South Africa (2000)

Score = 24

Governed by: Republic of South Africa Competition Act No. 89 of 30 November 1998 last amended in Competition Second Amendment Act, No. 39 of 2000 (hereinafter referred to as “Competition Act”).

Category	Subcategory	Score	Comment
Scope	Extraterritoriality	1	Article 3 says that the act applies to anything having an effect in South Africa.
Remedies	Fines	1	Article 59 gives fining guidelines. Article 74 also provides for fines.
	Prison Sentences	1	Article 74 allows the Commission to impose imprisonment for certain serious offenses.
	Divestitures	1	Article 60 gives guidelines for divestiture.
Private Enforcement	3rd Party Initiation	1	Article 49b(2) says that any person may submit information a complaints to the Commission.
	Remedies Available to 3rd Parties	1	Article 65 states that parties injured by competition violations may commence civil suits after the Competition Council has ruled on the matter; furthermore, the Council's findings bind a civil court.
	3rd Party Rights in Proceedings	1	Article 53(1)(a)(ii) give the complainant the right to participant in the hearing if he referred the complaint to the Tribunal OR if the Tribunal decides that the complainant should be adequately represented.
Merger Notification	Voluntary	0
	Mandatory	3	Article 13a requires merger notification.
	Pre-merger	2	Article 13a says that a merger cannot be implemented until the Commission has been notified and has approved it.
	Post-merger	0
Merger Assessment	Dominance	1	Article 12A(2) asks the Commission to examine the resultant market power of the merger.
	Restriction of Competition	1	Article 12A(1) requires the Commission to determine whether the merger is likely to substantially prevent or lessen competition.
	Public Interest (Pro D)	1	Article 12A(1)(a)(ii) allows the Commission to look at whether the merger can or cannot be justified on substantial public interest grounds.
	Public Interest (Pro Authority)	1	Article 12A(1)(a)(ii) requires the Commission to consider public interest in deciding whether to allow a merger. Article 12A(3) lists public interest criteria, including such issues as promoting international competitiveness, promoting small businesses, and the effects of the merger on businesses owned by historically disadvantaged persons.
	Other	1	Article 12A(2)(g) requires the Competition Commission to consider whether a merging company is in danger of failing.
	Efficiency	1	Article 12A(1)(a)(i) allows the Commission to look at whether there will be any technological or efficiency gains that would offset the restriction of competition.
Dominance	Limits Access	1	Article 8(b) and (c) ban refusing competitors access and other exclusionary acts.
	Abusive Acts	1	Article 8 bans abusing a dominant position.
	Price Setting	1	Article 8(a) prohibits charging an excessive price.
	Discriminatory Pricing	1	Article 9 prohibits price discrimination by a dominant firm.
	Resale Price Maintenance	1	Article 5(2) prohibits minimum resale price maintenance.
	Obstacles to Entry	1	Article 8(c) prohibits dominant firms from engaging in exclusionary acts, defined in Article 1 as acts which create obstacles to entry.
	Efficiency Defense	1	The Article 8 prohibitions include exceptions where the dominant firm can show a technological or efficiency gain.
Restrictive Trade Practices	Price Fixing	1	Article 4(1)(b)(i) prohibits price fixing.
	Tying	1	Article 8(1)(d)(iii) prohibits tying arrangements.
	Market Division	1	Article 4(1)(b)(ii) prohibits dividing markets.
	Output Restraint	0
	Market Sharing	0
	Eliminating Competitors	0
	Collusive Tendering/Bid-Rigging	1	Article 4(1)(b)(iii) prohibits collusive tendering.
	Supply Refusal	0
	Efficiency Defense	1	Article 4(1)(a) allows a defense to the restrictive horizontal practices prohibitions if the technical or efficiency gains outweigh the restriction on competition.