REPUBLIC OF SOUTH AFRICA
Government Gazette
Vol. 530 Cape Town 28 August 2009 No. 32533
THE PRESIDENCY No. 875 28 August 2009
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
No. 1 of 2009: Competition Amendment Act, 2009.
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(d) by the substitution in subsection (1) for the definition of ‘‘prohibited practice’’ of the following definition:
‘‘ ‘prohibited practice’ means a practice prohibited in terms of Chapter 2 or Chapter 2A;’’;
(e) by the substitution in subsection (1) for the definition of ‘‘respondent’’ of the following definition:
‘‘ ‘respondent’ means a firm against whom a complaint of a prohibited practice has been initiated or submitted in terms of this Act;’’;
(f) by the substitution in subsection (1) for the definition of ‘‘target firm’’ of the following definition:
‘‘ ‘target firm’ means a firm— (a) the whole or part of whose business would be directly or indirectly
controlled by an acquiring firm as a result of [a transaction in any circumstances set out] a merger as defined in section 12;
(b) that, as a result of a [transaction in any circumstances set out] merger as defined in section 12, would directly or indirectly transfer direct or indirect control of the whole or part of [,] its business to an acquiring firm; or
(c) the whole or part of whose business is directly or indirectly controlled[,] by a firm contemplated in paragraph (a) or (b);’’; and
(g) by the addition of the following subsection: ‘‘(4) For the purposes of this Act, a person is a historically
disadvantaged person if that person— (a) is one of a category of individuals who were disadvantaged by
unfair discrimination on the basis of race before the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993), came into operation;
(b) is an association, a majority of whose members are individuals contemplated in paragraph (a);
(c) is a juristic person, other than an association, in which the individuals contemplated in paragraph (a) own and control a majority of its issued share capital or members’ interest and are able to control a majority of its votes; or
(d) is a juristic person or association in which the individuals contemplated in paragraph (a) own and control a majority of its issued share capital or members’ interest and are able to control a majority of its votes.’’.
Amendment of section 2 of Act 89 of 1998
2. Section 2 of the principal Act is hereby amended by the deletion of the word ‘‘and’’ at the end of paragraph (e) and the addition of the following paragraphs after paragraph (f):
‘‘(g) to detect and address conditions in the market for any particular goods or services, or any behaviour within such a market, that tends to prevent, restrict or distort competition in connection with the supply or acquisition of those goods or services within the Republic; and
(h) to provide for consistent application of common standards and policies affecting competition within all markets and sectors of the economy.’’.
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Substitution of section 3 of Act 89 of 1998, as amended by section 2 of Act 39 of 2000
3. The following section is hereby substituted for section 3 of the principal Act:
‘‘Application of Act
3. (1) Despite anything to the contrary in any other legislation, public regulation or agreement, this Act applies to all economic activity within, or having an effect within, the Republic, subject to subsections (2) and (3).
(2) This Act does not apply to— (a) collective bargaining within the meaning of section 23 of the
Constitution and the Labour Relations Act, 1995 (Act No. 66 of 1995); (b) a collective agreement as defined in section 213 of the Labour
Relations Act, 1995; or (c) concerted conduct designed to achieve a non-commercial socio
economic objective or similar purpose. (3) In so far as this Act applies to any conduct arising within an industry
or sector of an industry that is subject to the jurisdiction of another regulatory authority in terms of any other legislation— (a) this Act, and that other legislation, must be construed as establishing
concurrent jurisdiction in respect of any such conduct that is regulated in terms of both this Act, and that other national legislation, subject to paragraph (b), such that—
(i) any other regulatory authority contemplated in this subsection will exercise primary authority to establish conditions within the industry that it regulates as required to give effect to the relevant legislation in terms of which that authority functions, and this Act; and
(ii) the Competition Commission will exercise primary authority to detect and investigate alleged prohibited practices within any industry or sector, and to review mergers within any industry or sector, in terms of this Act; and
(b) details of the administrative manner in which any concurrent jurisdiction contemplated in paragraph (a) is to be exercised, must be determined by an agreement between the Competition Commission and that other regulatory authority, as provided for in sections 21(1)(h) and 82(1).’’.
