Vol. 530 Cape Town 28 August 2009 No.
No. 1 of 2009: Competition Amendment Act, 2009.
is one of a category of individuals who were disadvantaged by unfair discrimination on the basis of race before the Constitution of the Republic of South Africa, 1993 (Act No.
is a juristic person, other than an association, in which the individuals contemplated in paragraph (a) own and control a majority of its issued share capital or members' interest and are able to control a majority of its votes; or is a juristic person or association in which the individuals contemplated in paragraph (a) own and control a majority of its issued share capital or members' interest and are able to control a majority of its votes.''.
Amendment of section 2 of Act 89 of 1998 2.
to provide for consistent application of common standards and policies affecting competition within all markets and sectors of the economy.''.
Substitution of section 3 of Act 89 of 1998, as amended by section 2 of Act 39 of 2000 3.
Despite anything to the contrary in any other legislation, public regulation or agreement, this Act applies to all economic activity within, or having an effect within, the Republic, subject to subsections (2) and (3).
collective bargaining within the meaning of section 23 of the Constitution and the Labour Relations Act, 1995 (Act No.
a collective agreement as deï¬ned in section 213 of the Labour Relations Act, 1995; or concerted conduct designed to achieve a non-commercial socioeconomic objective or similar purpose.
any other regulatory authority contemplated in this subsection will exercise primary authority to establish conditions within the industry that it regulates as required to give effect to the relevant legislation in terms of which that authority functions, and this Act; and the Competition Commission will exercise primary authority to detect and investigate alleged prohibited practices within any industry or sector, and to review mergers within any industry or sector, in terms of this Act; and details of the administrative manner in which any concurrent jurisdiction contemplated in paragraph (a) is to be exercised, must be determined by an agreement between the Competition Commission and that other regulatory authority, as provided for in sections 21(1)(h) and 82(1).''.
Insertion of Chapter 2A in Act 89 of 1998 4.
any two or more of the ï¬rms contemplated in paragraph (a) conduct their respective business affairs in a conscious parallel manner or co-ordinated manner, without agreement between or among themselves; and the conduct contemplated in paragraph (b) has the effect of substan tially preventing or lessening competition in that market, unless a ï¬rm engaging in the conduct can prove that any technological, efficiency or other pro-competitive gain resulting from it outweighs that effect.
For the purposes of subsection (1)(b) 'conscious parallel conduct' occurs when two or more ï¬rms in a concentrated market, being aware of each other's action, conduct their business affairs in a cooperative manner without discussion or agreement.
Parts A and B of Chapter 5, and section 49D, each read with the changes required by the context, apply to an investigation in terms of paragraph (a).
refusal to supply other ï¬rms within that market; or other market characteristics that indicate co-ordinated conduct.
If the Tribunal, after conducting a hearing in the manner required by Part D of Chapter 5, read with the changes required by the context, is satisï¬ed that the requirements of subsection (4) are satisï¬ed, the Tribunal may make an order reasonably requiring, prohibiting or setting conditions upon any particular conduct by the ï¬rm, to the extent justiï¬able to mitigate or ameliorate the effect of the complex monopoly conduct on the market, as contemplated in subsection (4)(b).
Contravention by a ï¬rm of an order contemplated in subsection (5) is a prohibited practice.''.
Amendment of section 21 of Act 89 of 1998, as amended by section 8 of Act 39 of 2000 5.
''(1A) The Competition Commission may exercise jurisdiction by way of an agreement contemplated in section 3(3) and subsection (1)(h).'
within  30 business days after receiving that report from the Competition Commission; or if Parliament is not then sitting, within  30 business days after the commencement of the next sitting.''.
Insertion of Chapter 4A in Act 89 of 1998 6.
43A. In this Chapter, ''market inquiry'' means a formal inquiry in respect of the general state of competition in a market for particular goods or services, without necessarily referring to the conduct or activities of any particular named ï¬rm.
if it has reason to believe that any feature or combination of features of a market for any goods or services prevents, distorts or restricts competition within that market; or to achieve the purposes of this Act.
The Competition Commission must, at least 20 business days before the commencement of a market inquiry, publish a notice in the Gazette announcing the establishment of the market inquiry, setting out the terms of reference for the market inquiry and inviting members of the public to provide information to the market inquiry.
section 54(b), (e) and (f), each read with the changes required by the context, apply to the conduct of a market inquiry, but for the purpose of this section, a reference in any of those sections to the ''Tribunal'' or to a person ''presiding at a hearing'' must be regarded as referring to the Competition Commission; and sections 72 and 73(2)(a), (b), (c), (d) and (f) apply to the conduct of a market inquiry, but a reference in any of those sections to 'an investigation' must be regarded as referring to the market inquiry.
The terms of reference required in terms of subsection (2) must include, at a minimum, a statement of the scope of the inquiry, and the time within which it is expected to be completed.
The Competition Commission may amend the terms of reference, including the scope of the inquiry, or the time within which it is expected to be completed, by further notice in the Gazette.
The Competition Commission must complete a market inquiry by publishing a report contemplated in section 43C, within the time set out in the terms of reference contemplated in subsection (2).
recommendations for new or amended policy, legislation or regulations; and recommendations to other regulatory authorities in respect of competition matters.
Section 21(3), read with the changes required by the context, applies to a report to the Minister in terms of subsection (1).
take any other action within its powers in terms of this Act recommended in the report of the market inquiry; or take no further action.''.
Amendment of section 49B of Act 89 of 1998, as amended by section 15 of Act 39 of 2000 7.
