Competition Act [No. 89 of 1998]
REPUBLIC OF SOUTH AFRIC I
GOVERNMENT GAZETTE
STAATSKOERANT
VAN DIE REPUBLIEK VAN SUID-AFRIKA
Registered at the Post Ojice as a Newspaper As ‘n Nuusblad by die Poskantoor Geregistreer
CAPE TOWN, 30 OCTOBER 1998 VOL. 400
No. 19412 KAAPSTAD, 30 OKTOBER 1998
OFFICE OF THE PRESIDENT KANTOOR VAN DIE PRESIDENT
No. 1392. 30 October 1998 No. 1392. 30 Oktober 1998
It is hereby notified that the President has assented to the Hierby word bekend gemaak dat die President sy goed-
following Act which is hereby published for general keuring geheg het aan die onderstaande Wet wat hierby ter information:— algemene inligting gepubliseer word:—
No. 89 of 1998: Competition Act, 1998. No. 89 van 1998: Wet op Mededinging, 1998.
.,
~ No. 19412 GOVERNMENT GAZETTE. 30 OCTOBER 1998
Act No. 89, 1998 COMPETITION ACT, 1998
(English text signed by the President. ) (Assented to 20 October 1998.)
..- ACT
To provide for the establishment of a Competition Commission responsible for the investigation, control and evaluation of restrictive practices, abuse of dominant position, and mergers; and for the establishment of a Competition Tribunal responsible to adjudicate such matters; and for the establishment of a Competition Appeal Court; and for related matters.
PREAMBLE
The people of South Africa recognise:
That apartheid and other discriminatory laws and practices of the past resulted in excessive concentrations of ownership and control within the national economy, weak enforcement of anti-competitive trade practices. and unjust restrictions on full and free participation in the economy by all South Africans.
That the economy must be open to greater ownership by a greater number of South Africans.
That credible competition law, and effective structures to administer that law. are necessary for an efficient functioning economy.
That an eflicient, competitive economic environment. balancing the interests of workers, owners and consumers and focussed on development. will benefit all South Africans.
IN ORDER TO—
provide all South Africans equal opportunity to participate fairly in the national economy;
achieve a more effective and efficient economy in South Africa:
provide for markets in which consumers have access to, and can freely select. the quality and variety of goods and services they desire:
create greater capability and an environment for South Africans to compete effectively in international markets:
restrain particular trade practices which undermine a competitive economy:
regulate the transfer of economic ownership in keeping with the public interest:
establish independent institutions to monitor economic competition: and ~ive etiect to the international law obligations of the Republic.
4 No. 19412 GOVERNMENT GAZE’ITE, 30 OCTOBER 1998
Act No. 89, 1998 COMPETITION ACT, 1998
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa,as follows:—
1. 2. 3.
4. 5. 6. 7. 8. 9. 10.
11. 12. 13. 14. 15. 16. 17. 18.
19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43.
TABLE OF CONTENTS
CHAPTER 1
Definitions and interpretation Purpose of Act Application of Act
CHAPTER 2
Restrictive horizontal practices prohibited Restrictive vertical practices prohibited Restricted application of Part Dominant firms Abuse of dominance prohibited Price discrimination by dominant firm prohibited Exemption
CHAPTER 3
Restricted application of Chapter Merger defined Notification of merger required Competition Commission merger proceedings Competition Tribunal merger proceedings Consideration of Mergers Competition Appeal Court Merger Proceedings Minister may participate in proceedings
CHAPTER 4
Establishment and constitution of Competition Commission Independence of Competition Commission Functions of Competition Commission Appointment of Commissioner Appointment of Deputy Commissioner Appointment of inspectors Staff of Competition Commission Establishment and constitution of Competition Tribunal Functions of Competition Tribunal Qualifications of members of Competition Tribunal Term of office of members of Competition Tribunal Deputy Chairperson of Competition Tribunal Competition Tribunal moceedinm
8 5 10 10
12 12 10 14 14 14 14 16 15
18 18 20 20 20 22 23 24 24
25
26 26 26 28 30 30 30 30 30 32 32 35 32 34 34
Con~icts and disclosure of inter&t by members of Competition Tribunal 34 Acting by member of Competition Tribunal after expiry of term of office 34 40 Remuneration and benefits of members of Competition Tribunal 34 Staff of Competition Tribunal 34 Establishment and constitution of Competition Appeal Court 36 Function of Competition Appeal Court 36 Business of Competition Appeal Court 36 45 Terms of 05ce of members of Competition Appeal Court 36 Finances 38 Annual Report 40 Rules applicable to Competition Tribunal 40 Liability 42 50
6 No. 19412 GOVERNMENT GAZETTE. 30 OCTOBER 1998
Act No. 89, 1998 COMPETITION ACT. i 998
CHAPTER 5
44. 45. 46. “47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58.
