Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW -

firms, re­gard­less of the amount, are in­ad­e­quate de­ter­rents that are ul­ti­mately paid for by con­sumers.

In terms of the Amend­ment Act, com­pany di­rec­tors and those with man­age­ment au­thor­ity will not only com­mit a crim­i­nal of­fence if they cause the com­pany to en­gage in price fix­ing, mar­ket di­vi­sion or col­lu­sive ten­der­ing, but will also be at risk if they “know­ingly ac­qui­esced” to the com­pany en­gag­ing in col­lu­sive con­duct. Ac­cord­ing to the Amend­ment Act, “know­ingly ac­qui­esced” means “hav­ing ac­qui­esced while hav­ing ac­tual knowl­edge” of the col­lu­sive con­duct. How­ever, it is ex­pected that the courts will have to give fur­ther mean­ing to this con­cept given the grav­ity of a find­ing of crim­i­nal con­duct against a per­son.

Al­though in­di­vid­u­als may only be pros­e­cuted un­der the new pro­vi­sion where a firm has ac­knowl­edged in a con­sent or­der that it has en­gaged in car­tel con­duct, or where the Competition Tri­bunal or the Competition Ap­peal Court has made a find­ing to this ef­fect, crit­ics have raised con­cerns about the rights of im­pli­cated in­di­vid­u­als. Competition

Pro­po­nents of the crim­i­nal­i­sa­tion of car­tel con­duct have long ar­gued that ad­min­is­tra­tive penal­ties levied on firms are in­ad­e­quate de­ter­rents

Pic­ture: iS­TOCK

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