Nyiombo protests fine

Lawyers representing Nyiombo Investments Limited have filed a complaint letter with the Consumer Competition and Protection Commission (CCPC) following the Commission’s decision to fine it for cartelistic behaviour in the supply of fertiliser.

CCPC recently announced that Nyiombo and Omnia were each fined 5 per cent of their respective annual turnover for the period 2007 to 2011 in accordance of section 9 (3) of the Competition and Consumer protection Act No. 24 of 2010 (the Act).

But the lawyers, Eric Silwamba, Jalasi and Linyama have said that the above quoted provision was clear and rendered the decision of the Commission, dated 26 April 2013, illegal and viod ab initio and of no effect whatsoever.

“In view of this glaring irregularity we request that the board rescinds its decision, failure to which our client will seek prompt legal redress against yourselves,” the lawyers wrote.

A statement released by the Commission to the Daily Nation announced that the 2nd Board Meeting on adjudication of cases held on 26 April 2013 established that “the agreement entered by the two firms showed that they had expressly stated that the two companies shall cooperate in the distribution and supply of fertiliser in Zambia and that the primary objective is for each company to focus on supplying and distributing fertiliser in the allocated zones where it has sustainable competitive advantage”

“We would like to confirm that on 20 November 2012 we filed an appeal to the Competition and Consumer Protection Commission Tribunal (the Tribunal) raising issue with the impropriety of the investigative procedure and /or proceedings adopted by the Commission.

The grounds of Appeal relate to the same matters which the Commission has in flagrant disregard proceeded to adjudicate upon and recommend a fine and prosecution of our client” the lawyers wrote

The lawyers have further stated that the provisions of section 55 (11) of the Competition and Consumer Protection Act No. 24 of 2010 (the Act) preclude the Commission from proceeding to investigate or determine a matter once an appeal has been lodged with the Tribunal adding that any proceedings leading to a decision that is taken whilst an appeal has lodged before the Tribunal are null and void ab initio (Quoted verbatim, section 55 (11) of the Act reads as follows: 55 (11) The Commission shall not investigate a matter that is before the Tribunal unless the tribunal directs otherwise.