COVID-19: COMPETITION TRIBUNAL ON BOARD TO ADJUDICATE EXCESSIVE PRICING COMPLAINTS

By Tamara Dini Tuesday, April 07, 2020
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Further to our newsflashes of 23 March 2020 (accessible here, here and here), Competition Tribunal Rules regulating complaint referrals for alleged COVID-19 excessive pricing contraventions (Rules) have now been gazetted.

The Rules detail the procedural steps applicable when a complaint is referred to the Competition Tribunal (Tribunal), and these Rules will continue to apply for as long as COVID-19 remains a declared national disaster.

Some notable provisions include the following:

Litigants

Whilst the Competition Commission (Commission) may refer dominant firms allegedly involved in excessive pricing to the Tribunal, in situations where the Commission elects not to refer a complaint to the Tribunal, the Rules allow a complainant to self-refer, effectively stepping into the shoes of the Commission and prosecuting the complaint.

Expedited time periods

The Rules have dispensed with the ordinary time frames for the exchange of pleadings provided for in terms of the Competition Act. Instead, once a COVID-19 excessive pricing complaint has been referred to the Tribunal, the respondent has 72 hours to file its answering papers, with the complainant's reply (if any) due within 24 hours thereafter. 

Any factual and/ or expert testimony is to be incorporated in this time frame, unless the Tribunal directs otherwise.

Within 48 hours from the close of pleadings, the Tribunal will set the matter down for hearing. Hearing will take place remotely, via audio or video conferencing. 

Remedies

Without derogating from the 10% penalty that the Tribunal may impose if a respondent is found to have excessively priced, the Tribunal may remedy the contravention by imposing a pricing order on the respondent.

Any pricing order will remain in force unless set aside by the Competition Appeal Court.  Applications to the Competition Appeal Court may also be addressed on an urgent basis, but the procedure at an appeal stage is not yet clear. 

Settlement

At any stage during the process, a respondent may enter into a full and final settlement with the Commission in respect of competition and any civil proceedings. The Tribunal may confirm the settlement agreement without hearing any evidence.

Firms dominant in market segments providing key goods and services could become the subject of a complaint, and should be aware of the competition law test for excessive pricing, as well as the procedures for the resolution of complaints.