| 5.9 | The Commission will calculate the base amount of the administrative penalty to be imposed with reference to the firm's affected turnover. |
| 5.10 | The base amount will be calculated as a proportion of the affected turnover on a scale from zero percent (0%) to thirty per cent (30%)6. The proportion applied will be based on some of the factors listed in section 59(3), specifically section 59(3)(a), (b), and (d), which are: |
| 5.10.1 | The nature, gravity and extent of the contravention; |
| 5.10.2 | Any loss or damage suffered as a result of the contravention; and |
| 5.10.3 | The market circumstances in which the contravention took place. |
| 5.11 | In determining whether the proportion of the base amount will be at the higher end or lower end of the scale (i.e. 0 to 30%), in light of the factors listed above, the Commission will consider the following: |
| 5.11.1 | The nature of the affected product(s); |
| 5.11.2 | The structure of the market; |
| 5.11.3 | The market shares of the firms involved; |
| 5.11.4 | Barriers to entry in the market; and |
| 5.11.5 | The impact of the contravention on competitors and consumers, and the likely impact on small and medium-sized enterprises and on low income consumers. |
| 5.12 | Notwithstanding the above, the Commission notes that it may not always be possible to measure or estimate the loss or damage suffered as a result of the conduct with any precision especially where given the nature of the conduct, it would not be possible to construct the counterfactual. For cartel conduct, harm is presumed and will not be proved. |
| 5.13 | The higher end of the scale will be reserved for the most serious contraventions such as hard-core cartel conduct (price-fixing, market allocation, and collusive tendering) and some forms of abuse of dominance or unilateral conduct (excessive pricing, predation, refusal to provide access to essential facilities, inducement-related practices, and buying-up a scarce supply of intermediate goods or resources).7 |
| 6 | See paragraph 147 of Competition Commission v. Aveng Africa Limited t/a Steeledale, Reinforcing Mesh Solutions (Pty) Ltd, Vulcania Reinforcing (Pty) Ltd & BRC Mesh Reinforcing (Pty) Ltd Case No.: 84/CR/Dec09 |
| 7 | Ibid at paragraphs 140 - 147 |
Commission v. Telkom Case No. 11/CR/Feb04 (decision 7 August 2012); and
Commission v. Sasol Chemical Industries Case No. 48/CR/Aug2010 [011502]
