Abstract
Persons who have suffered loss or damage as a result of a prohibited practice in terms of the Competition Act 89 of 1998 (the Act) have the right to recover such damage in the civil courts. This right is expressly provided for in section 65 of the Act. To date South Africa has failed to usher in an efficient and effective environment for section 65 civil damages actions, despite growing success being achieved by the competition authorities in uncovering and prosecuting firms for contraventions of the Act, including prohibited practices. Understanding how section 65 rights might be vindicated and whether South Africa's damages regime is adequate to deal with potentially complex damages actions within the realm of competition law contraventions, a starting point would be to gain certainty as to the classification of the nature of section 65 damages. This article seeks to evaluate the arguments of whether these damages actions should be properly classified as statutory or delictual actions by the South African civil courts.
 
Highlights
It is apparent from the wording of South Africa's Competition Act 89 of 1998 that the legislature envisaged the enforcement of both administrative penalties[1] as well as civil damages[2] against contravening firms or individuals
Wallis JA recognised the importance of this debate. He noted that if Premier was correct in its assertion that the Competition Act of 1998 (the Act) provides for an exclusive follow-on statutory claim, there was no recognised legal duty attaching to the breach, and the consumer's argument that damages were claimed by delictual action could not succeed
Applying the primary rule of interpretation of statutory provisions and giving the words used in section 65 their normal grammatical meaning, it appears that the legislature intended to remove the assessment and awarding of damages from the powers conferred upon the Competition Tribunal and Competition Appeal Court, by expressly stating in section 65 of the Act that damages actions are to be commenced in the civil court for the assessment and awarding thereof.[75]
Summary
It is apparent from the wording of South Africa's Competition Act 89 of 1998 (the Act) that the legislature envisaged the enforcement of both administrative penalties[1] as well as civil damages[2] against contravening firms or individuals. In order to properly assess the nature of these remedies, one needs to consider the underlying philosophical basis of the different remedies provided for in the Act. The courts have acknowledged the different objectives sought to be achieved by civil damages and administrative penalties. Civil damages are pursued to address private wrongs (corrective justice), whereas administrative penalties imposed by the Tribunal are made in the public interest (distributive justice).[3]
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