''(1) The [Commissioner] Competition Commission may initiate a complaint against an alleged prohibited practice or an alleged implementation of a merger contrary to Chapter 3.
submit information concerning an alleged prohibited practice, or an alleged implementation of a merger contrary to Chapter 3, to the Competition Commission[,] in any manner or form; or submit a complaint against an alleged prohibited practice, or an alleged implementation of a merger contrary to Chapter 3, to the Competition Commission [,] in the prescribed form.''.
Amendment of section 50 of Act 89 of 1998, as amended by section 15 of Act 39 of 2000 8.
''(1) At any time after [initiating a complaint, the Competition Commission may refer the complaint to the Competition Tribunal.
receiving or initiating a complaint, the Competition Commission may certify, in the prescribed manner and form, and with or without conditions, that any particular respondent, or any particular person contemplated in section 73A, is deserving of leniency in the circumstances, and initiating a complaint, the Commission may refer the complaint to the Competition Tribunal in respect of any respondent, to the extent that the respondent has not been certiï¬ed as being deserving of leniency in terms of paragraph (a).
[subject to subsection (3),] refer the complaint to the Competition Tribunal, subject to subsection (3), in respect of any respondent, to the extent that the respondent has not been certiï¬ed as being deserving of leniency, if the Commission [it determines] has determined that a prohibited practice, or the implementation of a merger contrary to Chapter 3, has been established; or in any other case, issue a notice of non-referral to the complainant in the prescribed form.'
certiï¬ed as deserving of leniency.'
''(b) on application by the Competition Commission made before the end of the period [contemplated in] set out in subsection (2), or such longer period as agreed in terms of paragraph (a) or previously granted in terms of this paragraph, the Competition Tribunal may extend that period.'
''(5) If the Competition Commission has not [referred a complaint to the Competition Tribunal, or issued a notice of non-referral] taken any action contemplated in subsection (3) within the time contemplated in subsection (2), or the extended period contemplated in subsection (4), the Commission must be regarded as having issued a notice of non-referral on the expiry of the relevant period.'
a declaration in terms of section 58(1)(a)(v) or (vi); or an award of civil damages in terms of section 65.
be certiï¬ed as being deserving of leniency, in whole or in part, or with or without any conditions; or require or demand that the Competition Commission issue such a certiï¬cate, or consider doing so.''.
Amendment of section 58 of Act 89 of 1998, as amended by section 15 of Act 39 of 2000 9.
(1)(a) of the following subparagraph: ''(viii) imposing appropriate conditions;''.
Amendment of section 59 of Act 89 of 1998, as amended by section 15 of Act 39 of 2000 10.
for a prohibited practice in terms of section 4(1)(a), 5(1), 8(c) or 9(1), if the conduct is substantially a repeat by the same ï¬rm of conduct previously found by the Competition Tribunal, or previously acknowledged by the ï¬rm in a consent order, to be a prohibited practice;''.
Amendment of section 73 of Act 89 of 1998 11.
knowingly provides false information to the Commission or the Tribunal;''.
Insertion of section 73A in Act 89 of 1998 12.
caused the ï¬rm to engage in a prohibited practice in terms of section 4(1)(b);or knowingly acquiesced in the ï¬rm engaging in a prohibited practice in terms of section 4(1)(b).
For the purpose of subsection (1)(b), 'knowingly acquiesced' means having acquiesced while having actual knowledge of the relevant conduct by the ï¬rm.
the relevant ï¬rm has acknowledged, in a consent order contemplated in section 49D, that it engaged in a prohibited practice in terms of section 4(1)(b);or the Competition Tribunal or the Competition Appeal Court has made a ï¬nding that the relevant ï¬rm engaged in a prohibited practice in terms of section 4(1)(b).
may not seek or request the prosecution of a person for an offence in terms of this section if the Competition Commission has certiï¬ed that the person is deserving of leniency in the circumstances; and may make submissions to the National Prosecuting Authority in support of leniency for any person prosecuted for an offence in terms of this section, if the Competition Commission has certiï¬ed that the person is deserving of leniency in the circumstances.
In any court proceedings against a person in terms of this section, an acknowledgement in a consent order contemplated in section 49D by the ï¬rm or a ï¬nding by the Competition Tribunal or the Competition Appeal Court that the ï¬rm has engaged in a prohibited practice in terms of section 4(1)(b),is prima facie proof of the fact that the ï¬rm engaged in that conduct.
pay any ï¬ne that may be imposed on a person convicted of an offence in terms of this section; or indemnify, reimburse, compensate or otherwise defray the expenses of a person incurred in defending against a prosecution in terms of this section, unless the prosecution is abandoned or the person is acquitted.''.
Amendment of section 74 of Act 89 of 1998 13.
''(a) in the case of a contravention of section 73(1), or section 73A, to a ï¬ne not exceeding R500 000-00 or to imprisonment for a period not exceeding 10 years, or to both a ï¬ne and such imprisonment; or''.
Amendment of section 82 of Act 89 of 1998, as amended by Act 39 of 2000 14.
be published in the Gazette for public comment.''.
The law referred to in the Schedule is hereby amended to the extent speciï¬ed in the third column thereof.
This Act is called the Competition Amendment Act, 2009, and comes into operation on a date ï¬xed by the President by proclamation in the Gazette.
Act No. 36 of 2005 Electronic Communications Act, 2005 Section 67 is hereby amended by the substitution for subsection (9) of the following subsection: ''(9) [Subject to] Despite the provisions of this Act, the Competition Act applies to competition matters in the electronic communications industry.''.