Competition Second Amendment Act, 2000

13 December 2000 No. 1354, It is hereby notified that the President has assented to the following A c t w h i c h i s h e r e b y p u b l i s h e d for general in fol-ma[ion:- Hierby w o r d bekend gem:t:lk d~lt die keuring geheg het xm die onderstzande :dgemene inligting gepubliseer word:- 13 Dese ]er 2000 Presiclen Wet WiLt y :oed- erby ter No. 39 of 2000:” Competition !3xond Amendment Act, 2000. No. 39 I :111 ?()()(): Tweedc Wysigingsuet op Mt dinging. ?000.” I I L- ~ — .. No. 21880 GOVERNMENT GAZETTE 13 OECEMBER 2000 Act N’o. 39, 2000 COMPETIT!ON SECOND AMENDMENT ACT. 2000 GENERAL EXPLANATORY NOTE: f 1 Words in bold type in square brackets indicate omissions from existing enactments. Words underlined with a solid line indicate insertions in existing enactments. (English text signed by the President.) (Assented to 5 December 2000.) ACT To amend the Competition Act, 1998, so as to define certain expressions, to amend certain definitions and to delete a definition; to further regulate the prohibition of restrictive horizontal practices; to allow for more frequent determination of the thresholds for the application of the said Act; to further regulate certain exemptions; to make fresh provision for merger control; to further regulate the functions of the Competition ‘lkibunal; to provide expressly that the Commissioner is the accounting authority of the Competition Commission for purposes of the Public Finance Management Act, 1999; to further regulate investigation and adjudication procedures and enforcement of decisions, judgments and orders of the Competition Commission, Competition Tribunal and Competition Appeal Court; to regulate the relationship between the Competition Commission and other agencies and to provide for concurrent jurisdiction; and to effect certain consequential amendments; and to provide for matters connected therewith. B E IT ENACTED by the Parliament of the Republic of South Africa, as follows:— Amendment of section 1 of Act 89 of 1998

1. Section 1 of the Competition Act, 1998 (hereinafter referred to as the principal Act), is hereby amended— (a) by the insertion in subsection (1) before the definition of “agreement” of the following definition: “ ‘acquiring firm’ means a firm— (a) that, as a result of a transaction in any circumstances set out in section 12, would directly or indirectly acquire, or establish direct or indirect control over, the whole or part of the business of another firm; that has direct or indirect control over the whole or part of the business of afirm contemplated in paragraph (a); or the whole or part of whose business is directly or indirectly controlled by a jirm contemplated in paragraph (a) or (b);”; (b) (c) * 5 10 15 (b) by the substitution in subsection (1) for the definition of “agreement” of the following definition: “ ‘agreement’, when used in relation to a prohibited practice, includes a contract, arrangement or understanding, whether or not legally 20 enforceable;”; ., ., “ . “, .:,<.:,,: 4 X(), 21880 . (, O\ ’ERNhltZNT GAZETTE 13[>ECEM13ER 2000 _ — — — __ _ Act X(). 39, 2000” CO\l PE”rIT![ON’ SK’(;ND AMENDAIENT ,4(7’. 2000 by the insertion in subsection (1) a f t e r t h e d e f i n i t i o n of “civil court’’ of the following definition: “ ‘complainant’ means aierson who has submitted a complaint in terms of section 49 B(2Vbj; ”: by the deletion in subsection ( 1 ) of the definition of “interest”; by the insertion in subsection ( 1 ) after the definition of “market power” of the following definition: 5 “ ‘members’ interest’ has the meanin~ set out in the Close Corporations Act, 1984 (Act No. 69 of 1984);”: by the insertion in subsection ( 1 ) after the definition of “organ of state” of the 10 following definition: ,’ ‘ party to a merger” n~‘rm or a target win;”; by the substitution in subsection (1) for the definition of “prescribed” of the following definition: “ ‘prescribed’ m,eans prescribed [from time to time] by regulation [in 15 terms of section 78] ;“; by the insertion in subsection (1) after the definition of “prescribed” of the following definition: <. , primary acquiring firm’ means anyfi rm contemplated in paragraph — (u) of the definition of ‘acquiring firm’; ‘primary target firm’ means anyjirm contemplated in paragraph (a) or (b) of the definition of ‘target firm’;”; by the insertion in subsection (1) after the definition of “public regulation” of the following definition: 20 “ ‘registered trade union’ means a trade union registered in terms of 25 section 96 of the Labour Relations Act, 1995 (Act No. 66 of 1995);”; by the insertion in subsection (1) after the definition of “small business” of the following definition: ((i) (c’) (f) (s) (h} (i) (j) “ ‘target firm’ means a jirm— (a) . the whole or Dart of whose business would be directlv or indirectly ] 30 . controlled by an acquiring jirm as a result of a transaction in any circumstances set out in section 12; that, as a result of a transaction in any circumstances set out in section 12, would directly or indirectly transfer direct or indirect control of the whole or part of, its business to an acquiring jirm; or the whole or part of whose business is directly or indirectly controlled, by a firm contemplated in paragraph (a) or (b);”; and” 35 (b) (c) (k) by the insertion of the following subsection after subsection (1): “(1 A) When a particular number of business days is provided for performing an act, the number of days must be calculated by— (a) excluding the first day, any public holiday. Saturday and Sunday: and (b) including the last day.”. 40 Amendment of section 3 of Act 89 of 1998

2. Section 3 of the principal Act is hereby amended— (a) by the addition in subsection (1) of the word “and” at the end of paragraph (b) 45 and the deletion in the said subsection of paragraphs (c) and (d); and (b) by the insertion after subsection (1) of the following subsection: “(1 A) (a) In so far as this Acr applies to an industry, or sector of an jurisdiction of a n o t h e r regulafo~ industry, that is subject to the authori~, which authority has jurisdiction in respect of conduct regulated in terms of Chapter 2 or 3 of thi.s Acr, this Act must be construed as establishing concurrent jurisdiction in respect of that conduct. (b) The manner in which the concurrent jurisdiction is exercised in terms of this Ac? and any other public regulation, must be managed, to the extent possible, in accordance with any applicable agreement concluded in terms of sections 2 1(1 )(h) and 82(1) and (2).”. 50 55 6 No 21880 GOVERNMENT G.AZETTE. 13 DECEMBER 200(1 Act IN(). 39.2000 COMPETITION SECOND AMENDMENT ,4C”r. 2000” Amendment of section 4 of Act 89 of 1998

3. Section 4 of the principal Act is hereby amended— (a) by the substitution in subsection (1) for the words preceding paragraph (a) of the following words: “An agreement between. or concerted practice by,,firms, or a decision by an association of jirms. is prohibited if it is between parties in a lmrizonral relationship and if—”; (b) by the substitution in subsection (1) for paragraph (a) of the following paragraph: “(a) [it is between parties in a horizontal relationship and] it has the effect of substantially preventing, or lessening, competition in a market, unless a party to the agreement, concerted practice, or decision can prove that any technological, efficiency or other pro-competitive gain resulting from it outweighs that effect; or”; 5 10 (c) by the substitution in subsection (2) for paragraph (a) of the following 15 paragraph: “(a) any one of those jirms owns a [substantial shareholding, interest or similar right] significant interest in the other, or they have at least one director or substantial shareholder in common; and”; and (d) by the substitution in subsection (4) for the words preceding paragraph (a) of 20 the following words: “For [the] purposes of [subsection] subsections (2) and (3), ‘director’ means—”. Substitution of section 6 of Act 89 of 1998

4. The following section is hereby substituted for section 6 of the principal Act: 25 “Restrictive application of Part 6. (1) The Minister, in consultation with the Competition Commission, must determine— (a) a threshold of annual turnover, or assets, in the Republic, either in general or in relation to specific industries, below which this Part does not apply to a~rm; and (b) a method for the calculation of annual turnover or assets to be applied in relation to that threshold. (2) The Minister may make a new determination in terms of subsection (1) in consultation with the Competition Commission. (3) Before making a determination contemplated in this section, the Minister, in consultation with the Competition Commission, must publish in the Gazette a notice— (a) setting out the proposed threshold and method of calculation for purposes of this section; and (b) inviting written submissions on that proposal. (4) Within six months after publishing a notice in terms of subsection (3), the Minis[er, in consultation with the Competition Commission, must publish in the GaZetfe a notice— (a) setting out the threshold and method of calculation for purposes of this section; and (b) the effective date of that threshold.”. Substitution of section 10 of Act 89 of 1998

