Government Gazette

Vol. 410, No. 20384, 20 August 1999

GENERAL NOTICE

Notice 1938 of 1999

DEPARTMENT OF TRADE AND INDUSTRY

THE COMPETITION ACT, 1998 (ACT 89 OF 1998)

RULES FOR THE CONDUCT OF PROCEEDINGS IN THE COMPETITION COMMISSION

In terms of section 21(4) of the Competition Act, 1998 (Act 89 of 1998), The Minister of Trade and Industry, in consultation with the Competition Commission, has made the following regulations relating to the functions of the Competition Commission to come into operation at the time that Chapters 2, 3 and 5 of the Act come into operation.

CONTENTS

Part 1 - General Provisions

Division A- Interpretation

1. Short tittle
2. Interpretation

Division B - Commission Office Functions

3. Office hours and address of Commission
4. Time limits
5. Commissioner's functions

Part 2 - Delivery of Documents

6. Delivery of documents
7. Filing documents
8. Fees
9. Form of notices and applications
10. Form of Certificates and Notices of Referral
11. Form of Annual Report

Part 3 - Access to Commission Records

12. Restricted information
13. Right of informants to claim confidentiality or request restricted access
14. Access to information

Part 4 - Complaint Procedures

15. Information concerning alleged prohibited practices
16. Complaints initiated by Commissioner
17. Submissions by persons other than Commissioner
18. Declaration of material interest
19. Resolution of complaint
20. Consent orders

Part 5 - Exemption Procedures

21. Procedures relating to exemption applications (Section 10)
22. Procedures related to revoking exemption certificates (Section 10)
23. Procedures relating to exemption applications (Schedule 1)
24. Procedures related to revoking exemption certificates (Schedule 1)

Part 6 - Merger Procedures

25. Merger Parties and Participants
26. Merger filing requirements
27. Initial review of merger notices
28. Withdrawal of merger notices
29. Effect of rejection or withdrawal of notice
30. Participation by Minister in Commission merger proceedings
31. Additional information
32. Merger investigations
33. Intermediate mergers
34. Breach of merger approval conditions or obligations
35. Revocation of approval of intermediate merger
36. Large mergers

Annexure 1 - Tables

Table CCR 1 - Methods and times for delivery of Documents
Table CCR 2 - Notices and Applications
Table CCR 3 - Certificates and Notices of Referral

COMPETITION COMMISSION RULES

REGULATING THE FUNCTIONS OF THE COMPETITION COMMISSION

Part 1- General Provisions

1. Short title

These Regulations may be cited as the Competition Rules.

2. Interpretation

(1) A word or expression that is defined in the Act, or in a chapter of the Act, bears the same meaning in these Rules as in the Act.

(2) In these Rules,

1. a reference to a section by number refers to the corresponding section of the Act;
2. a reference to a Rule by number refers to the corresponding item of these Rules; and
3. a reference to a sub-rule or paragraph by number refers to the corresponding item of the Rule in which the reference appears.

(3) In these Rules unless the context indicates otherwise,

1. "Act" means the Competition Act, 1998 (Act No.89 of 1998)
2. "application" means a request for an exemption submitted in tams of section 10, or in tams of item 1 of Schedule 1 of the Act;
3. "certified copy", means a copy of a document certified by a Commissioner of Oaths;
4. "Commission" means the body established by section 19;
5. "Commissioner" means the office holder appointed in terms of section 22;
6. "complaint" means either

1. a matter initiated by the Commissioner in terms of section 44; or
2. a matter that has been submitted to the Commission in terms of section 44, and accepted by the Commission in terms of Rule 17;

7. "Court" means the Competition Appeal Court established by section 36;
8. "deliver" means to serve and file;
9. "file", when used as a verb, means to deposit with the Commission;
10. "Judge President" means the Judge President of the Court;
11. "Merger Notice" means a notification required in terms of section 13;
12. "public holiday" means a public holiday referred to in section 1 of the Public Holidays Act, 1994 (Act 36 of 1994);
13. "Rule" includes any footnote to a Rule, and any Table included within or referred to in a Rule;
14. "restricted information" means either

1. information in the possession of the Commission in respect of which a claim has been made asserting that it is confidential information; or
2. other information in the possession of the Commission that is restricted in terms of Rules 12 - 14;

15. "serve" means to serve in accordance with section 76 or Rule 6(1)(b), and "service" has a corresponding meaning; and
16. "Tribunal", depending on the context, means either -

1. the body established by section 26;
2. a panel of the Tribunal convened in terms of section 31(1); or
3. the registrar of the Tribunal.

Division B - Commission office Functions

3. Office hours and address of Commission

(1) The offices of the Commission are open to the public every Monday to Friday, excluding public holidays, from 08h30 to 13:00 and from 13h30 to 15h30.

