I ENFORCEMENT POLICIES AND GUIDANCE

Cartel behaviour in South Africa is regulated by the South African Competition Act 89 of 1998 as amended (the Act), more particularly Section 4, which regulates prohibited restrictive horizontal practices. Section 4(1)(b),2 which governs what is known as cartel conduct, provides that the practices of price-fixing (whether it be in relation to a purchase or a selling price or a trading condition), market division (by allocating customers, suppliers, territories or specific types of goods or services) and collusive tendering are prohibited outright. Parties caught by this Section cannot raise any arguments or evidence in justification of the practice, although they may be able to argue that their practice should not be characterised as one that falls within the scope of this Section of the Act.3 A contravention of Section 4(1)(b) attracts a penalty for a first-time offence of up to 10 per cent of the offending entity's turnover, including exports from South Africa. Pursuant to an amendment in 2016,4 individuals with management authority can now face criminal prosecution if they have engaged in or knowingly acquiesced to cartel conduct, with the prospect of a fine of up to 500,000 rand or imprisonment for a period of up to 10 years, or both a fine and imprisonment. A Competition Amendment Bill (the Amendment Bill) was introduced in December 2017 and, having been passed by Parliament, is expected to be signed into law by the President soon. The Amendment Bill aims, inter alia, to strengthen the penalty regime.5 It will do away with the 'yellow card' for less egregious offences and will significantly increase maximum penalties for contravention of the Act from 10 per cent to 25 per cent of a firm's annual turnover should the said conduct constitute a repeat offence.6

The Act establishes a hierarchy for the enforcement of competition law. The Competition Commission (the Commission) is the primary enforcement agency and is charged with the responsibility of investigating and prosecuting cartel behaviour. The agency has extensive investigative powers, including the right to summons witnesses, require the delivery of documents, and the power of search and seizure (commonly known as dawn raids). Once investigations are complete, the Commission can refer matters for adjudication to the Competition Tribunal (the Tribunal). The Tribunal is empowered to impose penalties on parties found to have contravened the provisions of the Act. These decisions may be taken on appeal to the Competition Appeal Court (CAC), which is a statutory court with the status of a High Court.

The competition authorities have stated on numerous occasions that cartel conduct is considered particularly egregious and needs to be severely punished. It is against this background that criminalisation has been introduced, although there is a concern that this has a chilling effect on whistle-blowers, who, in the past, have been a valuable aid to the Commission in its uncovering and prosecution of cartels. The Commission cannot offer immunity from prosecution to whistle-blowers, as this falls within the powers of the National Prosecuting Authority (NPA). The Commission can make a recommendation to the NPA that an individual is 'deserving of leniency', but the NPA is not bound by this, and therefore whistle-blowers may well be nervous about coming forward.

In addition, parties should beware of falling foul of the provisions of the Prevention and Combating of Corrupt Activities Act 12 of 2004. Under the terms of this Act, it is an offence to offer to, or accept from, any other person any gratification, which is broadly defined, and this legislation could catch parties to tenders who offer compensation to other tenderers in exchange for submitting a cover price, for example. This would fall within the powers of the NPA to prosecute through the criminal courts.

II COOPERATION WITH OTHER JURISDICTIONS

Both the Commission and the Tribunal regularly interact and collaborate with international competition enforcement agencies and competition regulatory authorities in other countries. South Africa was one of the founding member countries of the International Competition Network and remains an active participant. The Commission is also one of the steering members of the African Competition Forum, with Kenya, Senegal, Gambia, Tanzania, Morocco, Egypt and Zambia.

The Act clearly envisages cooperation between the Commission and other foreign competition agencies, since Section 82(4) of the Act allows the President of South Africa to assign to the Commission 'any duty of the Republic, in terms of an international agreement relating to the purpose of this Act, to exchange information with a similar foreign agency'. The Commission has signed a number of memoranda of understanding (MOUs) with other competition authorities, most recently with Swaziland (eSwatini),7 following those of Kenya, Russia,8 Mauritius,9 Brazil,10 India, China11 and the European Union12 in 2016. These MOUs provide, inter alia, for information sharing, joint research, investigations, enforcement and prosecution. South Africa further boasts strong bilateral relationships with the regional authority Common Market for Eastern and Southern Africa.

