A Q&A guide to competition law in South Africa.
The Q&A gives a high level overview of merger control, restrictive agreements and practices, monopolies and abuse of market power, and joint ventures. In particular, it covers relevant triggering events and thresholds, notification requirements, procedures and timetables, third party claims, exclusions and exemptions, penalties for breach, and proposals for reform.
To compare answers across multiple jurisdictions visit the Competition law Country Q&A tool.
This Q&A is part of the PLC multi-jurisdictional guide to competition and cartel leniency. For a full list of jurisdictional Competition Q&As visit www.practicallaw.com/competition-mjg.
For a full list of jurisdictional Cartel Leniency Q&As, which provide a succinct overview of leniency and immunity, the applicable procedure and the regulatory authorities in multiple jurisdictions, visit www.practicallaw.com/leniency-mjg.
Mergers and acquisitions are regulated by the Competition Act No. 89 of 1998 (Competition Act). The Competition Act provides the statutory framework for merger control and establishes the powers of the three competition authorities (see below, Regulatory authorities).
Chapter 3 of the Competition Act deals specifically with merger control and contains provisions relating to, among others:
Thresholds and categories of mergers (see Question 2, Thresholds).
The definition of merger and the concept of control (see Question 2, Triggering events).
Merger notification and investigation procedures and timing (see Questions 3 and 4).
The factors to be considered when deciding to approve or prohibit a merger.
The power of intervention in merger proceedings by the Ministers of Finance and Trade and Industry.
There are three competition authorities:
The Competition Commission (Commission).
The Competition Tribunal (Tribunal).
The Competition Appeal Court (CAC).
See box, The regulatory authorities.
A merger is notifiable if it satisfies the following conditions:
It has an effect in South Africa.
It amounts to a merger as defined (that is, acquiring directly or indirectly, or establishing, by one or more companies, direct or indirect control over the whole or part of another company's business). The Competition Act lists a number of examples of such control, but this list is not exhaustive.
It satisfies the financial thresholds (see below, Thresholds).
There are three categories of mergers, determined with reference to the applicable thresholds:
Small mergers. These are mergers that do not meet the thresholds for intermediate mergers.
Intermediate mergers. These are mergers where both:
the combined annual turnover or value of assets (whichever is greater) of the acquirer (that is, the acquiring entity, its parent(s) and subsidiary(ies)) and the target (that is, the target and its subsidiary(ies)) in, into or from South Africa is ZAR560 million or more (as at 1 December 2011, US$1 was about ZAR8.3);
the annual turnover or value of assets (whichever is greater) of the target in, into or from South Africa is ZAR80 million or more.
Large mergers. These are mergers where both:
the combined annual turnover or value of assets (whichever is greater) of the acquirer and the target in, into or from South Africa is equal to or more than ZAR6.6 billion;
the annual turnover or value of assets (whichever is greater) of the target in, into or from South Africa is equal to or more than ZAR190 million.
Notification is:
Mandatory for intermediate and large mergers.
Voluntary for small mergers.
However, the Commission can, within six months of the implementation, require that a small merger be notified, if it raises competition or public interest concerns. If the Commission calls for notification, the parties must cease the implementation until they have obtained approval. Furthermore, the Commission has issued a guideline indicating that it must be informed of small mergers if the parties involved are under investigation by the Commission, or party to proceedings before the Tribunal in relation to a prohibited practice. Once informed, the Commission decides if it requires formal notification or not. The Small Merger Guidelines do not specify a time frame within which the Commission must decide, but it generally responds promptly.
There is no specific timing requirement, but parties cannot implement a merger until they have obtained approval.
The Commission is willing to hold informal discussions before notification, and can also provide a formal, non-binding advisory opinion. The discussions tend to relate to questions of control and thresholds rather than substantive competition issues.
Both the acquirer and target are responsible for notification. Notification is made jointly, unless permission is given for separate filings (such as in the case of a hostile takeover bid).