59. 60. 61. 62. 63. 64. 65. 66. 67. 68.
69. 70. 71. 72. 73. 74. 75. 76. 77.
Initiating a complaint Investigation by Competition Commission Authority to enter and search under warrant Authority to enter and search without warrant Powers to enter and search Conduct of entry and search Outcome of complaint Referral to Competition Tribunal Hearings before Competition Tribunal Right to participate in hearing Powers of member presiding at hearing Rules of procedure Witnesses costs Appeals
CHAPTER 6
Interim relief Orders of Competition Tribunal Administrative fines Divestiture Consent orders Status and enforcement of orders Civil actions and jurisdiction Variation of order Limitations of bringing action Standard of proof
CHAPTER 7
Breach of confidence Hindering administration of Act Failure to attend when summoned Failure to answer fully or truthfully Failure to comply with Act Penalties Magistrate’s Court jurisdiction to impose penalties Serving documents Proof of facts
CHAPTER 8
78. Regulations 79. Guidelines 80. Official seal 81. Act binds State 82. Information exchange with foreign agencies 83. Transitional arrangements and repeal of laws 84. Short Title and commencement of Act
42 ~~ 42 44 5 44 46 46 48 48 10 48 48 50 50 50 15 50
50 52 5? ~o 54 54 54 54 5 6 25 58 58
58 5 8 30 58 58 60 60 60 35 60 60
62 62 40 62 62 62 62 6 2 45
SCHEDULE 1 SCHEDULE 2 SCHEDULE 3
64 68 70
8 No. 19412 GOVERNMENT GAZETTE, 30 OCTOBER 1998
Act No. 89, 1998 COMPETITION ACT, 1998
CHAPTER 1
DEFINITIONS, INTERPRETATION, PURPOSE AND APPLICATION OF ACT
Definitions and interpretation
1. ( 1 ) In this Act— 5 (i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix) (x)
(xi) (xii)
(xiii)
(xiv) (xv)
(xvi)
(xvii)
(xviii)
(xix)
(xx)
(xxi) (xxii)
(xxiii)
‘agreement’ includes a contract, arrangement or understanding, whether or not legally enforceable: (xv) ‘civil court’ means a High Court or Magistrates Court, as referred to in sections 166(c) and (d) of the Constitution; (xxii) ‘confidential information’ means trade, business or industrial informa- tion that belongs to a firm, has a particular economic value, and is not generally available to or known by others: (xxvii) ‘concerted practice’ means co-operative or co-ordinated conduct between jirms, achieved through direct or indirect contact, that replaces their independent action, but which does not amount to an agreement; (vi) ‘Constitution’ means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996); (viii) ‘essential facility’ means an infrastructure or resource that cannot reasonably be duplicated, and without access to which competitors cannot reasonably provide goods or services to their customers; (xiv) ‘excessive price’ means a price for a good or service which— (au) bears no reasonable relation to the economic value of that good or
service; and (W) is higher than the value referred to in subparagraph (us); (iv) ‘exclusionary act’ means an act that impedes or prevents a firm from entering into, or expanding within, a market: (xxiv) ‘firm’ includes a person, partnership or a trust; (v) ‘goods or services’, when used with respect to particular goods or sen’ices, includes any other goods orsenfices that are reasonably capable of being substituted for them, taking into account ordinary commercial practice and geographical, technical and temporal constraints; (vii) ‘horizontal relationship’ means a relationship between competitors: (x) ‘interest’ means a member’s interesr as defined in the Close Corpora- tions Act, 1984 (Act No. 69 of 1984); (i) ‘market power’ means the power of ajrm to control prices. to exclude competition or to behave to an appreciable extent independently of its competitors, customers or suppliers; (xii) ‘Minister’ means the Minister of Trade and Industry; (xiii) ‘organ of state’ has the meaning set out in section 239 of the Consfitufion; (xxiii) ‘premises’ includes land, any building. structure, vehicle, ship, boat, vessel, aircraft or container: (xvii) ‘prescribed’ means prescribed from time to time by regulation in terms of section 78; (xxviii) ‘private dwelling’ means any part of a structure that is occupied as a residence, or any part of a structure or outdoor living area that is accessory to. and used wholly for the purposes of, a residence: (xviii) ‘prohibited practice’ means a practice prohibited in terms of Chapter 2; (xxv) ‘public regulation’ means any national, provincial or local government legislation or subordinate legislation, or any license, tariff, directive or similar authorisation issued by a regulaton authorih or pursuant to any statutory authority: (xvi) ‘regulation’ means a regulation made under [his Acf: (xix) ‘regulatory authority’ means an entity established in terms of national, provincial or local government legislation or subordinate legislation responsible for regulating an industry, or sector of an industry: (xx) ‘respondent” means a jirm against whom a complaint of a prohibited prucfice has been initiated in terms of fhis Act: (xxi)
10
15
~o
25
30
35
40
45
50
55
60
1(1 S(1, 19412 ( ,()\ I R\ MEST GAZE1’”rF.. .;() ()([()}jt-R IWJ8
Act >(). 89, 1998 (’()\ lP}”[ I [ lo\ \(’”1. 199X
(\xi\ }
(-ix\’) (\\\ ’i)
(xxiii) (Xxllll)
‘restrictive horizontal practice’ means an! practice li\[cd III .L,L[l~Jn 4: (ii) ‘restrictive vertical practice” lllc:ill\ :itlylJractice listed ill\cc[l(J[15 :~]ii) ‘small business’ hai the mMmng wt (WI in the National Sm:iIl BU\IIm\\ Act. 1996 (Act No. 10? \Jt ]wM): l\il y ‘this Act’ includes tllerey Lll;l[t{~l~. ;ll~d Schedule\: (ix) ‘vertical relationship’ mc:m~ [IW rcla[iomship between a /IrJ/r WI Its \uppliers. its customers (Jr bo[h. (\\\i)
(2) Thi\ Act mustbeinterpreted- (aJ in J manner that is consisten[ wl[h (IW (’~~~z.jfifufic~~~ and gi\es ctle~t [t) [bc 1 0
purposes wt out insection2: and (b) illu(lrllpli:iilceviththe interna[lon;~l l;IU obligations of the Republic,
(3) Any person in[~rpretin,g or applying r/71.} ,.1( I IIlay consider appropriate torcl:n and international Iav,.
Purpose of Act 15
2. The purpose of [/ii\ ,.!cf is to prolmote and maintain competition in the Republic in order-
([1) (b) (c)
(d)
(t’)
(f)
to promote the etticiency. adaptability and dctclt)pnlent of the econc~m!: to provide consumers with competitii e prices ~nd product choices: to promote employment and advtince the social and economic weltarc ~)t’ 20 South African\: to expand opportunities for South Africun participation in world markct~ and recognise the rote of foreign competition in the Republic; to ensure that smull md medium-sized enter-prises have an equitable opportunity to participate in the economy: and ~~ to promote a greater spread of ownership. in particular to increase the ownership stakes of historically disadvantaged persons.
