Schedut . e [Please refer to Annexure SW7 of Shaun Wustmann’s supplementary laffidavit. 26.2 Goodyear — on 15 September 2005 Item 71 Provided, announced an average increase of of the Iter 7¢ of the approximately 7% with effect from Commis Commission’s 12 October 2005. sion’s lchedule Schedul . ec ‘lease refer to Annexure SW8 of Shaun Wustmann’s supplementary laffidavit. Apollo — on 31 August 200526.3 No Not provided, announced an average price increase lee) of 6 % with effect from | October [reeAlone thatthe pice 2005. increase announcements were in writing or that ithe announcements were Imade in the Form of price increase letters. 27 Jn or about June 2006, the tyre manufacturers represented by their respective Managing Directors, namely Ito (of Bridgestone), Dreyer (of Apollo), Boezio (of Continental) and de Villiers {of Goodyear), agreed to increase their prices by an average of 10% with effect from August 2006. Pursuant to the agreement, the tyre manufacturers announced price increases as follows: . . _. ee 27.1 Apollo — on 4 July 2006 announced Ttem 12 Provided, a price increase between 8% and of the PI 2of 12% with effect from 1S August} Commis rcage see tem ° 2006; sion’s chedule, ° Schedul . e 27.2 Goodyear - On 6 July 2006} Item 13 of the [Provided. announced a price increase of an | Commission’ Pi item 13 average of 8% with effect from | s Schedule ryoase See Tem Te ole August 2006. ; 27.3 Bridgestone— on | August 2006 ftem & Provided. announced a price increase between of the G ts 6% and 12% with effect from 1 Commis pleasesee ems 8 September 2006; sion’s ICormission’s Schedul schedule. © 274 Continental — on 22 September 2006 Ttem 14 rovided. announced a price increase of 8% of the SI Trem 14 of . * 19 with effect fram ] November 2006, Commis lhe CoseniestnWs ° sion’s ; Schedul schedule, e 21 28 In the Jast quarter of 2006, the manufacturers’ Managing Directors agreed to a price increase of between 6% and 8% for the first half of 2007. Pursuant to the agreement, the tyre manufacturers announced price increases as follows- 28,1 Apollo - on 30 January 2007] No. (Note: jot provided. announced an average increase of | Item 28 of the 10% with effect from 1 March 2007. | Schedule is a letter dated AL December 2006) 28.1 Goodyear — on S$ Decernber 2006 Item 27 Provided. announced a price increase with of the sl if effect from mid first quarter of 2007, Commis ease see Hem 27 of sion’s Schedul schedule € 28.3 BFSA -— on 29 January 2007 Ttem 19 Provided. announced an increase between 6% of the Pl items 1 and 10% with effect from 1 March Commis ind 20 ofthe ? 2007. Sion $ Commission's Schedul chedule 8 28.4 Continental — on 30 January 2007 Itern 29 Provided. announced an increase between of the 1 29 8% and 12% with effect from 1 Commis Hae see Tem 2 of March 2007 sion’s schedule Schedul e 22 NNEXURE‘6” CONTINUNTAT TYRES (PTY) LTD ¥ COMPETITION COMMISSION CASR NUMUER: CROSSAUGI/INSO7ISAML2 INRE: COMPETITION COMMISSION VS APOLLO TYRES AND OTHERS CASE NO: CROS3AUGLO SCHEDULE OF REQUESTED v RECEIVED DOCUMENTS DOCUMENT REQUESTED RRERRENCENO. RECEIVED/ NOT RECEIVED COMMISSION'S RESPONSE TO CONTINENTAL ‘The “search wanmnt”, Alfidavil: Pur 22, L, Hem 112 of the Ce issicn's: Provided. (Page 397 of the bunds} | Sehedte. em 112 of the Commission's achedule. 2B The “ouerous documents” seized | Founding Affidavit: Par 22 Nat received, ‘Net provided. from the premiisey of “Bridgestone, Appotta and the SATMC”, (Page 197 of the bundle) “bpollo documents” not yet weelved, (Gee paras 185 and 193, and Annexures CONS and CONS of Continental's Answering Affidavit to the Commission's Application. fot Defanlt judgement) Subject io confidentially claims. See para 70 of answering aifidavit, Although the Commission advised that {twould provide Apollo's documents it found that Continental ova not need these documents te assist ints pleadings. The. Commission lendvred to provide the 23 “Apollo documents it order (o maave the case forward, However, the ‘Comunission found that despite its cfforts, Continental