An assessment of the suitability of the criminal cartel offence in South African competition law

Master Thesis


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University of Cape Town

Section 73A of the Competition Amendment Act 1 of 2009 which will be inserted into the Competition Act 89 of 1998, will hold directors/executives criminally liable for infringing s4(1)(b) of the Competition Act. Section 4(1)(b) specifically prohibits firms from engaging in price-fixing, collusive tendering, market allocation which are regarded as egregious forms of activity. The underlying justification for the cartel offence is the protection of consumer welfare and on the other hand to address the under-deterrent nature of monetary administrative penalties in the fight against cartels. In its current form, s73A has several weaknesses which will negatively impact competition enforcement; particularly the leniency policy which is the Commission’s most effective weapon against cartelisation. The emergence of follow-on damages litigation as a legal remedy and class actions as a procedural mechanism in the bread class action, have paved the way for private competition enforcement as a more effective deterrent. The lack of a statutory regulatory framework compelled the courts to develop the common law regarding follow-on damages litigation and class actions. Although the exercise has highlighted the challenges associated with the lack of judicial guidance in developing directives, it has indicated that private competition enforcement is a pragmatic solution for cartelisation.

Includes bibliographical references