Answer ... A company that is the subject of (or is expecting) a cartel investigation should consider the following:
- Conduct a thorough internal competition law audit to discover any breach of the Competition Act.
- Seek legal advice on the feasibility of filing a leniency application if a breach has been discovered. Also, name individuals involved in the cartel in the application for a lesser penalty.
- Set up an ombudsman programme for employees to make anonymous disclosures of any potential breach of the act and any evidence thereof.
- Set up a robust competition compliance programme, if not already in place.
The following are potential pitfalls which a company under cartel investigation may face:
- drainage of time, resource and focus on compliance with the directions and orders of the director general, the Competition Commission and the appellate authorities;
- loss of reputation, decrease in stock value and trust deficit between the company, contractors, clients and shareholders;
- financial loss due to penalties imposed and compensation claims;
- the emergence of certain issues which were not alleged at the time of the start of the investigation; and
- if privileged is not asserted, the director general’s access to and reliance on otherwise legally privileged documents.