All notifications are made to the Commission.
There are prescribed forms, together with their schedules, that must be submitted:
Merger Notice (Form CC4(1)).
Statement of Merger Information (Form CC4(2)).
They must be completed by both the acquirer and the target, and be submitted together with specified supporting documents including board minutes and annual financial statements. Parties can claim confidentiality by submitting a Form CC7.
To notify, the parties do not need to wait for signature of an agreement, provided the transaction structure and principal terms are reasonably clear from the term sheet or other draft document. A merger notification must include proof of notification of trade unions or employees as applicable.
The filing fee is:
ZAR100,000 for intermediate mergers.
ZAR350,000 for large mergers.
There is no filing fee for small mergers.
If notification is required, implementation cannot take place until approval has been obtained from the competition authorities.
Once a notification has been filed, the Commission assigns one or more investigators to consider the proposed merger. The investigator reviews the filing, and analyses the merger. Observations submitted by interested parties such as competitors, customers and employees are considered. A completed report is then submitted to the Commission's Executive Committee, following which:
If the merger is a small or intermediate merger, the Commission (that is, the Commissioner and his Deputies) decides whether to approve (with or without conditions) or prohibit the merger.
If the merger is a large merger, the Commission makes a recommendation to the Tribunal for adjudication. The Tribunal convenes a public hearing and hears evidence as necessary before deciding whether to approve (with or without conditions) or prohibit the merger.
For small and intermediate filings, the initial review period is 20 business days. This can be, and usually is, extended by a further 40 business days. If at the end of the review period the Commission has not issued a decision, the merger is deemed to have been approved without conditions.
For large mergers, the initial review period is 40 business days, which can be extended, on application to the Tribunal, for periods of 15 business days at a time. There is no limit on the number of extensions that the Commission can request. However, the merging parties can oppose such an application and the Tribunal may thereafter limit the extension period. The Tribunal must schedule a hearing (if the matter is straightforward) or a pre-hearing (if the matter is complex) within ten business days of receiving the recommendation from the Commission. If the matter is straightforward, the hearing is scheduled within a week or two of the referral. If the matter is complex, the timetable is flexible and the process can become protracted. After the hearing, the Tribunal must issue a certificate either approving (with or without conditions) or prohibiting the merger, within ten business days. Once an approval certificate is issued, the parties are free to implement the merger (subject to any conditions imposed).
For an overview of the notification process, see flowchart, South Africa: merger notifications.
The fact of the transaction becomes public knowledge when a non-confidential copy of the merger notification is provided by the merging parties to their employees or trade unions (see Question 6, Representations). The Commission publishes information regarding merger notifications on its website, and publishes its decisions (but not reasons) in the Government Gazette. The Tribunal publishes the reasons for its decisions on its website and they may be included in Competition Law Reports.
Confidential information cannot be released at any stage. Other information is restricted until the matter is finalised. The public can then obtain non-confidential versions of the filing documents.
No information is automatically kept confidential.
The merging parties can claim confidentiality over information, in which case it must be kept confidential, unless on application the Tribunal rules that the information is not confidential. The Tribunal may order that confidential information be provided to legal representatives of third parties, but the legal representatives must then provide strict confidentiality undertakings.
Confidential information is defined as trade, business or industrial information that belongs to a firm, has a particular economic value, and is not generally available to or known by others (Competition Act).
Trade unions and employees are entitled by law to participate in all intermediate and large merger proceedings. The Competition Act only refers to intermediate and large mergers, but employees would probably be allowed to participate in small merger proceedings too. Interested third parties interact with the Commission during the investigation, as the Commission canvasses their views regarding the merger (this applies to all merger categories).
Any person can submit information in relation to intermediate mergers, but there is no formal process for participation. In practice, the Commission listens to third parties' observations and offers them meetings from time to time, although third parties are not given access to any of the filed documents, except with the express permission of the merging parties.