Insertion of Chapter 2A in Act 89 of 1998
4. The following Chapter is hereby inserted in the principal Act after section 10:
‘‘Chapter 2A
Complex Monopoly Conduct
Complex monopoly conduct
10A. (1) Complex monopoly conduct subsists within the market for
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any particular goods or services if— (a) at least 75% of the goods or services in that market are supplied to, or
by, five or fewer firms; (b) any two or more of the firms contemplated in paragraph (a) conduct
their respective business affairs in a conscious parallel manner or co-ordinated manner, without agreement between or among them selves; and
(c) the conduct contemplated in paragraph (b) has the effect of substan tially preventing or lessening competition in that market,
unless a firm engaging in the conduct can prove that any technological, efficiency or other pro-competitive gain resulting from it outweighs that effect.
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(2) For the purposes of subsection (1)(b) ‘conscious parallel conduct’ occurs when two or more firms in a concentrated market, being aware of each other’s action, conduct their business affairs in a cooperative manner without discussion or agreement.
(3) If the Competition Commission has reason to believe that complex monopoly conduct subsists within a market— (a) the Commission may investigate any conduct within that market
without initiating or having received a complaint in terms of Chapter 5; and
(b) Parts A and B of Chapter 5, and section 49D, each read with the changes required by the context, apply to an investigation in terms of paragraph (a).
(4) After conducting an investigation in terms of subsection (3), the Competition Commission may apply to the Competition Tribunal for a declaratory order contemplated in subsection (5) against two or more firms if— (a) at least one of the firms—
(i) has at least 20% of the relevant market; and (ii) are engaged in complex monopoly conduct as described in
subsection (1); and (b) the conduct of the firms has resulted in—
(i) high entry barriers to that market; (ii) exclusion of other firms from the market;
(iii) excessive pricing within that market; (iv) refusal to supply other firms within that market; or (v) other market characteristics that indicate co-ordinated con
duct. (5) If the Tribunal, after conducting a hearing in the manner required by
Part D of Chapter 5, read with the changes required by the context, is satisfied that the requirements of subsection (4) are satisfied, the Tribunal may make an order reasonably requiring, prohibiting or setting conditions upon any particular conduct by the firm, to the extent justifiable to mitigate or ameliorate the effect of the complex monopoly conduct on the market, as contemplated in subsection (4)(b).
(6) Contravention by a firm of an order contemplated in subsection (5) is a prohibited practice.’’.
Amendment of section 21 of Act 89 of 1998, as amended by section 8 of Act 39 of 2000
5. Section 21 of the principal Act is hereby amended— (a) by the substitution in subsection (1) for paragraph (c) of the following
paragraph: ‘‘(c) investigate and evaluate alleged contraventions of Chapter 2 or 3;’’;
(b) by the substitution in subsection (1) for paragraph (f) of the following paragraph:
‘‘(f) negotiate and conclude consent orders in terms of section [63] 49D;’’;
(c) by the insertion after subsection (1) of the following subsection: ‘‘(1A) The Competition Commission may exercise jurisdiction by
way of an agreement contemplated in section 3(3) and subsection (1)(h).’’; and
(d) by the substitution for subsection (3) of the following subsection: ‘‘(3) The Minister must table in [the National Assembly] Parliament
any report submitted in terms of subsection (1)(k) or section 43C(1), and any report submitted in terms of subsection (2) if that report deals with a substantial matter relating to the purposes of this Act— (a) within [10] 30 business days after receiving that report from the
Competition Commission; or (b) if Parliament is not then sitting, within [10] 30 business days after
the commencement of the next sitting.’’.
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Insertion of Chapter 4A in Act 89 of 1998
6. The following Chapter is hereby inserted in the principal Act after section 43:
‘‘Chapter 4A
Market inquiries
Interpretation and Application of this Chapter
43A. In this Chapter, ‘‘market inquiry’’ means a formal inquiry in respect of the general state of competition in a market for particular goods or services, without necessarily referring to the conduct or activities of any particular named firm.
