COMPETITION TRIBUNAL
REPUBLIC OF SOUTH AFRICA

In the matter between:
The Competition Commission 				Complainant

and

Member), and L Reyburn (Tribunal Member)

The Tribunal, hereby confirms the settlement agreement and the addendum to the settlement agreement, annexed hereto marked "A" and "B" respectively, as agreed to and proposed by the Competition Commission and the Respondents.

D Lewis
Concurring: N Manoim and L Reyburn

IN THE COMPETITION TRIBUNAL OF SOUTH AFRICA
Held at Pretoria

						Case No: 49/CR/Apr00
In the matter between:
The Competition Commission 					Complainant
Botswana Ash  (Pty) Ltd 						First Intervening Complainant
Chemserve Technical Products (Pty) Ltd  			Second lntervening Complainant
and
American Natural Soda Ash Corporation  			First Respondent
CHC Global (Pty) Ltd  						Second Respondent

The parties hereby agree that application be made to the Competition Tribunal to confirm the settlement agreement described below.
1.      	Definitions
For the purposes of the settlement agreement the following definitions shall apply-'
1.1.	"Act" means the Competition Act, 1998 (Act No. 89 of 1998), as amended;
1.2.		"Agreement" means this agreement duty signed and concluded between the Commission, ANSAC 			and CHC;
1.3.	"ANSAC means the American Natural Soda Ash Corporation;
1.4.	"Botash" means Botswana Ash (Proprietary) Limited;
1.5.	"CAC" means the Competition Appeal Court;
1.6.	"CHC" means CHC Global (Proprietary) Limited;

1.9.		"Complaint" means the complaint filed by Botash and Chemserve against ANSAC and CHC on 28 			October 1999 In terms of section 49D of the Act, and referred by the Commission to the Tribunal on 			14 April 2000 in terms of section 50 of the Act;
1.10.	"Membership Agreement" means the agreement, as amended, concluded between certain United 			States producers and having as Its purpose the promotion by ANSAC of export sales and to improve 			the competitive position of United States soda ash in foreign markets by creating a corporation for the 		sole and exclusive purpose of engaging in export trade and making export sales strictly in accordance 		with the policy and provisions of the United States' Webb-Pomerene Act.
1.11.		"Parties" means the Commission, ANSAC and CHC;

2.1 	Following the submission of the complaint by Botash and Chemserve on 26 October 1999, to the effect thai ANSAC and CHC had contravened sections 4(1)(b)(i) and 4(1)(b) (if) of the Act, the Commission undertook an investigation into these alleged prohibited practices.

2.2.1.	ANSAC is an association incorporated in accordance with the provisions of the United States Export 	Trade Act, 1918, commonly known as the Webb-Pomerene Act
2.2.2.   The purpose of the Webb-Pomerene Act Is to exclude the application of the Sherman Act of 1890 to United States associations engaged solely in export trade and whose activities do not restrain trade within the United States.	

2.2.4.	In terms of the membership agreement and its bylaws, ANSAC has a board of directors to which each member is entitled to nominate the appointment of two directors,
2.2.5.	The board of directors is entitled to make certain decisions Including the price at which soda ash is offered for export sale to customers, as well as trading conditions pertaining to such sales.
2.2.6.	In respect of its sates of soda ash to South Africa, ANSAC had engaged CHC as its agent and in that capacity CHC gave effect to the decisions made by ANSAC.

Accordingly, on 14 April 2000, the Commission referred the Complaint under Case No 49/CR/AP R00 to the Tribunal in terms of section 50 of the Act.

2.4.     Botash and Chemserve were later joined as interveners In these proceedings.

4.2.	On 13 May 2005, the SCA directed that the matter be returned for further proceedings before the Tribunal in order for the latter to characterise the conduct of ANSAC and GHC for purposes of the application of section 4(1 )(b) of the Act.
4.3.	On 23 July 2008, hearings into the merits of the matter commenced before the Tribunal, during which evidence was led. On 28 August 2008, ANSAC and CHC closed their case. Closing argument Is scheduled to take place from 4 to 6 November 2008.

Solely for purposes of this settlement agreement to settle the instant proceedings, ANSAC admits that the Membership Agreement eliminates price competition between its members in export sales to South Africa in contravention of section 4(1)(b)(i) of the Act.

6.1.1.	to make no further export sales to South Africa for delivery more than 6 (six) months after the date of confirmation of this agreement by the Tribunal;
6.1.2.	within 30 (thirty) business days of confirmation of this Agreement by the Tribunal to:

6.1.2.2.file the amended agreement, duly signed by all the members, with the Competition Tribunal and with the Commission;

7.1.	Having regard to the provisions of section 58(1)(a)(Eli) read with sections 59(1)(a), 59£2) and 59(3) of the Act, the Respondents agree to pay an administrative penalty in the sum of R9 696 846,96 (nine million six hundred and ninety-six thousand, eight hundred and forty-six Rand and ninety-six cents) representing 8% of soda ash annual turnover in South Africa.
7.2.	The penalty will be paid by the Respondents to the Commission within 30 (thirty) business days of the confirmation of the settlement agreement by the Tribunal.

This Agreement is entered into in full and final settlement of all proceedings between the parties in relation to any alleged contravention of the Act under Commission Case No. 19990CT49 and Tribunal Case No. 49/CR/AprOO including all pending appeals arising out of these proceedings.

No contract varying, adding to, deleting from or canceling this Agreement, and no waiver of any right under this Agreement, shall be effective unless reduced to writing and signed by or on behalf of the Parties.

Signature ______________
Name _______________________
Designation ____________________

Duly authorized representative of American Natural Soda Ash Corporation and CHC Global (Pty) Ltd

Dated and Signed at Pretoria on 3 November 2008

________________
Shan Ramuruth
Commissioner
Competition Commission of South Africa

ADDENDUM TO SETTLEMENT AGREEMENT IN CC CASE NO. 1999OCT40 AND CT CASE NO 49/CR/Apr00
1.	The undertaking in paragraph 6.1.1 includes within its scope that ANSAC will not sell soda ash to any natural or juristic person, or through any entity, vehicle or trust ("person"), or otherwise transact with any person, in circumstances where ANSAC knows, or there are reasonable grounds for suspecting, that such person intends to sell, whether directly or indirectly, ANSAC soda ash into South Africa.
2.	ANSAC undertakes that any utilisation made by an ANSAC member of ANSAC's logistical arrangements or capacity, including, but not limited to, any and all arrangements with providers of any logistical services, including, but not limited to, railway, shipping, handling, transporting, warehousing, storage, stevedoring, delivery and scheduling services, for export sales to South Africa shall not be used so as to engage in conduct prohibited by section 4 of the Competition Act 89 of 1998.
3.	Ansae and CHC will be jointly and severally liable for the agreed, alternatively taxed, costs of three legal representatives (attorney and two counsel), together with such qualifying fees of experts employed by Botash for purposes of this litigation as are agreed, alternatively allowed on taxation.