had sought to exploit every conceivable loophole in. oder todelay, and was therefore: unltkely to file fis answer after having. recoived the Apolla decuments, Accotdingly, the Conimission maintained ifs stance that Continental was in a position fo file tls areswee eased on the Conmisston’s referral affidavitx. Teniency”, Beldgestone’s “upplication for Founding Affidavit: Pur 23. | Received, Itemg 1 ~ 114 of the Provided. Page 297 ofthe make) | ComUlsslon's schedule, Juans 4 — 124 of the Commission's schedule, The “agrecment". Founding Alfidavit: Par26 | Not received. Not provided. (Page 200 of the bundle) ‘The Commission does not allege thal the agreement isin wring, “The “eseatation formate”. Foonding Affidavit; Par AS Not received. Not provided, ‘The Coaunission does nat refer toa 24 GigeTW ofthebandly Toramenk 5. | the “eeetionie mit tccssions’. | Supptementary Atidavit: | Partially received. Provided. Panda SATMC's e-mails received, Hien 113 of the | Item 113 of Commisston’s sdedute, Page 222ofthe bundte) | Commi’ ashe. See pAFIBS Af | pytg oemnania ate wnt pat of the Continentals Anerdng Ailidavit tothe | ectrete mall digcassiono referred to Commtsstcn’s Application for Befaelt |. paragraph 43a thospplementary Jadgement) affidavit, bul rather patt of the seized ““Apaila docunsants” not yet received. (See | documents ~ poras 185 and 19.3, andA 5 CONS 7. the “elertoniccomnnanicaten". | Supplementary Aftidawit | saa cons of Continental's Anoweing | POWSEE? Parte Altidavitto the Commission's Application | Ttem 143 of Comunissfon's schedule, (age 22 ot the bundle) | fox Default Judgement. Apollo docuntents acenotpart of the Continental's request for “eeclmmic muit | electrante mail discussions retarted ko discussions? and “dettonie omoanareation* | in paragraph 4.4 of the supplementary is nol limited tothe SATMC's e-mails and | affidacit, but rather part af the selzed the "Apollo documents’, bu relates to all] documents, eetconie mall discussions and electronic comuuunleatfons refered fon paras 43 anv 44 of the Comminion's Supplementary Aflidavit. 8, | the "sumer foram for porting | Supplementary Affidavit: | Not recetved. Not provided, 25 industry stati? Paras (and is Pages 724 ant 225 ofthe bundle} The Commission ‘Tha Commission does not allege that the standard format for reporting industry statisties was recorded in a document within the meaning of High Contt Rule A5(12), ‘he Comunissiont is meculy recording agreement between the xespondents to use price ists for the purpose of establishing u standard format for reporting Industry sintistics, ns well as recording the exchange of price lists prrsuant to the agreement, “The "pric lists" exchanged under ftw auspices of the SATMC, Supplementary Affidavit: Pur 12 (age 244 of the bundle) Not received, Nol provided, ‘The Commission did not refer to written price lists in its supplamentary affidavit win the meaning of High Court Rule 35(12}, The Canmnission is merely recording agreement between the respondents to use price Tists for tho purpose of establishinga standard format for reporting industry 26 statiatics, ay well as recording the exchange of price lists pursuant to the agreement, 10 ‘The "pwice lists” exchanged between the relevant individuals, Supplementary Affidavit: Parts (Page 225 of thee bundle) Notreceived. Not provided, ‘The Comuission did not refer to Written price lists fn its impplementary affidavit within the meaning of High Court Rule (12), The Camnaulssion is merely recording agreement batwren the respondents to use price lists for the purpose of establishing a standard format for reporting industry statistics, as well as recording the exchange af price lisis purstiant to the agreement. 3 | The “request” submitted to the Stata Tender Board. Supplementary Affidavit: Par 20 (Page 227 of the bundle) Nol received, Provided, Please see hem 74 of the Commission's schednle (Btatement of ‘Tony Burns) at paragraphs 29 - 37 a well as ileme 81 ta 84 being Annexures 787;TH8; TB anxt TB1Oto the Statementof Tony Bums. 27