Competition Commission & Competition Tribunal & IDC 2018/19 Annual Performance Plan

Meeting report

Opening remarks
The Chairperson invited the Chairman of the Board, Ms Busisiwe Mabuza to make her opening remarks.

Ms Mabuza thanked the Committee for the opportunity to present to them. The last time IDC had met with the Committee was when the Corporation presented its Annual Performance Report for the previous financial year.  At that time, things had looked gloomy. The economic conditions seemed challenging. However, the economy was starting to recover. Moody’s had reaffirmed South Africa’s credit ratings and that had changed the outlook from negative to positive. That was a sign of good things to come. However, for the economy to grow, the economy needed investments. She assured the Committee that the presentation of the IDC Corporate plan would demonstrate that the plan would put sufficient pressure on the Corporation and its entities to ensure a meaningful impact.

IDC Corporate plan 2018/19 - 2022/23
Mr David Jarvis, Divisional Executive: Corporate strategy, and Ms Nonkululeko Dlamini, Chief Financial Officer at the Industrial Development Corporation of SA Ltd. (IDC), presented the IDC Corporation plan for2018/19 – 2022/23.

The leading business cycle indicator of the South African Reserve bank had been edging higher since January 2016, possibly reflecting ‘green shoots’ and the renewed upturn in the economy. The pace of expansion for the economy was forecast at 1.4% for 2018 and was expected to accelerate towards 2.8% by 2020, when substantially improved contributions were expected from household spending, fixed investment activity, and export sales.

The key focus areas for the period 2018/19 to 2022/23 would be increasing industrial development through
value chain and priority sector strategies, a healthy projects pipeline, supporting sectors with immediate impact on production capacity and job creation, and supporting companies in distress and affected by the current environment.  IDC would also gear up for the Fourth Industrial Revolution (4IR) by investing in 4IR in the broader economy, whilst implementing 4IR in existing investments. The intention was to establish a high-performance organisation by improving systems, processes and using technology.

Maintaining financial sustainability would be of utmost importance. The IDC’s financial performance had remained sound, notwithstanding a tough operating environment. The demand for IDC funding from companies in distress was set to continue and it was important to monitor the impact that it would have on IDC’s funding activities and its tolerance levels for impairments. IDC would continue to diversify sources of capital, manage costs and increase revenue. Material subsidiaries continued to play crucial roles in the implementation of IDC’s sector development strategies and/or facilitated access to specific market segments. However, those subsidiaries continued to underperform and were receiving immediate attention.

Discussion
Mr P Atkinson (DA) inquired about the financial sustainability of IDC. The history of IDC indicated that it had been going for a long time and that it had been a very important asset to the economy. Instead of relying on projections, it was essential for IDC to be sure that the organization was financially sustainable. He hoped that there would be no drop in the quality of the loans that that IDC gave out. He emphasized that the survival of the organization was paramount.

Mr Atkinson was keen to know what progress had been made regarding the black industrialist program. He asked IDC to mention examples of situations where money was given out to the people and how that had been going.

The presentation had indicated that there was conscious effort to engage in the Fourth Industrial Revolution (4IR). He advised IDC to make a conscious effort with developing its strategy because the 4IR was critical to the economy. He asked that, in the future, IDC should include specific examples of countries that had been identified for the 4IR projects and how the project was going to be taken forward.

Ms A Mfulo (ANC) was concerned about the economy’s forecast. According to the presentation, the pace of expansion of the economy was forecast at 1.4% for 2018, accelerating towards 3.8% by 2020. However, the National Development Plan (NDP) called for an average annual growth target of 5.4% per annum for the period up to 2030. Why was growth of 5.4% per annum not being achieved?

She noted that IDC was committed to increasing development in poorer communities. Could IDC provide a plan indicating how it was going to be achieved and how the challenges were going to be overcome?
Similarly, she asked for a plan on how the Fourth Industrial Revolution (4IR) was going to be embraced.

