Wesbank denies CompCom collusion and market division allegations

Claims its joint venture with Toyota Financial Services is ‘quite legitimate’.
The commission launched its investigation the day it received a complaint from a customer (in January 2021). Image: Moneyweb

WesBank, the vehicle and asset finance division of JSE-listed FirstRand, believes its joint venture with Toyota Financial Services (TFS) is “quite legitimate”.

This follows the Competition Commission reporting on Thursday that it has referred motor vehicle finance institutions FirstRand Bank, Wesbank, and TFS to the Competition Tribunal for prosecution on allegations of dividing the market by allocating customers or suppliers.

Read: CompCom charges FirstRand, Toyota with collusion; recommends hefty fine

WesBank Motor CEO Ghana Msibi said on Thursday they have engaged and cooperated with the commission and given them everything that was requested.

Msibi stressed that it is only when the commission refers the matter to the tribunal that WesBank gets access to the contents of the facts on which it is basing its decision to refer the matter to the tribunal.

Competition concerns ‘being studied’

“So we are still studying it … [to] get a better understanding of exactly what is the basis of their concerns.

“But as things stand [with] the restraint clause in question, we are still of the view that the joint venture is quite legitimate and there is no market division in any shape or form.

“From our perspective, the basis of the restraint clause that is in question is justified for the contract or within the context of a joint venture,” said Msibi.

He added that based on what the commission is now putting forward, WesBank is of the view that the joint venture is legitimate and it has been set up with that particular clause in question “to be the best solution for servicing our customers”.

He confirmed that WesBank had its initial discussions with the commission in late November or early December last year and started engaging with the commission again last week following a festive season break.

Clynton Yon, senior manager marketing and corporate communications at Toyota South Africa Motors (TSAM), said on Thursday he was unable to comment at this stage on the Competition Commission’s referral.

Agreement

The commission said on Thursday its investigation revealed that Wesbank and TFS entered into an agreement to divide markets by allocating customers or suppliers in the market for the provision of vehicle finance in contravention of a section of the Competition Act.

It said the motor vehicle finance market includes offering vehicle finance, leases, and dealership financing – and that FirstRand Bank Limited, through its WesBank division, and TFS are involved in the provision of vehicle finance services.

“They are therefore supposed to compete,” said the commission.

“They, however, concluded a shareholder agreement which contains clauses that prevent them from competing.”

The commission added that FirstRand, TSA Investment Holdings Limited and Toyota Motor Finance (UK) Plc each have a 33.3% shareholding in TFS.

Clauses

“They concluded a shareholder agreement which includes clauses that prohibit WesBank from offering vehicle finance to customers seeking to purchase vehicles at authorised Toyota dealerships.

“Further, the agreement identifies the vehicle[s] that Wesbank is prohibited from financing, and these are the ‘new’ Toyota, Lexus and Hino vehicles and any ‘used’ vehicles sold through any authorised Toyota dealership, except McCarthy Group.

“This arrangement constitutes market division by allocating customers or suppliers in contravention of section 4(1)(b)(ii) of the [Competition] Act,” it said.

The commission said this type of collusive conduct is harmful to consumers because it deprives them of the benefits that arise from competition.

“Such agreements are inherently inimical to competition and the commission has asked the tribunal to fine the companies 10% of their turnover,” it said.

Competition Commission spokesperson Siyabulela Makunga said the investigation into the agreement between WesBank and TFS was launched on January 6 2021, the same day it received a complaint from a customer.

Makunga said the investigation took almost a year to complete.

He said the commission is not investigating any of the joint venture agreements WesBank has with any other vehicle brands and nor is it investigating the joint venture agreements that the vehicle and asset finance businesses of any other banks have with manufacturers, importers or distributors.

The CompCom’s head of communications Siyabulela Makunga speaks to Fifi Peters about the case:

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A truly successful economy is based on competition and competitive advantages have always been the foundations of Capitalist motivations that drive consumer aspirations.
This commissions enquiry seems to have only targeted one specific JV – one has to wonder why this is? Perhaps there is more here than meets the eye! For true transparency, all JV’s that Wesbank or any other financial businesses has with manufacturers, dealerships and/or importers needs to be disclosed. That is the only fair way to gauge if this particular JV is corrupt.

if Wesbank did the same JV with all the car companies then it would only be financing used vehicles sold through non-franchise dealers. The scheme would not make commercial sense unless Wesbank gets a slice (as it does) of every deal that goes through franchised dealers.

Will take ten years in court

Not so sure Johan. Easiest seems to be to roll over and pay a fine. Suits the lawyers, the CompCom and FNB fatcats; the consumer who actually picks up the tab, not so much.

End of comments.

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