The Tribunal and the Commission have benefited from a number of formal and informal relationships with various international institutions and agencies, including the European Commission, the US Department of Justice and the Federal Trade Commission. They interact regularly, and cooperation with other regulators has extended in the past to conducting a dawn raid coordinated with its foreign counterparts as part of a cross-border cartel investigation.

III JURISDICTIONAL LIMITATIONS, AFFIRMATIVE DEFENCES AND EXEMPTIONS

i Extraterritoriality

The Act applies to 'all economic activity within, or having an effect within the Republic'.13 The South African competition authorities may therefore prosecute parties engaging in cartel conduct occurring outside South Africa, if the conduct can be said to have an effect within South Africa. Indeed, the Commission has conducted and recently referred to the Tribunal an investigation into alleged cartel conduct relating to foreign exchange trading, where the trading involved the South African rand, despite the fact that the trading did not take place in South Africa. Jurisdiction is one of the issues raised by the respondents, but the case has not yet been heard and, therefore, we have no guidance in this regard as yet.

ii Parent company liability

A guideline issued by the Commission14 provides that it may impute liability for payment of the final administrative penalty to a holding company (parent company) if its subsidiary has been found to have contravened the Act, and the penalty will be calculated based on the turnover of the parent company rather than being limited to that of the offending subsidiary. In coming to such a decision, the Commission will consider, inter alia, whether the subsidiary is wholly owned, whether the parent company had direct control or material influence over the subsidiary, whether the parent company had knowledge of the subsidiary's conduct, and whether the parent company derived substantial benefit from the activities of the subsidiary. The Amendment Bill specifically caters for parent company liability through the introduction of Section 59(3A), which enables the Tribunal to increase an administrative penalty by including the turnover of any firm that controls the contravening firm, if the controlling firm knew, or should reasonably have known, that the contravening firm was engaging in a prohibited practice. The Section further enables the Tribunal to hold the controlling firm jointly and severally liable for payment of the administrative penalty imposed on the contravening firm.15

iii Affirmative defences and exemptions

The only conduct that is specifically exempted from the provisions of the Act is collective bargaining as contemplated in Section 23 of the Constitution and in the Labour Relations Act 66 of 1995, and concerted conduct designed to achieve a non-commercial socio-economic objective or similar purpose.16 Where conduct relates to an industry that is subject to specific sector legislation, there will be concurrent jurisdiction between the competition authorities and those regulating the sector in question.

There are no industry-specific defences or exemptions. The Act recognises that, in certain instances, anticompetitive conduct may be necessitated to achieve broader industrial and macroeconomic goals, and thus makes provision for an exemption mechanism.17 This Section allows parties to apply for exemption from prosecution in relation to what would otherwise be prohibited conduct, provided that the conduct is needed to attain, and meets, the following objectives: (1) it maintains or promotes exports; (2) it promotes the ability of small businesses, or firms controlled or owned by historically disadvantaged persons, to become competitive (note that there are proposed amendments to this provision);18 (3) it changes the productive capacity necessary to stop decline in an industry; or (4) it is needed to achieve the economic stability of an industry designated as such by the Minister of Economic Development, after he or she has consulted the relevant minister responsible for that industry. The grounds for exemption are extremely narrow, but the Amendment Bill seeks to enhance these somewhat in relation to the government's goals to promote growth and transform the economy. It may also be possible to obtain exemptions if the conduct contributes to 'competitiveness and efficiency gains that promote employment or industrial expansion'. It is also envisaged that the minister may issue regulations exempting a category of agreements or practices.19 While the process is time-consuming, the proposed amendments seek to introduce a requirement that the Commission either grant or refuse the exemption within one year of receipt of an application. Moreover, although it has been extensively used in some sectors, for example by airlines in relation to codeshare arrangements, of late the Commission has refused exemptions that had previously been granted. It is highly unlikely that a hard-core cartel agreement could qualify for exemption.

