| (1) | The Competition Tribunal may impose an administrative penalty only— |
[Section 59(1)(a) substituted by section 33(a) of Notice 175, GG 42231, dated 14 February 2019]
| (b) | [Section 59(1)(b) deleted by section 33(b) of Notice 175, GG 42231, dated 14 February 2019] |
| (c) | for contravention of, or failure to comply with, an interim or final order of the Competition Tribunal or the Competition Appeal Court; or |
| (d) | if the parties to a merger have— |
| (i) | ailed to give notice of the merger as required by Chapter 3; |
| (ii) | proceeded to implement the merger in contravention of a decision by the Competition Commission or Competition Tribunal to prohibit that merger; |
| (iii) | proceeded to implement the merger in a manner contrary to a condition for the approval of that merger imposed by the Competition Commission in terms of section 13 or 14, or the Competition Tribunal in terms of section 16; or |
| (iv) | proceeded to implement the merger without the approval of the Competition Commission or Competition Tribunal, as required by this Act. |
| (2) | An administrative penalty imposed in terms of subsection (1) may not exceed 10 per cent of the firm's annual turnover in the Republic and its exports from the Republic during the firm’s preceding financial year. |
| (2A) | An administrative penalty imposed in terms of subsection (1) may not exceed 25 per cent of the firm’s annual turnover in the Republic and its exports from the Republic during the firm’s preceding financial year if the conduct is substantially a repeat by the same firm of conduct previously found by the Competition Tribunal to be a prohibited practice. |
[Section 59(2A) inserted by section 33(c) of Notice 175, GG 42231, dated 14 February 2019]
| (3) | When determining an appropriate penalty, the Competition Tribunal must consider the following factors: |
| (a) | the nature, duration, gravity and extent of the contravention; |
| (b) | any loss or damage suffered as a result of the contravention; |
| (d) | the market circumstances in which the contravention took place, including whether, and to what extent, the contravention had an impact upon small and medium businesses and firms owned or controlled by historically disadvantaged persons; |
| (e) | the level of profit derived from the contravention; |
| (f) | the degree to which the respondent has co-operated with the Competition Commission and the Competition Tribunal; |
| (g) | whether the respondent has previously been found in contravention of this Act; and |
| (h) | whether the conduct has previously been found to be a contravention of this Act or is substantially the same as conduct regarding which Guidelines have been issued by the Competition Commission in terms of section 79 |
[Section 59(3) substituted by section 33(d) of Notice 175, GG 42231, dated 14 February 2019]
| (3A) | In determining the extent of the administrative penalty to be imposed, the Competition Tribunal may— |
| (a) | increase the administrative penalty referred to in subsections (2) and (2A) to include the turnover of any firm or firms that control the respondent, where the controlling firm or firms knew or should reasonably have known that the respondent was engaging in the prohibited conduct; and |
| (b) | on notice to the controlling firm or firms, order that the controlling firm or firms be jointly and severally liable for the payment of the administrative penalty imposed. |
[Section 59(3A) inserted by section 33(e) of Notice 175, GG 42231, dated 14 February 2019]
| (4) | A fine payable in terms of this section must be paid into the National Revenue Fund referred to in section 213 of the Constitution. |
[Section 59 substituted by section 15 of Notice No. 1354, GG 21880, dated 13 December 2000]