(2) Despite sub-paragraph (1) -

1. in exceptional circumstances the Commission may accept documents for filing on any day and at any time; and
2. the Commission must accept documents for filing as directed by either the Tribunal or a member of the Tribunal assigned by its chairperson.

(3) Subject to Rule 6 and 7, any communication to the Commission, or to a member of the staff of the Commission, may be -

1. Delivered by hand at:

The Competition Commission
Glenfield Office Park
Cnr. Glenwood Road and Oberon Street
Faerie Glen, Pretoria
Republic of South Africa

2. Addressed by post to:

The Competition Commission
Private Bag X23
Lynnwood Ridge Pretoria 0040
Republic of South Africa

3. Communicated by telephone on 27 012 482 9000
4. Transmitted by Fax on 27 012 482 9001; or
5. Transmitted by electronic mail to ccsa@compcom.co.za

The Commissioner, in writing, may assign any function or power to a member of the staff of the Commission, either generally or in connection with a particular maker.

¹Note diet time periods for days in the Act are calculated in accordance with the Interpretation Act, which would not exclude Saturdays from the expiry period as does rule 4(2).

(6) For the purpose of sub-rule (5) -

1. "combined figure" means the greater of -

1. the combined annual turnover in the Republic of the acquirer and the target;
2. the combined assets in the Republic of the acquirer and the target;
3. the annual turnover in the Republic of the acquirer plus the assets in the Republic of the target; or
4. the assets in the Republic of the acquirer plus the annual turnover in the Republic of the target; and

2. annual turnover and assets must be calculated in accordance with the Notice published by the Minister of Trade and Industry in terms of section 11 of the Act.

(7) For the purpose of sub-rule (6) -

1. "acquirer" means the total of all the firms that are acquiring firms in respect of that merger, as defined in Rule 25(1); and
2. "target" means the total of all the firms that are target firms in respect of that merger, as defined in Rule 25(1).

(8) Notwithstanding sub-rules (5) - (7), no fee is payable for filing a Merger Notice for a merger notified in terms of item 4B of Schedule 3 of the Act.

(9) The Commission may charge a fee of R1-00 per A4-size page or part thereof to any person wishing to copy a record in the possession of the Commission and R2-00 each for the Commission's certificate on certified copies of documents.

9. Form of notices and applications

(1) Whenever a notice or application is required in terms of a section of the Act, or an item of these Rules, shown in column 1 of Table CCR 2, for a purpose listed in column 2 of that Table, the document must be substantially in the form of the annexure listed opposite that section number in column 3 of that Table, and must be produced subject to any conditions listed opposite that section number in column 4 of that Table.

(2) Whenever these Rules require a document to be in a form whose number is prefixed by the letters "CT", that document must be substantially in the corresponding form prescribed in the Competition Tribunal Rules.

10. Form of Certificates and Notices of Referral

(1) Whenever the Commission is required to issue a Certificate, Notice or Receipt in terms of a section of the Act, or an item of these Rules, shown in column 1 of Table CCR 3, for a purpose listed in column 2 of that Table, the document must be substantially in the form of the annexure listed opposite that section number in column 3 of that Table, and must be produced subject to any conditions listed opposite that section number in column 4 of that Table.

(2) Whenever the Commission is required, either in terms of the Act or these Rules, to publish a notice in the Gazette, that notice must contain at least the following information:

1. The name of any firm, or other person directly affected by the notice.
2. The file number assigned by the Commission to the relevant matter.
3. The provision of the Act or Rules in terms of which the notice is required.
4. A brief and concise description of the nature of the relevant matter.
5. If the notice invites submissions, the last date on which submissions may be received.
6. If the notice reports a decision -

1. a brief and concise description of the nature of the relevant decision;
2. a statement indicating whether reasons for the decision have been published, and if so, how a copy of those reasons may be obtained; and
3. a statement of any right of review of, or appeal from, that decision, including the period during which a review or appeal may be lodged.

7. The name, address, and contact numbers of the person in the Commission responsible for publishing the notice.

11. Form of Annual Report

(1) The Annual Report to be submitted by the Commission in terms of section 41 must be divided into the following Parts:

1. Statement of Progress, being the statement required by section 41(1)(d).
2. The Proceedings of the Commission, being a summary report of the Commission's work in relation to complaints, exemptions, mergers, and compliance.
3. The Administrative Activities of the Commission, being a summary report concerning the Commission's management, staff, infrastructure, Rules and related matters.
4. The Commission's Finances, including the items required by section 41(1)(a) and (b).

(2) In addition to the matters required in terms of section 41, each Annual Report must include a report on the following matters:

1. The Commission's public awareness programs.
2. Relationships between the Commission and other regulatory Authorities.
3. Relationships between the Commission and foreign agencies.
4. Research activities undertaken by the Commission and any proposals for law reform published by the Commission.