Initiating market inquiries
43B. (1) The Competition Commission, acting within its functions set out in section 21(1), and on its own initiative, or in response to a request from the Minister, may conduct a market inquiry at any time, subject to subsections (2) to (4)— (i) if it has reason to believe that any feature or combination of features of
a market for any goods or services prevents, distorts or restricts competition within that market; or
(ii) to achieve the purposes of this Act. (2) The Competition Commission must, at least 20 business days before
the commencement of a market inquiry, publish a notice in the Gazette announcing the establishment of the market inquiry, setting out the terms of reference for the market inquiry and inviting members of the public to provide information to the market inquiry.
(3) The Competition Commission may conduct a market inquiry in any manner but, for greater certainty, the provisions of— (a) sections 44 to 45A, each read with the changes required by the context,
apply to the conduct of the market inquiry and to the publication of the report of a market inquiry in terms of subsection (4);
(b) sections 46 to 49 do not apply in respect of the conduct of a market inquiry;
(c) section 49A, read with the changes required by the context, applies to the conduct of a market inquiry;
(d) section 54(b), (e) and (f), each read with the changes required by the context, apply to the conduct of a market inquiry, but for the purpose of this section, a reference in any of those sections to the ‘‘Tribunal’’ or to a person ‘‘presiding at a hearing’’ must be regarded as referring to the Competition Commission; and
(e) sections 72 and 73(2)(a), (b), (c), (d) and (f) apply to the conduct of a market inquiry, but a reference in any of those sections to ‘an investigation’ must be regarded as referring to the market inquiry.
(4) The terms of reference required in terms of subsection (2) must include, at a minimum, a statement of the scope of the inquiry, and the time within which it is expected to be completed.
(5) The Competition Commission may amend the terms of reference, including the scope of the inquiry, or the time within which it is expected to be completed, by further notice in the Gazette.
(6) The Competition Commission must complete a market inquiry by publishing a report contemplated in section 43C, within the time set out in the terms of reference contemplated in subsection (2).
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Outcome of market inquiry
43C. (1) Upon completing a market inquiry, the Competition Commis sion must publish a report of the inquiry in the Gazette, and must submit the report to the Minister with or without recommendations, which may include, but not limited to— (a) recommendations for new or amended policy, legislation or regula
tions; and (b) recommendations to other regulatory authorities in respect of
competition matters. (2) Section 21(3), read with the changes required by the context, applies
to a report to the Minister in terms of subsection (1). (3) On the basis of information obtained during a market inquiry, the
Competition Commission may— (a) initiate a complaint and enter into a consent order with any respondent,
in accordance with section 49D, with or without conducting any further investigation;
(b) initiate a complaint against any firm for further investigation, in accordance with Part C of Chapter 5;
(c) initiate and refer a complaint directly to the Competition Tribunal without further investigation;
(d) take any other action within its powers in terms of this Act recommended in the report of the market inquiry; or
(e) take no further action.’’.
Amendment of section 49B of Act 89 of 1998, as amended by section 15 of Act 39 of 2000
7. Section 49B of the principal Act is hereby amended by the substitution for subsections (1) and (2) of the following subsections:
‘‘(1) The [Commissioner] Competition Commission may initiate a complaint against an alleged prohibited practice or an alleged implementation of a merger contrary to Chapter 3.
(2) Any person may— (a) submit information concerning an alleged prohibited practice, or an alleged
implementation of a merger contrary to Chapter 3, to the Competition Commission[,] in any manner or form; or
(b) submit a complaint against an alleged prohibited practice, or an alleged implementation of a merger contrary to Chapter 3, to the Competition Commission [,] in the prescribed form.’’.
