Competition Amendment Act

30 April 1999 No. 513. 30 April 1999 It is hereby notified that the President has assented to the following Act which is hereby pubiished for general information:— Hierby word bekend gemaak dat die President sy goed- keuring geheg het aan d i e onderstaande Wet wat hierby ter a]gemene in]i:tin: gepubliseer word:— No. 35 of 1999: Competition Amendment Act, 1999. No. 35 van 1999: Wysigingswet op Nlededinging, 1999. 2 X() I C)9S 1 .4ct N(). 35. 1999 GO\’ERN~lENT GAZETrE. 30 .4PRIL 1999 CO\lPETITloN AMEXDhlENT ACT. 1999 GENERAL EXPLANATORY}’ NOTE: [ 1 Words in bold type in square brackets indicate omissions from existin& enactments. Words underlined with a solid line indicate insertions in existing enactments. (Ellg[ish rexr signed by the President. ) (Assetzted fo 14 A[]ril 1999.) ACT To amend the Competition Act, 1998, so as to close an existing loophole in respect of merger control; to determine the status and validity period of a ministerial notice; to make pre-merger notification compulsory in certain instances; to make provision for certiin matters on appeal; to provide for certain transitional arrangements; and to provide for matters connected therewith. B E IT ENACTED by the Parliament of the Republic of South Africa, as follows:— . Amendment of Schedule 3 to Act 89 of 1998

1. Schedule 3 to the Competition Act, 1998, is hereby amended— (a) by the substitution for item 1 of the following item: “1. A ruling issued in terms of section [6(l)(a)l 6(2)(u) of the Maintenance and Promotion of Competition Act, 1979 [(Act No. 86 of 1979)] (Act No. 96 of 1979), or notice issued in terms of section 14(l)(c) of that Act, in relation to an “acquisition” as defined in that Act, must be regarded for the purposes of this Act, depending on the context, to be either— @ a conditional approval of a merger as if it had been granted after this Act came into operation, by the Competition Commission in terms of section 14(1)(b)@ or by the Competition Tribunal in terms of section [16(2)(b)] 15(2)(b); or (b) a prohibition of a merger as if it had been prohibited after this Act came into operation, by the Competition Commission in terms of section 14( 1 )(b)(iii) or by the Competition Tribunal in terms of section 15(2)(c).”; (b) by the insertion after item 3 of the following item: 5 10 15 ~o . “3A. A notice issued by the Minister in terms of section 14(1)(c) of the Maintenance and Promotion of Competition Act, 1979 (Act No. 96 of 1979), in relation to a “restrictive practice” or a “monopoly situation” as defined in that Act, must be regarded as an order in terms of section 60( 1)(a) of this Acf and is valid for a period of 12 months from the date on which this Act comes into operation.”; 25 (c) by the addition to item 4 of the following paragraph: 4 N{). 19YS I G()\’ERN\lENT G,< ZETTE. 30 APRIL 199Y Act X(). 3j. 1Y99 CO\fPETITION Ah4ENDMENT ACT. 19YY “(e) The chairperson of the Competition Board contemplated in section 3 of the Maintenance and Promotion of Competition Act. 1979 (Act No. 96 of 1979). must be regarded as a reference to either the Competition Commissioner contemplated in section 22 of th;s Acf. or the chairperson of the Competition Tribunal contemplated in section 26 of til;s Act, as determined by the Miitister. ”; 5 (d) by the insertion after item 4 of the following items: ‘4A. Any transaction that takes place between the date on which this Act is published and the date on which this Act comes into operation, and which would constitute an intermediate or large merger if it had taken place after rhis Acf came into operation, is regarded for a period of 12 months after the date on which this Acf comes into operation as a merger in contravention of Chapter 3 and is subject to the provisions of section 62(1 ), unless— (a) the transaction has been approved by the Competition Board in terms of the Maintenance and Promotion of Competition Act, 1979 (Act No. 96 of 1979); or (b) the transaction has been notified in terms of item 4B.

4B. Any party to a transaction contemplated in item 4A may, within three months after the date on which this Acr comes into operation, notify the Competition Commission of the transaction in terms of section 13 as if it were an intermediate or large merger.

4C. The provisions of Chapter 3, with the changes required by the context, apply to a transaction that is notified under item 4B.

4D. After this Act comes into operation, any appeal pending before a special court contemplated in section 15 of the Maintenance and Promotion of Competition Act, 1979 (Act No. 96 of 1979), must be regarded as an appeal to the Competition Appeal Court contemplated in section 36 of this Act in the manner prescribed.

4E. Subject to items 1 to 3A, the Competition Appeal Court may, after hearing any appeal contemplated in item 4D, make any decision that the special court could have made in terms of section 15(10) of the Maintenance and Promotion of Competition Act, 1979 (Act No. 96 of 1979), and the provisions of fhis Act otherwise apply to that decision, as if it were a decision of the Competition Appeal Court in terms of this Act. 4F. (1) Notwithstanding sections 6 and 11, the first determinations of thresholds made by the Minister in terms of those sections must be made before the date on which this Act comes into operation. (2) Notwithstanding sections 6(2) and 11(2), the first determinations contemplated in subsection (1) take effect on the date on which this ACI comes into operation.”; and (e) by the substitution for the expression “(Act No. 86 of 1979)”, wherever it appears, of the expression “(Act No. 96 of 1979)”. Short title and commencement

2. This Act is called the Competition Amendment Act, 1999, and comes into operation 45 on a date determined by the President by proclamation in the Gazette.