Abstract:
Cartels are regarded as the most egregious of all competition law contraventions because of
the harm they inflict on consumer welfare. To add insult to injury cartel enforcement is
notoriously difficult because of the secretive nature of cartels. The traditional investigative
tools provided by competition law has proved to be inadequate in exposing and prosecuting
cartels because these measures can only be applied effectively once a cartel is detected.
Thus competition law enforcement agencies have devised an innovative tool to aid in the war
against cartels. This tool is the concept of a leniency policy which incentives cartel members
to self-report in an attempt to obtain immunity from competition law prosecution.
South Africa has not lagged behind in the war against cartels and has soon after the
introduction of the Competition Act decided to adopt the Corporate Leniency Policy. Since its
inception the CLP has been increasingly effective in assisting the Commission to detect and
break up cartels. However 2016 has eventually seen the introduction of the notorious ?cartel
offence? (also featured in various established competition jurisdictions) which holds directors
and managers criminally liable for causing firms to participate in a cartel or knowingly
acquiescing in such conduct. The introduction of this offence poses various problems which
have the potential to significantly erode the efficiency of the CLP.
This dissertation therefore attempts to highlight the salient features of the CLP and how it
incentivizes self-reporting by cartel members and also how it facilitates the leniency process
in the interest of competition and consumer welfare. It subsequently considers the cartel
offence and problems occasioned by the introduction of such offence and its interaction with
the CLP. In the final instances some conclusions are drawn and recommendations are made
regarding the best way forward.