Amendment of section 50 of Act 89 of 1998, as amended by section 15 of Act 39 of 2000
8. Section 50 of the principal Act is hereby amended— (a) by the substitution for subsections (1) and (2) of the following subsections:
‘‘(1) At any time after [initiating a complaint, the Competition Commission may refer the complaint to the Competition Tribu nal.]— (a) receiving or initiating a complaint, the Competition Commission
may certify, in the prescribed manner and form, and with or without conditions, that any particular respondent, or any particular person contemplated in section 73A, is deserving of leniency in the circumstances, and
(b) initiating a complaint, the Commission may refer the complaint to the Competition Tribunal in respect of any respondent, to the extent that the respondent has not been certified as being deserving of leniency in terms of paragraph (a).
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(2) Within one year after a complaint was submitted to it, or such longer time as may be agreed or allowed in terms of subsection (4), the [Commissioner] Competition Commission must— (a) [subject to subsection (3),] refer the complaint to the Competition
Tribunal, subject to subsection (3), in respect of any respondent, to the extent that the respondent has not been certified as being deserving of leniency, if the Commission [it determines] has determined that a prohibited practice, or the implementation of a merger contrary to Chapter 3, has been established; or
(b) in any other case, issue a notice of non-referral to the complainant in the prescribed form.’’;
(b) by the substitution in subsection (3) for paragraph (b) of the following paragraph:
‘‘(b) must issue a notice of non-referral as contemplated in subsection (2)(b) in respect of any particulars of the complaint [not referred to the Competition Tribunal] that have not been either—
(i) referred to the Competition Tribunal in terms of subsec tion (2)(a); or
(ii) certified as deserving of leniency.’’; (c) by the substitution in subsection (4) for paragraph (b) of the following
paragraph: ‘‘(b) on application by the Competition Commission made before the
end of the period [contemplated in] set out in subsection (2), or such longer period as agreed in terms of paragraph (a) or previously granted in terms of this paragraph, the Competition Tribunal may extend that period.’’;
(d) by the substitution for subsection (5) of the following subsection: ‘‘(5) If the Competition Commission has not [referred a complaint to
the Competition Tribunal, or issued a notice of non-referral] taken any action contemplated in subsection (3) within the time contemplated in subsection (2), or the extended period contemplated in subsection (4), the Commission must be regarded as having issued a notice of non-referral on the expiry of the relevant period.’’; and
(e) by the addition of the following subsections: ‘‘(6) A decision by the Competition Commission in terms of this
section to certify that a respondent, or any other person, is deserving of leniency does not preclude the complainant, if any, from applying for— (a) a declaration in terms of section 58(1)(a)(v) or (vi); or (b) an award of civil damages in terms of section 65.
(7) Nothing in this section directly or indirectly establishes any right of a person to— (a) be certified as being deserving of leniency, in whole or in part, or
with or without any conditions; or (b) require or demand that the Competition Commission issue such a
certificate, or consider doing so.’’.
Amendment of section 58 of Act 89 of 1998, as amended by section 15 of Act 39 of 2000
9. Section 58 of the principal Act is hereby amended by the addition in subsection (1)(a) of the following subparagraph:
‘‘(viii) imposing appropriate conditions;’’.
Amendment of section 59 of Act 89 of 1998, as amended by section 15 of Act 39 of 2000
10. Section 59 of the principal Act is hereby amended by the substitution in subsection (1) of paragraphs (a) and (b) of the following paragraphs:
‘‘(a) for a prohibited practice in terms of section 4(1)(b), 5(2) [or] , 8(a), (b) [or], (d) or 10A(5);
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(b) for a prohibited practice in terms of section 4(1)(a), 5(1), 8(c) or 9(1), if the conduct is substantially a repeat by the same firm of conduct previously found by the Competition Tribunal, or previously acknowledged by the firm in a consent order, to be a prohibited practice;’’.
Amendment of section 73 of Act 89 of 1998
11. Section 73 of the principal Act is hereby amended by the substitution in subsection (2) for paragraphs (c) and (d) of the following paragraphs:
‘‘(c) does anything in connection with an investigation that would have been contempt of court or an obstruction of the course of justice if the proceedings had occurred in a court of law;
(d) knowingly provides false information to the Commission or the Tribunal;’’.