In relation to large mergers, a third party can bring an intervention application to participate in merger proceedings. If the Tribunal recognises a party as an intervener, that party generally has full rights of participation and can:
Participate in the process.
Submit expert reports and witness statements.
Lead witnesses and cross-examine the parties' witnesses.
Access the non-confidential record of proceedings (independent advisers may be able to see relevant confidential information) (see below, Document access).
It is possible for third parties who have an interest in the proceedings to access the non-confidential record of proceedings (see above, Representations). In practice, independent advisors such as external lawyers and economists are generally allowed to see relevant confidential information subject to providing confidentiality undertakings, and may obtain further information if the confidentiality is successfully challenged (see Question 5, Confidentiality on request).
See above, Representations.
The competition authorities must determine three things:
Whether the transaction is likely to substantially prevent or lessen competition. In relation to this, they must consider a wide range of factors including import competition, barriers to entry and customers' power.
If the merger is likely to have an anti-competitive effect, they must determine whether there are any technological, efficiency or other pro-competitive gains that flow from the merger and which outweigh and offset the anti-competitive effects flowing from the merger.
Whether the transaction can or cannot be justified on substantial public interest grounds. The most important factor here is the effect on employment. In theory, a transaction that raises no competition concerns may still be prohibited on public interest grounds, but this has not yet occurred in practice.
Either structural or behavioural remedies can be imposed as conditions of clearance. They can be offered and accepted at any stage in the merger assessment process. Remedies are generally negotiated during the process of investigation to avoid a prohibition of the merger, and therefore do not impact on the timetable. The authorities prefer structural remedies to behavioural as they are easier to monitor, but behavioural remedies such as undertakings to supply have been imposed in the past. If a divestiture is required, there is an agreed process forming part of the order, usually requiring disposal within a certain period, appointment of a trustee and independent management in the interim of the business to be disposed of. In the case of a divestiture, the time frames for remedies to be carried out will be specified in the order.
If the notification is incomplete, the Commission can, within five days of receiving notification of a large merger, or ten days of receiving notification of any other merger, issue a notice indicating that the notification was incomplete. The review period does not commence until the filing is considered complete.
Even if the investigation has started, the Commission can issue a demand for corrected information where it considers that the parties have filed false or misleading information. The effect of this is that the timetable begins at the beginning, even if the Commission had already extended its initial investigation period.
If inaccurate information is submitted, the Commission or Tribunal can revoke the decision to approve the merger.
If parties to a merger implement it without approval, the Tribunal can:
Impose a fine on the parties (not individuals) of up to 10% of a company's annual turnover in, and exports from, South Africa for the preceding financial year.
Order a party to the merger to sell any shares, interests or other assets it has acquired under the merger.
Declare void any provision of an agreement to which the merger was subject.
If a merger is implemented after prohibition, the parties commit an offence of failing to comply with an order of the Tribunal, punishable by a fine on individuals not exceeding ZAR500,000 or up to ten years' imprisonment, or both.
If the parties ignore the imposition of remedies, or fail to pay a fine or otherwise observe a decision of the regulator, they are failing to comply with an order of the Tribunal (see above, Implementation before approval or after prohibition).
A party to merger proceedings (including those that had to be given notice of the merger (see Question 6, Representations)) can within ten business days of the Commission's decision request the Tribunal to consider the approval, conditional approval or prohibition of a small or intermediate merger.
Tribunal decisions can be appealed to the CAC, provided the appeal is submitted within 20 business days of the notice of the Tribunal decision. Intervening third parties do not have a right of appeal, but can apply to review a decision (see Question 6, Representations).
Merger clearance does not result in automatic clearance of any restrictive provisions in the agreements. For restrictive conduct to be permissible, the parties must obtain an independent exemption (see Question 15).
The Minister of Finance can, if he considers it appropriate, exclude the competition authorities' jurisdiction in the banking industry by written notice if a merger constitutes an acquisition of shares, or a transaction for which consent is required under the Banks Act No. 94 of 1990.