IV LENIENCY PROGRAMMES

i Overview of the Leniency Programme

The Commission has adopted a Corporate Leniency Policy (CLP)20 that outlines a process through which the Commission will grant a cartel member, who is first to approach the Commission to confess to cartel conduct, immunity from prosecution for participation in cartel activity, provided the cartel member fulfils specific requirements and conditions. The CLP was introduced in 2004 but only gained traction when it was amended in 2008 to allow the ringleader of a cartel to apply for leniency.

Immunity granted by the Commission in this context means that the successful applicant would not be prosecuted before the Tribunal for its involvement in the cartel activity, and the Commission would not seek to have any fines imposed on the successful applicant. However, a successful immunity applicant is not shielded from any subsequent civil liability in relation to follow-on damages cases.

The CLP grants immunity only to corporations and is not applicable in respect of individuals. Section 73A thereof introduces the concept of individual leniency for persons who provide information or otherwise cooperate with the Commission's investigation into cartel conduct. In terms of Section 73A, Paragraphs (4) and (5), the Commission may not seek the prosecution of, and may make submissions to the NPA in support of leniency for, any person certified by the Commission as being 'deserving of leniency'.

Only a firm that is 'first to the door' to confess and provide information in accordance with the CLP to the Commission in respect of cartel activity would qualify for immunity under the CLP. Granting of immunity under the CLP is not based on the fact that the applicant is viewed as less of a cartelist than the other cartel members, but on the fact that the applicant is the first to approach the Commission with information and evidence regarding the cartel. The successful applicant receives conditional immunity, which becomes full immunity once the case is finalised and the leniency applicant has complied with all its obligations to qualify for immunity.

Only the successful applicant obtains immunity – there is no partial leniency programme for parties who seek leniency but are not first to the door. They may negotiate a settlement with the Commission that might involve reduction of a fine, depending on factors such as their level of cooperation with the Commission, the fact that they sought to settle early on rather than delaying the process, and the level of proactive disclosure of information to the Commission.

In terms of the Amendment Bill, the Commission is tasked with developing and publishing an updated policy on leniency that will regulate the types of leniency that may be granted, the criteria and procedures necessary in applying for leniency and any possible conditions that may be attached pursuant to the approval of leniency.21 The present leniency policy is to remain in effect until a new policy has been published.22

In the Commission's 2017–2018 Annual Report,23 the Commission notes that 10 applications for CLP were assessed during the course of the year, of which eight were carried over from the previous year. If one compares these to the statistics contained in the Commission's 2016–2017 Annual Report, it would seem that the number of applications for immunity has decreased since the introduction of criminal penalties for individuals engaged in cartel conduct.

ii Markers

In terms of Paragraph 12 of the CLP, a prospective leniency applicant may apply for a marker prior to making an application for immunity in terms of the CLP. The CLP also specifies that the application must be made in writing, and must make clear that a marker is being requested (providing the applicant's name and address, the alleged cartel conduct and its participants), and must provide justification of the need for a marker. Thereafter the Commission may, at its discretion, grant a marker to protect the applicant's place in the queue. In granting the marker, the Commission will determine on a case-by-case basis the amounts of time within which the applicant must provide the necessary information, evidence and documents needed to meet the conditions and requirements set out in the CLP. In practice, one may make an initial oral approach to the Commission on a no-names basis to ascertain whether a marker is available. Although the formal application must be in writing, the supporting information may be provided orally to cater for concerns that the information will become accessible to parties, such as claimants, in follow-on damages claims.

iii Duties of cooperation

In terms of Paragraph 10 of the CLP, an applicant for immunity must provide complete and truthful disclosure of all information relating to any cartel activity, and must be the first to provide sufficient information to enable the Commission to institute proceedings in relation to that cartel activity. The applicant must cooperate fully with the Commission until its investigations are finalised and, indeed, until the proceedings in the Tribunal or subsequent court have been completed. The applicant must immediately stop the cartel activity, unless directed otherwise by the Commission, and must not alert any other parties to the fact that it has applied for leniency. The applicant must also not destroy, falsify or conceal information and must not make misrepresentations regarding material facts or act dishonestly.