Application of Act
3. ( I ) This Act applies to all economic activity within, or having an effect within. the Republic, except— 30
(a) collective bargaining within the meaning of section 23 of the Con.sti[/[ri{l~l, and the Labour Rel~tions Act, 1995 (Act No. 66 of 1995):
(b) a collective agreement. as defined in section 213 of the Labour Relations Act. 1995:
(c) the rules of a professional association to the extent that they are exempted in 35 terms of Schedule l;
(d) acts subject to or authorised by publi[ regulation: or (c) concerted conduct designed to achie\e a non-commercial socio-ecotlolllic
objective or similar purpose. (2) For all purposes of fhi.j Act. a person is ii historically disadvantaged person it that 40
person- ([1)
( b )
(c)
(d)
is one of a category of individuals who. before the Constitution (Jt the Republic of’ South Africa, 1993 (Act No. 200 of 1993), came into opcra[it~n, were disadvantaged by unfair discrimination on the basis of race: is an association, a majority of whose members are individuals referred to in 45 paragraph (a); is a juristic person other than an associ~tion. and individuals referred to in paragraph (a) own and control a majority of its issued share capital or members’ itzfcre.~f and are able to control a majority of’ its votes; or is a juristic person or association. and persons referred to in paragraph ((l). (b/ 50 or (c) own and control a majority of its i\\ued \hare capita] or rnernbers’ interest and are able to control a majority of its votes.
12 No. 194}2 GOVERNMENTG AZEnE,W OCTOBER 1998
Act No. 89.1998 COMPETITION ACT, 1998
CHAPTER 2
PROHIBITED PRACTICES
PART A
RESTRICTIVE PRACTICES
Restrictive horizontal practices prohibited
4. ( 1 ) An ugreetnent between. or concerted pructice by, jirttrs, or a decision by an association of,firms, is prohibited if—
(a) it is between parties in a horizontal relationship and it has the effect of substantially preventing or lessening competition in a market, unless a pany 10 the agreement, concerted practice. or decision can prove that any technology- I () cal, eti]ciency or other pro-competitive, gain resulting from it outweighs that effect; or
(b) it involves any of the following re.srricti~’e horizontal practices: (i) directly or indirectly fixing a purchase or selling price or any other
trading condition; 15 (ii) dividing markets by allocating customers, suppliers, territories. or
specific types of goods or services; or (iii) collusive tendering.
(2) An agreement to engage in a restrictive horizontal practice referred to in subsection ( 1 )(b) is presumed to exist between two or more jirms if— 20
(a) any one of those jirms owns a substantial shareholding, interes[ or similar right in the other, or they have at least one director or substantial shareholder in common; and
(b) any combination of those firms engages in that restrictive horizontal practice. (3) A presumption contemplated in subsection (2) may be rebutted if ajrm, director 25
or shareholder concerned establishes that a reasonable basis exists to conclude that the practice referred to in subsection (1)(b) was a normal commercial response to conditions prevailing in that market.
(4) For the purposes of subsection (2), “director” means— (a) a director of a company as defined in the Companies Act, 1973 (Act No. 61 of 30
1973); (b) a member of a close corporation as defined in the Close Corporations Act,
1984 (Act No. 69 of 1984); (c) a trustee of a trust : or (d) a person holding an equivalent position in a firm. 35
(5) The provisions of subsection ( 1 ) do not apply to an agreement between, or concerted practice engaged in by,—
(a) a company, its wholly owned subsidiary as contemplated in section 1(5) of the Companies Act, 1973, a wholly owned subsidiary of that subsidiary or any combination of them; or 40
(b) the constituent firms within a single economic entity similar in structure to those referred to in paragraph (a).
Restrictive vertical practices prohibited
5,( 1 ) An agreement between parties in a vertical relationship is prohibited if it has the effect of substantially preventing or lessening competition in a market, unless a party to 45 the agreement can prove that any technological, efficiency or other pro-competitive, gain resulting from that agreement outweighs that effect.
