1. Project on Competition Law Enforcement and Governance: Comparative Institutions: SOUTH AFRICA Dennis Davis and Lara Granville

2. OVERVIEW History Institutional Design Mandate Complaint procedure Opportunity to be heard Appeals Adequate notice of evidence relied on Proportionality of remedies

3. HISTORY Natural resources Effects of Apartheid Polarised Economy End of Apartheid

4. INSTITUTIONAL DESIGN Bifurcated Model with elements of Bifurcated Judicial Model – Competition Act, 1998 – Competition Commission – Competition Tribunal – Competition Appeal Court – Supreme Court of Appeal

5. MANDATE Objects – To provide for markets in which consumers have access to, and can freely select, the quality and variety of goods and services they desire; – To restrain particular trade practices which undermine a competitive economy; – To promote the efficiency, adaptability and development of the economy; – To ensure that all South Africans, including small and medium size enterprises, have an equitable opportunity to participate in the economy; – To increase the ownership stakes of historically disadvantaged persons; and – To promote employment and advance the social and economic welfare of South Africans.

6. DUE PROCESS NORMS Complaint Procedure Opportunity to be heard and full notice of allegations – Judicialization of Tribunal process – Woodlands Case

7. DUE PROCESS NORMS – Woodlands Case “what the SCA has succeeded in doing is impose the much tougher standards of criminal prosecutions on the competition authorities. In doing so it has set a standard of legality that is inappropriate for a competition enquiry.’ ‘people with deep pockets have more access to the courts. If respondents in competition cases believe they can delay the outcome by pursuing technical legal points, then they will’. T“The chief beneficiary of the SCA ruling is the legal profession. The ruling provides scope for lawyers to generate even more legal fees as cartel cases get clogged up in technical legal challenges”

8. DUE PROCESS NORMS – Omnia Case – Loungefoam Case ‘all that the Commission needs to demonstrate,… is that there is enough content in the act of initiation to make a cognizable or rational link with a subsequent referral. It cannot be expected to know at the stage of initiation what the process of investigation will reveal.’ – Bicycles case

9. DUE PROCESS NORMS Adequate Notice of Evidence to be Relied On – Omnia and SAB cases – Mittal/Cape Gate: requests for leniency application and annexed documents ‘agreements on prices between the respondents reached by telephone, emails and so forth… [E]vidence, of the correspondence, discussions and meetings, will be presented at the hearing’

10. DUE PROCESS NORMS Proportionality of Remedies to violations – the nature, duration, gravity and extent of the contravention; – the loss or damage suffered as a result of the contravention; – the behaviour of the respondent; – the market circumstances in which the contravention took place; – the level of profit derived from the contravention; – the degree to which the respondent has co-operated with the Competition Commission and the Competition Tribunal; and – whether the respondent has previously been found in contravention of the Act.

11. OUTLINE Institutional Performance Norms – Timelines – Expertise – Powers – Predictability, transparency and consultation Critical Evaluation – Success – Trade-offs

12. INSTITUTIONAL PERFORMANCE NORMS Timelines – Mergers – Complaints Expertise in determinations Predictability, transparency and consultation

13. INSTITUTIONAL PERFORMANCE NORMS Powers to investigate and sanction – Commission – Tribunal interdicting any prohibited practice; ordering a party to supply or distribute goods or services to another party on terms reasonably required to end a prohibited practice; ordering divestiture; declaring the conduct of a firm to be a prohibited practice; declaring the whole or any part of an agreement to be void; ordering access to an essential facility on terms reasonably required; and condone non-compliance with Commission or Tribunal rules.

14. CRITICAL EVALUATION Successful so far… Trade-offs Institutional structure The Tribunal to make better use of its flexibility