Insertion of section 73A in Act 89 of 1998
12. The following section is hereby inserted in the principal Act after section 73:
‘‘Causing or permitting firm to engage in prohibited practice
73A. (1) A person commits an offence if, while being a director of a firm or while engaged or purporting to be engaged by a firm in a position having management authority within the firm, such person— (a) caused the firm to engage in a prohibited practice in terms of section
4(1)(b); or (b) knowingly acquiesced in the firm engaging in a prohibited practice in
terms of section 4(1)(b). (2) For the purpose of subsection (1)(b), ‘knowingly acquiesced’ means
having acquiesced while having actual knowledge of the relevant conduct by the firm.
(3) Subject to subsection (4), a person may be prosecuted for an offence in terms of this section only if— (a) the relevant firm has acknowledged, in a consent order contemplated
in section 49D, that it engaged in a prohibited practice in terms of section 4(1)(b); or
(b) the Competition Tribunal or the Competition Appeal Court has made a finding that the relevant firm engaged in a prohibited practice in terms of section 4(1)(b).
(4) The Competition Commission— (a) may not seek or request the prosecution of a person for an offence in
terms of this section if the Competition Commission has certified that the person is deserving of leniency in the circumstances; and
(b) may make submissions to the National Prosecuting Authority in support of leniency for any person prosecuted for an offence in terms of this section, if the Competition Commission has certified that the person is deserving of leniency in the circumstances.
(5) In any court proceedings against a person in terms of this section, an acknowledgement in a consent order contemplated in section 49D by the firm or a finding by the Competition Tribunal or the Competition Appeal Court that the firm has engaged in a prohibited practice in terms of section 4(1)(b), is prima facie proof of the fact that the firm engaged in that conduct.
(6) A firm may not directly or indirectly— (a) pay any fine that may be imposed on a person convicted of an offence
in terms of this section; or (b) indemnify, reimburse, compensate or otherwise defray the expenses of
a person incurred in defending against a prosecution in terms of this section, unless the prosecution is abandoned or the person is acquitted.’’.
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Amendment of section 74 of Act 89 of 1998
13. Section 74 of the principal Act is hereby amended— (a) by the deletion of ‘‘(1)’’ from the beginning of the section; and (b) by the substitution for paragraph (a) of the following paragraph:
‘‘(a) in the case of a contravention of section 73(1), or section 73A, to a fine not exceeding R500 000-00 or to imprisonment for a period not exceeding 10 years, or to both a fine and such imprisonment; or’’.
Amendment of section 82 of Act 89 of 1998, as amended by Act 39 of 2000
14. Section 82 of the principal Act is hereby amended— (a) by the deletion of subsection (2); (b) by the substitution in subsection (3) for the words preceding paragraph (a) of
the following words: ‘‘In addition to the matters contemplated in section 21(1)(h), an agreement contemplated in [terms of] subsection (1), section 3(3)(b) and section 21(1)(h) must—’’; and
(c) by the substitution in subsection (3) for paragraphs (a) and (d) of the following paragraphs respectively: (a) identify and establish procedures including dispute resolution for the
management of areas of concurrent jurisdiction; (d) be published in the Gazette for public comment.’’.
Amendment of law
15. The law referred to in the Schedule is hereby amended to the extent specified in the third column thereof.
Short title and commencement of Act
16. This Act is called the Competition Amendment Act, 2009, and comes into operation on a date fixed by the President by proclamation in the Gazette.
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SCHEDULE
LAWS REPEALED OR AMENDED
(Section 14)
No. and year of Act Short title Extent of amendment
Act No. 36 of 2005 Electronic Commu nications Act, 2005
Section 67 is hereby amended by the substitu tion for subsection (9) of the following subsec tion:
‘‘(9) [Subject to] Despite the provisions of this Act, the Competition Act applies to com petition matters in the electronic communica tions industry.’’.