[Words preceding section 4(1) substituted by section 3(a) of Notice No. 1354, GG 21880, dated 13 December 2000]
| (a) |
it has the effect of substantially preventing or lessening competition in a market, unless a party to the agreement, concerted practice, or decision can prove that any technological, efficiency or other pro-competitive, gain resulting from it outweighs that effect; or |
[Section 4(1)(a) substituted by section 3(b) of Notice No. 1354, GG 21880, dated 13 December 2000]
| (i) |
directly or indirectly fixing a purchase or selling price or any other trading condition; |
| (ii) |
dividing markets by allocating market shares, customers, suppliers, territories or specific types of goods or services; or |
[Section 4(1)(b)(ii) substituted by section 3(a) of Notice No. 175, GG 42231, dated 14 February 2019]
| (iii) |
collusive tendering. |
| (2) |
An agreement to engage in a restrictive horizontal practice referred to in subsection (1)(b) is presumed to exist between two or more firms if— |
| (a) |
any one of those firms owns a significant interest in the other, or they have at least one director or substantial shareholder in common; and |
[Section 4(2)(a) substituted by section 3(c) of Notice No. 1354, GG 21880, dated 13 December 2000]
| (b) |
any combination of those firms engages in that restrictive horizontal practice. |
| (3) |
A presumption contemplated in subsection (2) may be rebutted if a firm, director or shareholder concerned establishes that a reasonable basis exists to conclude that the practice referred to in subsection (1)(b) was a normal commercial response to conditions prevailing in that market. |
| (4) |
For purposes of subsections (2) and (3), "director" means— |
[Words preceding section 4(4)(a) substituted by section 3(d) of Notice No. 1354, GG 21880, dated 13 December 2000]
| (a) |
a director of a company as defined in the Companies Act, 1973 (Act No. 61 of 1973); |
| (b) |
a member of a close corporation as defined in the Close Corporations Act, 1984 (Act No. 69 of 1984); |
| (c) |
a trustee of a trust; or |
| (d) |
a person holding an equivalent position in a firm. |
| (5) |
The provisions of subsection (1) do not apply to an agreement between, or concerted practice engaged in by,— |
| (a) |
a company, its wholly owned subsidiary as contemplated in section 1(5) of the Companies Act, 1973, a wholly owned subsidiary of that subsidiary or any combination of them; or |
| (b) |
the constituent firms within a single economic entity similar in structure to those referred to in paragraph (a). |
| 6) |
The Minister must make regulations in terms of section 78 regarding the application of this section. |
[Section 4(6) inserted by section 3(b) of Notice No. 175, GG 42231, dated 14 February 2019]
Public Service Commission Act, 1997