iv Access of private litigants to leniency materials

The Commission treats information and documents communicated to it under the CLP with caution. It has been confirmed that information provided by the applicant to the Commission is subject to litigation privilege. However, the Commission has waived such privilege in the past, albeit inadvertently. In the case of Competition Commission v. ArcelorMittal South Africa Ltd,24 parties prosecuted by the Commission pursuant to a leniency application by Scaw South Africa (Pty) Ltd sought access to documents provided to the Commission by Scaw. The Commission argued that the information was protected by legal privilege. The Supreme Court of Appeal (SCA) confirmed that the information did qualify for legal privilege but held that by referring to information from the application in its referral document, the Commission had waived privilege. In the case of Continental Tyres South Africa (Pty) Ltd and Goodyear South Africa (Pty) Ltd v. Competition Commission and others,25 Continental Tyres and Goodyear appealed from the Tribunal to the CAC seeking the production of certain correspondence between the Commission and the complainant, transcripts of certain interrogations conducted by the Commission in the course of its investigation and certain correspondence between the Commission and the leniency applicant.26 The Commission resisted production on the basis of litigation privilege, but the CAC held that they had not established privilege, having failed to set out the necessary facts to support this contention. The Commission was accordingly ordered to produce the documents. Information may still be protected if it is confidential. Any party challenging confidentiality must make an application to the Tribunal. Confidential information is defined in the Act as 'trade, business or industrial information that belongs to a firm, has a particular economic value, and is not generally available to or known by others'. Note that, pursuant to a recent judgment27 allowing a litigant access to the Commission's records in terms of the Promotion of Access to Information Act 2000, there are proposed amendments to the Commission's Rules enabling the Commission to resist production of its record at too early a stage.

V PENALTIES

Cartel conduct is per se prohibited and is considered most egregious, attracting the most prosecutions and fines. Although the Commission prosecutes cases against offending parties, the penalty is imposed by the Tribunal after an adjudication process. Firms found guilty of cartel conduct face an administrative penalty of up to 10 per cent of the company's annual turnover in South Africa, including its exports from South Africa, during the company's preceding financial year. As mentioned above, the Amendment Bill will significantly increase the maximum penalties for contravention of the Act from 10 per cent to 25 per cent of a firm's annual turnover for repeat offenders. In addition, as mentioned above, pursuant to a 2016 amendment, individuals face criminal prosecution and may be liable for a fine not exceeding 500,000 rand or imprisonment not exceeding 10 years, or both.28 Furthermore, convicted individuals will be barred from holding directorships in terms of the Companies Act, as amended.29

It is possible to reach a settlement with the Commission rather than defending a case to finality, by concluding a consent order with the Commission that is subsequently made an order of the Tribunal. Importantly, a consent order does not stop a complainant from pursuing a civil claim for damages against a respondent unless the consent order already includes an award of damages to the respondent.

Factors taken into account when setting the penalty

In terms of the Act, the following factors must be taken into account by the Tribunal when setting the penalty:

  1. the nature, duration, gravity and extent of contravention;
  2. any loss or damage suffered as a result of the contravention;
  3. the behaviour of the respondent;
  4. the market circumstances in which the contravention took place;
  5. the level of profit derived from the contravention;
  6. the degree to which the respondent has cooperated with the Commission and the Tribunal; and
  7. whether the respondent has previously been found in contravention of the Competition Act.30

The Amendment Bill broadens the factor described in point (d) by including an evaluation on whether, and to what extent, the contravention has affected small and medium-sized businesses and firms owned or controlled by historically disadvantaged persons. The Amendment Bill further seeks to introduce an additional eighth factor when setting a penalty, namely whether the said conduct has previously been found to be a contravention of the Act or is substantially the same as conduct referred to in the Guidelines issued by the Commission on the Commission's policy approach to matters within its jurisdiction.31

In addition, the Commission has published guidelines (the Penalty Guidelines)32 setting out the general methodology that it will follow in determining administrative penalties for the purposes of concluding consent orders and settlement agreements and recommending an administrative penalty in a complaint referral before the Tribunal.33 The Commission recognises that the determination of administrative penalties is not a precise science and, therefore, the Penalty Guidelines do not prevent the Commission from exercising its discretion case by case. Moreover, the Tribunal is not bound by the Commission's approach and will draw its own conclusions, although it should be noted that, in drawing up its Penalty Guidelines, past Tribunal cases in which its methodology was explained were taken into account.

