Competition Act, 1998 (Act No. 89 of 1998)Chapter 1 : Definitions, Interpretation, Purpose and Application of Act1. Definitions and interpretation |
| (1) | In this Act— |
"acquiring firm"
means a firm—
| (a) | that, as a result of a merger as defined in section 12, would directly or indirectly acquire, or establish direct or indirect control over, the whole or part of the business of another firm; |
[Paragraph (a) substituted by section 1(b) of Notice No. 875, GG 32533, dated 28 August 2009]
| (b) | that has direct or indirect control over the whole or part of the business of a firm contemplated in paragraph (a); or |
| (c) | the whole or part of whose business is directly or indirectly controlled by a firm contemplated in paragraph (a) or (b); |
"agreement"
when used in relation to a prohibited practice, includes a contract, arrangement or understanding, whether or not legally enforceable;
[Definition substituted by section 1(b) of Notice No. 1354, GG 21880, dated 13 December 2000]
"average avoidable cost"
means the sum of all costs, including variable costs and product-specific fixed costs, that could have been avoided if the firm ceased producing an identified amount of additional output, divided by the quantity of the additional output;
[Definition inserted by section 1(a) of Notice No. 175, GG 42231, dated 14 February 2019]
"average variable cost"
means the sum of all the costs that vary with an identified quantity of a particular product, divided by the total produced quantity of that product;
[Definition inserted by section 1(a) of Notice No. 175, GG 42231, dated 14 February 2019]
"civil court"
means a High Court or Magistrates Court, as referred to in sections 166(c) and (d) of the Constitution;
"complainant"
means a person who has submitted a complaint in terms of section 49B(2)(b);
[Definition inserted by section 1(c) of Notice No. 1354, GG 21880, dated 13 December 2000]
"confidential information"
means trade, business or industrial information that belongs to a firm, has a particular economic value, and is not generally available to or known by others;
"concerted practice"
means co-operative or co-ordinated conduct between firms, achieved through direct or indirect contact, that replaces their independent action, but which does not amount to an agreement;
"Constitution"
means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);
"deserving of leniency"
when used with respect to a firm contemplated in section 50, or a person contemplated in section 73A, means that the firm or person has provided information to the Competition Commission, or otherwise co-operated with the Commission's investigation of an alleged prohibited practice in terms of section 4 (1)(b) to the satisfaction of the Commission;
[Definition inserted by section 1(c) of Notice No. 875, GG 32533, dated 28 August 2009]
"essential facility"
means an infrastructure or resource that cannot reasonably be duplicated, and without access to which competitors cannot reasonably provide goods or services to their customers;
"excessive price"
[Definition deleted by section 1(b) of Notice No. 175, GG 42231, dated 14 February 2019]
"exclusionary act"
means an act that impedes or prevents a firm from entering into, participating in or expanding within a market;
[Definition substituted by section 1(c) of Notice No. 175, GG 42231, dated 14 February 2019]
"firm"
includes a person, partnership or a trust;
"foreign acquiring firm"
means an acquiring firm—
| (a) | which was incorporated, established or formed under the laws of a country other than the Republic; or |
| (b) | whose place of effective management is outside the Republic; |
[Definition inserted by section 1(d) of Notice No. 175, GG 42231, dated 14 February 2019]
"goods or services"
when used with respect to particular goods or services, includes any other goods or services that are reasonably capable of being substituted for them, taking into account ordinary commercial practice and geographical, technical and temporal constraints;
"horizontal relationship"
means a relationship between competitors;
"interest"
[Definition deleted by section 1(d) of Notice No. 1354, GG 21880, dated 13 December 2000]
"margin squeeze"
occurs when the margin between the price at which a vertically integrated firm, which is dominant in an input market, sells a downstream product, and the price at which it sells the key input to competitors, is too small to allow downstream competitors to participate effectively;
[Definition inserted by section 1(e) of Notice No. 175, GG 42231, dated 14 February 2019]
"market power"
means the power of a firm to control prices, to exclude competition or to behave to an appreciable extent independently of its competitors, customers or suppliers;
"medium-sized business"
means a medium-sized firm as determined by the Minister by notice in the Gazette
[Definition inserted by section 1(f) of Notice No. 175, GG 42231, dated 14 February 2019]
"members' interest"
has the meaning set out in the Close Corporations Act, 1984 (Act No. 69 of 1984);
[Definition inserted by section 1(e) of Notice No. 1354, GG 21880, dated 13 December 2000]
"Minister"
means the Minister responsible for the administration of this Act;
[Definition substituted by section 1(g) of Notice No. 175, GG 42231, dated 14 February 2019]
"organ of state"
has the meaning set out in section 239 of the Constitution;
"participate"
refers to the ability of or opportunity for firms to sustain themselves in the market, and "participation" has a corresponding meaning;
[Definition inserted by section 1(h) of Notice No. 175, GG 42231, dated 14 February 2019]
