Competition Commissioner Shan Ramburuth. Picture: FINANCIAL MAIL
Competition Commissioner Shan Ramburuth. Picture: FINANCIAL MAIL

ANY notion that South Africa’s competition authorities want unlimited powers to conduct their investigations and hearings into anticompetitive matters against companies is untrue, says the Competition Commission.

Commissioner Shan Ramburuth told a competition law conference in Johannesburg on Thursday that the debate about the powers of the authorities seemed to suggest either that the commission had a free reign in conducting its work or that there was rule of law and the alleged perpetrators had the right to defend themselves.

"That is certainly not true," he said.

The powers and reach of the competition authorities had been debated feverishly since several decisions by higher courts such as the Competition Appeal Court and the Supreme Court of Appeal on the issues "muddied" the water more than it gave clarity.

Several cartel and prohibited practices cases against companies had been overturned after the courts found that the commission had not followed the proper procedure in terms of the initiation and referral of complaints to the Competition Tribunal.

Several speakers at the conference, organised by the commission, the Competition Tribunal, the Mandela Institute and the Johannesburg Centre for Competition Economics, suggested that the commission should rather "err on the side of caution" in its approach to procedural matters until there was greater clarity on its powers and the amount of flexibility it has in terms of its interpretation of the Competition Act.

Jean Meijer, a partner at law firm Bowman Gilfillan, said she understood the debate to centre on the fact that there were rules that had to be followed and that there was no clarity yet on exactly what those rules were.

"I do think in a lot of these cases more of a middle-ground approach can be taken that will serve everyone better," she said.

Jessica Staples, a lawyer from Bowman Gilfillan, said the current situation with its lack of clarity created loopholes for prolonged litigation without any resolution on the merits of the cases.

"If the commission stuck closer to the procedures in the act, there may be no space for the cases to drag on and for the matters never to be resolved."

Lesley Morphet, a partner at law firm Webber Wentzel, said everybody wanted the act to function properly. It is a question of the process by which it works. Due to the conflicting decisions of the courts, in some cases, the process had become more unclear and uncertain.

Mr Ramburuth said the question that needed answering was whether these challenges arose from procedural irregularities (on the part of the commission) or procedural point taking (on the part of the defending companies).

"There needs to be some level of intellectual honesty here around this question. The question whether this (procedural point taking) is tactical or delaying tactics is something that is not being dealt with very honestly."

He said lawyers would know whether their clients had told them that their rights had been trampled on, or whether they asked for delays because they would make higher profits while the case was dragged out.

Ms Meijer denied the allegation that their clients approached them with the clear intent to delay matters.