(2) The practice of minimum resale price maintenance is prohibited. (3) Despite subsection (2), a supplier or producer may recommend a minimum resale
price to the reseller of a good or service provided— 50 (a) the supplier or producer makes it clear to the reseller that the recommendation
is not binding; and (b) if the product has its price stated on it, the words “recommended price”
appear next to the stated price.
14 > ( ) . 19412 GOVERNMENT (; AZF.”mE. .W OCTOBER 1998
.Act No. 89, 1998 C().MPETITI()N ACT, 199x
PART B
ABUSE OF A DOMINANT POSITION
Restricted application of Part
6. ( 1 ) As soon as prwtkable after ~his Acr comes into operation. and U( inter\ a]~ of ntjt less than five years thereafter. the kfi}]i.s[er mu\t. in consultation with the Competition” 5 Commission, and by notice in the Gu~etfe-
(C(J determine a threshold of annual turnover. or assets. in the Republic. either in general or in relation to specitic industries. below which [his Part does not apply to a, firm: and
(b) provide a method for the calculation of annual turnover 01- assets. 1 () (2) A threshold determined by the Minister in terms of subsection ( 1 ) takes effect \ix
months after the date of publication of’ tha[ notice in the Ga;et[t’,
Dominant firms
7. A jirlt~ is dominant in a market if— (u) it has at least 457c of that mtirket: 15 (b) it has at least 35%, but less than 45%, of that market, unless it can show that
it does not have murkel pm~vr: or ([) it has less than 35Yc of that marke[. but has marker pmivt-.
Abuse of dominance prohibited
8. It is prohibited for a dominant,firm t{+ Z(J (a) charge an exce.ssi~e price to the detriment of consumers; (b) refuse to give a competitor access to an e,s.senriul fbcility when it is
economically feasible to do so: (c) engage in an exclusionary act, other than an act listed in paragraph (d), if the
anti-competitive efiect of that act outweighs its technological, efficiency or 25 other pro-competitive, gain; or
(d) engage in any of the following e.rclusiotmt:v acts, unless the jirm concerned can show technological, efficiency or other pro-competitive, gains which outweigh the anti-competitive effect of its act: (i) requiring or inducing a supplier or customer to not deal with a 30
competitor; (ii) refusing to supply scarce goods to a competitor when supplying those
goods is economically feasible: (iii ) selling ,goods or .ser~’ices on condition that the buyer purchases separate
goods or ~ns fc~rthe decisic~n ()rrecorllrllerldati() rl:arld (b) publish a notice of the decision. or referral and recommendation, in the
Gazette. (5) The Competition Commission may revoke a decision to approve or conditionally
approve a merger in terms of subsection ( I ) if — (a) the decision wm based on incorrect information for which a party to the
merger is responsible; (b) the approval was obttiined by deceit; or (lExTG AZETTF..300CT’OBER IWX
Act No. 89, 1998 COMPETITION ACT. 1998
CHAPTER 4
COMPETITION COMMISSION. TRIBUNAL AND COURT
PART A
THE COMPETITION CON1M1SS1ON
Establishment and constitution of Competition Commission 5
19. ( 1 ) There is hereby established a body to be known as the Competition Commission, which—
(a) has jurisdiction throughout the Republic: (b) is a juristic person; and (c) must exercise its functions in accordance with [his Acf. 10
(2) The Competition Commission consists of the Commissioner and one or mot-e Deputy Commissioners as may be necessary, appointed by the kfini,~fer in terms of this Act.
Independence of Competition Commission
20. ( 1 ) The Competition Commission— [s (u) is independent and subject only to the Con.srimtion and the low: and (b) must be impartial and must perform its functions without fear, fiavour, or
prejudice. (2) The Commissioner, each Deputy Commissioner and each member of the staff of
the Competition Commission, must not— ~o (a) engage in any activity that may undermine the integrity of the Commission; (b) participate in any investigation, hearing or decision concerning a matter in
respect of which that person has a direct financial interest or any similar personal interest;
(c) make private use of, or profit from, any conjidenrial information obtained as 25 a result of performing that person’s official functions in the Commission; or
(d) divulge any information referred to in paragraph 2(c) to any third party, except as required as part of that person’s official functions within the Commission.