Ms Mfulo was concerned about who the beneficiaries of IDC’s services were.  It seemed like the services were for everyone except people with disabilities. The people with disabilities were part of the vulnerable community and there was need for the services of the IDC to reach them too. She asked IDC to explain if there was a plan in place to ensure that women with disability were reached.

Ms N Hlonyana (EFF) said that IDC was viewed as an organ that only dealt with the ‘haves’ and not with the ‘have-nots’. She asked IDC to explain as they would explain to an ordinary South African citizen how IDC benefited the ‘have-nots’. She stated that IDC was one of the most difficult organizations for ordinary citizens to get assistance from.

Mr I Pikinini (ANC) asked how IDC was going to unlock economic potential in raw materials. The understanding was that raw materials were usually taken out of the country before beneficiating from them.
South Africa had export opportunities in terms of agro-processing. Was IDC making an impact in that area and was there value for money?

Mr S Tleane (ANC) was concerned about countries in distress. In planning for the next year, it was important to discuss what had transpired previously in terms of the challenges and how they were going to be dealt with going forward. What was the plan for those companies because it seemed like companies in distress were going to be there for quite some time.

Mr Tleane noted that the presentation had mentioned that there was a need to improve intermediary sustainability through capitalization and business support. Some years ago, there had been talks about having to reduce the use of intermediaries because the money tended to be diverted away from those that were supposed to receive it. What was by the statement “improving intermediary sustainability”?

The CFO had stated that the Foskor had performed better when the rand was weaker and that it was failing to make progress now that the rand had strengthened. However, the rand had been weak for a very long time but had only strengthened recently. Mr Tleane asked IDC to explain why Foskor was still underperforming even when the rand had been weaker. Could IDC briefly explain its investment in the African region and the challenges that were being experienced in that regard?

The Chairperson asked IDC to provide a plan for the 4IR including a timeframe indicating when IDC anticipated the project would be concluded. She was not sure if the IDC was being open about the Rest of Africa investment. It would have been better if the presentation had included specific projects and the specific issues that IDC was planning to deal with.  That would enable the Committee to hold IDC accountable as far as those issues were concerned.

The Chairperson asked IDC to provide more information regarding the 2017 estimate of the Gross Fixed Capital Formation (GFCF) growth rate.  She wanted the actual figure not an estimate and an explanation of the status of GFCF. The Yellow Kiwi had been tested locally in South Africa. How was the Yellow Kiwi going to help the local people apart from the jobs that were going to be created and its contribution to the government finances. Asia and Europe were both interested in the Yellow Kiwi, but IDC had chosen to focus on Asia. However, it was known that Asians quickly tired of things and tended to switch from one thing to another quite quickly and easily. She asked if the Yellow Kiwi project was correctly handled, given that the Asians may one day lose interest and switch to something else. 

How was IDC helping local people to develop an interest in making investments from what they already had? IDC could teach them how to do business by working together with the Research Council and other organizations that could help local people in that regard. How was IDC helping local people develop an interest in doing business?

The Chairperson said that there were complaints that IDC had not been responsive when it came to helping women benefit from their services. She asked what IDC was doing to encourage women to make use of the services they provided.

Response by IDC
David Jarvis explained that the economic environment was important for IDC because the IDC’s role was counter cyclical. Whenever an economic indicator was not performing well, IDC was mandated to intervene. The GFCF growth rate was negative in 2017 and was estimated to be stagnant in 2018.  IDC had to intervene to counteract the impact that that had on the economy. He said that the finalized value for the 2017 GFCF growth rate was currently not available. He would provide the Committee with the actual value once an economist had been consulted.

Mr Geoffrey Qhena, Chief Executive Officer: IDC, assured the Committee that, as far as the Board was concerned, financially sustainability was at the top of everyone’s mind.  It was kept in mind every time an investment was made. Every time an investment was made, whether it was a startup or an expansion, IDC always ensured that the investment had the ability to repay. The levels of impairment were a major concern now that there was a new accounting system.  However, this did not mean that IDC should stop doing business, otherwise there would be no startups.

