There has been a lot of activity in the commercial sector regarding unfair behaviour according to the Competition Commission. Claims arose that retail giants blocked rivals by means of exclusive mall leases, which essentially impedes competition by preventing smaller operators from entering the market. A complaint also arose that Ster-Kinekor and Nu Metro engaged in market allocation with regards to lease agreements at the V&A Waterfront.
Fortunately, there is a Competition Commission that specifically deals with such cases.
What is the Competition Commission?
The Competition Commission is a statutory body constituted in terms of the Competition Act, No. 89 of 1998. Its purpose is to investigate, control and evaluate restrictive business practices, abuse of dominant positions and mergers in order to achieve equity and efficiency in the South African economy.
To achieve its purpose, the Commission’s core functions, set out in section 21 of the Act, are to:
- Investigate and prosecute restrictive horizontal and vertical practices;
- Investigate and prosecute abuse of dominant positions;
- Decide on mergers and acquisitions applications;
- Conduct formal inquiries in respect of the general state of competition in a particular market;
- Grant or refuse applications for exemption from the application of the Act;
- Conduct legislative reviews; and
- Develop and communicate advocacy positions on specific competition issues.
How to lodge a complaint with the Commission?
Step 1: Complaining against another party: To begin the procedure officially, you will need to complete and send Form CC1 to the Commission.
Step 2: Joining in a case started by someone else with a similar complaint: After the Commission has received a complaint, it may publish a notice in the Government Gazette and/or other media, inviting any person who believes that the alleged practice has affected, or is affecting, a material interest of that person to file a complaint about the matter.
Step 3: Giving relevant information: The information that needs to be submitted to the Commission must contain the following:
- Name of complainant.
- Name of the party complained of, the respondent.
- A brief description of the conduct giving rise to the complaint.
- State whether the conduct is still continuing – if not, the date on which the conduct ceased.
- Provide a written submission setting out, in detail, the complainant’s cause for the complaint, how it arose, the parties involved, relevant dates and any other relevant information.
- Provide contactable details for the complainant, i.e. postal address, fax number or email address.
Step 4: Protecting information given to the Commission: If the information sent to the Commission contains trade, business or industrial information that belongs to you or a firm, has a particular economic value, and is not generally available to or known by others – and you do not want it revealed to others – you may request that it should be kept confidential by completing.
Step 5: Seeking interim relief: Any person who has lodged a complaint with the Commission concerning a restrictive practice, as explained above, may ask the Competition Tribunal for an interim relief order, whether or not a hearing or investigation has commenced in respect of the alleged prohibited practice.
Step 6: Where the Commission would not act: If the Commission declines to refer a complainant’s case to the Competition Tribunal for prosecution, the complainant may refer, within 10 days after receiving a “Notice of Non-Referral” from the Commission, the matter to the Competition Tribunal at his/her own cost.
Step 7: Withdrawal of a Complaint: In terms of Rule 16 of the Act, at any time during an investigation, a complainant may withdraw a complaint lodged with the Commission.
- The Competition Commission: http://www.compcom.co.za/
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)