5. The following section is hereby substituted for section 10 of the principal Act: “Exemptions 10. (1) Ajirm may apply to the Competition Commission to exempt [an agreement, or practice, or category of either agreements, or practices] from the application of this Chapter— a) an agreement or practice, if that agreement or practice meets the requirements of subsection (3); or 30 35 40 45 50 55 I I s X(). 21X80 GO\”EIINNIENT GAZETTE. 1.? DECFMF3ER 2000 4C1 h’(). 39, Moo cohwzrrrlm stxo.?m .4 MExo\mxr ,Acr. 2000 - (h) a catecory of a,qreel~len~.~ or practices. if that categorv of a$rwme)?r.s or— practices meets the requirements of subsection (3). (2) Upon receiving an Application in terms of subsection ()). the Competition Commission [may] must— (a) [advise the applicant in writing that the agreement, or practice, or category of either agreements, or practices, does not constitute a prohibited practice in terms of this Chapter] pant a conditional or unconditional exemption for a specified term, if the agreement or practice concerned, or category of a,qreemenr,s or priictices concerned, meets the requirements of subsection (3); or (b) [grant a conditional or unconditional exemption for a specified term] refuse to grant an exemption. if— ~ the agreement or practice concerned, or category of [either] agreen~enrs or practices concerned. dots not meet the require- ments of subsection (3); or (ii) the a~reemenr or practice, or category of agreements or practices. does not constitute a prohibited practice in terms of this Chapter. [(c) refuse to grant an exemption] (3) The Competition Commission may grant an exemption in terms of subsection [(2)(b)] (2)(a) only if— (a) any restriction imposed on the firms concerned by the agreement or practice concerned, or category of ugreenlenrs or practices concerned. is required to attain an objective mentioned in paragraph (b); and (b) the agreement or practice concerned, or category of [either] agree- ments or practices concerned, contributes to any of the following objectives: (i) maintenance or promotion of exports: (ii) promotion of the ability of small businesses, or~rms controlled or owned by historically disadvantaged persons, to become competitive; (iii) change in productive capacity necessary to stop decline in an industry: or (iv) the economic stability of any industry designated by the Minisrer. after consulting the Minister responsible for that industry. (4) [In addition to the provisions of subsections (2) and (3)] A jirrn may apply to the Competition Commission [may exempt] to exempt from the application of this Chapter an agreement or practice, or category of [either] agreements or practices, that relates to the exercise of intellectual a right acquired or protected in terms of the Performers’ Protection Act, 1967 (Act No. 11 of 1967), the Plant Breeders’ Rights Act. 1976 (Act No. 15 of 1976), the Patents Act, 1978 (Act No, 57 of 1978), the Copyright Act. 1978 (Act No. 98 of 1978). the Trade Marks Act. 1993 (Act No. 194 of 1993), and the Designs Act, 1993 (Act No. 195 of 1993]. 5 10 15 20 25 30 35 40 (4A) Upon receiving an application in terms of subsection (4). the 45 Competition Commission may grant an exemption for a specified term. (5) The Competition Commission may revoke [its written advice given in terms of subsection (2)(a) or] an exemption granted in terms of subsection [(2)(b)] (2)(a) or subsection (4A) if— (a) [the advice was given, or] the exemption was granted on the basis of false or incorrect information; (b) a condition for the exemption is not fulfilled; or (c) the reason for granting the exemption no longer exists. (6) Before granting an exemption in terms of subsection (2) or [(4)] (&Q, or revoking an exemption in terms of subsection (5), the Competition Commission [must]— 50 55 Act No. 39, 2000” COhlPETITION SECOND AhfENDMENT ACT. 2000” (a) must give notice in the (%:etfe of the application for an exemption. or of its intention to revoke that exemption: [and] (b) must allow interested parties [30] 20 busine~ days from the date of that notice to make written representations as to why the exemption should not be granted or revoked: and (c) may conduct an investigation into the agreerrrenr or practice con- cerned, or category of agreements or practices concerned. (7yThe Competition Commission, [must] by notice in the GaZe~te, must give notice of any exemption grdnted, refused or revoked in terms of this section. (8) Thefirm concerned. or any other person with a substantial [material] financial interest affected by a decision of the Competition Commission in terms of subsection [(2)(b) or (c), or subsections (4)] (2), (4A) or (5), may appeal that decision to the Competition Tribunal, in the prescribed manner, 5 10 ~to grant an exemption in terms of 15 subsection (2)(b) (ii), the Competition Commission— (a) may withdraw its notice of refusal to grant the exemption, in the { prescribed manner; and (b) if it does withdraw its notice of refusal, must reconsider the application for exemption.”. Substitution of Chapter 3 of Act 89 of 1998

