A Practical Guide to the South African Competition Act
Access the latest insights into the theoretical underpinnings of our competition legislation.
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Product description
The implementation of the Competition Act in 1999 introduced an important shift in the South African competition law framework.
The implementation of the Competition Act in 1999 introduced an important shift in the South African competition law framework. After 16 years, many still find the Act technical and difficult to apply. This book provides practical insights into the theoretical underpinnings of our competition legislation. A Practical Guide to the South African Competition Act is a compendium of all the most frequently asked questions about the Act and the economics that underpin it, with lucid and helpful answers. Since the first edition, there have been a number of important changes to the law, the approach of the authorities to the economic analysis of cases and the consequences for contraventions. These developments, as well as ground-breaking decisions and interventions on the part of our authorities, are covered in the new edition.
Table of contents
Foreword
INTRODUCTION -
Why a second edition
What is this book about
How to use this book
About the authors
A word of gratitude
CHAPTER 1 - South African competition policy and law
Introduction
Competition policy and law: definition and origin
South African Competition Act: aims and provisions
The Competition Authorities
CHAPTER 2 - The analytical framework
Introduction
The role of economics in competition law
Market definition
The nature of competition and market power
Substantial lessening or prevention of competition
Is big always bad? The efficiency defence.
CHAPTER 3 - Horizontal agreements
Introduction
Relevant section of the Competition Act
Horizontal agreements: rationale for regulation
Per se provisions: restrictive horizontal practices
Rule of reason provision
Evidentiary requirements
Penalties
Practical considerations
CHAPTER 4 - Vertical agreements
Introduction
Relevant section of the Competition Act
Vertical agreements: rationale for regulation
Per se prohibition: resale price maintenance
Minimum RPM: evidentiary requirements
Rule of reason prohibitions: non-price vertical restraints
Non-price vertical restraints: evidentiary requirements
Franchising
Penalties
Practical considerations
CHAPTER 5 - Abuse of dominance (general provisions)
Introduction
Test for dominance: relevant section of the Competition Act
Test for dominance: market shares and market power
General provisions: relevant sections of the Competition Act
Dominance: rationale for regulation
Per se prohibitions: excessive pricing and essential facility
Rule of reason prohibitions: exclusionary acts
Dominance provisions: evidentiary requirements
Penalties
Practical considerations
CHAPTER_6 - The Competition Act and price setting
Introduction
Price discrimination: relevant section of the Competition Act
Price discrimination: rationale for regulation
Price discrimination: substantive legal considerations
Price discrimination: evidentiary requirements
Volume discounts and loyalty-enhancing discounts
Penalties
Practical considerations
CHAPTER 7 - Exemptions
Introduction
Relevant sections of the Competition Act
Exemptions: substantive legal considerations
Exemptions: procedures
Exemptions: review procedures for applications in regard to restrictive practices and intellectual property
Exemptions: review procedures for applications in regard to professional association rules (Schedule 1 exemption application)
Exemptions: appeal proceedings
Practical considerations
CHAPTER 8 - The analytical framework for the assessment of mergers
Introduction
Relevant section of the Competition Act and important concepts
Mergers: rationale for regulation
The problem with horizontal mergers
The problem with vertical mergers
The problem with conglomerate mergers
Merger analysis: substantive issues
Mergers: the efficiency defence
Mergers: public interest considerations
Relevant public interest cases
Addendum to chapter
CHAPTER 9 - Legal and procedural aspects relating to merger regulation
Introduction
Relevant sections of the Competition Act
Merger notification: substantive legal considerations
Merger notification procedures
Merger investigation procedures
Merger appeal proceedings: substantive legal considerations and procedures
Participation in merger proceedings
Penalties
Practical considerations
CHAPTER 10 - Complaint proceedings
Introduction
Initiation and withdrawal of a complaint: relevant sections of the Competition Act
Initiation and withdrawal of a complaint: substantive legal considerations
Initiation and withdrawal of a complaint: procedures
The assessment and outcome of a complaint: relevant sections of the Competition Act
The assessment and outcome of a complaint: substantive legal considerations and procedures
Competition Commission: powers of investigation
Practical considerations
CHAPTER 11 - The investigative powers of the Competition Commission
Introduction
Relevant sections of the Competition Act
Prohibited practice investigation
Dawn raids
Execution of a dawn raid
Post-dawn raid responsibilities
Summons
Confidential information, summons and dawn raids
Market inquiries
CHAPTER 12 - Adjudication proceedings
Introduction
Adjudication of complaints: relevant sections of the Competition Act
Adjudication of complaints: summary of proceedings
Complaint referral: substantive legal requirements and relevant procedures
Intervening in adjudication proceedings: substantive legal requirements and relevant procedures
Pre-hearing conferences: substantive legal considerations and relevant procedures
Discovery: substantive legal requirements and relevant procedures
The Competition Tribunal hearing
Record of the hearing
Witnesses
Ancillary matters
Practical considerations
CHAPTER 13 - Public enforcement and remedies
Introduction
Administrative penalties: relevant section of the Competition Act
Administrative penalties: substantive legal considerations and procedures
Criminal sanctions: relevant sections of the Competition Act
Criminal sanctions: substantive legal considerations and relevant procedures
Criminal sanctions in terms of the Competition Amendment Act 1 of 2009
Positive measures: relevant section of the Competition Act
Positive measures: orders to compel the supply or distribution of goods and services
Positive measures: orders to compel access to an essential facility
Positive measures: divestiture orders
Interdicts: relevant sections of the Competition Act
Interdicts: substantive legal considerations and relevant procedures
Consent orders: relevant sections of the Competition Act
Consent orders: substantive legal considerations and relevant procedures
Informal settlements: relevant section of the Competition Act
Declarators: relevant section of the Competition Act
Declarators: substantive legal considerations and relevant procedures
Practical considerations
CHAPTER 14 - Appeals and reviews
Introduction
Relevant sections of the Competition Act
Summary of the appeal process
Appeal proceedings: substantive legal considerations and procedures
Summary of the review process
Application to review: substantive and procedural considerations
General matters applying to both appeals and reviews
Appeals from the Competition Appeal Court
Practical considerations
CHAPTER 15 - Private enforcement and remedies
Introduction
Interim relief: relevant sections of the Competition Act
Interim relief: summary of proceedings
Interim relief: substantive legal considerations
Declarators
Consent orders
Claims for damages: relevant section of the Competition Act
Claims for damages: substantive legal considerations and relevant procedures
Practical considerations
CHAPTER 16 - Confidentiality
Introduction
Relevant sections of the Competition Act
Substantive legal considerations
Procedures
Practical considerations
CHAPTER 17 - Advisory opinions
Introduction
Substantive legal considerations
Procedures
Practical considerations
CHAPTER 18 - Whistleblowing
Introduction
Substantive legal considerations
Procedures
Practical considerations
CHAPTER 19 - Competition law compliance programmes
Introduction
Background to compliance programmes
Goals and key elements of an effective compliance programme
Implementation and monitoring
Ancillary issues
Practical considerations
Table of cases
