Failure to comply with the provisions of the Competition Act can lead to the imposition of penalties and other sanctions.

The Act provides for two categories of offences and penalties:

1. Civil offences - which can lead to the imposition of administrative penalties. This denotes a finding by any of the competition authorities that a firm has either:
   • committed anti-competitive conduct in the form of a prohibited practice; or
   • failed to comply with an order of the Tribunal or Competition Appeal Court; or
   • has not had regard to the merger notification requirements set forth in the Act

2. Criminal offences - which can lead to imprisonment and/or the imposition of a monetary fine. The applicable offences and penalties are set forth in table 2 below.

Table 1: Civil Offences and Penalties
Section of Act	Nature of the Offence	Penalty Payable for a first offence	Quantum
Prohibited Practices
4(1)(a)	Horizontal restrictive practises - an agreement between or concerted conduct by competitors which leads to a substantial lessening or prevention of competition not outweighed by any pro-competitive, efficiency or technology gains arising	No - the conduct must be substantially a repeat of conduct by the same firm previously found to constitute a prohibited practice	The fine may not exceed 10% of the firm's annual turnover in South Africa and its exports from South Africa during the preceding financial year
4(1)(b)	Per se prohibited horizontal restrictive practises: Price fixing Market division Collusive tendering	Yes
5(1)	Vertical restrictive practises - an agreement between customer and supplier which leads to a substantial lessening or prevention of competition not outweighed by any pro-competitive, efficiency or technology gains arising	No - the conduct must be substantially a repeat of conduct by the same firm previously found to constitute a prohibited practice
5(2)	Per se prohibited vertical restrictive vertical practise: Minimum resale price maintenance	Yes
8(a)	Abuse of dominance - excessive pricing	Yes
8(b)	Abuse of dominance - refusal to grant access to a competitor to an essential facility when it is economically feasible to do so	Yes
8(c)	Abuse of dominance - an exclusionary act other than one specified in section 8(d) which leads to a substantial lessening or prevention of competition not outweighed by any pro-competitive, efficiency or technology gains arising	No - the conduct must be substantially a repeat of conduct by the same firm previously found to constitute a prohibited practice
8(d)	Abuse of dominance - exclusionary acts in the form of: Inducing or requiring a customer or supplier not to deal with a competitor; Refusing to supply scarce goods to a competitor when economically feasible to do so; Product tying; Price predation; Buying up a scarce supply of intermediate goods or resources required by a competitor, which leads to a substantial lessening or prevention of competition not shown by the dominant firm to be outweighed by any pro-competitive, efficiency or technology gains arising	Yes
9(1)	Abuse of dominance - price discrimination	No - the conduct must be substantially a repeat of conduct by the same firm previously found to constitute a prohibited practice
Failure to Comply with an order of the Tribunal or Competition Appeal Court
59(c)	Non-compliance with an order made by the Tribunal or Competition Appeal Court	Yes	The fine may not exceed 10% of the firm's annual turnover in South Africa and its exports from South Africa during the preceding financial year
Merger Related Civil Offences
13A	Failure to notify a merger; Implementing a merger in contravention of a decision by the Commission or Tribunal to prohibit the merger including failure to comply with any condition imposed in respect of the approval of any merger; Implementing a merger without approval	Yes	The fine may not exceed 10% of the firm's annual turnover in South Africa and its exports from South Africa during the preceding financial year

3. The Tribunal has adopted the approach that turnover to be considered when calculating fines should be restricted to that turnover derived from the anti-competitive conduct concerned, in the case of fines for restrictive practices.

4. When determining a penalty, the Tribunal is enjoined to consider the following factors:
   • The nature, duration, gravity and extent of the transgression;
   • Any loss or damage suffered as a result of the transgression;
   • The behaviour of the firm concerned;
   • The market circumstances in which the offence took place;
   • The level of profit derived from the transgression;
   • The degree to which the firm concerned has cooperated with the Tribunal and Commission;
   • Whether the firm concerned has previously been found to be in contravention of the Act.

5. In the matter of the Competition Commission v South African Airways, the Tribunal formulated a methodology for weighting the above considerations when calculating a fine. The nature, duration, extent and gravity of the transgression is considered the most important factor and was given a weighting of 3/10. Previous offences came next with a weighting of 2/10 followed by degree of cooperation with the authorities (1.5/10). The other considerations were weighted at 1/10 save for the level of profit derived from the transgression, which is considered least important and weighted at 0.5/10.

Table 2: Criminal Offences
Section of Act	Nature of the Offence	Sanction
Various
69	Breach of confidence - a failure to observe any claim of confidentiality over confidential information disclosed pursuant to the provisions of the Act	A fine not exceeding R2,000 or up to 6 months imprisonment or both
70	Hindering, opposing, obstructing or unduly influencing any person exercising a power or duty in terms of the Act
71	Failure to attend when summoned - includes: Failure to appear when summonsed to do so or to remain in attendance until excused without good reason; Refusing to be sworn in or make an affirmation when giving evidence; Failing to produce a book, document or other item as ordered if in possession or under control of the person concerned
72	Perjury - failing upon any enquiry, and when having been duly sworn, to answer fully and truthfully
73(1)	Contravening or failing to comply with an order of the Tribunal or Competition Appeal Court	A fine not exceeding R500,000 or up to 10 years imprisonment or both
73(2)	Inter alia: Any action calculated to improperly influence the Tribunal or Commission in connection with an investigation; Defaming the Tribunal or the Competition Appeal Court or a member of either in their official capacities; Acting contrary to a warrant to search and enter.	A fine not exceeding R2,000 or up to 6 months imprisonment or both