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;
- market inquiries;
- personal (criminal) liability for cartel conduct;
- complex monopolies; and
- the Competition Commission’s corporate leniency policy.
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 conduct.
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 industry participants.
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’ voluntary co-operation.
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).