6. The following Chapter is hereby substituted for Chapter 3 of the principal Act: “CHAPTER 3 MERGER CONTROL Thresholds and categories of mergers 11. (1) The Minister, in consultation with the Competition Commission, must determine— (a) a lower and a higher threshold of combined annual turnover or assets, or a lower and a higher threshold of combinations of turnover and assets, in the Republic, in general or in relation to specific industries, for purposes of determining categories of mergers contemplated in subsection (5); and (b) a method for the calculation of annual turnover or assets to be applied in relation to each of those thresholds. 20 25 30 (2) The Minister may make a new determination in terms of subsection 35 (1) in consultation with the Competition Commission. (3) Before making a determination contemplated in this section, the Minister, in consultation with the Competition Commission, must publish in the Gazette a notice— (a) setting out the proposed threshold and method of calculation for purposes of this section; and (b) inviting written submissions on that proposal. (4) Within six months after publishing a notice in terms of subsection (3), the Minister, in consultation with the Competition Commission, must publish in the Gaze?re a notice— (a) setting out the new threshold and method of calculation for purposes 40 45 of this section; and (b) the effective date of that threshold. (5) For purposes of this Chapter— (a) ‘a small merger’ means a merger or proposed merger with a value at or below the lower threshold established in terms of subsection (1 )(a); 50 [2 No, 21880 GO\ ’ERN\~FXT G,4ZE”ITE, 13 DECEK1L3ER 20(K) Act NO. 39, 2000” COMPETITION SECOND AMENDMENT ACT. 200(J” (/?) (c) ‘an intermediate merger” means a merger or proposed merger with a value between the lower and higher thresholds established in terms of subsection (l)(a); and ‘a large merger’ means a merger or proposed merger with a value at or above the higher threshold established in terms of subsection ( 1 )(a). 5 Merger defined 12. (1) (u) For purposes of fhis Act, a merger occurs when one or more firms directly or indirectly acquire or establish direct or indirect control over the whole or part of the business of another firm. (b) A merger contemplated in paragraph (u) may be achieved in any 10 manner, including through— (i) purchase or lease of the shares, an interest or assets of the otherfirm in question; or (ii) amalgamation or other combination with the otherjirm in question. (2) A person controls a jirm if that person— (a) (b) (c) (d) (e) (t) (g) beneficially owns more than one half of the issued share capital of the firm; is entitled to vote a majority of the votes that may be cast at a general meeting of thejrm, or has the ability to control the voting of a majority of those votes, either directly or through a controlled entity of that person; is able to appoint or to veto the appointment of a majority of the directors of the jirm; is a holding company, and the jirm is a subsidiary of that company as contemplated in section 1 (3)(a) of the Companies Act, 1973 (Act No. 61 of 1973); in the case of a$rm that is a trust, has the ability to control the majority of the votes of the trustees, to appoint the majority of the trustees or to appoint or change the majority of the beneficiaries of the trust; in the case of a close corporation, owns the majority of members’ interest or controls directly or has the right to control the majority of members’ votes in the close corporation; or has the ability to materially influence the policy of thefirm in a manner comparable to a person who, in ordinary commercial practice, can exercise an element of control referred to in paragraphs (a) to ~). Consideration of mergers 12A. (1) Whenever required to consider a merger, the Competition Commission or Competition Tribunal must initially determine whether or not the merger is lik~ly to substantially prevent or lessen competition, by assessing the factors set out in subsection (2), and— (a) if it appears that the merger is likely to substantially prevent or lessen competition, then determine— (i) whether or not the merger is likely to result in any technological,- efficiency or other pro-competitive gain which will be greater than, and offset, the effects of any prevention or lessening of competition. that may result or is likely to result from the merger, and would not likely be obtained if the merger is prevented: and whether the merger can or cannot be justified on substantial public interest grounds by assessing the factors set out in subsection (3); or (ii) 15 lo 40 45 50 14 N(), 2 I Sso Cr(~\’ERN\lENT G,\ ZE~E. 13 DECEM13ER 20(’)() Act No. W. 2000 COMPET1TION SECOXD AMEND\lENT ACT. 2000 (b) otherwise, determine whether the merger can or cannot be justified on substantial public interest grounds by assessing the factors set out in subsection (3). (2) When determining whether or not a merger is likely to substantially prevent or lessen competition, the Competition Commission or Competi- tion Tribunal must assess the strength of competition in the relevant market, and the probability that thejirms in the market after the merger will behave competitively or co-operatively, taking into account any factor that is relevant to competition in that market, including— (a) the actual and potential level of import competition in the market; (b) the ease of entry into the market. including tariff and regulatory 5 10 barriers; (c) the level and trends of concentration, and history of collusion, in the market; (d) the degree of countervailing power in the market; (e) the dynamic characteristics of the market, including growth, innova- 15 tion, and product differentiation; (j the nature and extent of vertical integration in the market; (g) whether the business or part of the business of a party to the merger or proposed merger has failed or is likely to fail: and (h) whether the merger will result in the removal of an effective competitor. (3) When determining whether a merger can or cannot be justified on public interest grounds, the Competition Commission or the Competition Tribunal must consider the effect that the merger will have on— (a) a particular industrial sector or region; (b) employment; (c) the ability of small businesses, or jirms controlled or owned by historically disadvantaged persons, to become competitive; and (d) the ability of national industries to compete in international markets. 20 25 30 Small merger notification and implementation 13. (1) A party to a small merger— (a) is not required to notify the Competition Commission of that merger 1 unless the Commission requires it to do so in terms of subsection (3); and 35 (b) may implement that merger without approval, unless required to notify the Competition Commission in terms of subsection (3). (2) A party to a small merger may voluntarily notify the Competition Commission of that merger at any time. (3) Within six months after a small merger is implemented. the Competition Commission may require the parties to that merger to notify the Commission of that merger in the prescribed manner and form if. in the opinion of the Commission, having regard to the provisions of section 12A, the merger— (a) may substantially prevent or lessen competition: or (b) cannot be justified on public interest grounds. (4) A parry ro a merger contemplated in subsection (3) may take no further steps to implement that merger until the merger has been approved or conditionally approved. (5) Within 20 business days after all parties to a small merger have fulfilled all their notification requirements in the prescribed manner and form, the Competition Commission— (a) may extend the period in which it has to consider the proposed merger by a single period not exceeding 40 business days and, in that case, 40 45 50 I 6 X() 21 S’S() G~>\’ERN\lENT GAZt’TrE. 13 DECEM13ER 200() /\ct NO. .W.2OOO C(INIPETITIOX SK’ONII .A?vIIZN1)LIENT ACT, 2000 (b] mus( issue an extension certificate to an) party who notified it of the merger: or after having col~sidered tllen~erger inter]lls of section 12 A.musr issue a certificate in the prescribed frmn- (i) approvin~ the merger: (ii) approving themer:er subject to any conditions; (iii) prohibiting implementation of the merger, if it has not been implemented; or (i\’) declaring themergert obeprohibited. (6) If, upon the expiry of the 20 business day period provided for in subsection (5). the Competition Commission has not issued any of the certificates l-eferred to in that subsection o!-, upon the expiry of an extension period contemplated in subsection (5)(a), the Commission has not issued a certificate referred to in subsection (5)(b), the merger must be regarded as having been approJed,s ubjecttosection 15. (7) The Competition Commission must-– (a) publish a notice of the decision in the Ga:ette; and (b) issue written reasons for the decision if— (i) it prohibits or conditionally approves the merger; or (ii) requested to do so by a party to the merger. Notification and implementation of other mergers 13A. (1) A party to an intermediate or a lar~e merger must notify the Competition Commission of that merger, in the prescribed manner and form. (2) In the case of an intermediate or a large merger, the primary acquiring jirm and the priman target jlrm must each provide a copy of the notice contemplated in subsection (1) to— (a) any registered trade unim? that represents a substantial number of its employees: or 5 10 15 2(I 25 (b) the employees concerned or representatives of the employees con- 30 cerned, if there are no such registered trade unions. (3) The parties to an intermediate or large merger may not implement that merger until it has been approved, with or without conditions, by the Competition Commission in terms of section 14(1)(b), the Competition Tribunal in terms of section 16(2) or the Competition Appeal Court in terms of section 17. Merger investigations 13B. (1) The Competition Commission may direct an inspector to investigate any merger, and may designate one or more persons to assist the inspector. (2) The Competition Commission may require any par~ ro a merger to provide additional information in respect of the merger. (3) Any person, whether or not a party to or a participant in merger proceedings. may voluntarily file any document, affidavit. statement or other relevant information in respect of that merger. Competition Commission intermediate merger proceedings 14. (1) Within 20 business days after all parties to an intermediate merger have fulfilled all their notification requirements in the prescribed manner and form, the Competition Commission— (a) may extend the period in which it has to consider the proposed merger by a single period not exceeding 40 business days and, in that case, 35 40 45 50 Is No. 21s80 GC)VERNhfENT GAZETTE. 13 DECEMBER 2(i00 .— Act rio. 39.2000” COMPETITION SECOND AMENDMENT ACT. 20(M must issue an extension certificate to any party who notified it of the merger: or (b) after having considered the merger in terms of section 12A. must issue a certificate in the prescribed form— (i) approving the merger; (ii) approving the merger subject to any conditions; or (iii) prohibiting implementation of the merger. (2) If, upon the. expiry of the 20 business day period provided for in subsection ( 1), the Competition Commission has not issued any of the certificates referred to in that subsection or, upon the expiry of an extension period contemplated in subsection (1)(u), the Commission has not issued a certificate referred to in subsection (1)(b), the merger must be regarded as having been approved, subject to section 15. (3) The Competition Commission must- (a) publish a notice of the decision in the Gazette; and (b) issue written reasons for the decision if— (i) it prohibits or conditionally approves the merger; or (ii) requested to do so by a party to the merger. 5 10 15 Competition Commission large merger proceedings 14A. (1) After receiving notice of a large merger, the Competition 20 Commission— (a) must refer the notice to the Competition Tribunal and to the Minister; (b and within 40 business days after all parties to a large merger have fulfilled their prescribed notification requirements, ‘must forward to the Competition Tribunal and the Minister a written recommendation, with reasons, whether or not implementation of the merger should be— (i) approved; (ii) approved subject to any conditions; or (iii) prohibited. (2) The Competition Tribunal may extend the period for mal@ng a recommendation in respect of a particular merger upon an application by the Competition Commission, but the Tribunal may not grant an extension of more than 15 business days at a time. (3) If, upon the expiry of the period contemplated in subsection (1), or an extended period contemplated in subsection (2), the Competition Commis- sion has neither applied for an extension or further extension, as the case may be, nor forwarded a recommendation to the Competition Tribunal. any party to the merger may apply to the Tribunal to begin the consideration of the merger without a recommendation from the Commission, (4) Upon receipt of an application by a party contemplated in subsection (3), the Tribunal must set a date for proceedings in respect of that merger. 25 30 35 40 Revocation of merger approval 15. (1) The Competition Commission may revoke its own decision to 45 approve or conditionally approve a small or intermediate merger if— (a) the decision was based on incorrect information for which a pany to the merger is responsible; (b) the approval was obtained by deceit; or (c) a jirm concerned has breached an obligation attached to the decision. (2) If the Competition Commission revokes a decision to approve a 50 20 N(). 21880 CJCIVERNhl ENT GAZETTE. l? DECEMBER 2(X)0 .— - Act No. 39, 2000 CO.MPETITION SECOND AMENDMENT ACT. ?()()() merger under subsection (Ij. it mayprohibit that merger even though tin>’ I time limit set out in this Chaptermav have elapsed. Competition Tribunal merger proceedings 16. (1) If the Competition Commission approves—- (a) a small or intermediate merger subject to any conditions, or prohibits such merger, any party to the merger, by written notice and in the prescribed form, may request the Competition Tribunal to consider the conditions or prohibited merger: or (b) an intermediate merger, or approves such merger subject to any conditions, a person who in terms of section 13A(2) is required to be given notice of the merger, by written notice and in the prescribed form. may request the Competition Tribunal to consider the approval or conditional approval, provided the person had been a participant in the proceedings of the Competition Commission. (2) Upon receiving a referral of a large merger and recommendation from the Competition Commission in terms of section 14A(1), or a request in terms of subsection (1), the Competition Tribunal must consider the merger in terms of section 12A and the recommendation or request, as the case may be, and within the prescribed time— (a) approve the merger; (b) approve the merger subject to any conditions: or (c) prohibit implementation of the merger. (3) Upon application by the Competition Commission, the Competition Tribunal may revoke its own decision to approve or conditionally approve a merger, and section 15, read with the changes required by the context. applies to a revocation in terms of this subsection. (4) The Competition Tribunal must— (a) publish a notice of a decision made in terms of subsection (2) or (3) in the Gazette; and (b) issue written reasons for any such decision. Competition Appeal Court merger proceedings 17. (1) Within 20 business days after notice of a decision by the Competition Tribunal in terms of section 16, an appeal from that decision / may ~e made to the Competition Appeal Court, s~bject to its rules, by— (a) any party to the merger; or (b) a person who, in terms of section 13A(2), is required to be given notice of the merger, provided the person had been a participant in the proceedings of the Competition Tribunal. (2) The Competition Appeal Court may— (a) set aside the decision of the Competition Tribunal: (b) amend the decision by ordering or removing restrictions, or by including or deleting conditions; or (c) confirm the decision. (3) If the Competition Appeal Court sets aside a decision of the Competition Tribunal, the Court must— (a) approve the merger; (b) approve the merger subject to any conditions; or (c -- prohibit implementation of the merger. Intervention in merger proceedings 18. (1) In order to make representations on any public interest ground referred to in section 12A(3), the Minister may participate as a party in any intermediate or large merger proceedings before the Competition Commis- sion, Competition Tribunal or Competition Appeal Court, in the prescribed manner. 5 10 15 20 25 30 35 40 45 50 I I ?2 .- NO. 21880 GOVERNMENT GAZETTE.. 13 DECEMBER 2000 .Acl N(), 39, 2000 COKIF’ETITION SH70Ntl AMENDMENT ACT. 2000” (2) Despite anything to the contrary in rhis Acr, the Competition Commission may not make a decision in terms of’ section 13(5)(b) ol- 14( 1 )(b). and the Competition Tribunal may not make an order in terms of section 16(2), if the— (a) merger constitutes— (i) an acquisition of shares for which permission is required in terms of section 37 of the Banks Act, 1990 (Act No. 94 of 1990): or (ii) a transaction for which consent is required in terms of section 54 of the Banks Act, 1990 (Act No. 94 of 1990); and (b) Minister of Finance has, in the prescribed manner, issued a notice to the Commissioner specifying the names of the parties to the merger and certifying that— (i) the rner~er is a merger contemplated in paragraph (a)(i) or (ii); and (ii) it is in the public interest that the merger is subject to the jurisdiction of the Banks Act, 1990 (Act No. 94 of 1990), only. (3) Sections 13(6) and 14(2) do not apply to a merger in respect of which the Minister of Finance has issued a certificate contemplated in subsection m“ Amendment of section 19 of Act 89 of 1998 5 10 15 Z()

