On 27 September 2012 the Supreme Court of Appeal (SCA) held that
the corporate leniency policy (CLP) of the Competition Commission
(Commission) is a useful tool in the fight against anti-competitive
behaviour. This follows an application brought by Agri Wire
(Proprietary) Limited (Agri Wire) challenging the CLP.
Consolidated Wire Industries (Proprietary) Limited (Consolidated Wire) earlier reported the existence of an alleged cartel in the wire products industry to the Commission and obtained conditional immunity under the CLP. Agri Wire, one of the parties to the alleged cartel, challenged the Commission's referral to the Competition Tribunal (Tribunal) on the grounds that the policy in its present form, which permits the Commission to grant immunity, is not sanctioned by the Competition Act and is therefore unlawful.
The SCA considered Agri Wire's contention that the CLP was unlawful and rejected it. It held that one of the functions of the Commission is to promote transparency in markets and that the investigation and termination of cartels enhances transparency. It held that the CLP is a useful tool established by the Commission to achieve these objectives. In addition, the SCA found that the Commission is obliged to investigate all anti-competitive behaviour identified in the Competition Act and the CLP is a useful tool in this process.
Accordingly, the SCA held that the conditional immunity granted to Consolidated Wire was lawful; as was the Commission's referral to the Tribunal. The appeal was accordingly dismissed.
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