| (1) | It is prohibited for a dominant firm to— |
| (b) | refuse to give a competitor access to an essential facility when it is economically feasible to do so; |
| (c) | engage in an exclusionary act, other than an act listed in paragraph (d), if the anti-competitive effect of that act outweighs its technological, efficiency or other pro-competitive gain; or |
| (d) | engage in any of the following exclusionary acts, unless the firm concerned can show technological, efficiency or other pro-competitive gains which outweigh the anti-competitive effect of its act— |
| (i) | requiring or inducing a supplier or customer to not deal with a competitor; |
| (ii) | refusing to supply scarce goods or services to a competitor or customer when supplying those goods or services is economically feasible; |
| (iii) | selling goods or services on condition that the buyer purchases separate goods or services unrelated to the object of a contract, or forcing a buyer to accept a condition unrelated to the object of a contract; |
| (iv) | selling goods or services at predatory prices; |
| (v) | buying-up a scarce supply of intermediate goods or resources required by a competitor; or |
| (vi) | engaging in a margin squeeze. |
| (2) | If there is a prima facie case of abuse of dominance because the dominant firm charged an excessive price, the dominant firm must show that the price was reasonable. |
| (3) | Any person determining whether a price is an excessive price must determine if that price is higher than a competitive price and whether such difference is unreasonable, determined by taking into account all relevant factors, which may include— |
| (a) | the respondent’s price-cost margin, internal rate of return, return on capital invested or profit history; |
| (b) | the respondent’s prices for the goods or services— |
| (i) | in markets in which there are competing products; |
| (ii) | to customers in other geographic markets; |
| (iii) | for similar products in other markets; and |
| (c) | relevant comparator firm’s prices and level of profits for the goods or services in a competitive market for those goods or services; |
| (d) | the length of time the prices have been charged at that level; |
| (e) | the structural characteristics of the relevant market, including the extent of the respondent’s market share, the degree of contestability of the market, barriers to entry and past or current advantage that is not due to the respondent’s own commercial efficiency or investment, such as direct or indirect state support for a firm or firms in the market; and |
| (f) | any regulations made by the Minister, in terms of section 78 regarding the calculation and determination of an excessive price. |
| (a) | It is prohibited for a dominant firm in a sector designated by the Minister in terms of paragraph (d) to directly or indirectly, require from or impose on a supplier that is a small and medium business or a firm controlled or owned by historically disadvantaged persons, unfair— |
| (ii) | other trading conditions. |
| (b) | It is prohibited for a dominant firm in a sector designated by the Minister in terms of paragraph (d) to avoid purchasing, or refuse to purchase, goods or services from a supplier that is a small and medium business or a firm controlled or owned by historically disadvantaged persons in order to circumvent the operation of paragraph (a). |
| (c) | If there is a prima facie case of a contravention of paragraph (a) or (b), the dominant firm alleged to be in contravention must show that— |
| (i) | in the case of paragraph (a), the price or other trading condition is not unfair; and |
| (ii) | in the case of paragraph (b), it has not avoided purchasing, or refused to purchase, goods or services from a supplier referred to in paragraph (b) in order to circumvent the operation of paragraph (a). |
| (d) | The Minister must, in terms of section 78, make regulations— |
| (i) | designating the sectors, and in respect of firms owned or controlled by historically disadvantaged persons, the benchmarks for determining the firms, to which this subsection will apply; and |
| (ii) | setting out the relevant factors and benchmarks in those sectors for determining whether prices and other trading conditions contemplated in paragraph (a) are unfair. |
[Section 8 substituted by section 5 of Notice No. 175, GG 42231, dated 14 February 2019]