7. Section 19 of the principal Act is hereby amended by the substitution for subsection (2) of the following subsection: “(2) The Competition Commission consists of the Commissioner and one or more Deputy Commissioners, [as may be necessary] appointed by the Minisrer in terms of this Act.”. 25 Amendment of section 21 of Act 89 of 1998

8. Section 21 of the principal Act is hereby amended— (a) by the substitution in subsection (3) for paragraphs (a) and (b) of the following paragraphs, respective] y: “(a) within [14] 10 business days after receiving that report from the 30 Competition Commission [if Parliament is in session at that time]; or (b) if Parliament is not [in session] then sitting, within [14] 10 business days after the commencement of the next [session] a.”; and (b) by the substitution in subsection (4) for the words preceding paragraph (a) of 35 the following words: “The Minister, [may] in consultation with the [Competition Commis- sion] Commissioner and by notice in the Gazette, ~ prescribe regulations for matters relating to the functions of the Commission, including—”. 40 Amendment of section 24 of Act 89 of 1998

9. Section 24 of the principal Act is hereby amended by the substitution in subsection (4) for the words preceding paragraph (a) of the following words: “When an inspector performs any function in terms of [Chapter 5] [his Act, the inspector must—”. 45 Amendment of section 26 of Act 89 of 1998

10. Section 26 of the principal Act is hereby amended by the substitution for subsection (2) of the following subsection: “(2) The Competition Tribunal consists of a Chairperson and not less than three, but not more than ten, other women or men appointed by the President, on a full or 50 part-time basis, on the recommendation of the Minister, from among persons nominated by the Minis[er either on the Minister k initiative or in response to a 24 No. 21880 Act NO. 39, 2000 C, O\’ERNhlFiY’T G,\ Z[;TTE. 13 D[iCEk113ER 2000 COhlPETITION SECOND AMENDhfENT ACT. 2000” & call for nominations [which must be published by the Minister in the Gazette].”. Substitution of section 27 of Act 89 of 1998

11. The following section is hereby substituted for section 27 of the principal Act: “Functions of Competition Tribunal 27. (1) [Upon a matter being referred to it in terms of this Act, the] The m (b) (c) (d) Competition Tribunal may— [grant an exemption from a relevant provision of this Act] adjudicate on any conduct prohibited in terms of Chapter 2, to determine whether prohibited conduct has occurred, and, if so. to impose any remedy provided for in this Act; [authorise a merger, with or without conditions, or prohibit a merger] adjudicate on any other matter that may, in terms of ?hi.s Ac~, be considered by it, and make any order provided for in {his Act: [adjudicate in relation to any conduct prohibited in terms of Chapter 2 or 3, by determining whether prohibited conduct has occurred, and if so, impose a remedy provided for in Chapter 6; or] hear appeals from. or review any decision of, the Competition Commission that may in terms of this Act be referred to it; and [grant an order for costs in terms of section 57] make any ruling or order necessary or incidental to the performance of its functions in terms of this Ac~. (2) Section 21(4), read with the changes required by the context, applies to the Competition Tribunal, and the reference in that section to the Commissioner must be construed as a reference to the Chairperson of the Tribunal.”. 5 10 15 20 25 Amendment of section 31 of Act 89 of 1998

12. Section 31 of the principal Act is hereby amended by the substitution for subsection (5) of the following subsections: “(5) If the Competitio~ Tribunal may extend or reduce a prescribed period in 30 terms of this Act, the Chairperson of the Tribunal or another member of the I Tribunal assigned by the Cha~rperson, sitting alone, may make an order— (u) extending or reducing that period; or (b) condoning late performance of an act that is subject to that period. (6) A decision of the Chairperson or other person contemplated in subsection (5), or of a majority of the members of a panel in any other matter. is the decision of the Tribunal.”. Amendment of section 40 of Act 89 of 1998

13. Section 40 of the principal Act is hereby amended— (a) by the substitution for subsection (7) of the following subsection: “(7) The Commissioner is the accounting authority of the Competition Commission for purposes of the Public Finance Management Act, 1999 (Act No. 1 of 1999).”; and (b) by the deletion of subsection (8). Amendment of section 41 of Act 89 of 1998

14. Section 41 of the principal Act is hereby amended by the substitution in subsection (2) for paragraphs (a) and (b) of the following paragraphs, respectively: “(a) within [14] 10 business days after receiving that report from the Competition Commission [if Parliament is in session at that time]; or 35 40 45 26 No: 21880 GOVERNMENT GAZETTE. 13 DECEhfBER 2000 Act No. 39, 2(MKI COMPETITION SECOND AMENDMENT ACT. 2000 (b) if Parliament is not [in session] (hen sitting, within [14] 10 business days after the commencement of the next [session] sittin~. ”. Substitution of Chapters 5 and 6 of Act 89 of 1998