Mr Qhena explained that Foskor had been recapitalized because there was an old plant that needed recapitalization.  The old plant was the reason why Foskor could not perform well enough to take advantage of the weaker rand. For that reason, a lot of money was spent to ensure that the plant was upgraded.

Ms Lizeka Matshekga, Divisional Executive: Agro, stated that IDC was committed to the 4IR environment.  There were strategies in place to ensure IDC was making an impact. She said that a new unit called ‘New Industries’ had been formed in her division. That was done to support industrialization in the country by bringing new industries that would help reindustrialize South Africa and the region. She said that they had assessed what IDC and the country could do to take advantage of the opportunities presented by the 4IR. It was agreed that IDC would not reinvent the wheel but would rather adopt global technology.  IDC had already started investing in the 4IR technology. Two investments were made during the previous Financial Year. Both investments were in the Nano technology environment. The Nano material invested in could also support energy solutions.

Ms Matshekga said that the agro-processing and agricultural unit was focusing on high value crops. These crops could be South African, or crops obtained from outside the country, such as the Yellow Kiwi. The focus on foreign crops was to ensure that South Africa was competitive globally. Agro-processing and agriculture play a significant role in the economy and it was IDC’s responsibility to broaden the variety of crops rather than simply relying only on the old ones.  In terms of the Yellow Kiwi example, the project was currently at the feasibility stage. IDC wanted to ensure that the land was available to the community. The aim was to prevent people from being land owners relying only on rental income by giving them an opportunity to participate in the secondary processing. 

She stated that ordinary citizens had already benefitted from the services of the IDC. In Eastern Cape, the government had provided land to the people through the land restitution program. IDC worked closely with the government to provide the people with access to capital and to provide them with technical assistance and guarantee a market for their products.

Ms Matshekga said that investment in the rest of Africa was about mutual benefit for the home country as well as the South African economy. IDC would ensure that it achieved in terms of job creation and skill development in the home country. With South Africa currently experiencing land and water shortages, IDC was looking to benefit from opportunities in other African countries. For example, Zambia was good for growing soya, and feed for the poultry industry. IDC was targeting Zambia for growing of soya, and then bringing it back to South Africa for value addition and to lower the cost of animal feed, especially for black entrepreneurs, because it was the biggest input cost for them.
 
Competition Commission Annual Performance Plan 2018/19
Mr Tembinkosi Bonakele, Commissioner: Competition Commission presented the Competition Commission Annual Performance Plan 2018/19.

The Commission investigated complaints, assessed mergers, evaluated exemption applications, and undertook market inquiries and advocacy, to achieve equity and efficiency in the South African economy.

The Commission had a 15-year vision which considered South Africa’s socio-economic context. Vision 2030 was to regulate for a growing and inclusive economy, in line with the aims of the National Development Plan (NDP). The vision defined the Commission’s role in the transformation of the South African economy and was a response to the country’s socio-economic challenges of unemployment, poverty and inequality.

The 2018/2019 targets had, in some instances, been revised downwards in light of inadequate funding. The four key revisions were:
-downward adjustment of initiations for cartel investigations.
-adjustment in number of market inquiries for initiation and completion.
-removal of advisory opinion services.
-adjustments in number of scoping studies and impact assessments undertaken.

The Commission had initial service standards for assessing mergers with varying complexities, guided by timelines provided for by in the Act. The Commission would ensure that it won more than 70% of the merger cases litigated or taken upon review in the courts.

The Commission would initiate eight new cartel investigations in 2018/2019. That was a drop from the 2016/2017 commitment of 25 initiations. The decline in initiations was due to resource constraints, coupled with a high, increasing and complex volume of cases.  The Commission would complete more than 75% of abuse of dominance investigations within 24 months. It had 154 cases at various stages of prosecution in the Competition Tribunal and the Courts, of which 121 were cartel cases.

