Competition Act, 1998 (Act No. 89 of 1998)NoticesGuidelines for the Determination of Administrative Penalties for Prohibited Practices5. Methodology for the calculation of penaltiesStep 5: Aggravating and mitigating factors |
| 5.19 | Once the base amount has been determined, the Commission will adjust this figure upwards or downwards based on the relevant factors in section 59(3) of the Act which assess the aggravating and mitigating circumstances of each firm and its conduct, which may have not been considered in step 2 above. These factors include: |
| 5.19.1 | Section 59(3)(c) of the Act which relates to the behaviour of the firm in the market during the period of the contravention, that is, in relation to consumers and competitors, as opposed to how it responds to the competition authorities. This will also include but is not limited to a consideration of: |
| 5.19.1.1 | The nature of the firm's involvement in the contravention i.e. whether the firm was proactive in initiating the contravention, whether it was a passive participant or whether it was coerced by other firms who are party to the contravention; |
| 5.19.1.2 | Bona fide, negligence or deliberate and wilful engagement in the contravention; |
| 5.19.1.3 | The involvement of directors and/or senior management in the contravention; |
| 5.19.1.4 | The firm's encouragement of staff to participate in the contraventions, for example through personal incentives linked to the success of the contravention; |
| 5.19.1.5 | Whether the firm continued with its conduct or ceased the conduct, following its knowledge of the Commission's investigation; |
| 5.19.1.6 | Whether the firm was proactive and timeous in exercising its initiative by, for example, instituting corrective measures within the firm; |
| 5.19.1.7 | Evidence that demonstrates the termination of the conduct as soon as the Commission intervened; |
| 5.19.1.8 | Whether the firm implemented the anti-competitive conduct. |
| 5.19.2 | Section 59(3)(e) of the Act which relates to the profit derived from contravention. This may include but is not limited to a consideration of an assessment of the level of profit achieved by the firm as a result of the contravention. The Commission notes that this may not always be possible to assess in all cases. This is because the benefits of participation in some anti-competitive conduct not only translate to quantifiable monetary benefit but also extend to the protection of participants from the demands of competition such as efficiency, investment and service. For section 4(1)(b) cases, there will be a presumption that the conduct was profitable. |
| 5.19.3 | Section 59(3)(f) of the Act which relates to the degree of co-operation with the Commission and Tribunal. This may include but is not limited to a consideration of: |
| 5.19.3.1 | The extent to which the firm, inter alia, delayed, obstructed, and/or assisted in expediting the investigation and litigation process; |
| 5.19.3.2 | Whether the firm co-operated through tangible actions to facilitate the speedy resolution of the case. |
| 5.19.4 | Section 59(3)(g) of the Act which relates to whether the respondents has previously been found in contravention of this Act. This may include but is not limited to a consideration of: |
| 5.19.4.1 | Whether the firm has engaged in conduct which is substantially a repeat by that firm of conduct previously found by the Tribunal to be a prohibited practice; |
| 5.19.4.2 | Instances where the firm was granted leniency in terms of the Commission's CLP, for any conduct found to be a prohibited practice by the Tribunal and or finalised through settlement and/or by consent order. |