15. The following Chapters are hereby substituted for Chapters 5 and 6 of the principal Act. respectively: “CHAPTER 5 INVESTIGATION AND ADJUDICATION PROCEDURES PART A Confidential information Right of informants to claim confidentiality 44. (1) (a) A person, when submitting information to the Competition Commission or the Competition Tribunal, may identify information that the person claims to be confidential information. (b) Any claim contemplated in paragraph (a) must be supported by a written statement in the prescribed form, explaining why the information is confidential. (2) The Competition Commission is bound by a claim contemplated in subsection (1), but may at any time during its proceedings refer the claim to the Competition Tribunal to determine whether or not the information is confidential information. (3) The Competition Tribunal may— (a) determine whether or not the information is confidential; and (b) if it finds that the information is confidential, make any appropriate ~ Disclosure of information 45. (1) A person who seeks access to information that is subject to a claim that it is confidential information may apply to the Competition Tribunal in the prescribed manner - and form, and the Competition Tribunal may— (a) determine whether or not the information is confidential information; and (b) if it finds that the information is confidential. make any appropriate order concerning access to that confidential information. (2) Within 10 business days after an order of the Competition Tribunal is made in terms of section 44(3), a party concerned may appeal against that decision to the Competition Appeal Court, subject to its rules. 5 10 15 20 25 30 35 (3) From the time information comes into the possession of the Competition Commission or Competition Tribunal until a final determina- tion has been made concerning it, the Commission and Tribunal must treat as confidential, any information that— (a) the Competition Tribunal has determined is confidential information; 40 (b) ~~the subject of a claim in terms of this section. (4) Once a final determination has been made concerning any informa- tion, it is confidential only to the extent that it has been accepted to be confidential information by the Competition Tribunal or the Competition 45 Appeal Court” Restricted use of information 45A. (1) (a) When making any decision in terms of this Act, the Competition Commission, subject to paragraph (b), may take confidential information into account in making its decision. (b) If the Commission’s reasons for the decision would reveal any confidential information, the Commission must provide a copy of the 50 .,\. . N(} 2 I 880 GC\ERNMENl ~~zwr~, 1? DECEMBER 2000 Act No. Y). 2000 cOMPETITION SEC(>NI.) ,AhfEND\lENT A. CT. 2000 proposed reasons tO the party concerned at least 10 business days befole publishi]lg those !tasons. (2) A party may apply to the Competition Tribunal within the period contemplated in subsection ( 1 )(b) aftel- receiving a copy of the proposed reasons. subject to its rules, fol an appropriate order to protect the confidentiality of the relel’ant information. (3) A party concerned may appeal against a decision of the Competition Tribunal in terms of subsection (2) to the Competition Appeal Court, subject to its rules. (4) If a party applies to the Competition Tribunal in terms of subsection (2). the Competition Commission may not publish the proposed reasons until the Tribunal or the Competition Appeal Court, as the case may be, has made an order re~ardins the matter. . . PART B Powers of search and summons Authority to enter and search under warrant 46. (1) A judge of the High Court, a regional magistrate or a magistrate may issue a warrant to enter and search any premises that are within the jurisdiction of that judge or magistrate, if, from information on oath or affirmation, there are reasonable grounds to believe that— (a) ap~-ollibiredpractice has taken place, is taking place or is likely to take place on or in those premises: or (b) anything connected with an investigation [into that prohibited practice] in terms of ~his Act is in the possession of, or under the control of, a person who is on or in those premises. (2) A warrant to enter and search may be issued at any time and must specifically— (a) identify the premises that may be entered and searched; and (b) authorise an inspector or a police officer to enter and search the premises and to do anything listed in section 48. (3) A warrant to enter and search is valid until one of the following events occurs: (u) The warrant is executed; (b) the warrant is cancelled by the person who issued it or, in that person’s absence, by a person with similar authority; (c) the purpose for issuing it has lapsed; or (d) the expiry of one month after the date it was issued. (4) A warrant to enter and search may be executed only during the day, unless the judge, regional magistrate or magistrate who issued it authorises that it may be executed at night at a time that is reasonable in the circumstances. (5) A person authorised by warrant issued in terms of subsection (2) may enter and search premises named in that warrant. (6) Immediately before commencing with the execution of a warrant, a person executing that warrant must— (a) if the owner, or person in control, of the premises to be searched is present- (i) provide Identification to that person and explain to that person the authority by which the warrant is being executed; and 5 10 15 20 25 30 35 40 45 (ii) hand a copy of the warrant to that person or to the person named 50 in it: or (b) if none of those persons is present, affix a copy of the warrant to the premises in a prominent and visible place. 3[1 NO. 21 m GOVERNMENT GAZETTE. 13 DECEMBER ‘2000 Act N(). 39.2000 COMPETITION SECOND AMENDMENT ACT. 2000 Authorit} - to enter and search without warrant 47. (1) An inspector who is not authorised bv a warrant in terms of section 46(2) may enter and search premises other than a privure dwelling. (2) Immediately before entering and searching in terms of this section, the inspector conducting the search must provide identification to the owner or person in control of the premises and expIain to that person the authority by which the search is being conducted, and must [either]— (a) get permission from that person to enter and search the premises: or (b) belieIe on reasonable grounds that a warrant would be issued under section 46 if applied for, and that the delay that would ensue by first obtaining a warrant would defeat the objector purpose of the entry and search. (3) An entry and search without a warrant maybe carried out only during the day, unless doing it at night is justifiable and necessary in the circumstances. Powers to enter and search 48. (1) A person who is authorised under section 46 or 47 to enter and search premises may— (a) (b) (c) enter upon or into those premises; search those premises; search any person on those premises if there are reasonable grounds for believing that the person has personal possession of an article or document that has a bearing on the investigation; examine any article or document that is on or in those premises that has a bearing on the investigation; request information about any article or document from the owner of, or person in control of, the premises or from any person who has control of the article or document, or from any other person who may have the information; take extracts from, or make copies of, any book or document that is on or in the premises that has a bearing on the investigation; use any computer system on the premises, or require assistance of any person on the premises to use that computer system, to-- (i) search any data contained in or available to that computer system: (ii) reproduce any record from that data; and (iii) seize any output from that computer for examination and (d) (e) W (g) copying; and (h) attach and, if necessary, remove from the premises for examination and safekeeping, anything that has a bearing on the investigation. (2) Section [45(5)] 49A(3) applies to an answer given or statement made to an inspector in terms of this section. (3) An inspector authorised to conduct an entry and search in terms of section 46 or 47 mav be accompanied and assisted by a police officer. Conduct of entry and search 49. (1) A person who enters and searches any p remises under section 48 must conduct the entry and search with strict regard for decency and order, and with regard for each person’s right to dignity, freedom, security and privacy. (2) During any search under section 48( l)(c), on] y a female inspector or police officer may search a female person, and only a male inspector or police officer may search a maIe person. 5 10 15 20 25 30 35 40 45 50 ., . No. 21880 CiO\’EtlNMENT CiAZETTI; I ~ DECEMBER 2000 /\ct No. 39.2000” CO\lPETITIOX SE.CON’D Ah’tENt)hlENT ACT, 2000” (3) A person who enters and searches pwmise,s under section W, must before questioning myone- (a) advise that person of the right to be assisted at the time by an ~dvocate or attorney: and (/7) allo~t that person to exercise that right. (4) A person ;vho removes anything from premises being searched must— (a) issue a receipt for it to the owner of. or person in control of, the 5 premises: and (b) return it as soon as practicable after achieving the purpose for which it 10 was removed, (5) During a search, a person may refuse to permit the inspection or removal of an article or document on the grounds that it contains privileged information. (6) If the owner or person in control of an article or document refuses in terms of subsection (5) to give that article or document to the person conducting the search, the person conducting the search may request the registrar or sheriff of the High Court that has jurisdiction to attach and remove the article or document for safe custody until that court determines whether or not the information is privileged. (7) A police officer who is authorised to enter and search premises under section 46, or who is assisting an inspector who is authorised to enter and search premises under section 46 or 47, may overcome resistance to the entry and search by using as much force as is reasonably required, including breaking a door or window of the premises. (8) Before using force in terms of subsection (7), a police officer must audibly demand admission and must announce the purpose of the entry, unless it is reasonable to believe that doing so may induce someone to destroy or dispose of an article or document that is the object of the search. (9) The Competition Commission may compensate anyone who suffers damage because of a forced entry during a search when no one responsible for the premises was present. Summons 49A. (1) At any time during an investigation in terms of fhis Act. the Commissioner may summon any person who is believed to be able to furnish any information on the subject of the investigation, or to have possession or control of any book, document or other object that has a bearing on that subject— (a) to appear before the Commissioner or a person authorised by the Commissioner, to be interrogated at a time and place specified in the summons; or (b) at a time and place specified in the summons, to deliver or produce to the Commissioner, or a person authorised by the Commissioner, any book, document or other object specified in the summons. (2) A person questioned by an inspector conducting an investigation, or by the Commissioner or other person in terms of subsection ( 1), must answer each question truthfully and to the best of that person’s ability. but the person is not obliged to answer any question if the answer is self-incriminating. (3) No self-incriminating answer given or statement made to a person exercising any power in terms of this section is admissible as c~idence against the per-son who gave the answer or made the statement in criminal proceedings, except in criminal proceedings for perjury or in which that person is tried for an offence contemplated in section 72 or section 73(2) (d,J. and then only to the extent that the answer or statement is relevant to prove the offence charged. 15 ~o 25 30 35 40 45 50 55 .? 4 No. 21S80 GO\’ERNMENT GAZETTE. 13 DECEMBER 2000 Act No. 39, 2000 CO!VIPETITION SECOND AMENDMENT ACT. Y.)(K) PART C Cornplaint procedures Initiating complaint 49B. (1) The Commissioner may initiate a complaint against an alleged prohibited practice. (2) Any person may— (a) submit information concerning an alleged prohibited practice to the Competition Commission, in any manner or form; or (b) submit a complaint against an alleged prohibited practice to the Competition Commission, in the prescribed form. (3) Upon initiating or receiving a complaint in terms of this section, the Commissioner must direct an inspector to investigate the complaint as quickly as practicable. (4) At any time during an investigation, the Commissioner may designate one or more persons to-assist the inspector. Interim relief 49C. (1) At any time, whether or not a hearing has commenced into an alleged prohibited practice, the complainant may apply to the Competition Tribunal for an interim order in respect of the alleged practice. (2) The Competition Tnbunal— (a) must give the respondent a reasonable opportunity to be heard, having regard to the urgency of the proceedings; and (b) may grant an interim order if it is reasonable and just to do so. having regard to the following factors: (i) The evidence relating to the aIleged prohibited prac[ice; (ii) the need to prevent serious or irreparable damage to the applicant; and (iii) the balance of convenience. (3) In any proceedings in terms of this section, the standard of proof is the same as the standard of proof in a High Court on a common law application for an interim interdict. (4) An interim order in terms of this section may not extend beyond the earlier of the— (a) conclusion of a hearing into the alleged prohibited practice; or (b) date that is six months after the date of issue of the interim order. (5) If an interim order has been granted, and a hearing into that matter has not been concluded within six months after the date of that order, the Competition Tribunal, on good cause shown, may extend the interim order for a further period not exceeding six months. (6) Any party to an application may apply to the Competition Appeal Court to review a decision of the Competition Tribunal in terms of this section. (7) The applicant may appeal to the Competition Appeal Court against a refusal by the Competition Tribunal to grant an interim order in terms of this section. (8) The respondent may appeal to the Competition Appeal Court in terms of this section against any order of the Competition Tribunal that has a final or irreversible effect. 5 10 15 20 25 30 35 40 45 Consent orders 49D. (1) If, during, on or after the completion of the investigation of g 50 complaint. the Competition Commission and the respondent agree on the terms of an appropriate order, the Competition Tribunal, without hearing any evidence, may confirm that agreemenr as a consent order in terms of se~tion 58( 1 )(b). 3(> — N(>. 2 I 880 ——— —. GO\ ’ERh’MENT GAZETTE. 13 DECENIBER 2!000 Act No. 39. 2(W) C OAIPEllTIO!N SECOND .AMENDNfENT ACT. 200(} (2) After hearing a motion for a consent older, the Competition Tribunal nlust— (a) make the order as agreed to and proposeci by the Competition Commission and the rcspondcIJf: {b) indicate any changes that must be made in the draft order before it will 5 make the order; or (c) refuse to make the order. (3) With the consent of a complainant. a consent order may include an award of damages to the comp/aina)tr. (4) A consent order does not preclude a complainant from applying for— 10 (a) a declaration in terms of section 58(1 )(a)(v) or (vi); or (b) an award of civil damages in terms of section 65, unless the consent order includes an award of damages to the c-omp/ait?ant. Outcome of complaint 50. ( 1 ) At anv time after initiating a complaint. the Competition 15 Commission may refer the complaint to the Competition Tribunal. (2) Within one year after a complaint was submitted to it. the Commissioner must— (a) subject to subsection (3), refer the complaint to the Competition Tribunal. if it determines that a prohibited practice has been established: or (b) in any other case, issue a notice of non-referral to the complainant in the prescribed form. (3) When the Competition Commission refers a complaint to the Competition Tribunal in terms of subsection (2)(a), it— ( a ) may— (i) refer all the particulars of the complaint as submitted by the complainant; (ii) refer only some of the particulars of the complaint as submitted by the complainant; or (iii) add particulars to the complaint as submitted by the compluinan~; and (b) must issue a notice of non-referral as contemplated in subsection (2)(b) in respect of any particulars of the complaint not referred to the Competition Tribunal. (4) In a particular case— (a) the Competition Commission and the cotnplainanf may agree to extend the period allowed in subsection (2); or (b) on application by the Competition Commission made before the end of the period contemplated in paragraph (a), the Competition Tribunal may extend that period. (5) If the Competition Commission has not referred a complaint to the Competition Tribunal, or issued a notice of non-referral, within the time contemplated in subsection (2) or the extended period contemplated in subsection (4). the Commission must be regarded as having issued a notice of non-referral on the expiry of the relevant period. lo 25 30 35 40 45 Referral to Competition Tribunal 51. ( 1 ) If the Competition Commission issues a notice of non-referral in response to a complaint. the complainant [concerned] may refer the [matter] complaint directly to the Competition Tribunal. subiect to its rules 50 of procedure. (2) A referral to the Competition Tribunal, whether by the Competition Commission in terms of section [50(aj] ~ or by a complainant in terms of subsection (1), must be in the prescribed form. (3) The Chairperson of the Competition Tribunal must, by notice in the 55 Gazette. publish each referral made to the Tribunal. (4) The notice published in terms of subsection (3) must include— .3 s No Q I ~g(j .Act No. 39,2000 GOVERNMENT GAZETTE. 13 DECEh4BER 2000 ———— COlvtPETITION SECOND AMENDMENT ACT. 2000 (a) (b) the name of the ~rm whose conduct is the subaject of the referral] resrmndent: and— the nature of the conduct that is the subject of the referral. PART D Tribunal hearings and orders 5 Hearings before Competition Tribunal 52. (1) The Competition Tribunal must conduct a hearing, subject to its rules, into every matter referred to it in terms of [section 50(a) or section 51(1)] f17i.s Act. (2) Subject to subsections (3) and (4), the Competition Tribunal— 10 (a) must conduct its hearings in public, as expeditiously as possible, and” in accordance with the principles of natural justice; and (b) may conduct its hearings informally or in an inquisitorial manner. (2A) Despite subsection (2)(a), the Chairperson of the Tribunal may order that a matter be heard— (a) in chambers, if no oral evidence will be heard, or that oral submissions be made at the hearing; or (b) by telephone or video conference, if it is in the interests of justice and expediency to do so. (3) Despite subsection (2), the Tribunal member presiding at a hearing may exclude members of the public, or specific persons or categories of persons, from attending the proceedings— (a) if evidence to be presented is confidential information, but only to the extent that the information cannot otherwise be protected; (b) if the proper conduct of the hearing requires it; or (c) for any other reason that would be justifiable in civil proceedings in a High Court. (4) At the conclusion of a hearing, the Competition Tribunal must make any order permitted in terms of [Chapter 6] this Act and must issue written reasons for its decision. — , (5) The Competition Tribunal must provide the participants and other members of the public reasonable access to the record of each hearing, subject to any ruling to protect confidential information made in terms of subsection (3)(a). Right to participate in hearing

