Competition bill softened
The Competition Amendment Bill has been changed to limit the liability of directors and executives for the anticompetitive behaviour of companies in cases where they do not know of illegal actions.
Some provisions in the bill were changed after legal experts said they were unconstitutional, while others were given clearer definition.
The bill is intended to broaden the scope of law to cover complex monopolies, allow for proactive market inquiries and impose personal liability on directors and officers. The amendments to the bill, already adopted by the National Assembly, were endorsed yesterday by the National Assembly’s trade and industry portfolio committee.
The trade and industry deputy director-general of consumer and corporate regulation, Zodwa Ntuli, said the intention had been to impose stringent sanctions and prevent directors simply pleading ignorance of the activities.
But senior counsel said holding directors liable for anticompetitive behaviour simply because they should have known could be unconstitutional.
Negligence alone was not sufficient for prosecution.
Criminal liability would depend on their having known of cartel activities and acquiesced to them.
The bill also introduced a definition of conscious parallel conduct in relation to complex monopolies as occurring “when two or more firms in a concentrated market, being aware of each other’s actions, conducted their business affairs in a co-operative manner without discussion or agreement”.
Originally, the bill provided that if an accused could not provide evidence to counter a tribunal ruling or consent order, then these would be accepted by a court as conclusive proof of guilt.
But legal advisers said this was unconstitutional as it shifted the onus of proof from the prosecutor to the accused, who had a right to question the evidence presented to the criminal court.
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