The criminalisation of anticompetitive behaviour is a complex process with huge legal implications that the Competition Commission is not ready for, the newly appointed Competition Commissioner told journalists in Pretoria on Monday.
Minister of Economic Development Ebrahim Patel announced the appointment of Tembinkosi Bonakele as commissioner for a period of five years. Bonakele has been acting in the position for the past six months since the resignation of his predecessor Shan Ramburuth.
Patel said after discussions with the Competition Commission it was decided to implement the Competition Amendment Act in a phased manner to ensure that the necessary institutional capacity is available to apply the amendments. He said the first provisions that came into effect in the past year were those that empowered the commission to conduct a market inquiry. The commission has since embarked on an inquiry in the private healthcare sector, which is the first of its kind in South Africa.
Patel could not indicate when the provisions on the criminalisation of anticompetitive behaviour will be implemented. He said the government is working with the commission to create the institutional capacity needed to comply with the higher burden of proof in criminal cases and will proceed when the commission indicates its readiness.
Bonakele said the phased implementation of the Competition Amendment Act is prudent. Criminalisation is a complex process due to the different standards and the institutional framework has to exist before the commission can embark on it.
Civil matters are decided on a balance of probabilities and that is the standard currently used by the competition authorities. In criminal matters the higher standard of proof beyond reasonable doubt applies.
Bonakele said the power to prosecute lies with the National Prosecuting Authority (NPA) and a framework of co-operation has to be established between the commission, the NPA and the South African Police Service that does criminal investigations.
The difference between civil and criminal cases also impacts on the way investigations are conducted. In criminal investigations the accused have certain Constitutional rights, like the right to remain silent and the right to legal representation. “So how do you investigate?” he asks.
Further questions arise about which standard is applied to applications for corporate leniency and who takes the lead. “If the commission takes the lead, how does the NPA follow?” he asked.
Bonakele said the criminalisation of uncompetitive behaviour has huge legal implications and the commission is concerned that parties may think twice before coming forward with information about transgressions if they may face criminal charges. This may put the commission’s corporate leniency programme, that enabled it to crack open secret activities like the bread and construction cartels, in jeopardy.
Bonakele was asked about concerns that threats of huge civil claims and criminal prosecution of individuals – in the aftermath of the commission’s actions in terms of current legislation against the construction cartel – may deter parties in other industries from providing the commission with information in exchange for leniency. He said while the leniency programme has never promised immunity against claims for damages from other parties or criminal charges that may follow, it is a complex issue. The commission does not want such factors to put its leniency programme in danger, he said.
Bonakele said guidelines will be published by the end of the month to outline ways in which public submissions can be made in the inquiry into the public health sector.
Read Moneyweb’s interview with Tamara Paremoer, director for the market inquiry into the health sector at the Competition Commission, here.