53. The following persons may participate in a hearing [contemplated in section 53], in person or through a representative, and may put questions to witnesses and inspect any books, documents or items presented at the hearing: (a) If the hearing is in terms of Part C— Q) [(b)] (ii)— the Commissioner, or any person appointed by the Commis- sioner; the complainant. if— (au) the conqiainunt referred the complaint to the Competition Tribunal; or ~ Tribunal, the complainant’s interest is not adequately represented by another participant, and then only to the extent required for the complainant’s interest to be a~ .— equately represented: the ~rm whose conduct forms the basis of the hearing] respondent; and any other person who has a material interest in the hearing, unless, in the opinion of the presiding member of the Competi- [(c)] ~ [(d)] @i 15 20 25 30 35 40 45 50 I 40 N o . 21880 — — — . . . — . . . . . . — — — — . —. clo\’E~ts\lENrG:47.E-rTE. I.; DECEMBF32 mo — — . . — . . - —. Act No. 39, 2000 COMPET1TIOX SECC)ND /\hlENDklENT,ACT. looo tion Tribunal. th~t in(erest i s a d e q u a t e l y r e p r e s e n t e d b y arwther participant. but only to the extent required for the Conlplainanr>s interes[to~e-adequately represented; (b) ifthehearing islnterrn so fsection 10 or Schedule l— (i) (ii) (iii) (iv) (v) the appficant form exemption: the Competition Commission: the appellant, if [he appellant is not the applicant for an exemption: an interested person contemplated in section 10(8) who submit- ted a representation to the Competition Commission. unless. in the opinion of the presiding member of the Competition Tribunal, that person’s interest is adequately represented by another participant, but only to the extent required for the person’s interest to be adequately represented; and the Minister or member of the Executive Council if consulted in terms of Schedule 1; (i) (ii) (iii) (c) if the hearing is in terms of Chapter 3— any party to the merger; the Competition Commission; any person who was entitled to receive a notice in terms of section 13A(2), and who indicated to the Commission an intention to participate, in the prescribed form; the Minister, if the Minister has indicated an intention to participate; and any other person whom the Tribunal recognised as a participant; and (iv) (v) 5 10 15 20 25 (d) if the hearing is in terms of Part A— (i) the person who owns the information that is the subject of the hearing; (ii) any person who sought disclosure of the information that is the 30 subject of the hearing; (iii) the Competition Commission; and (iv) any other person whom the Tribunal recognised as a participant. Powers of member presiding at hearing

