The Commission’s enforcement function relates to contraventions of abuse of dominance, vertical restrictive practices and horizontal restrictive practices, including cartels. In order to provide a dedicated focus to cartel conduct- which is the most egregious of all competition law contraventions- the Commission established a Cartels division in 2011. This was a function which was previously performed by the Enforcement and Exemptions division, but due to the observed prevalence of this type of conduct in the South African economy, the Commission pursued a specialist and dedicated focus on cartel investigations. As such, the enforcement work of the Commission is undertaken by the Cartels and Enforcement and Exemptions divisions, respectively.
The Investigation and Litigation Process
The Commission investigates contraventions to the Act on the basis of complaints received from the public or through its own initiation on the basis of its experience or on outcomes of its market studies. Once a complaint has been received and recorded by its Registry department, it is screened by the Screening Unit within the Enforcement and Exemptions division for an assessment of its merit, in order to determine whether a full investigation should occur. The screening process is a crucial step in the process, as it is a prima facie test of the case- thus enabling the Commission to determine whether to allocate further resources through a detailed investigation or to curtail the investigation. The Commission may require a complainant to provide further information in order to establish whether the matter should be further investigated.
Once a case has been screened, the Commissioner may decide to ‘non-refer’ the matter- that is, not to investigate further. Alternatively, the case can be allocated to the relevant enforcement division (E&E or Cartels) for further investigation. The statutory time-frames for investigating enforcement cases based on complaints from the public is 12 months. There is no statutory time-frame provided for the completion of investigations initiated by the Commission.
Once an investigation is completed, the relevant division will forward it the Commission’s litigators in the Legal Services Division. The Policy & Research division can also partake in case investigation and litigation where complex economic analysis is required. The Legal Services division is responsible for preparing the case file and representing the Commission before the Tribunal or other relevant courts.