The Competition Act regulates restrictive horizontal practices between competitors and restrictive vertical practices between customers and suppliers. The Commission investigates and prosecutes alleged restrictive practices, while the Tribunal acts as the adjudicator and court of first instance.
Agreements between (or concerted practices by) competitors or associations of competitors are prohibited if they substantially prevent or lessen competition in a market, unless a party can prove that any technological, efficiency or other pro-competitive gains, resulting from the agreement, outweigh that effect on competition (Chapter 2, Competition Act). However, price-fixing, collusive tendering and the division of markets are prohibited outright and cannot be justified.
Vertical agreements that have the effect of substantially preventing or lessening competition are prohibited, unless a party can prove that any technological, efficiency or pro-competitive gains, resulting from the agreement, outweigh that effect (Chapter 2, Competition Act). Minimum resale price maintenance is absolutely prohibited and cannot be justified.
The Act defines the term agreement broadly. The prohibitions, therefore, apply to any contract, arrangement or understanding, whether or not legally enforceable. In addition to formal and informal agreements, concerted practices may also violate the restrictive practice provisions of the Competition Act. Concerted practices are defined as co-operative or co-ordinated conduct between companies, achieved through direct or indirect contact, which replaces their independent action, but which does not amount to an agreement.
A company can apply to the Commission to exempt an agreement or practice, or category of agreements or practices, from the application of the Competition Act, if the agreement or practice contributes to:
Maintenance or promotion of exports.
Promotion of the ability of small businesses, or companies controlled or owned by historically disadvantaged persons, to become competitive.
Change in productive capacity necessary to stop decline in an industry.
The economic stability of any industry designated by the Minister of Trade and Industry, after consulting the minister responsible for that industry.
In certain circumstances, an exemption can be sought in relation to the exercise of intellectual property rights. In addition, a professional association which requires restrictions to maintain professional standards or to ensure the ordinary function of the profession, can apply to the Commission for an exemption of all or part of the rules under Schedule 1 of the Competition Act.
Block exemptions are not specifically provided for in the Competition Act, but the CAC is of the opinion that the legislature did consider the aim of block exemptions and their purpose in providing for categories of agreements and practices to be potentially exempted.
The Commission can grant a conditional or unconditional exemption for a specified term, or refuse to grant an exemption. It can also revoke an exemption if any of the following apply:
It was granted on the basis of false or inaccurate information provided by the applicant(s).
A condition of it is not fulfilled.
The reason for granting it no longer exists.
Restrictive horizontal practices are not prohibited if they are engaged in by:
A company and its wholly owned subsidiary, or a company and a wholly owned subsidiary of that subsidiary.
Any combination of these, or constituent companies within a single economic entity.
In addition, the provisions of the Competition Act do not apply to:
Collective bargaining within the meaning of section 23 of the Constitution of the Republic of South Africa (Constitution), and the Labour Relations Act 66 of 1995.
A collective agreement, as defined in section 213 of the Labour Relations Act.
Concerted conduct designed to achieve a non-commercial socio-economic objective or similar purpose.
No complaint may be initiated in respect of a prohibited practice if that practice ceased more than three years ago (Competition Act).
There is no legal obligation to notify horizontal or vertical restrictive practices, but parties can apply for an exemption from the application of Chapter 2 of the Competition Act (see Question 15). However, to seek an exemption, they must admit a contravention of the Competition Act, and therefore careful consideration must be given before an exemption is applied for.
An advisory opinion can be sought from the Commission, by any party concerned, regarding the content of an agreement or the nature of a practice, at a cost of ZAR2,500. Advisory opinions are non-binding and cannot protect a party from any subsequent investigation or adverse findings by the Commission, Tribunal or CAC, although they may affect the level of the fine.
The party seeking an exemption must apply for it.
Applications for an exemption must be submitted to the Commission.
An exemption application must be made in writing.
