Cartels: Developments in South Africa

south_africa editor John Oxenham recently published a terrific summary of the latest developments in the ZA cartel sphere.

A teaser introduction is below.  His detailed article can be found here (PDF).
John Oxenham, editor
John Oxenham, AAT editor

The past 18 months have witnessed significant developments in the investigation and prosecution of cartel conduct in South African competition law.  In summary, these developments are the following:

• The Supreme Court of Appeal recognised the availability of ‘opt
out’ class actions for private damages and set out a procedure
through which plaintiffs can seek certification of a class.
• The Constitutional Court extended the availability of class actions
for private damages by recognising ‘opt-in’ class actions
where the interests of justice permit such a procedure.
• The Competition Commission (the Commission) for the first
time utilised a fast-track settlement process in relation to the
prosecution of a widespread cartel in the construction industry.
• An amendment to the Competition Act, 89 of 1998 (the Act)
was promulgated giving the Commission the power to institute
market enquiries. The Commission has indicated that it wishes
to conduct a market inquiry into the private health-care sector.
• The Supreme Court of Appeal broadened the scope for the
Competition Tribunal (the Tribunal) to adjudicate complaints
prosecuted by the Commission.
• The Supreme Court of Appeal confirmed that leniency applications
submitted to the Commission by a leniency applicant are
subject to legal privilege unless the Commission makes reference
to the application in a complaint referral to the Tribunal
– in which case it will be taken to have waived privilege.
• The North Gauteng High Court found that a leniency applicant
is not protected from private damages claims – even where it
is not cited by the Commission as a respondent in complaint
proceedings brought before the Tribunal.

The article originally appeared in The African and Middle Eastern Antitrust Review 2014, which is published by Global Competition Review and is available online at:

NB: author and economist Patrick Smith recently also published an article in the same edition of the Review, see: Public Interest Factors in African Competition Policy.

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