In terms of the Penalty Guidelines, the Commission will apply the following six-step methodology when determining an administrative penalty.

  1. Step 1: Determination of the affected turnover in the base year.
  2. Step 2: Calculation of the base amount, being that proportion of the affected turnover relied upon.
  3. Step 3: Multiplying the amount obtained in step 2 by the duration of the contravention.
  4. Step 4: Rounding off the figure obtained in step 3 if it exceeds the cap provided for by Section 59(2) of the Act.
  5. Step 5: Considering factors that might mitigate or aggravate the amount reached in step 4, by way of a discount or premium expressed as a percentage of that amount that is either subtracted from or added to it.
  6. Step 6: Rounding off this amount if it exceeds the cap provided for in Section 59(2) of the Act.

Where appropriate, the amount calculated in terms of this methodology may be further adjusted either by application of settlement discounts or, in exceptional circumstances, a firm's inability to pay.

In August 2016, the Tribunal imposed the largest penalty to date for conduct including cartel conduct, when it confirmed a settlement with ArcelorMittal that included a 1.5 billion rand penalty.34 Interestingly, in addition to the penalty, the final settlement with ArcelorMittal included a price cap on flat steel products, avoidance of retrenchments and 4.6 billion rand in new investments in capital expenditure to improve its dynamic competitiveness.35 This case is a clear indication of the Commission's and the Tribunal's willingness to depart from purely monetary penalties and to embrace more creative remedies, particularly where public interest concerns are applicable.

In the same vein, when in March 2016 Sime Darby Hudson Knight (Pty) Ltd concluded a consent order with the Commission in relation to alleged cartel conduct, the settlement included the following behavioural remedies, in addition to a penalty of 35 million rand. Sime Darby undertook to invest funds and build and commission a new packaging and warehousing facility to the tune of approximately 135 million rand, and to use the services of a Black Economic Empowerment distributor for some of its distribution requirements and assist it with becoming a viable business.

VI 'DAY ONE' RESPONSE

The Commission has extensive powers to investigate cartel behaviour.36 These powers include the right to conduct unannounced visits and to carry out search and seizure operations (dawn raids) with, or in limited circumstances without, a warrant, at the company's business premises (and at private dwellings, to the extent that company documents or business operations are carried on there). The Commission may also summon individuals who it believes possess information or have documents under their control that could assist the Commission in its investigation.

The Commission may seek a warrant if it has reasonable grounds to believe that a prohibited practice has taken place, is currently taking place or is likely to take place, or if anything connected to an investigation is in the possession or control of a person at, specified premises. Unless extenuating circumstances exist, dawn raids may only be conducted during the day, and they are usually commenced in the early morning.

Dawn raids are also subject to, and must be executed in terms of, the Constitution, particularly insofar as it provides for a person's right to dignity, freedom, security and privacy. The Act also upholds the constitutionally enshrined right against self-incrimination and no individual is required to answer any question put to him or her by an investigator that may be self-incriminating. However, it is an offence to knowingly provide false or misleading information. A firm that is the subject of a dawn raid is entitled to ask for its legal representatives to be present, and the Commission officials will often be willing to wait for a short period while the firm's legal advisers are alerted and travel to the firm's premises.

One should inspect the warrant to ensure that all details on it warrant, such as the address, are correct and that it has not expired. Investigators are required to provide proof of identification, which should also be checked. They are authorised to search the premises and any person on the premises who is believed on reasonable grounds to be in possession of an article or document that has a bearing on the investigation; to examine, request information about, and take extracts from or make copies of any article or document on the premises having a bearing on the investigation; and to use any computer system on the premises, or require the assistance of any person on the premises to use that computer system, to search any data, reproduce any record and seize any output from that system. They can also attach and, if necessary, remove from the premises for examination and safekeeping, anything that has a bearing on the investigation.