Fees for applying for exemptions are:
Single exemption: ZAR5,000 filing fee and a charge of ZAR500 for each year for which exemption is granted.
Category exemption: ZAR100,000 filing fee and a charge of ZAR1,000 for each year for which exemption is granted.
Schedule 1 exemption: ZAR100,000 filing fee.
The Commission can start a complaint against an alleged prohibited practice on its own initiative.
Third parties can initiate an investigation by filing a complaint with the Commission.
A third party or the complainant can make representations during the course of the Commission's investigation. Access to the Commission's files is subject to restriction, that is, until the matter is referred to the Tribunal or a notice of non-referral is issued, the information received by the Commission is confidential. Once the matter has been referred to the Tribunal, third parties may be allowed to give evidence. Alternatively, these parties can request permission to be recognised as interveners (see Question 6, Representations).
See above, Representations.
See above, Representations.
A complaint is initiated by the submission of a Form CC1. The Commission has one year after receiving the Form CC1 to investigate the complaint. This period may be extended with the complainant's consent or by application to the Tribunal.
If the Commission initiates the investigation itself, these time frames do not apply. If the Commission finds that a prohibited practice has occurred, the complaint must be referred to the Tribunal for final adjudication. In all other cases, the Commission must issue a notice of non-referral to the complainant in the prescribed form. If the Commission issues a notice of non-referral, the complainant can itself refer the matter to the Tribunal.
The investigative process includes interviews, possible search and seizure operations and so on (see Question 22). The parties can interact informally with the Commission, but the Commission only formally sets out its case in its referral papers, following which the respondent may request further particulars before setting out its defence. There is also a discovery process and an exchange of witness statements before the hearing itself takes place.
Details of potentially restrictive agreements or practices can be made public by the Commission or Tribunal during an investigation. Parties can submit a confidentiality claim (Form CC7) detailing which information is confidential and substantiating the reasons for the claim of confidentiality. The Commission cannot then disclose the information covered by the claim, unless it is successfully challenged by the Commission or any third party before the Tribunal.
No information is automatically kept confidential.
This is the same as for mergers (see Question 5, Confidentiality on request).
The Commission can:
Carry out search and seizure operations at business premises with or without a warrant, and at residential premises with a warrant.
Examine and request information regarding any article or document having a bearing on the investigation.
Make copies or take extracts from any book or document having a bearing on the investigation.
Seize and retain original documents.
Secure the premises overnight.
Make copies of and search computer hard drives.
Order the production of specific documents or information.
Interrogate individuals.
The Commission and the respondent (the party complained against) can negotiate a consent order, which is endorsed by the Tribunal, as a way to conclude a complaint. The consent order usually includes undertakings (for example, to institute a compliance programme). In practice, the Commission requires the respondent to admit liability as part of the consent order. In addition, unless the complainant has agreed otherwise, the consent order can be used by the complainant in pursuing a claim for damages in the High Court. Where the consent order constitutes an admission of guilt, it will constitute completed proceedings for the purposes of section 67(2) of the Competition Act, and no complaint relating to substantially the same conduct can then be referred to the Tribunal against that respondent.
The Tribunal can:
Issue a prohibitory order.
Impose interim measures.
Order a party to supply or distribute goods or services to another party.
Order divestiture of a company's assets.
Declare the whole or part of an agreement to be void.
Declare conduct to be a prohibited practice.
The Tribunal can impose administrative penalties of up to 10% of the company's annual turnover in South Africa (including exports) for the previous financial year. The consequences of non-payment of fines are the same as for mergers (see Question 9, Failure to observe).
At present the only personal liability that exists relates to obstructive conduct, including knowingly providing false information, or failure to comply with an order, in which case a fine and/or term of imprisonment may be imposed. However, personal liability will be introduced for directors or managers who had actual knowledge of, knowingly acquiesced to, or were involved in cartel conduct (see Question 39). Such individuals will be liable for up to ten years' imprisonment and/or a fine of up to ZAR500,000. In addition, the individual will be barred from holding senior management positions, and the company cannot pay that individual's legal costs while facing prosecution, unless either:
That individual is cleared of wrongdoing.