Part 3 - Access to Commission Records

12. Restricted information

(1) A complaint, and any information received by the Commission during its investigation of the complaint, is restricted information.

(2) An application and any information received by the Commission during its consideration of the application, or revocation of an exemption granted to the applicant, is restricted information only to the extent provided for in Rule 13.

(3) A Statement of Merger Information and any information annexed to it, or received by the Commission during its investigation of that merger, is restricted information.

13. Right of informants to clam confidentiality or request restricted access

(1) Any person, when submitting information to the Commission, may identify information that the person claims to be confidential information, but must support that claim at the same time with a written statement in Form CC 7 explaining why the information is confidential.

(2) If a person makes a claim in terms of sub-rule (1), the Commission may -

1. agree to be bound by that claim without deten~uning whether or not the information is confidential information; but
2. at any time may refer the claim to the Tribunal to determine whether the information is confidential information, by Notice of Motion in terms of Rule 42 of the Competition Tribunal Rules, and the Tribunal may -

1. determine whether the information is confidential information; and
2. if it determines that it is, make any appropriate order concerning access to that confidential information.

(3) Information that is the subject of a claim in terms of this sub-rule (1) is restricted information -

1. from the time that the claim is made, until the Tribunal has determined whether it is confidential information; and
2. from that time on is restricted only to the extent that the Tribunal has accepted the claim.

(4) If a person has requested in terms of Rule 15(2) that the Commission treat their identity as restricted information -

1. The Commission must accept that request; and
2. That information is restricted unless the person subsequently waives the request in writing.

14. Access to Information

(1) Any person, upon payment of the prescribed fee, may inspect or copy any record of the Commission's proceedings in terms of Chapters 2, 3, or 6 of the Act, -

1. if it is not restricted information; or
2. if it is restricted information, to the extent permitted, and subject to any conditions imposed, by

1. this Rule; or
2. an order of the Tribunal, or the Court

(2) In a particular complaint the Commission may release otherwise restricted information, other than confidential information, relating to a possible agreement of terms of an appropriate order, or the consent of a complainant for an order to include an award of damages, to -

1. The respondent; or
2. Any person who has filed Form CT 3 in respect of that complaint.

(3) In addition to the provisions of sub-rule (1) and (2), the Commission may release restricted information to, or permit access to it by, only the following persons:

1. the person who provided that information to the Commission;
2. the firm to whom the confidential information belongs;
3. a person who requires it for a purpose mentioned in section 69(2)(a) or (b);
4. a person mentioned in section 69(2)(c);
5. the Minister, if the information concerns a merger; or
6. any other person, with the written consent of the firm to whom the information belongs.

(4) When the Commission submits a Complaint Referral to the Tribunal, makes a recommendation to the Tribunal in respect of a large merger, or supplies any other information to the Tribunal or the Minister, the Commission must identify to the Tribunal or the Minister any information included in its submission -

1. in respect of which a claim has been made in terms of Rule 13(1), that has not yet been determined by the Tribunal; or
2. that has been finally determined to be confidential information

(5) When making any decision in terms of the Act or these Rules, the Commission -

1. may take confidential information into account in making its decision, but
2. if the Commission's reasons for the decision would reveal any confidential information, the Commission must provide a copy of the proposed reasons to the party concerned after publishing its decision in the matter, but at least ten days before publishing those reasons.

(6) A party may apply to the Tribunal within the time period contemplated in sub-rule (5)(b) after receiving a copy of proposed reasons in terms of sub-rule (5)(b), subject to its Rules, for an appropriate order to protect the confidentiality of the relevant information.

(7) A party concerned may appeal against a decision of the Tribunal in terms of sub-rule (6) to the Court, subject to its Rules.

(8) If a party applies to the Tribunal in terms of sub-rule (6), the Commission must not publish the proposed reasons until the Tribunal, or the Court, if applicable, has made an order in the matter.

Part 4 - Complaint Procedures

15. Information concerning prohibited practices

(1) A person may provide information concerning an alleged prohibited practice to the Commission in any manner and at any time, whether or not a complaint has been initiated concerning those a11egations.

(2) A person who provides information in terms of sub-rule (1) may request that the Commission treat their identity as restricted information; but that person may be a complainant in the relevant matter only if they subsequently waive the request in writing.

16. Complaints imitated by Commissioner

The Commissioner may initiate a complaint at any time, if -

1. it concerns a matter that is within the jurisdiction of the Act; and
2. it concerns a matter that constitutes a permitted complaint in terms of section 67.

17. Submissions by persons other than Commissioner

(1) A person other than the Commissioner, by filing a completed Form CC 1, may submit a matter to the Commission, if-

1. the matter concerns a practice that meets both of the tests set out in Rule 16 (a) and (b);
2. the submission is not frivolous; and
3. the Commissioner has not initiated or accepted a complaint in respect of that practice.

