Redress for the victims of cartels

Abstract

Cartels are the most egregious competition law contraventions and cartel enforcement is a top for competition authorities. One would thus expect that the energy and rigour with which cartels are being prosecuted by the competition authorities would be mirrored in the redress available in South Africa to victims of cartel conduct. Sadly that is not the case as no special legislative provisions exist that eases the road to obtaining damages awards by cartel victims. Section 65 of the Competition Act at least paves the way for follow-on civil actions but does not in itself create a comprehensive process to facilitate such actions. The EU is however progressively working towards enabling victims of anti-competitive conduct to be able to institute damages actions and successfully recover such damages. As pointed out the Antitrust Damages Directive of 2014 has ushered in a new era in protection of victims of competition law contraventions in the EU as it provides comprehensively for aspects such as disclosure of evidence, penalties, limitation periods, joint and several liability, passingon of overcharges and the right to full compensation. It spesifically also provides for the relaxing of the standard of proof in relation to the quantification of damages and also for settlement of damages claims through alternative dispute resolution. This dissertation interrogates the difficulties facing victims of cartel conduct insofar as civil redress is concerned and looks at the developments in this context in the EU to see whether there are any reforms that South Africa should undertake to address the problems relating to civil redress for victims of cartel conduct.