The State abandons the prosecution.
The Commission's Corporate Leniency Policy (CLP) enables the Commission, in its discretion, to grant a cartel member who is first to approach the Commission, immunity or indemnity for its participation in the cartel activity, subject to meeting prescribed requirements and agreeing to co-operate with the Commission. Subsequent cartel members who come forward, although not qualifying for immunity, may qualify for a reduction in the administrative penalty imposed for their contravention of the Competition Act.
The Tribunal can declare the whole or part of any agreement to be void if it contains a prohibited practice.
A third party can bring a civil action for damages once the Tribunal has found that there has been a prohibited practice, by filing with the Registrar of the High Court a copy of the order outlining the conduct found to be prohibited (section 65, Competition Act).
There are no special procedures or rules.
The Competition Act does not have an express provision relating to class actions and the competition authorities have yet to determine whether a class action can be brought. However, the Constitution does allow for class actions to be brought by a representative of a group, if a constitutional right has been infringed. In these circumstances, other members of the class action who were not formally and individually joined benefit from, and are bound by, the outcome of the litigation.
A party to the proceedings can appeal to the CAC against a decision of the Tribunal by filing a Notice of Appeal with the CAC within 15 days of the date of the decision or order that is the subject of that appeal. The CAC can consider:
Any final decision of the Tribunal, other than a consent order.
Any of the Tribunal's interim or interlocutory decisions that are final in their effect.
A matter can be appealed from the CAC to the Supreme Court of Appeal if leave to appeal is granted. It may also be possible to appeal from the CAC to the Constitutional Court, but only in very limited circumstances as the CAC is normally the final court of appeal in respect of competition law matters.
Rights of appeal are available to parties to the proceedings but not to third parties (see above, Rights of appeal and procedure).
Monopolies and abuses of market power are regulated under sections 8 and 9 of the Competition Act. Section 8 specifies certain actions that are considered to be prohibited abuses of dominance (see Question 29) and section 9 prohibits price discrimination. The procedure for investigating and prosecuting alleged abuses of dominance is similar to that outlined in relation to restrictive practices (see Questions 18 to 24).
A company with a market share of more than 45% is deemed to be dominant (section 7, Competition Act). If the company's market share is between 35% and 45%, the company is considered dominant unless it can show that it does not have market power, which is defined as "the power of a firm to control prices, or to exclude competition or to behave to an appreciable extent independently of its competitors, customers or suppliers". If the company has a market share of less than 35%, it is only considered dominant if it can be shown that the company does indeed enjoy market power.
It is prohibited for a dominant company to (section 8, Competition Act):
Charge an excessive price to the detriment of consumers.
Refuse to give a competitor access to an essential facility when it is economically feasible to do so.
Engage in an exclusionary act (that is, an act that impedes or prevents a party from entering into or expanding in a market) if its anti-competitive effects outweigh its pro-competitive gains.
Engage in the specific exclusionary acts of:
inducing a supplier or customer not to deal with a competitor;
refusal to supply;
tying or bundling;
predatory pricing or buying up of scarce intermediate goods or resources.
These exclusionary acts are not prohibited if a dominant company can show that the pro-competitive gains of the behaviour outweigh its anti-competitive effect.
Section 9 of the Competition Act prohibits price discrimination by a dominant firm. This prohibition applies if the conduct of the dominant company, as the seller of goods and services, satisfies all of the following conditions:
It is likely to have the effect of substantially preventing or lessening competition.
It involves discrimination between buyers in relation to the sale, in equivalent transactions, of goods and services of equal grade and quality.
It cannot be justified according to the bases set out in the Competition Act, including differential costs of supply, meeting a competitor's price and changing market conditions.
The exemption provisions relating to restrictive agreements also apply to abuses of a dominant position (see Question 15).