It is important to ensure that each investigator has a 'shadow' to accompany him or her and record what they are reviewing and what they have seen, as well as what they have expressed an interest in. It is essential to put procedures in place in relation to privileged documents, including an agreed methodology to deal with documents where the investigators dispute that privilege exists. It is also vital to keep a complete copy of all documents copied or removed by the Commission, as well as a record of documents viewed by investigators. One should review these at the earliest opportunity to determine whether the Commission has a sustainable case to prosecute and, if necessary, to decide whether to apply for immunity.

Dawn raids have been used extensively in recent years as a tool to progress cartel investigations, with raids having been conducted in diverse industries, including furniture removal, glass, meat supply, fire control and protective systems, and fresh produce, although the Commission recently encountered a setback in the Pietermaritzburg High Court, where the court set aside a search warrant on the basis that the Commission had failed to make out a case for the issuing of that warrant, and ordered the Commission to return all materials seized from the relevant premises, and all copies or recording of those materials.37

VII PRIVATE ENFORCEMENT

In terms of Section 65 of the Act, any person who suffers loss or damage as a result of cartel conduct may bring a claim for civil damages. In order for such a claim to be brought, the aggrieved party is required to obtain a certificate issued by either the Tribunal or the CAC confirming that the conduct in question constitutes a contravention of the Act. Such a certificate serves as conclusive proof of contravention of the Act and is binding on civil courts.

South Africa has only recently seen its first successful prosecutions of civil damages claims arising out of anticompetitive practices. In August 2016, Nationwide Airways relied on findings of abuse of dominance by the Tribunal and the CAC against South African Airways (SAA) to claim civil damages against SAA, its competitor, for loss of profits occasioned by SAA's anticompetitive practices.38 In this instance, the award for civil damages amounted to 104,625 million rand; however, there is no upper limit on such awards provided that a link between the harm occasioned and the amount of damages sought is proven. Subsequently, on 15 February 2017, and based on the same anticompetitive conduct by SAA, Comair sought compensation for the profits it lost during the infringement period and for profits foregone after termination of the infringement. Comair was awarded damages in the amount of 544 million rand, plus interest on the amount at 15.5 per cent.39 The total damages plus interest in this case amounted to approximately 1.16 billion rand.

VIII CURRENT DEVELOPMENTS

A recent development is the introduction of the Amendment Bill, which is designed to encourage a greater spread of ownership in the South African economy. The Amendment Bill was published for public comment on 1 December 2017 and, after a period of public comment, it was tabled in the National Assembly in July 2018, where it was passed in October 2018. It has since been passed by the National Council of Provinces and has been sent to the President for assent. It is thus at the end of the legislative process, as mentioned above.

The Amendment Bill seeks among other things to address the issue of economic concentration and to drive transformation of the South African economy, and to strengthen the provisions of the Act relating to prohibited practices. The Amendment Bill introduces extensive changes to the law, including the provisions in relation to market enquiries, abuse of dominance and mergers, not least relating to foreign acquisitions that might have an effect on national security.

With reference to cartels, the Amendment Bill proposes an amendment to Section 4 of the Act (Section 2 of the Bill) to prohibited market division, among other things, 'by allocating market shares, customers, territories'. The background note explains that this amendment seeks to reflect 'the factual position that collusive agreements in concentrated markets are achieved and monitored through the allocation of market shares between cartel members. This amendment will enhance the prohibition of cartel activity in concentrated markets, which, in turn, creates opportunities for entry into and expansion in these markets. This will benefit small businesses . . . and firms controlled or owned by historically disadvantaged persons by presenting them with opportunities for entry into the market, with a deconcentrating effect'.

Whereas it was previously envisaged that the Commission should issue guidelines regarding the application of Section 4 of the Act, inter alia, the Amendment Bill now requires the Minister to provide regulations in this regard. This provision is likely to face legal challenges.

The Commission is also in the process of considering various draft guidelines on the exchange of information between competitors under the Competition Act40 to provide clear guidance on what constitutes acceptable and unacceptable exchanges of information. These guidelines also provide for the general approach to be followed by the Commission in determining whether their exchanges amount to cartel conduct. Perhaps most notably, the guidelines in their current form create the general rule that firms expressing their intentions regarding their future conduct, or what they expect regarding competitors' future conduct, is anticompetitive as it facilitates the reaching of collusive understandings among firms. The Commission is presently considering public submissions.