(3) Each organ of state must assist the Commission to maintain its independence and impartiality, and to effectively carry out its powers and duties. 30
Functions of Competition Commission
21. ( 1 ) The Competition Commission is responsible to— (u) implement measures to increase market transparency; (b) implement measures to develop public awareness of the provisions of rhis Acr; (c) investigate and evaluate alleged contravention of Chapter 2; 35 (d) grant or refuse applications for exemption in terms of Chapter 2; (e) authorise, with or without conditions, prohibit or refer mergers of which it
receives notice in terms of Chapter 3; (f) negotiate and conclude consent orders in terms of section 63; (g) refer matters to the Competition Tribunal, and appear before the Tribunal, as 40
required by this Act; (h) negotiate agreements with any r case of a contravention of section 73(1), to a fine not exceeding R500 000-00 or to imprisonment for a period not exceeding 10 years, or to both a fine and imprisonment; or in any other case, to a fine not exceeding R2 000-00 or to imprisonment for a period not exceeding six months, or to both a fine and imprisonment.
Magistrate’s Court jurisdiction to impose penalties
75. Despite anything to the contrary contained in any other law, a Magistrate’s Court has jurisdiction to impose any penalty provided for in this Act.
Serving documents
76. Unless otherwise provided in this Act, a notice, order or other document that, in terms of this Act, must be served on or given to a person, will have been properly served or given when it has been—
(a) delivered to that person; (b) sent by registered post to that person’s last known address; or (c) published in the Gazette.
Proof of facts
77. (1) In any criminal proceedings in terms of this Acr— (a)
(b)
(c)
if it is alleged that a person at afirm is or was an employee, that person must be presumed to be an employee at that jirm, unless the contrary is proved; if it is proved that a false statement, entry or record or false information appears in or on a book, document, plan, drawing or computer storage medium, the person who kept that item must be presumed to have made the statement, entry, record or information, unless the contrary is proved; and an order certified by the Chairperson of the Competition Tribunal or the Judge President of the Competition Appeal Court, is conclusive proof of the contents
5
10
15
20
25
30
35
40
45
Act No. W, 1998 COMPETITION ACT. 1998
of the order of the Competition Tribunal or the Competition Appeal Court, as the case may be.
(2) A statement, entry or record or information, in or on any book, document, plan, drawing or computer storage medium is admissible in evidence as an admission of the facts in or on it by the person who appears to have made, entered, recorded or stored it 5 unless it is proved that that person did not make, enter. record or store it.
CHAPTER 8
GENERAL PROVISIONS
Regulations
78. The kfinisre~ by notice in the Ga:erte, may make regulations that are required to 10 give effect to the purposes of rhis Act.
Guidelines
79. (1) The Competition Commission may prepare guidelines to indicate the Commission’s policy approach to any matter within its jurisdiction in terms of this Act.
(2) A guideline prepared in terms of subsection ( l)— 15 (a) must be published in the Ga:erte; but (b) is not binding on the Competition Commission, the Competition Tribunal or
the Competition Appeal Court in the exercise of their respective discretion, or their interpretation of rhis Act.
Official seal 20
80. The President, by proclamation in the Guze[te, may prescribe an official seal for each of the Competition Commission, Competition Tribunal and the Competition Appeal Court.
Act binds State
81. This Act binds the State. 25
Information exchange with foreign agencies
82. The President may assign to the Competition Commission any duty of the Republic, in terms of an international agreement relating to the purpose of fhis Act, to exchange information with a similar foreign agency.
Transitional arrangements and repeal of laws 30
83. (1) Subject to Schedule 3, the laws specified in Schedule 2, and all proclamations, regulations or notices promulgated or published in terms of those laws, are repealed.
(2) The repeal of those laws specified in Schedule 2 does not affect any transitional arrangements made in Schedule 3.
