The Competition Commission is responsible for the investigation of complaints of anti-competitive conduct and is the first port of call in an application for merger approval. The Competition Act of 1998 grants the Commission powers to summon witnesses to give evidence and produce relevant documents as well as extensive powers of search and seizure, which often take the form of "dawn raids" on a firm's business premises. The result is that the Commission, being an administrative body, has access to information that would not otherwise be available to the State, or in the public domain.

The Commission's powers are necessary in order to conduct meaningful investigations into potentially anti-competitive practices. For this reason, it is an offence not to comply with a request for information from the competition authorities. On the other hand, placing confidential industry or trade secrets in the hands of the State may be a cause of concern for private firms.

The Promotion of Access to Information Act of 2000 provides for public access to information held by the State. In compliance with this Act, the Competition Commission and Competition Tribunal have published manuals on the access to information held by them. These manuals provide that members of the public may make application to access any case record, unless the firm concerned has claimed confidentiality over the information.

The Competition Act provides that any party may apply to the Tribunal for access to confidential information, upon which the Tribunal will determine whether the information is in fact confidential and should be protected, or not. This finding would override a firm's own determination of what constitutes its confidential business secrets. However, the Tribunal's decision is subject to appeal to the Competition Appeal Court, provided the appeal is made within 10 business days of the Tribunal's order.

The obligation to provide information to the Commission may result in a firm being vulnerable to further competition-related investigations. While it is a criminal offence to disclose any confidential information obtained as a result of carrying out an official function in terms of the Competition Act or of initiating a complaint or participating in any proceedings in terms of the Act, this does not apply to situations where the information is disclosed for the proper administration of the Competition Act, or for the administration of justice in general. For example, evidence of a prohibited practice which comes to light during a merger filing may form the basis of an investigation by the Commission, as was the case in the investigation of The New Reclamation Group, subsequent to the filing of its proposed merger with SA Metal and Machinery.

Unfortunately, the records held by the Commission may be vulnerable. A recent example is the publication by unknown hackers of the Commission's Technical Report of the Banking Enquiry, on Wikileaks.org, with the previously blacked-out confidential information decrypted and revealed. While this may "actually help the cause of competition" as some have suggested, an incident of this kind poses significant concern to the firms whose strategic and sensitive business secrets have been exposed and may discourage other companies from co-operating with the Commission in future.

Early publication of sensitive information also carries a risk for the Commission. For example, its invitation to the SABC and e-TV to accompany it on a dawn raid of PPC's premises in 2000 was criticized by the Supreme Court of Appeal as a grave invasion of PPC's privacy.

The Commission may also have to consider what information is revealed in press releases prior to cases coming before the Tribunal for a proper hearing. In the New Reclamation Group case, confidential information submitted to the Commission in the course of an investigation was cited in a press release. Although Reclamation successfully applied to the Tribunal to order the Commission to respect the confidentiality claim it had made, it was granted no other remedy for the breach of its rights.

In Israel, a recent application by an economist for access to confidential information in the possession of the Israeli competition authority, for research purposes, was denied. The authority's finding attempted to strike a balance between the rights of the public to access information, the rights of the firm that owns the information, and the rights of the competition authorities which seek the cooperation of firms. The decision by the SCA in the PPC case certainly gives an indication that a similar approach will be followed by the South African authorities when this scenario arises in South Africa.

These cases highlight the need for the Commission to ensure that the privacy and other rights of firms under investigation or seeking merger approval are protected and for companies to carefully consider claims of confidentiality to avoid the release of sensitive and confidential information.

Lisa Bolt, Candidate Attorney at Deneys Reitz