Footnotes

1 Lesley Morphet is a partner and head of the Johannesburg antitrust and competition practice of Hogan Lovells SA Inc. The author would like to thank Ave Ralarala and Zaakira Haffejee, candidate attorneys at Hogan Lovells, for their assistance in preparing this chapter.

2 This is in contrast with Section 4(1)(a), which governs restrictive horizontal practices in general and provides that 'an agreement between, or concerted practice by, firms, or a decision by an association of firms, is prohibited if it is between parties in a horizontal relationship and if it has the effect of substantially preventing, or lessening, competition in a market, unless a party to the agreement, concerted practice or decision can prove that any technological, efficiency or other pro-competitive gain resulting from it outweighs that effect. It can be seen that such conduct is assessed on a 'rule of reason' basis.

3 See the decision of the Supreme Court of Appeal in American Natural Soda Ash Corporation and Another v. Competition Commission of South Africa [2005] (Case No. 554/03) 1 CPLR.

4 Section 73A of the Act, introduced in May 2016.

5 Competition Amendment Bill, 2018.

6 Clause 33 of the Amendment Bill amending Section 59(2A) of the Act.

7 Competition Commission Media Release: 29 June 2018.

8 Competition Commission Media Release: 5 October 2016.

9 Competition Commission Media Release: 13 October 2016.

10 Competition Commission Media Release: 1 December 2016.

11 Competition Commission Media Release: 24 May 2016.

12 Competition Commission Media Release: 23 June 2016.

13 Act ۸۹ of ۱۹۹۸, Section ۳.

14 Guidelines for the Determination of Administrative Penalties for Prohibited Practices (effective 1 May 2015).

15 Clause 33 of the Amendment Bill amending Section 59(3A) of the Act.

16 See footnote 10.

17 Act 89 of 1998, Section 10.

18 An Amendment Bill has been published, in terms of which this wording will be amended to promote the 'effective entry into, participation in and expansion within a market' by such businesses. See Government Notice No. 1345 in Government Gazette No. 41294 of 1 December 2017.

19 Clause 7 of the Amendment Bill amending Section 10 of the Act.

20 Corporate Leniency Policy published in Government Notice No. 628, in Government Gazette No. 31064 of 23 May 2008.

21 Clause 30 of the Amendment Bill amending Section 49E of the Act.

22 Clause 43 of the Amendment Bill amending Section 83 of the Act.

23 Competition Commission Annual Report 2016–17 – see www.compcom.co.za/wp-content/uploads/2014/09/Annual-Report-2016-17.pdf (accessed 29 November 2017).

24 (SCA) 680/12 [2013] ZASCA 84 (31 May 2013).

25 Case No. 157/CAC/Nov 2017.

26 Continental sought only the transcripts, whereas Goodyear sought the production of all three classes of documents.

27 Standard Bank of South Africa v. Competition Commission of South Africa (165/CACMar 18) [2018] ZACAC 3 (22 June 2018).

28 Sections 73A and 74 of the Competition Act.

29 Act 71 of 2008.

30 Act 89 of 1998, Section 59(3).

31 Clause 33 of the Amendment Bill amending Section 59(3) of the Act.

32 Guidelines for the Determination of Administrative Penalties for Prohibited Practices (effective 1 May 2015).

33 Government Gazette Notice 323 of 2015.

35 Competition Commission v. ArcelorMittal South Africa Ltd, Case No. CR092Jan07/SA090Aug16.

36 Act 89 of 1998, in particular Sections 46 to 49.

37 See Competition Commission v. Wilmar Continental Edible Oils and Fats (Pty) Ltd and Others (13748/16P) [2018] ZAKZPHC 23; [2018] 3 All SA 517 (KZP) (15 June 2018).

38 Nationwide Airlines (Pty) Ltd (In Liquidation) v. South Africa Airways (Pty) Ltd [2016] ZAGPJHC 213.

39 Comair Limited v. South African Airways (Pty) Ltd [2017] ZAGPJHC 10.

40 Government Gazette Notice 684 of 2017.