In terms of market inquiries and economic research, the Commission would initiate one market inquiry in 2018/2019 and aim to complete two. On-going market inquiries, which were at various stages, included private healthcare, grocery retailers, data costs and public transport.

Revenue was derived from a number of sources. Merger fees were expected to total R 75 331 000, while interest would add R 4 000 000 and other income R 900 000. A grant of R279 769 000 was expected, making a total budget of R 360 000 000. Expenditure consisted of human resource costs of R 216 915 000 and operational costs of R 143 075 000, making the total expenditure R 360 000 000. Human resource expenditure showed an increase over the previous year, but operational costs were down by R8 248 000

The shortfall in revenue had, in the past, been funded by accumulated surpluses from the previous financial years, but those surplus funds had depleted since 2017/18. The volume of merger applications was unpredictable, which posed a risk with regards to revenue. In anticipation of the additional workload and complexity of cases, the Commission had requested additional funding, which was declined. The Commission would continue to manage resources towards a clean audit.

The major related to increased workload induced by the Commission’s success, which required adequate capacity and resources.  Failure to address capacity constraints meant the Commission could not do more – hence the downward forecast and projections. In turn, the strategic mandate and outcomes are negatively affected.

The Commission required an increase in its resources in order to be able to carry out its mandate and meet government’s prioritisation of competition policy.  The current funding model and budget allocation were not adequate to support the high, and increasing, volume of cases which the Commission had, nor to support the complex investigations and litigation it undertakes. The 2018/19 targets had, in some instances, been downwardly revised in light of inadequate funding.


Discussion
Dr J Cardo (DA) asked if the Competition Amendment Bill in its current form was going to be an even greater burden on the Commission and whether it might have an impact on the on the organizational structure.
Was the current planning taking into consideration the Competition Amendment Bill in terms of the Commission’s human resource department?

Dr J Cardo noted that the presentation had referred to the banking collusion case. He asked the Commission to provide a more detailed explanation for the delay of the case. The Commission had many inquiries, including private healthcare, grocery retailers and public transport. He asked how the Competition Commission decided as an institution what the inquiries were to be.

Ms Hlonyana said that the biggest worry was that South Africa was open to anyone who wanted to rob people or dump things in the country. With the Competition Commission decreasing its activities and cutting costs, there was a fear that the Commission might end up being a “a big scary dog without teeth.” Once that happened, the gates of cartels and others would open.

She said that the staff working at the Commission should not be paid less money because the cartels had a lot of money and may end up bribing the staff at the Commission. She advised the Commission to look at the matter closely.

There was a need to educate the people of South Africa on what the Competition Commission was all about. Cartels and robbers would be afraid to engage if the public was educated on the role of the Commission and the competition laws. There were many agencies on which expenditure was wasted, and the money should be diverted from those agencies and directed towards educating people and ensuring that the Competition Commission was effective at doing its job. The Commission should never find itself being a toothless dog. Measures should be put in place to ensure that the Commission was a vicious machine of which people were afraid. 

Ms Mfulo noted that the presentation had indicated that the Commission would ensure that more than 75% of the cases that were litigated or taken upon review in courts were won. That statement implied that the cases were still underway. Why was the Commission sure of winning the cases? She reasoned that, if the Commission was targeting the completion of 50% of the investigations in 12 months, it should target completion of 100% of the investigated cases in 24 months.  However, the presentation indicated that the Commission was targeting completion of 75% of the investigations in 24 months. Why was that the case?

The Chairperson said that the challenges facing the Commission were understood. The Committee was happy to hear the Minister had decided to amend the Act to suit the current situation. Legislation evolved with time and it would be improper to continue relying on the things that had been drafted a long time ago.

