South Africa’s Competition Commission, which has expressed misgivings about some aspects of the proposed changes to the competition legislation, said that it was preparing itself for the likelihood that the amendments would be signed into law unaltered.

Addressing the media in Johannesburg on Thursday, commissioner Shan Ramburuth stressed that the organisation’s anxieties had never related to the principles governing the amendments, including the desire to strengthen the competition authorities and the creation of larger disincentives.

Instead, it had been concerned about the constitutionality of certain technical provisions. This, it feared, could lead to legal challenges, which would “frustrate” and distract the commission from enforcing competition legislation.

Particular concern had been expressed about the constitutionality of Section 12(5), which sought to introduce criminal liability against senior management who presided over companies that engaged in anticompetitive behaviour.

Having similar reservations, President Kgalema Motlanthe referred the Bill back to the National Assembly for reconsideration earlier in the year. But Parliament immediately rebuffed the President and redirected the proposed legislation back to his office for signing.

The Department of Trade and Industry, which drafted the amendments, was also satisfied that the Competition Act Amendment Bill would not contravene the Constitution.

In fact, Trade and Industry Minister Mandisi Mpahlwa said last month it would strengthen the hand of the competition authorities, by extending to them “additional tools” to deal with anticompetitive behaviour and complex monopolies.

Mpahlwa stressed, too, that these extended powers would be backed with the necessary budgetary resources to ensure implementation.

Ramburuth said that they would assess the new tools, but would only apply these where it felt such application was in the interests of resolving a case.

He was concerned, however, about the possible undermining of its corporate leniency policy (CLP), which had prove successful in destabilising and unearthing a number of cartels.

In fact, deputy commissioner Tembinkosi Bonakele noted that the commission was currently receiving a record number of CLP applications.

“The number keeps increasing, and we would never have anticipated the numbers that we are seeing,” Bonakele said, warning that cartel participants would ignore the CLP at their peril.

“But we are concerned about certain things [in the new Act] and we want to make sure there is certainty around corporate leniency when the Act comes into effect,” Bonakele added, noting that it was in communication with other affected institutions, such as the National Prosecuting Authority and the South African Police Service.

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