"party to a merger"
means an acquiring firm or a target firm;
[Definition inserted by section 1(f) of Notice No. 1354, GG 21880, dated 13 December 2000]
"predatory prices"
means prices for goods or services below the firm’s average avoidable cost or average variable cost;
[Definition inserted by section 1(i) of Notice No. 175, GG 42231, dated 14 February 2019]
"premises"
includes Land, any building, structure, vehicle, ship, boat, vessel, aircraft or container;
"prescribed"
means prescribed by regulation
[Definition substituted by section 1(g) of Notice No. 1354, GG 21880, dated 13 December 2000]
"primary acquiring firm"
means any firm contemplated in paragraph (a) of the definition of "acquiring firm";
[Definition inserted by section 1(h) of Notice No. 1354, GG 21880, dated 13 December 2000]
"primary target firm"
means any firm contemplated in paragraph (a) of (b) of the definition of "target firm";
[Definition inserted by section 1(h) of Notice No. 1354, GG 21880, dated 13 December 2000]
"private dwelling"
means any part of a structure that is occupied as a residence, or any part of a structure or outdoor living area that is accessory to, and used wholly for the purposes of, a residence;
"prohibited practice"
means a practice prohibited in terms of Chapter 2;
[Definition substituted by section 1(j) of Notice No. 175, GG 42231, dated 14 February 2019]
"public regulation"
means any national, provincial or local government legislation or subordinate legislation, or any license, tariff, directive or similar authorisation issued by a regulatory authority or pursuant to any statutory authority;
"registered trade union"
means a trade union registered in terms of section 96 of the Labour Relations Act, 1995 (Act No. 66 of 1995);
[Definition inserted by section 1(i) of Notice No. 1354, GG 21880, dated 13 December 2000]
"regulation"
means a regulation made under this Act;
"regulatory authority"
means an entity established in terms of national, provincial or local government legislation or subordinate legislation responsible for regulating an industry, or sector of an industry;
"respondent"
means a firm against whom a complaint of a prohibited practice has been initiated or submitted in terms of this Act;
[Definition substituted by section 1(e) of Notice No. 875, GG 32533, dated 28 August 2009]
"restrictive horizontal practice"
means any practice listed in section 4;
"restrictive vertical practice"
means any practice listed in section 5;
"small and medium business"
means either a small business or a medium-sized business;
[Definition inserted by section 1(k) of Notice No. 175, GG 42231, dated 14 February 2019]
"small business"
means a small firm determined by the Minister by notice in the Gazette, or if no determination has been made, set out in the National Small Business Act, 1996 (Act No. 102 of 1996);
[Definition substituted by section 1(l) of Notice No. 175, GG 42231, dated 14 February 2019]
"target firm"
means a firm—
| (a) | the whole or part of whose business would be directly or indirectly controlled by an acquiring firm as a result of a merger as defined in section 12; |
| (b) | that, as a result of a merger as defined in section 12, would directly or indirectly transfer direct or indirect control of the whole or part of its business to an acquiring firm; or |
| (c) | the whole or part of whose business is directly or indirectly controlled by a firm contemplated in paragraph (a) or (b); |
[Definition substituted by section 1(j) of Notice No. 875, GG 32533, dated 28 August 2009]
"this Act"
includes the regulations and Schedules;
"vertical relationship"
means the relationship between a firm and its suppliers, its customers or both.
"workers"
means employees as defined in the Labour Relations Act, 1995 (Act No. 66 of 1995), and in the context of ownership, refers to ownership of a broad base of workers;
[Definition inserted by section 1(m) of Notice No. 175, GG 42231, dated 14 February 2019]
| (1A) | When a particular number of business days is provided for performing an act, the number of days must be calculated by— |
| (a) | excluding the first day, any public holiday, Saturday and Sunday; and |
| (b) | including the last day. |
[Section 1(1A) inserted by section 1(k) of Notice No. 1354, GG 21880, dated 13 December 2000]
| (2) | This Act must be interpreted— |
| (a) | in a manner that is consistent with the Constitution and gives effect to the purposes set out in section 2; and |
| (b) | in compliance with the international law obligations of the Republic. |
| (3) | Any person interpreting or applying this Act may consider appropriate foreign and international law. |
| (4) | For the purposes of this Act, a person is a historically disadvantaged person if that person— |
| (a) | is one of a category of individuals who were disadvantaged by unfair discrimination on the basis of race before the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993), came into operation; |
| (b) | is an association, a majority of whose members are individuals contemplated in paragraph (a); |
| (c) | is a juristic person, other than an association, in which the individuals contemplated in paragraph (a) own and control a majority of its issued share capital or members’ interest and are able to control a majority of its votes; or |
| (d) | is a juristic person or association in which the individuals contemplated in paragraph (a) own and control a majority of its issued share capital or members’ interest and are able to control a majority of its votes. |
[Section 1(4) inserted by section 1(g) of Notice No. 875, GG 32533, dated 28 August 2009]