The Chairperson was worried that the issues that came about because the Amendment was not center stage in the Commission’s plan. The Committee had hoped that market inquiries would be intensified. The targets for investigation completion were not convincing. It was not convincing that the Commission would complete investigations within 24 months given that abuse of dominance investigations normally took a long time.

The Commission had used people who were investing cases of cartels to do litigation work as well and had the same targeted period for both tasks. She asked if it was feasible to meet the targets without added human resources. Did the Commission not need some dedicated personnel for market inquiries. She encouraged the Commission to collaborate with specialists, such as economists, and train them to help with some of the tasks instead of hiring new employees.

Response by the Competition Commission
Mr Sipho Ngwema, Head of Communication: Competition Commission, said that the Commission was trying to capitalize on the work they did and on the publicity about the work they did. The aim was not only to position the Commission in the mind of the public, but also to use the opportunity to educate them about the Commission and its work. Every time there was a focus on a case or something that the Commission had done, the opportunity was used to educate the community about those issues. The Commission was also trying to educate the public on what the Competition Commission did and what powers it had. As a result, it was receiving a lot of consumer-related inquiries which meant that the work done by the Commission was becoming known.

The Commission had undertaken public education in collaboration with SABC and Metro FM. The collaboration had enabled the Commission to reach a larger public. However, to widen its reach to communities and villages, there was a need to provide education in languages other than English. However, the Commission did not have the necessary resources for the public education work. Mr Ngwema added that no work had been done in terms of educating the disabled. However, the Commission was going to take that into account once the resources were made available.

The Chairperson asked the Commission to indicate the resources that were needed to communicate through community radio stations.  

Mr Ngwema said that the radio stations had an advertising element and they needed to survive so there had been a fee that was attached to it. The Commission did not have enough money to pay those fees.

Ms Khanyisa Qobo, Divisional Manager: Advocacy, said that the Commission only had 200 staff members and one office in Pretoria. As a result, the Commission tried to piggyback on the efforts and programs of its stakeholders and would use their platform to reach a wider audience. The Commission had also been actively using social media to be able to reach a wider audience in a cost-effective way. 

Mr Hardin Ratshisusu, Deputy Commissioner at the Competition Commission said that the Commission currently had over 100 cartel cases. They were not easy cases because they involved people who tried to hide as much information as possible from the Commission.  For the Commission to be able to successfully prosecute those cartels, it needed to build a case. The new requirements required the Commission to complete half of the cases within 12 months which was a stricter requirement. The higher requirements of completing at least 60% within 18 months and 75% within 24 months were even stricter.

Mr Ratshisusu said that, in terms of efficiency, some cases were taking a long time to complete whereas others were not. The Commission had to be responsible about the way in which the cases were handled. There was no need to rush for the sake of rushing because the Commission would lose the cases. The cases needed to be handled as efficiently as possible.

Mr Bonakele explained that there were two things happening. Firstly, the mandate was expanding. That meant that there was going to be more work even if nothing else had changed.  Secondly, a decision had been made that the Commission was going to rebalance the insourcing-outsourcing equation in favor of more insourcing.  That was because it was cheaper to insource than to hire than to hire consultants and the Commission would be able to retain the information and knowledge with internal people. Furthermore, insourcing would leave the Commission less exposed because external lawyers also worked for other parties. The more the work was done internally, the more control the Commission would have over many things. In response to the change in environment, the Minister had introduced a new plan to increase the number and also the capacity of staff. That meant that the number of staff was increasing and the same time the consulting budget was decreasing.

Mr Bonakele explained that there was no decrease in the activity of the Commission, even though there was no real increase in the budget. What had happened was that there was a shift from only doing investigations, which probably constituted about 80% of what the divisions were currently doing. The same people in the division would do both investigations and litigation. To strike a balance, the Commission had to increase the numbers.  Doing that required a change in the thinking of how the institution could be resourced. However, the change in the funding model required the approval of National Treasury and the Minster had indicated that it was not going to happen because it was a major change to the model. In terms of service delivery and the core aspect of what the Commission did, investigation and prosecution, there was no lessening of activity. There was just a rebalance.