Short TMe and commencement of Act 35
84. (1) This Act is called the Competition Act and comes into operation on a date fixed by the President by proclamation in the Gazefte.
(2) The president may set different dates for different provisions of this Act to come into operation.
(3) Unless the context otherwise indicates, a reference in a section of [his Act to a time 40 when rhis Acr comes into operation must be construed as a reference to the time when that section comes into operation.
64 No. 19412 GOVERNMENT GAZETTE. 30 OCTOBER 1998
Act No. 89, 1998 COMPETITION ACT, 1998
SCHEDULE 1
EXEMPTION OF PROFESSIONAL RULES IN TERMS OF SECTION Z(C)
PART A
1. A professional associutio}l may apply in the prescribed manner to the Competition Commission to have all or part of its rules exempted from the provisions of Part A of Chapter 2 of this Act, provided—
(a) the rules do not contain any restriction that has the etiect of substantially preventing or lessening competition in a market: or
(b) if the rules do contain a restriction contemplated in paragraph (u), that restriction, having regard to internationally applied norms, is reasonably required to maintain— (i) professional standards; or
(ii) the ordinary function of the profession. 2. Upon receiving an application in terms of item 1, the Competition Commission
may exempt the ruies concerned after it has — (a) given notice of the application in the Gazette: (b) allowed interested parties 30 days from the date of that notice to make
representations concerning the application; and (c) consulted the responsible Minister, or member of the Executive Council.
3. The Competition Commission, in the prescribed manner, may revoke an exemption granted under item 2 on good cause shown, at any time after it has —
(a) given notice in the Gazette of its intention to revoke the exemption; (b) allowed interested parties 30 days from the date of that notice to make
representations concerning the exemption: and (c) consulted the responsible Minister, or member of the Executive Council.
4. A professional rule is exempt, or its exemption revoked, only as of the date that notice of the exemption or revocation, as the case may be, is published in the Gazette.
5. The Competition Commission must maintain for public inspection a record of all professional rules that have received exemption, or for which exemption has been revoked.
6. In this Schedule — ‘professional association’ means an association referred to in Part B of this Schedule; ‘professional rules’ means rules regulating a professional association that are binding
on its members; ‘rules’ includes regulations, codes of practice and statements of principle;
PART B
For the purpose of this Act, a professional association is— (a) for each of the following professions, a governing body of that profession
registered in terms of an Act mentioned below the name of that profession; or (b) any other association, if the Competition Commission is satisfied that it
represents the interests of members of a profession referred to in paragraph (a):
Accountants and Auditors Public Accountants and Auditors Act, 1991 (Act No. 80 of 1991).
Architects Architects Act, 1970 (Act No. 35 of 1970).
Engineering Engineering Profession of South Africa Act, 1990 (Act No. 114 of 1990)
66 No. 19412 GOVERNME!WG AZETTE.300CTOBER 1998
Act No. W, 1998 COMPETITION ACT. 1998
Estate Agents Estate Agents Act. 1976 (Act No. 1 I 2 of 1976)
Attorneys and Advocates Attorneys Act. 1979 (Act No. 53 of 1979) Admission of Advocates Act. 1964 (Act No. 74 of 1964)
Natural sciences Natural Scientific Professions Act, 1993 (Act No. 106 of’ 1993)
Quantity Surveyors Quantity Surveyors Act. 1970 (Act No. 36 of 1970)
Surveyors Professional and Technical Sur\ eyors Act. 198-! (Act No. -$0 Of 1984)
Town and Regional Planners Town and Regional Planners Act. 1984 (Act No. 19 of 1984)
Valuers Valuers Act, 1982 (Act No. 23 of 1982)
Medical Medical. Dental and Supplementary Health Service Professions Act. 1974 (Act No. 56 of 1974) Nursing Act. 1978 (Act No, 50 of 1978) Dental Technicians Act, 1979 (Act No. 19 of 1979) Pharmacy Act, 1974 (Act No. 53 of 1974) Veterinary and Para-veterinary Professions Act, 1982 (Act No. 19 of 1982) Chiropractors Homeopaths and Allied Health Service Professions Act, 1982 (Act No. 63 of 1982)
Miscellaneous Any other profe.ssimal a.s.sociutim to whom the provisions of this Schedule have been declared applicable by the Minister by notice in the Gazette.
