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A Practical Guide to the South African Competition Act

The implementation of the Competition Act in 1999 introduced an important shift in the South African competition law framework.

Publication Language: English
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ISBN/ISSN: 9780409113693

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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.

Featured authors

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