[Section 9 heading substituted by section 6(a) of Notice No. 175, GG 42231, dated 14 February 2019]
| (1) | An action by a dominant firm, as the seller of goods or services, is prohibited price discrimination, if— |
| (a) | it is likely to have the effect of— |
| (i) | substantially preventing or lessening competition; |
| (ii) | impeding the ability of small and medium businesses or firms controlled or owned by historically disadvantaged persons, to participate effectively; |
[Section 9(1)(a) substituted by section 6(b) of Notice No. 175, GG 42231, dated 14 February 2019]
| (b) | it relates to the sale, in equivalent transactions, of goods or services of like grade and quality to different purchasers; and |
| (c) | it involves discriminating between those purchasers in terms of— |
| (i) | the price charged for the goods or services; |
| (ii) | any discount, allowance, rebate or credit given or allowed in relation to the supply of goods or services; |
| (iii) | the provision of services in respect of the goods or services; or |
| (iv) | payment for services provided in respect of the goods or services. |
| (1A) | It is prohibited for a dominant firm to avoid selling, or refuse to sell, goods or services to a purchaser that is a small and medium business or a firm controlled or owned by historically disadvantaged persons in order to circumvent the operation of subsection (1)(a)(ii). |
[Section 9(1A) inserted by section 6(c) of Notice No. 175, GG 42231, dated 14 February 2019]
| (2) | Despite subsection (1), but subject to subsection (3), conduct involving differential treatment of purchasers in terms of any matter listed in paragraph (c) of subsection (1) is not prohibited price discrimination if the dominant firm establishes that the differential treatment— |
| (a) | makes only reasonable allowance for differences in cost or likely cost of manufacture, distribution, sale, promotion or delivery resulting from— |
| (i) | the differing places to which goods or services are supplied to different purchasers; |
| (ii) | methods by which goods or services are supplied to different purchasers; or |
| (iii) | quantities in which goods or services are supplied to different purchasers; |
| (b) | is constituted by doing acts in good faith to meet a price or benefit offered by a competitior; or |
| (c) | is in response to changing conditions affecting the market for the goods or services concerned, including— |
| (i) | any action in response to the actual or imminent deterioration of perishable goods; |
| (ii) | any action in response to the obsolescence of goods; |
| (iii) | a sale pursuant to a liquidation or sequestration procedure; or |
| (iv) | a sale in good faith in discontinuance of business in the goods or services concerned. |
[Section 9(2) substituted by section 6(d) of Notice No. 175, GG 42231, dated 14 February 2019]
| (a) | subsection (2)(a)(iii) is not applicable; and |
| (b) | the dominant firm must, subject to regulations issued under section 9(4), show that its action did not impede the ability of small and medium businesses and firms controlled or owned by historically disadvantaged persons to participate effectively. |
[Section 9(3) inserted by section 6(e) of Notice No. 175, GG 42231, dated 14 February 2019]
| (3A) | If there is a prima facie case of a contravention of subsection (1A), the dominant firm alleged to be in contravention must show that it has not avoided selling, or refused to sell, goods or services to a purchaser referred to in subsection (1A) in order to circumvent the operation of subsection (1)(a)(ii). |
[Section 9(3A) inserted by section 6(e) of Notice No. 175, GG 42231, dated 14 February 2019]
| (4) | The Minister must make regulations in terms of section 78— |
| (a) | to give effect to this section, including the benchmarks for determining the application of this section to firms owned and controlled by historically disadvantaged persons; and |
| (b) | setting out the relevant factors and benchmarks for determining whether a dominant firm’s action is price discrimination that impedes the participation of small and medium businesses and firms controlled or owned by historically disadvantaged persons. |
[Section 9(4) inserted by section 6(e) of Notice No. 175, GG 42231, dated 14 February 2019]