The Commission had a highly effective graduate training program and thus employed graduates from universities. However, the Commission could allow a graduate from university to do complex investigations because only experts could testify before the Tribunal.

Competition Tribunal Annual Performance Plan 2018/19
Mr Norman Maniom, Tribunal Chairperson, Ms Janeen De Klerk, Chief Operating Officer, and Ms Lerato Motaung, Head of Registry, presented the Competition Tribunal’s Annual Performance Plan 2018/19.

The Tribunal’s legislative mandate was aligned with the Economic Development Department’s strategic objectives while the Tribunal’s strategic objectives were aligned with the National Strategic Outcomes (NSO).
The three broad strategic objectives of the Tribunal were to ensure effective and efficient adjudication;
build and develop effective stakeholder relationships and adhere to good corporate governance and sound business practice.

Ensuring effective and efficient adjudication meant that matters brought before the Tribunal were to be heard within the adopted delivery time frames. There was to be expeditious conclusion of hearings and improved management of information.

The Tribunal had set very specific targets for each of the adjudicative processes and for communication matters. The IT system had been upgraded to ensure security and efficiency and the website had been re-designed for easier access. Stakeholder relationships had been improved and extended by the effective use of social media. Specific details of complaints and referrals had been provided in the APP.

The total budget requirement for 2018/19 was R 5 627 000, of which the expected MTEF allocation was R 3 509 000, with the remaining income from expected filing fees from the Commission (R 1 857 000) and R 88 000 coming from other Income with the shortfall of R 173 000 coming from the Accumulated Surplus.
The merger fees were an estimate based on the actual cases filed in 2017/18 and the newly revised filing fees. However, filing fees were not sufficient to cover expected expenditure. The Tribunal would request permission to retain surpluses totalling R 1.83m in 2018/2019.  An additional grant of R 7.86m would be required in the next two years of the MTEF.

Discussion
Dr J Cardo asked if the Competition Amendment Bill was going to be enacted in its current form. Did the Tribunal foresee an increase in the number of cases for the Tribunal? He asked for an update on the Banking collusion case.

Mr Tleane noted that the presentation had mentioned that the Tribunal was an administrative court which had to re-active and not pro-active.  The presentation then stated that that constrained how the Tribunal made future plans. He asked the Tribunal to explain what it would want to happen so that the future plans could happen much faster given the circumstances.

The Chairperson asked the Tribunal if it had dedicated staff for social media. She asked the for more information on the spread of interns in terms of the number, duration of the internships and in terms of gender. She encouraged the Tribunal to respond immediately to Management Letters with clarity, given that there were complaints that departments, as well as the Tribunal, had problems in that area.

Response by The Competition Tribunal
Ms Janeen De Klerk explained that the fact that the Tribunal was re-active did not really constrain its future plans, but it was limited in terms of setting objectives. It could not set objectives outside of its normal mandate. The Tribunal’s objective was to do the mandate in terms of the Act.  She explained that the Tribunal had vacation interns. Those vacation interns only worked with the Tribunal during the July and December university vacations.

The Tribunal could not create new positions because the structure was already defined. There was not much opportunity give the interns permanent positions. As a result, the Tribunal had created contract positions. Instead of paying one person at a very high salary, the budget was allocated to two or three people to work, not as interns, but as Junior Case Managers on either one-year or two-year contracts, depending on what the labor law requirements were. Internships enabled people to help at times of the year when there was a need for an extra hand.

Ms Klerk said that regarding social media, the Tribunal had a communications officer who oversaw all communication and managed the twitter and Instagram accounts. The officer also dealt with visiting foreign delegations and competition authorities.  

The Chairperson thanked everyone for their contributions.
 
The Meeting was adjourned.