(2) Upon receiving a submission in terms of sub-rule (1), the Commission must either -

1. accept the submission as a complaint in terms of section 44; or
2. notify the person who made the submission that the Commission has rejected the submission as a complaint, and provide a brief written explanation for that decision.

(3) If the Commission has rejected a submission in terms of sub-rule (1) (a), (b) or (c), the person who made that submission may request, within 10 days after receiving a notice from the Commission in terms of sub-rule (2)(b), a review of the Commission's decision by the Competition Tribunal, subject to its Rules.

(4) If, following a review in terms of sub-rule (3), the Tribunal determines that any submission satisfies sub-rule (1), the Commission must accept it as a complaint in terms of section 44.

(5) A person whose submission in terms of sub-rule (1) has been accepted as a complaint may withdraw that complaint at any time before the Commission has referred the matter to the Tribunal, but -

1. in respect of that matter, that person may not subsequently assert any right of a complainant in terms of section 53; and
2. the Commission may continue to investigate that matter as if the Commissioner had initiated the complaint as of the date that the complaint was originally accepted.

18. Declaration of materiel interest

(1) When filing a complaint in terms of Rule 17 or at any time after a complaint has been initiated, or accepted, as the case may be -

1. a person may file a Declaration of Material Interest in Form CC 2 in respect of that complaint if

1. the relevant practice has affected or is affecting a material interest of that person; and
2. the declaration is not frivolous; and

2. the Commission may publish a notice disclosing an alleged prohibited practice and inviting a declaration in terms of paragraph (a) in respect of that matter from any person who believes that the alleged practice has affected or is affecting a material interest of that person.

(2) Rules 17 (2) - (5), read with the changes required by context, apply to a Declaration made in terms of this Rule.

(3) In respect of a particular complaint, a person who has filed a Declaration of Material Interest that has been accepted in terms of this Rule -

1. is a complainant in that matter for the purposes of section 63; and
2. is a claimant in that matter for the purposes of

1. Rules 19 and 20; and
2. Rules 24(3), 26, 27 and 28 of the Competition Tribunal Rules.

19. Resolution of complaint

(1) The Commission must notify the registrar of the Competition Tribunal that a complaint has been initiated or accepted by the Commission on the earliest of the following dates, as applicable in a particular case:

1. The date on which the Commissioner initiates the complaint.
2. The date on which the Commission accepts a submission in terms of Rule 17(2)(a).
3. The date on which the Tribunal determines in terms of Rule 17(4) that a submission satisfies Rule 17(1).
4. The date on which the Commission publishes a notice in terms of Rule 18(1)(b).

(2) Subject to sub-rule (3), the Commission must either refer a complaint to the Tribunal in Form CT 1(1), or issue a Notice of Non-referral in Form CC 8, no more than one year after the date on which the complaint was initiated or accepted, as the case may be, as reported to the Tribunal in terms of sub-rule (1).

(3) In a particular case -

1. the Commission, and all claimants recognised at the time, may agree to extend the period allowed in sub-rule (2);
2. on application by the Commission, the Tribunal may extend the period allowed in sub-rule (2).

(4) If the Commission has not referred a complaint to the Tribunal, or issued a Notice of Non-referral, within the time allowed by sub-rule (2), or sub-rule (3) if different, the Commission will be deemed to have issued a Notice of Non-referral on the expiry of the relevant time period.

(5) Upon issuing a Notice of Non-referral in terms of sub-rule (2), the Commission must deliver a copy of the notice to each claimant recognised at the time.

20. Consent orders

(1) If, at any time before issuing a Notice of Non-referral in Form CC 8, or referring a complaint to the Tribunal in Form CT 1(1), it appears to the Commission that the respondent may be prepared to agree terms of a proposed order, the Commission-

1. must notify each claimant recognised at the time, in writing, that a consent order may be recommended to the Tribunal; and
2. invite each claimant to inform the Commission in writing within 7 days after receiving that notice -

1. whether that claimant is prepared to accept damages under such an order; and
2. if so, the amount of damages claimed.

(2) If the Commission and the respondent agree the teens of an appropriate order, the Commission must -

1. refer the complaint to the Tribunal in Form CT 1(1) to be proceeded with in terms of section 63;
2. attach to the refers

1. a draft order in the terms agreed between the Commission and the respondent, including, if applicable, the amount of damages agreed between the respondent and any claimant who has -

27. agreed the amount of their damages with the respondent; and
54. agreed to have an award for their damages included in the order; and

2. Form CT 3 completed by each claimant referred to in sub-paragraph (i), as applicable; and

3. deliver a copy of the referral and draft order to the respondent and each claimant recognised at the time.