54. The member of the Competition Tribunal presiding at a hearing 35 may— (a) direct or summon any person to appear at any specified time and place; (b) question any person under oath or affirmation; (c) summon or order any person— (i) to produce any book, document or item necessary for the purposes of the hearing; or (ii) to perform any other act in relation to d?is Act; [and] (d) give directions prohibiting or restricting the publication of any evidence given to the Competition Tribunal; (e) accept oral submissions from any participant; and m accept any other information that is submitted by a participant. 40 45 Rules of procedure 55. (1) Subject to the Competition Tribunal’s rules of procedure, the Tribunal member presiding at a hearing may determine any matter of procedure for that hearing, ~ith due regard to the circumstances of the case, 50 and the requirements of section 52(2). (2) The Tribunal may condone any technical irregularities aris~ in an of its proceedings. (3) The Tribunal may— 7 I 42 No. 21880 GOVF+W’MENT GAZE’ITL, 13 DECEMBER 2000” Act No. 39, 2(KM COMPETITION SECOND ANIENDNfENT ACT. 2000” (a) (b) accept as evidence any relevant oral testimony, document or other thing. whether or not-— (i) it is given or proven under oath or affirmation; or (ii? would be admissible as evidence in court; but refuse to accept any oral testimony, document or other thing that is unduly repetitious. Witnesses 56. (1) Every person giving evidence at a hearing of the Competition Tribunal must answer any relevant question. (2) The law regarding a witness’ privilege in a criminal case in a court of’ law applies equally to a person who provides information during a hearing. (3) The Competition Tribunal may order a person to answer any question. or to produce any article or document, even if it is self- incriminating to do so. 5 10 (4) Section [45(5)] 49A(3) applies to evidence given by a witness in 15 terms of this section. costs 57. (1) Subject to subsection (2) and the Competition Tribunal’s rules of procedure, each party participating in a hearing must bear its own costs. (2) If the Competition Tribunal— (a) has not made a finding against a respondent, the Tribunal member presiding at a hearing may award costs to the respondent, and against a complainant who referred the complaint in terms of section 51(1); or (b) has made a finding against a responded?, the Tribunal member presiding at a hearing may award costs against the respondent, and to a complainant who referred the complaint in terms of section 51(1). Orders of Competition Tribunal 58. (1) In addition to its other powers in terms of this Act, t he Competition Tribunal may— (a) make an appropriate order in relation to a prohibited practice, including— (i) interdicting any prohibited practice; (ii) ordering a party to supply or distribute goods or services to another party on terms reasonably required to end a prohibited practice; (iii) imposing an administrative penalty, in terms of section 59, with or without the addition of any other order in terms of this section; (iv) ordering divestiture, subject to section 60; (v) declaring conduct of a$rm to be apmhibitedpractice in terms of this Act, for purposes of section 65; (vi) declaring the whole or any part of an agreement to be void; (vii) ordering access to an essential facility on terms reasonably required; (b) (c) confirm a consent agreement in terms of section 49D as an order of the Tribunal; or subject to sections 13(6) and 14(2), condone, on good cause shown, any non-compliance of— (i) the Competition Commission or Competition Tribunal rules; or (ii) a time limit set out in /his Act. (2) At any time, the Competition Tribunal may adjourn a hearing for a reasonable period of time, if there is reason to believe that the hearing Z() 25 30 35 40 45 50 4-! No. 218s(7 GOVERNhlENT GAZETTE. 13 DECEMBER 2000 Act No. 39.2000 CC) MI’ETIT[ON SECOND AMENDMENT ACT, 2000 relates to a prohibited procrice that might qualify for exemption in terms of section 10. (3) Despite any other provision of rhis Act, if the Competition Tribunal acllourns a hearing in terms of subsection (2), the rrs/7onde12r may apply for an exemption du~ins that adjournment. 5 Administrative penalties 59. ( 1 ) The Competition Tribunal may impose an administrative penalty _.. . rmlv— (a) ‘ for a prohibited practice in terms of section 4( 1 )(b), 5(21 or g(a), (b) or (b) (c) (d) (d): for aprohibitedpracfice in terms of section 4(l)(a), 5(1), 8(c) or 9(l). if the conduct is substantially a repeat by the same jirm of conduct previously found by the Competition Tribunal to be a prohibited prac~ice; for contra~)ention of, or failure to comply with, an interim or final order of the Competition Tribunal or the Competition Appeal Court; or if the parties to a merger have— (i) failed to give notice of the merger as required by Chapter 3; (ii) proceeded to implement the merger in contravention of a decision by the Competition Commission or Competition Tribunal to prohibit that merger; (iii) proceeded to implement the merger in a manner contrary to a condition for the approval of that merger imposed by the Competition Commission in terms of section 13 or 14, or the Competition Tribunal in terms of section 16; or (iv) proceeded to implement the merger without the approval of the Competition Commission or Competition Tribunal, as required by this Acr. (2) An administrative penalty imposed in terms of subsection (1) may not exceed 10 per cent of the jirrn k annual turnover in the Republic and its exports from the Republic during the jirm’s preceding financial year. (3) When determining an appropriate penalty, the Competition Tribunal must consider the following factors: (a) the nature, duration, gravity and extent of the contravention; (b) any loss or damage suffered as a result of the contravention; (c) the behaviour of the respondent; (d) the market circumstances in which the contravention took place; (e) the level of profit derived from the contravention; (j) the degree to which the respondent has co-operated with the Competition Commission and the Competition Tribunal; and (g) whether the respondent has previously been found in contravention of this Act. (4) A fine payable in terms of this section must be paid into the National Revenue Fund referred to in section 213 of the Constitution. Divestiture 60. (1) If a merger is implemented in contravention of Chapter 3. the Competition Tribunal may— (a) order a party to the merger to sell any shares, interest or other assets it has acquired pursuant to the merger; or (b) declare void any provision of an agreement to which the merger was subject. (2) The Competition Tribunal, in addition to or in lieu of making an order -under section 58, may make an order directing any jirm, or any other person, to sell any shares, interest or assets of the jirm if— (a) it has contravened section 8, and (b) the prohibited practice— 10 15 20 25 30 35 40 45 50 55 46 No 21880 CiOVERNh~ENT GAZETTE, 13 DECEMBER 2000 Act Nr). 39, 2000 CONIPETITION SECOND AMENDMENT ACr. 2000 (i) cannot adequately be remedied in terms of another provision of this Act: or (ii) is substantially a repeat by that ,jirm of conduct previously found by the Tribunal to be a pmhihitcd practice. (3) An order made by the Competition Tribunal in terms of subsection (2) is of no force or effect unless confirmed by the Competition Appeal Court. (4) An order made in terms of subsection (1) or (2) may set a time for compliance, and any other terms that the Competition Tribunal considers appropriate, having regard to the commercial interests of the party concerned. 5 10 Part E Appeals and reviews to Competition Appeal Court Appeals 61. (1) A person affected by a decision of the Competition Tribunal may appeal against, or apply to the Competition Appeal Court to review, that decision in accordance with the Rules of the Competition Appeal Court if. in terms of section 37, the Court has jurisdiction to consider that appeal or review that matter. (2) The Competition Appeal Court may make an order for the payment of costs against any party in the hearing, or against any person who represented a party in the hearing, according to the requirements of the law and fairness. 15 20 Appellate jurisdiction 62. (1) The Competition Tribunal and Competition Appeal Court share exclusive jurisdiction in respect of the following matters: (a) Interpretation and application of Chapters 2, 3 and 5, other than— 25 (i) a question or matter referred to in subsection (2); or (ii) a review of a certificate issued by the Minister of Finance in terms of section 18(2); and (b) the functions referred to in sections 21(l), 27(1) and 37, other than a 30 question or matter referred to in subsection (2). (2) In addition to any other jurisdiction granted in this Act to the Competition Appeal Court, the Court has jurisdiction over— (a) the question whether an action taken or proposed to be taken by the Competition Commission or the Competition Tribunal is within their respective jurisdictions in terms of ~his Act; (b) any constitutional matter ansing in terms of this Act; and (c) the question whether a matter falls within the exclusive jurisdiction granted under subsection (1). (3) The jurisdiction of the Competition Appeal Court— (a) is final over a matter within its exclusive jurisdiction in terms of subsection (1); and (b) is neither exclusive nor final in respect of a matter within its jurisdiction in terms of subsection (2). (4) An appeal from a decision of the Competition Appeal Court in respect of a matter within its jurisdiction in terms of subsection (2) lies to the Supreme Court of Appeal or Constitutional Court, subject to section 63 and their respective rules. (5) For greater certainty, the Competition Tribunal and the Competition Appeal Court have no jurisdiction over the assessment of the amount, and awarding , of damages arising out of a prohibited practice. 35 40 45 50 4s N,). 21 X80 GO\ERNk!EN’l”G .,4ZETTF:. 1.7 D1KE\413ER20[X) Act iio. .39. 2000 COMPETITION SECOND ANIENDJIENT,\CT. 2000 Leave to appeal 63. (]) The right to anapped i n termsofseclion 6 2 ( 4 ) — ._ (a) issubject toanylawthat- (i) specifically limits the right of appeal set out in that section; or (ii) specifically grants, limits or excludes any right of appeal: (b) is not limited by monetary value of the matter in dispute; and (c) exists even if the matter in dispute is incapable of being valued in money. (~) An appeal in terms of section 62(4) may be brought to the Supreme if it concerns a constitutional matter, to the Courf of Appeal or, Constitutional Court, only— (a) with leave of the Competition Appeal Court; or (b) if the Competition Appeal Court refuses leave, with leave of the Supreme Court of Appeal or the Constitutional Court, as the case may be. (3) A court granting leave to appeal in terms of this section may attach any appropriate conditions, including a condition that the applicant provide security for the costs of the appeal. (4) If the Competition Appeal Court, when refusing leave to appeal, made an order of costs against the applicant, the Supreme Court of Appeal or the Constitutional Court may vary that order on granting leave to appeal. (5) An application to the Competition Appeal Court for leave to appeal must be made in the manner and form required by the Competition Appeal Court Rules. (6) An application to the Constitutional Court for leave to appeal must be made in the manner and form required by its Rules. (7) Section 21 (1A) to (3)(e) of the Supreme Court Act, 1959 (Act No. 59 of 1959), read with the changes required by the context, applies to an application to the Supreme Court of Appeal for leave to appeal in terms of this Act. (8) A person applying to the Supreme Court of Appeal for leave to appeal under this Acf must give notice of the application to the registrar of the Competition Appeal Court. CHAPTER 6 ENFORCEMENT Status and enforcement of orders 64. (1) Any decision, judgment or order of the Competition Commission, Competition Tribunal or Competition Appeal Court may be served, executed and enforced as if it were an order of the High Court. (~) The Competition Commission may institute proceedings in the High Court on its own behalf for recovery of an administrative penalty imposed by the Competition Tribunal. (3) Proceedings under subsection (2) may not be initiated more than three years after the imposition of the administrative penalty. Civil actions and jurisdiction 65. (1) Nothing in tlzi.t Act renders void a provision of an agreenlenr that, in terms of this Act. is prohibited or may be declared void, unless the Competition Tribunal or Competition Appeal Court declares that provision to be void. (2) If, in any action in a civil court, a party raises an issue concerning conduct that is prohibited in terms of rhis Act, that court must not consider that issue on its merits, and— 35 40 45 50 50 _—.— No. 21880 GOVERNMENT GAZETTE. I ? DECEMBER 200(1 Act No. 39, 2000 COMPETITION SECOND AMt3iDhiENI_ ACT, 2000 (a) if the issue raised 1s one in respect of which the Competition Tribunal or Competition Appeal Court has made an order. the court must apply the determination of the Tribunal or the Competition Appeal Court to the issue; or (b) otherwise, the court must refer that issue to the Tribunal to be 5 considered on its merits. if the court is satisfied that— (i) the issue has not been raised in a frivolous or vexatious manner; and (ii) the resolution of that issue is required to determine the final outcome of the action. [(3) The Competition Tribunal and the Competition Appeal Court share exclusive jurisdiction in respect of the following matters: (a] Interpretation and application of the provisions of Chapters 2,3, and 6, other than this section; and (b) the functions referred to in sections 21(1), 27(1) and 37(1). (4) The Competition Appeal Court has final jurisdiction in respect of any matter referred to in subsection (3) that may be appealed to it or reviewed by it. 10 15 (5) For greater certainty, the Competition Tribunal and the Compe- tition Appeal Court have no jurisdiction over the assessment of the 20 amount, and awarding, of damages arising out of a prohibited practice.] (6) A person who has suffered loss or damage as a result of a prohibited practice— (a) may not commence an action in a civil court for the assessment of the 25 amount or awarding of damages if that person has been awarded damages in a consent order confirmed in terms of section [63(1)1 49D(1); or (b) if entitled to commence an action referred to in paragraph (a), when instituting proceedings, must file with the Registrar or Clerk of the 30 Court a notice from the Chairperson of the Competition Tribunal, or the Judge President of the Competition Appeal Court, in the prescribed form— (i) certifying that the conduct constituting the basis for the action has been found to be a prohibited practice in terms of this Act; (ii) stating the date of the Tribunal or Competition Appeal Court 35 finding; and (iii) setting out the section of this Act in terms of which the Tribunal or the Competition Appeal Court made its finding. (7) A certificate referred to in subsection (6)(b) is conclusive proof of its 40 contents, and is binding on a civil court. (8) An appeal or application for review against an order made by tbe Competition Tribunal in terms of section [60] ~ suspends any right to commence an action in a civil court with respect to the same matter. (9) A person’s right to bring a claim for damages arising out of a 45 prohibited practice comes into existence— (a) on tbe date that the Competition Tribunal made a determination in respect of a matter that affects that person; or (b) in the case of an appeal, on the date that the appeal process in respect of that matter is concluded. (1 O) For the purposes of section 2A(2)(a) of the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), interest on a debt in relation to a claim for damages in terms of this Act will commence on the date of issue of the certificate referred to in subsection (6). Variation of order

