Mini Plenary 3: Cartel Enforcement and Leniency in Developing Agencies A South African perspective 2013 ICN Cartel Workshop Cape Town, South Africa 16 – 18 October 2013 Bongani Ngema Competition Commission of South Africa

Outline Cartel enforcement before the Corporate Leniency Policy (“CLP”) Introduction of CLP Cartel enforcement after CLP Experiences of other Authorities in the Region Recommendations

Cartel enforcement before CLP Commission established in 1999 Focus on mergers and acquisitions as well as promoting awareness of Competition law Low cartel enforcement – 8 cases in the first five years – Fine imposed in one case Cartel detection based on complaints

Introduction of the CLP CLP introduced in 2004 Characteristics – First to the door – Admission of contravention – Cartel activity – Conditional immunity – Instigators not eligible

CLP applications

Cartel enforcement after CLP Investigations turnaround times improve Bread cartel success (Fine R340million :US$41million) Main challenges – Lack of transparency – Vague disqualifications CLP revision in 2008 to incorporate best practices – Wording amended to clarify that immunity will be granted where the applicant meets all then conditions – Instigators – Markers – Oral submissions – Contact person

CLP applications received Number of applications

CLP applications excl Construction

Cartel enforcement after CLP Sharp increase in applications after revision Detection and prosecution of the following cartels: – PVC Pipes (Fine R59million: US$5.8million) – Cement (Fine R277million: US$27million) – Scrap metal (Fine R202million: US$20million) – Construction ( Fine R1.5billion: US$149million) CLP dominates enforcement strategy

Cartel cases finalised

Cartel enforcement after CLP Challenges – Legality of CLP challenged in court (Agriwire) – Incomplete applications resulting in lengthy investigation times – Implementing the CLP in the environment of criminalised cartel conduct – Negative public perception due to instigators escaping sanction or enjoying some leniency

Other authorities in the region One other authority has an operational Leniency programme in SADC Cartel enforcement is very low Authorities are fairly new but are all at advanced stages of developing and introducing leniency programmes Leniency programmes will improve regional cooperation

Maintain non CLP enforcement at levels as prior to CLP Set penalties at optimal levels Whistleblowing programmes Reduced penalties for 2 nd, 3 rd applicants Awareness programmes to highlight the benefits of CLP Recommendations