Van Heerden, C.M. (Corlia)2020-02-112020-02-112020-042019*A2020http://hdl.handle.net/2263/73212Dissertation (LLM (Mercantile Law))--University of Pretoria, 2019.On 1 May 2016, section 73A of the Competition Amendment Act, no 1 of 2009 (“the Amendment”) came into effect. The Amendment is a turning point for the prosecution of cartels in that it will hold directors and executives criminally and personally liable for contravening section 4(1)(b) of the Competition Act 89 of 1998 (“the Competition Act”). Section 4(1)(b) of the Competition Act prohibits firms in a horizontal relationship from agreeing to engage in price fixing, market allocation and collusive tendering. Cartels are considered the most egregious of conduct in competition law due to their effect on economies and ordinary people and consumers. The purpose of enactment of the Amendment is to serve as a deterrent tool against cartels. The imposition of administrative penalties against companies engaging in cartel conduct has proven to not be enough of a deterrent given the increasing number of cartels nationally and globally. The notion is that companies around the world are run by individuals and thus those individuals who knowingly engage in cartel conduct must be held accountable for their participation in such conduct. As a deterrent, individuals in executive positions will have to weigh the benefits of engaging in cartel conduct against the real risk of losing their personal freedom. The Amendment in its current form is criticised for firstly, potentially rendering the corporate leniency policy redundant and secondly, potentially infringing on individuals’ constitutional rights. The corporate leniency policy has been instrumental in the uncovering of cartels because it allows companies to self-report on their participation in cartel conduct in exchange for immunity against prosecution. Modifications to the Amendment are suggested to remedy problematic sections of the Amendment before they come into effect. Lessons can be taken from other jurisdictions such as the United States and the United Kingdom which criminalise cartel conduct. It will be necessary for the Competition Commission to consider individual immunity against criminal prosecution and to clearly outline the process of criminalisation in order to clear the uncertainty regarding constitutionality of the provisions of the Amendment.en© 2019 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria.Competition LawUCTDDissertation