• A Corporate Leniency Policy has been published by the Commission in terms of section 79 of the Competition Act No. 89 of 1998. The policy has been developed as a guideline to grant leniency to a qualifying firm that has been a member of a cartel.

  Successful disclosures and cooperation with the Commission under the Corporate Leniency Policy can lead to full immunity from prosecution by the competition authorities.

• The Corporate Leniency Policy is a guideline only and is not binding upon the Commission.

• In terms of section 4(1)(b) of the Act, an agreement, whether or not legally enforceable, between competitors (who collectively are commonly referred to as a cartel) is outlawed and would lead to censure if it involves:
  • directly or indirectly fixing a purchase or selling price or any other trading condition;
  • dividing markets by allocating customers, suppliers, territories, or specific types of goods or services; and
  • collusive tendering.

• The Commission may grant full immunity or reduce the administrative penalty payable by a self confessing cartel member if it assists the Commission in the investigation of the anti-competitive behaviour. Full immunity from fines and prosecution under the Act is available if the applicant meets the conditions set by the Commission.

• Immunity can be revoked at any time if the applicant fails to co-operate, misrepresents the facts, is dishonest or fails to meet any of the conditions prescribed for immunity.

Procedure for Application

• The application must be made in writing, and contain sufficient information for the Commission to identify the cartel conduct and its participants. The applicant does not have to disclose its identity at this stage. If the applicant might qualify for immunity, conditional immunity will be granted by the Commission, pending further investigation.

• Once the Commission has finalised its investigations and is satisfied that it has sufficient information to institute proceedings in respect of the cartel in the Tribunal, a further meeting is arranged with the applicant at which full immunity may be granted. Full immunity will require the applicant to fully co-operate on all issues concerning the cartel activity. In return, the Commission undertakes not to prosecute or fine the applicant.

• The Commission treats all information given to it by the applicant, throughout the process, as confidential. However, the Commission reserves the right to use such information in any subsequent prosecutions in the Tribunal against other cartel members.

Maximum Penalty for Breach of Cartel Laws

• The maximum penalty is 10% of the firm's previous financial year's annual turnover and will depend on the nature, duration, gravity and extent of the violation, any loss of damage suffered, behaviour of the firm concerned, the market circumstances, the profit derived from the violation, the level of co-operation with the authorities, and whether the firm has previously been found inc violation of the Act.