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Competition / Antitrust Law - South AfricaAbout this Practice Area
Douw Breed, Managing Director of Barnard Incorporated in South Africa, practices in various fields of commercial law and corporate litigation and boasts numerous valuable commercial relationships with clients across a wide spectrum of industries. He heads up a dynamic team of directors, associates, and support staff in his firm’s quest to be a go-to legal services provider in South Africa. His work focusses on expanding the client base and service offerings of one of Gauteng’s fas...
Competition / Antitrust Law Definition
For those doing business in South Africa and the rest of Africa, it’s vital to have a clear understanding of competition law’s far-reaching implications for local and foreign businesses. This is because competition law, which forms a critical part of the global business landscape, plays a fundamental role in influencing corporate and commercial strategy. Attorneys with a good grasp of not only competition law, but also of the environment in which businesses operate, are best suited to assist local and international clients.
South African competition law is regulated by the Competition Act 89 of 1998, as amended (“the Act”). The Act applies to all economic activity within, or having an effect within, South Africa and regulates, among others:
• horizontal practices (between competitors)
• vertical practices (between customers and suppliers)
• behavioural matters, including cartel behaviour and abuses of dominance
• mergers, acquisitions, and takeovers
• market inquiries
• exemptions and corporate leniency
The Act establishes three independent competition authorities: the Competition Commission, the Competition Tribunal, and the Competition Appeal Court (“CAC”). The Commission’s role is investigative and prosecutorial, while the Tribunal’s is adjudicative. The CAC considers appeals against, and reviews of, the Tribunal’s decisions. If unsuccessful before the CAC, private litigants may approach the Constitutional Court, provided they meet the jurisdictional requirements.
The Act allows private litigants to participate in complaint and merger proceedings before the competition authorities. However, litigants must pursue any actions for damages suffered as a result of anti-competitive conduct before the civil courts. While many litigants have participated in proceedings before the competition authorities, few have launched actions in the civil courts, and a precedent-setting case is awaited.
The Competition Amendment Act 1 of 2009 (“the Amendment Act”) was assented to by the President in August 2009, however, only some of its provisions are in force. Among these are the provisions introducing market inquiries in South Africa, which came into force in April 2013. Since then, inquiries into the health care, retail market, liquid petroleum gas, and banking markets have been launched.
In May 2016, further provisions of the Amendment Act came into force. The most significant of these was the introduction of personal criminal liability for directors or those with management authority who participate in any price fixing, market allocation, or collusive tendering. This liability extends to directors and managers who have knowledge of cartel activities, but who do nothing about it. Convictions may result in 10 years imprisonment and/or a maximum fine of ZAR500,000.
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