The recent decision of the Constitutional Court in Competition Commission of South Africa v Pickford Removals SA (Pty) Limited may have a material effect on the future prosecution of prohibited practices – including cartel behavior and abuses of dominance.
The Pickford decision relates to the interpretation of section 67(1) of the South African Competition Act as it stood before it was amended by the Competition Amendment Act, 2018. The section said:
“…a complaint in respect of a prohibited practice may not be initiated more than three years after the practice has ceased”
The main finding of the Constitutional Court was that section 67(1) of the Competition Act does not constitute a prescription provision, but a procedural time-bar provision, which in the event of non-compliance can be condoned. The effect is essentially that a prohibited practice complaint does not necessarily lapse three years after a prohibited practice has ceased.
In its finding, the Constitutional Court set aside an order of the Competition Appeal Court (CAC) and the matter was remitted to the Competition Tribunal (Tribunal) for further hearing.
Continue Reading Widening the net – the Constitutional Court’s softening of the time-bar defence under South African competition law