With effect from May 1, 2016, price fixing, market allocation and collusive tendering between actual and potential competitors could result in criminal liability for directors or managers.
In 2007 the Department of Trade and Industry introduced the Competition Amendment Bill. The Competition Amendment Act was then assented to in August 2009 and a presidential proclamation was published in April 2016 bringing into effect only section 73A(1) to (4).
In an interactive panel discussion advocate and expert in competition expertise David Unterhalter and advocate and expert in criminal law Michael Hellens , discussed the implications of the criminalisation of cartel conduct for firms, director and managers.
They also discussed issues around interplay between the Competition Commission and the National Prosecuting Authority (NPA’s) in investigating and enforcing criminal sanctions and the role of leniency in the NPA’s investigation and prosecution of director and managers.
Daryl Dingley, a partner in the Competition Practice at Webber Wentzel advised companies to develop and implement compliance programmes to ensure that their activities fell within the confines of the Competition Act.
He said companies must ensure that all their employees and directors were given the necessary compliance training and should be made aware of all relevant competition law developments.
“Companies are further encouraged to ensure strict compliance and implementation of competition policy and protocols. It may also be necessary to conduct an audit of all existing conduct and agreements to ensure compliance with the Competition Act,” he said.
Dingley warned that the implications of breaching the conduct were very serious. “This was not only due to the possibility of a fine and/or imprisonment but in terms of the Companies Act a person may be disqualified from being a director if they are convicted of an offence,” he explained.
Dingley however said there was also uncertainty regarding the penalty that may be imposed in respect of cartel conduct.