An advisory opinion can be obtained. The procedure is the same as for advisory opinions in respect of mergers and restrictive agreements (see Question 3, Formal/informal guidance and Question 17, Informal guidance/opinion). However, they are not binding on the Commission, and therefore their usefulness is questionable, depending on the circumstances.
This is the same as for restrictive agreements and practices (see Questions 20, 21 and 23).
This is the same as for restrictive practices (see Question 22).
The Tribunal can impose an administrative penalty on the infringing company, which cannot exceed 10% of its annual turnover in, into, or from South Africa for the preceding financial year, for a:
First-time offence of charging an excessive price, refusing access to an essential facility, or engaging in the specific exclusionary acts (see Question 29).
Repeat offence in relation to all other prohibited conduct.
The Tribunal can make an order requiring the offending party to grant access to an essential facility. (For other possible orders, see Question 24, Orders.)
The consequences of non-payment of fines are the same as for mergers (see Question 9, Failure to notify correctly).
This is the same as for restrictive agreements and practices (see Question 25).
Not applicable.
A joint venture which results in an acquisition of control by one party over the whole or part of the business of another party, and which satisfies the monetary thresholds applicable to mergers (see Question 2, Thresholds), is analysed as a merger and must be notified to, and approved by, the competition authorities before it can be implemented (see Questions 1 to 12). The structure of the joint venture will determine which of the parties is the acquirer and which is the target.
The structure and operations of the joint venture must also be considered to ensure that there is no contravention of the provisions of the Competition Act relating to restrictive practices.
The President may impose on the Commission any duty to exchange information with a similar foreign agency. There are no formal agreements in place at present. However, the Commission has a number of informal arrangements with other foreign agencies, including the US Federal Trade Commission and the Department of Justice, in relation to which it runs staff exchange programmes. There is interaction with other agencies through the International Competition Network, and simultaneous search and seizure operations have been undertaken in the past. However, information that is considered as confidential cannot be exchanged with other authorities.
The Amendment Act was assented to by the President of South Africa on 26 August 2009 and will come into force on a date yet to be announced by the President. The Amendment Act introduces criminal liability for directors or managers who either engaged in or knowingly acquiesced to cartel conduct of the company they work for (see Question 24, Personal liability). Although the Commission investigates the cartel activity, the National Prosecuting Authority will have final discretion as to criminal prosecution of individuals involved in cartel conduct, once the Amendment Act comes into force.
In addition, besides some cosmetic amendments, the Amendment Act also introduces the concept of complex monopoly as a form of restrictive practice, clarifies issues relating to competing jurisdiction (concurrency) and formalises the Commission's powers in relation to market enquiries.
Head. Shan Ramburuth
Contact details. 3rd Floor Mulayo
The DTI Campus
77 Meintjies Street
Sunnyside
Pretoria
South Africa
T +27 12 394 3300
F +27 12 394 0169
E ctsa@comptrib.co.za
W www.comptrib.co.za
Outline structure. The Commission has jurisdiction throughout South Africa. It must exercise its functions under the Competition Act. It has six divisions:
Mergers and Acquisitions.
Enforcements and Exemptions.
Advocacy and Stakeholder relations.
Policy and Research.
Legal Services.
Corporate Services.
Each division is headed by a Manager. The Managers, together with the Commissioner, comprise the Executive Committee of the Commission. Decisions are made by the Commissioner and his two Deputy Commissioners.
Responsibilities. The Commission must:
Implement measures to increase market transparency.
Implement measures to develop public awareness of the Competition Act provisions.
Investigate and evaluate alleged horizontal or vertical restrictive practices or abuses of dominance.
Grant or refuse applications for exemption.
Authorise (with or without conditions), prohibit or refer mergers of which it receives notice.
Negotiate and conclude consent orders (settlement agreements).
Refer matters to the Tribunal and appear before the Tribunal as required by the Competition Act.
