Assessing the nature of competition law enforcement in South Africa

Abstract

There has been speculation in South African law in recent years regarding the nature and scope of the powers and duties conferred on the local competition authorities. This is due in part to divergent opinions in case law surrounding the nature and scope of the powers of the competition authorities, the interpretation of provisions relating to administrative penalties as well as the introduction of new criminalising provisions by the Competition Amendment Act 1 of 2009. Given that Chapter 5, Part B of the Competition Act already provides the Competition Tribunal with powers comparable to those of a prosecuting authority when dealing with complaints referred to it, procedural fairness in competition law enforcement proceedings, as well as the nature of remedies demanded and imposed in these proceedings, have become pertinent issues for analysis. Whereas some maintain that the powers and duties of the competition authorities are necessary to abide by the stated objectives of the Act, and that the administrative penalties commonly imposed on contravening firms are purely administrative and a form of equitable relief, others argue that the system is frighteningly similar to criminal procedural systems, and as such should be held to a higher standard and burden of proof at all times. This article attempts to identify and elaborate on the core issues related to the above and seeks to determine what position, if any, should be adopted by our courts and legislature to address them. First, a brief analysis of the historical development of South African competition law will be undertaken, with special emphasis on identifying the intention of the legislature. Thereafter a review of how the relevant provisions (and the legislature's intent) have been interpreted by South African courts is conducted, whereafter the traditional approach to the difference between criminal and civil procedure is examined. In this regard, a comparative analysis will illustrate how the situation has unfolded in foreign jurisdictions, specifically those of Canada, the European Union and the United States. These jurisdictions have been chosen, in particular due to their similarities with South African competition law, as well as the fact that South African courts often refer to them for guidance when developing its competition jurisprudence. Finally, a brief concluding overview shall be provided.