68 No. 19412 GOVERNMENT GAZETTE, 30 OCTOBER 1998
Act No. 89, 1998 COMPETITION ACT. 1998
SCHEDULE 2
REPEAL OF LAWS (SECTION 83)
No and Year of Law Short Title Extent of Repeal Act No. 96 of 1979 Maintenance and Promotion of The whole
Competition Act. 1979
Act No. 58 of 1980 Mamtenwrce and Promotion of The whole Competition Amendment Act, 1980
Act No. 62 of 1983 Maintenance and Promotion of The whole Competition Amendment Act. 1983
Act No. 12 of 1985 Maintenance and Promotion of The whole Competition Amendmen( Act. 1985
Act No. 5 of 1986 Maintenance and Promotion of The whole Competition Amendment Act. 1986
Act No. 96 of 1987 Maintenance and Promotion of The whole Competition Amendment Act. 1987
Act No. 88 of 1990 Maintenance and Promotion of The whole Competition Amendment Act. 1990
70 No. 19412 GOVERNMENT G.AZEITE. 30 OCTOBER 1998
Act No. 89, 1998 COMPETITION ACT. 1998
SCHEDULE 3
Transitional Arrangements 1. A ruling issued in terms of section 6(1 )(a) of the Maintenance and Promotion of
Competition Act. 1979 (Act No. 86 of 1979), or notice issued in terms of section 14( 1 )(c) of that Act. in relation to an “acquisition” as defined in that Ac[, must be regarded for purposes of this Act to be a conditional approval of a merger as if it had been granted after (his Act came into operation by the Competition Commission in terms of section 14(1)(b), or by the Competition Tribunal in terms of section 16(2)(b).
2. An arrangement entered into in terms of section 11(1) of the Maintenance and Promotion of Competition Act, 1979 (Act No. 86 of 1979), must be regarded as having been confirmed as a consent order in terms of section 63 of fhis ACY and is valid for a period of 12 months from the date on which this Act comes into operation.
3. An exemption granted in terms of Section 14(5) of the Maintenance and Promotion of Competition Act, 1979 (Act No. 86 of 1979). must be regarded as having been granted in terms of section 10 of [his Act and is valid for a period of 12 months from the date on which /his Act comes into operation.
4. Any reference in any other statute to- (a) the Maintenance and Promotion of Competition Act, 1979 (Act No. 86 of
1979), must be regarded as a reference to this Act; (b) a “restrictive practice” or ‘-monopoly situation” as defined in terms of section
1 of the Maintenance and Promotion of Competition Act, 1979 (Act No. 86 of 1979), must be regarded as a reference to a “prohibited practice”’ in terms of this Act;
(c) an “acquisition” as defined in terms of section 1 of the Maintenance and Promotion of Competition Act, 1979 (Act No. 86 of 1979), must be regarded as a reference to a “merger” in terms of thi~ Act;
(d) the “Competition Board” as established in terms of section 3 of the Maintenance and Promotion of Competition Act, 1979 (Act No. 86 of 1979), must be regarded as a reference to the Competition Commission.
5. When this Act comes into operation an officer or employee appointed in terms of the Public Service Act, 1994, to serve the Competition Board established by the Maintenance and Promotion of Competition Act, 1979 (Act No.86 of 1979), continues to be an officer or employee under the Public Service Act. subject to the direction of the Department of Trade and Industry.
6. If an officer or an employee referred to in item 5 is appointed as an officer or employee of the Competition Commission, the accumulated value of that person’s contributions to any pension fund, together with the accumulated value of the contributions made to that fund by that person’s employer, may be transferred to a pension fund established for the benefit of the staff of the Commission.