The Competition Commission is taking its bid to prosecute Group Five for allegedly being part of a construction cartel that rigged tenders for Fifa 2010 World Cup stadiums to the Constitutional Court.

A Cape Argus report notes Group Five has so far blocked action against it based on a claim that the Competition Commission granted it immunity in November 2009.

The commission now wants the apex court to rule that both the High Court and SCA had erred.

In its heads of argument, filed at the Constitutional Court, the commission submitted that only the Competition Tribunal had jurisdiction to entertain Group Five’s application.

‘We submit that all issues arising in Group Five’s High Court application fall within the tribunal’s exclusive jurisdiction. Accordingly, the High Court ought to have found that it did not have jurisdiction and the SCA erred in holding otherwise,’ said the papers.

The SCA effectively endorsed a practice by companies to evade the tribunal and prosecution, said the commission.

‘We are now 11 years since the initiation was first made, but the prosecution is yet to commence. That contradicts the wording and intention of the (Competition) Act.’

In its opposing papers, Group Five submitted that the SCA was correct to rule that the High Court had jurisdiction to entertain its application against the prosecution referral.

It repeated that the commission granted it immunity in 2009.

The ‘immunity’ rendered the prosecution ‘vexatious, oppressive and taken in bad faith’, said the firm.

However, notes the Cape Argus report, Mfundo Ngobese, an inspector at the commission’s cartel division, denied in an affidavit that Group Five was granted immunity.

‘The commission maintains that Group Five was not granted immunity and elected not to settle the matter with the commission. This factual dispute is not before this court,’ Ngobese said.

‘Group Five has yet to answer the allegations against it.’

The report notes the Constitutional Court will hear the matter on 3 May.

Full Cape Argus report