66. The Competition Tribunal, or the Competition Appeal Court, acting of its own accord or on application of a person affected by a decision or order, may vary or rescind its decision or order— 50 55 52 No. 21s80 —. GO\ERN-MENT GAZETTE. 13 DECEMBER 2000 — —. Act No. 39, 2(}00 COklPETITION SECC)ND AMEND\~ENT ACT. 2000” (a) (b) (c) erroneously sought or granted in the absence of a party affected by it: in which there is ambiyity. or an obvious error or omission, but only to the extent of correcting that ambiguity, error 01- omission: or made or granted as a result of a mistake common m all of the parties to the proceedings. 5 Limitations of bringing action 67. ( 1 ) A complaint in respect of a prohibited practice may not be initiated more than three years after the practice has ceased. (2) A complaint may not be [initiated] referred to the Competition Tribunal against any,firm that [is, or] has been a respondent in completed 10 proceedings before the Tribunal under the same or another section of rhis Act relating substantially to the same conduct. Standard of proof

68. In any proceedings in terms of [Chapter 3 or this Chapter] this Ac~, other than proceedings in terms of section 49C or criminal proceedings, the 15 standard of proof is on a balance of probabilities.”. Amendment of section 71 of Act 89 of 1998

16. Section 71 of the principal Act is hereby amended by the substitution for the words preceding paragraph (a) of the following words: “A person commits an offence who, having been summoned in terms of section 20 49A or directed or summoned to attend a hearing—”. - Amendment of section 72 of Act 89 of 1998

17. Section 72 of the principal Act is hereby amended by the substitution for paragraph (a) of the following paragraph: “(a) subject to section 49A(3) or 56, fails to answer any question fully and to the 25 best of that person’s ability; or”. Amendment of section 73 of Act 89 of 1998

18. Section 73 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection: “(1 ) A person commits an offence who contravenes or fails to comply with an 30 interim or final order of the Competition Tribunal or the Competition Appeal court.”. Repeal of section 76 of Act 89 of 1998

19. Section 76 of the principal Act is hereby repealed. Substitution of section 82 of Act 89 of 1998

20. The following section is hereby substituted for section 82 of the principal Act: “Relationship with other agencies 82. (1) A regulatory authoritv which, in terms of any public regu~ation, has jurisdiction in respect of conduct regulated in terms of Chapter 2 or 3 within a particular sector— (a) must negotiate agreements with the Competition Commission, as anticipated in section 21(1)(h); and 35 40 (b) in respect of a particular matter within its jurisdiction, may exercise its jurisdiction by way of such an agreement. (2) Subsection (1)(a) and (b), read with the changes required by the 4.5 context, applies to the Competition Commission. 54 x{). 21880 GOVERNMENT GAZETTE. 13 DECEMBER 2000 Act No. 39,2000 COMPETITION SECOND AMENDMENT .ACT. 2000 (3) In addition to the matters contemplated in section 21 ( 1 )(h), an agreement in terms of subsection ( 1 ) nlust— (u) identify and esvablish procedures for the management of areas of concurrent jurisdiction; (b) promote co-operation between the regularor.v authority and the 5 Competition Commission; (c) provide for the exchange of information and the protection of conjidetztiul infbrnzutio]): and (d) be published in the Gacette. (4) The President may assign to the Competition Commission any duty of the Republic, in terms of an international agreement relating to the purpose of this Ac[, to exchange information with a similar foreign auenc~, ”. Amendment of Schedule 1 to Act 89 of 1998

21. Schedule 1 to the principal Act is hereby amended— (a) by the substitution for the heading of the following heading: “EXEMPTION OF PROFESSIONAL RULES”; and (b) by the substitution for Part A of the following Part: “PARTA . . . . . . . .

1. A prolesslonal association whose rules conlam a restriction mat nas me effect of substantially preventing or lessening competition in a market may apply in the prescribed manner to the Competition Commission for an exemption in terms of item 2. . .

2. The Competition Commission may exempt all or part of the rules of a professional association from the provisions of Part A of Chapter 2 of this Act for a specified period if, having regard to internationally applied norms, any restriction contained in those rules that has the effect of substantially preventing or lessening competition in a market is reasonably required to maintain— (a) professional standards; or (b) the ordinary function of the profession. 3, Upon receiving an application in terms of item 1, the Competition Commission must— (a) publish a notice of the application in the Gazette; (b) allow interested parties 20 business days from the date of that notice to make representations concerning the application; and (c) consult the responsible Minister, or member of the Executive.CounciI concerning the application,

4. After considering the application and any submissions or other information received in relation to the application, and consulting with the responsible Minister or member of the Executive Council, the Commission must— (a) either grant an exemption or reject the application by issuing a notice in the prescribed form to the applicant, (b) give written reasons for its decision: and (c) publish a notice of that decision in the Gazette.

5. The Competition Commission, in the prescribed manner, may revoke an exemption granted under item 4 on good cause shown, at any time after it has— (a) given notice in the Gazette of its intention to revoke the exemption; (b) allowed interested parties 20 business days from the date of that notice to make representations concerning tbe exemption; and (c) consulted the responsible Minister, or member of tbe Executive Council.

6. A professional rule is exempt, or its exemption revoked, only as of the date on which notice of the exemption or revocation, as the case may be, is published in the Gazette. 10 15 25 30 35 40 45 50 i5 I 56 No 2 I Sh’o GOVERNMENT GAZETTE, 13 DECEMBER 2000 Act No. 39, 2000 COMPETITION SECOND AMENDMENT ACT. 2000

7. The Competition Commission must maintain for public inspection a record of ail professional rules that have received exemption, or for which exemption has been revoked.

8. A professional association, or any other person with a substantial interest affected by a decision of the Competition Commission in terms of item 4 may appeal against that decision to the Competition Tribunal in the prescribed manner and form.

9. In this Schedule— ‘professional association’ means an association referred to in Part B of this Schedule: ‘professional rules’ means rules regulating a professional association that are binding on its members; ‘rules’ includes public regulu[ions, codes of practice and statements of principle.”. Amendment of Preamble to Act 89 of 1998 5 10 15

22. The Preamble to the principal Act is hereby amended by the substitution for the first paragraph of the following paragraph: “That apartheid and other discriminatory laws and practices of the past resulted in excessive concentrations of ownership and control within the national economy. [weak enforcement ofl inadequate restraints against anti-competitive trade 20 practices, and unjust restrictions on full and free participation in the economy by all South Africans.”. ‘Ikansitional provisions 23. (1) In this section— (a) “principal Act” means the Competition Act, 1998 (Act No. 89 of 1998), as 25 it existed immediately before the commencement of this Act; and (b) “principal Act as amended” means the principal Act as amended by this Act. (2) Despite section 6(3) and (4), and section 11(3) and (4], of the principal Act as amended, the Minister of Trade and Industry may at the commencement of this Act 30 publish in the Gazette a notice determining a new threshold and method of calculation under each of those sections, respectively. (3) A determination in terms of subsection (2) takes effect on the date of commencement of this Act, and if it is a determination under— (a) section 6 of the principal Act as amended, applies to any proceedings that 35 were pending before the Competition Commission, Competition Tribunal or Competition Appeal Court immediately before the date of commencement of this Act; or (b) section 11 of the principal Act as amended, applies to any proceedings that were pending before the Competition Commission immediately before the 40 date of commencement of this Act. (4) A recommendation made by the. Competition Commission in terms of section 14(3) of the principal Act must be regarded as having been a decision made under section 14( 1)(b) of the principal Act as amended, if— (a) as a result of subsection (3)(b), the merger is classified as an intermediate 45 merger; and (b) the Competition Tribunal had not made an order in respect of the merger at the date of commencement of this Act. (5) Any proceedings that were pending before the Competition Commission, Competition Tribunal or Competition Appeal Court before the date of commencement 50 of this Act must be proceeded with in terms of the principal Act as amended, except to the extent that a regulation under section21 (4) or 27(2) of the principal Act as amended, or a rule of the Competition Appeal Court, provides otherwise. (6) For greater clarity, section 18(2) and (3) of the principal Act as amended applies to a merger that was pending before the Competition Commission or the Competition 55 Tribunal immediately before the date of commencement of this Act. . .$x —. No. 21880 GOVERNMENT GAZETTE, 13 DECEMBER XXXI Act NO. 39, 2000 COMPETITION SECOND AMENDMENT ACT. 2000 Short title and commencement z4. This Act is called the Competition Second A]nendment .4ct, 2000, and takes effeCt on a date fixed by the President by proclamation in the Gazetle,