Most Read Contributor in South Africa, September 2016
The Competition Amendment Act, No. 1 of 2009 (the
“Act”) was first published as a bill
in June 2008. The Act seeks to introduce a variety of new
provisions and to amend certain existing provisions of the
Competition Act, No. 89 of 1998 (as amended). These amendments
relate to the following:
concurrent jurisdiction between the competition authorities and
other sector specific regulators;
personal (criminal) liability for cartel conduct;
complex monopolies; and
the Competition Commission’s corporate leniency
Although the Act was signed into law by the President in 2009,
there has been a significant delay in its promulgation. The
prevailing view has been that the cause of this delay is various
constitutional concerns in relation to the proposed criminal
sanctions against individuals found to have engaged in cartel
The Presidency has today (8 March 2013) promulgated that the
market inquiries chapter of the Act will be effective from 1 April
2013 (without any reference to the balance of the provisions
contained in the Act).
It is our view that this development arises from significant
pressure on the Competition Commission to conduct its inquiry into
the healthcare sector. Although the healthcare inquiry could
have taken place without the promulgation of this chapter of the
Act, this would have required the voluntary participation of the
One of the important consequences is that the market inquiry
provisions enable the Commission to summons parties to appear
before the Commission and/or to provide relevant documents.
It is thus able to force participation. Self-evidently, this
will greatly assist the Commission in its healthcare investigation
as it will no longer be reliant on the industry participants’
The benefit for industry participants is that the formal
recognition of market enquiries provides much needed certainty,
including in relation to confidentiality and restrictions on the
use of information furnished to the Commission during its market
investigations. It also provides some guidance as to the
outcome of the inquiry (which can result in the Commission
providing recommendations to the Minister of Economic Development
or initiating a complaint in the normal course).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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