| (1) | A person commits an offence if, while being a director of a firm or while engaged or purporting to be engaged by a firm in a position having management authority within the firm, such person— |
| (b) | knowingly acquiesced in the firm engaging in a prohibited practice in terms of section 4(1)(b). |
| (2) | For the purpose of subsection (1)(b), "knowingly acquiesced" means having acquiesced while having actual knowledge of the relevant conduct by the firm. |
| (3) | Subject to subsection (4), a person may be prosecuted for an offence in terms of this section only if— |
| (a) | the relevant firm has acknowledged, in a consent order contemplated in section 49D, that it engaged in a prohibited practice in terms of section 4(1)(b); or |
| (b) | the Competition Tribunal or the Competition Appeal Court has made a finding that the relevant firm engaged in a prohibited practice in terms of section 4(1)(b). |
| (4) | The Competition Commission— |
| (a) | may not seek or request the prosecution of a person for an offence in terms of this section if the Competition Commission has certified that the person is deserving of leniency in the circumstances; and |
| (b) | may make submissions to the National Prosecuting Authority in support of leniency for any person prosecuted for an offence in terms of this section, if the Competition Commission has certified that the person is deserving of leniency in the circumstances. |
| (5) | In any court proceedings against a person in terms of this section, an acknowledgement in a consent order contemplated in section 49D by the firm or a finding by the Competition Tribunal or the Competition Appeal Court that the firm has engaged in a prohibited practice in terms of section 4(1)(b), is prima facie proof of the fact that the firm engaged in that conduct. |
| (6) | A firm may not directly or indirectly— |
| (a) | pay any fine that may be imposed on a person convicted of an offence in terms of this section; or |
| (b) | indemnify, reimburse, compensate or otherwise defray the expenses of a person incurred in defending against a prosecution in terms of this section, unless the prosecution is abandoned or the person is acquitted. |
[Section 73A inserted by section 12 of Notice No. 875, GG 32533, dated 28 August 2009]