Negotiate agreements with other regulatory authorities to co-ordinate and harmonise the exercise of jurisdiction over competition matters within the relevant industry or sector, and ensure the consistent application of the principles of the Competition Act.
Participate in the proceedings of any regulatory authority as required.
Advise, and receive advice from, any regulatory authority.
Review legislation and public regulations, and report to the Minister of Trade and Industry concerning any provision that permits uncompetitive behaviour.
Deal with any other matter referred to it by the Tribunal.
Procedure for obtaining documents. Any information which is not confidential or restricted can be inspected or copied on payment of a prescribed fee. The following five classes of information are restricted:
Information that has been determined to be confidential information under the Competition Act.
The identity of a complainant.
Information that has been received by the Commission in a particular matter.
The following documents:
a document that contains internal communication between the Commission and its advisors;
an opinion, advice or recommendation obtained or prepared by or for the Commission;
an account of a consultation, deliberation or discussion that has occurred for the purposes of assisting to formulate a policy or take a decision by the Commission;
a document whose disclosure could frustrate the deliberative process of the Commission.
Any other document to which a public body would be required or entitled to restrict access under the Promotion of Access to Information Act, no. 2 of 2000.
Head. Norman Manoim
Contact details. 3rd Floor Mulayo
The DTI Campus
77 Meintjies Street
Sunnyside
Pretoria
South Africa
T +27 12 394 3300
F +27 12 394 0169
E ctsa@comptrib.co.za
W www.comptrib.co.za
Outline structure. The Tribunal has jurisdiction throughout South Africa and must exercise its functions under the Competition Act. It consists of a Chairperson and between three and ten other persons (employed full- or part-time), appointed from among persons nominated by the Minister of Trade and Industry, either on his own initiative or in response to a public call for nominations.
Responsibilities. The Tribunal is the adjudicator and court of first instance for large mergers, restrictive horizontal and vertical practices, and abuses of dominance. In addition, it can:
Adjudicate on any of the matters that it can consider under, and make any order set out in, the Competition Act.
Hear appeals from, or review any decision of, the Commission that are referred to it.
Make any ruling or order necessary or incidental to the performance of its functions.
Procedure for obtaining documents. Any information that is not confidential or restricted can be inspected or copied on payment of a prescribed fee. If information is claimed to be confidential, the Tribunal can determine whether it must remain confidential or can be made publicly available.
Head. Justice DM Davis
Contact details. 3rd Floor Mulayo
The DTI Campus
77 Meintjies Street
Sunnyside
Pretoria
South Africa
T +27 12 394 3355
F +27 12 394 0169
E cac@comptrib.co.za
W www.comptrib.co.za
Outline structure. The CAC comprises at least three judges, appointed by the President of South Africa on the advice of the Judicial Services Commission. Each of the judges must be a judge of the High Court.
Responsibilities. The CAC can:
Review any decision of the Tribunal.
Consider an appeal arising from the Tribunal in relation to any of its final decisions, other than a consent order (settlement agreement) or any of its interim or interlocutory decisions that can, under the Competition Act, be taken on appeal.
The Appeal Court can give any judgment or make any order, including an order to:
Confirm, amend or set aside a decision or order of the Tribunal.
Remit a matter to the Tribunal for a further hearing on any appropriate terms.
Procedure for obtaining documents. Any information that is not confidential or restricted can be inspected or copied on payment of a prescribed fee. If information is claimed to be confidential, the Tribunal can determine whether it must remain confidential or can be made publicly available.
T +27 11 530 5359
F +27 11 530 6359
E lesley.morphet@webberwentzel.com
W www.webberwentzel.com
Qualified. South Africa, 1986
Areas of practice. All aspects of competition law across a wide range of industries.
Recent transactions
T +27 11 530 5295
F +27 11 530 6295
E nkonzo.hlatshwayo@webberwentzel.com
W www.webberwentzel.com
Qualified. South Africa
Areas of practice. All aspects of competition law across a wide range of industries.
Recent transactions
