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Law & Regulations - Details

Short title

1. These Regulations may be cited as the Competition Commission (CC) Regulations, 2010, (herein after referred to as "the Regulations").


Commencement

2. The commencement date of these Regulations shall be the date of publication in the Gazette. More info...


Interpretation

3. (I) In these Regulations unless the context indicates otherwise - (a) "Act" means the Competition Act No.8 of 2007;

(b) "acquisition" includes the purchase or lease of shares, an interest, or assets of another enterprise, the amalgamation or other combination with another enterprise;

(c) "Commission" means the Swaziland Competition Commission established under section 6 of the Act;

(d) "Commission Officer" means an officer of the Commission appointed under section 20 of the Act;

(e) "complainant" means a person who has submitted a complaint in respect of an alleged anti-competitive trade practice in terms of section I I (2)(a) of the Act;

(f) "confidential information" means trade, business, industrial or financial information that belongs to an enterprise, has a particular economic value, is commercially sensitive and is not generally available to or known by others;

(g) "controlling interest" means the holder thereof -
(i) beneficially owns more than one half often voting and/or more than half of the economic interest of the target firm;
(ii) is entitled to vote a majority of the votes that may be cast at a general meeting of the firm;
(iii) is able to appoint or veto the appointment of a majority of the directors of the firm; or
(iv) has the ability to exercise a decisive influence over the policies of the firm and its strategic direction;

(h) "day" means any day of the week excluding Saturday, Sunday, a public holiday and the period during the month of December of the current year and January in the following year during which period all the offices of the Commission will be officially closed as determined by the Commission for the end of the year save for a standby team to attend to emergency issues -

(i) the first day is excluded and the last day is included, subject to that the last day of any period shall be excluded if it falls on a Saturday, Sunday, public holiday or any day during the month of December in the current year and January in the following year during which period the offices of the Commission will be officially closed as determined by the Commission for the end of year;

(i) "Dominant position influence" means the market influence associated with the position and market power held by an enterprise or firm.

(j) "Executive Director" means the chief executive of the Commission appointed under section 19 of the Act;

(k) "fee" means the fee payable on notification

(I) "intervener" means a person who has submitted a complaint against a merger in terms of section II (2)(b) of the Act and who has been recognized by the Commission as an intervener;

(m) "irreversible damage" means damage proved in accordance with the common law of Swaziland as irreversible;

(n) "merger" whenever it appears in these Regulations or the Competition Act bears the same meaning as the definition given in section 2 of the Act;

(o) "merger application" means the notification or request for the authorization or approval of a merger in terms of section 35(3) of the Act;

(p) "month" means a calendar month or a period made up of 20 working days;

(q) "national industries" means industries of strategic importance to the economy of Swaziland;

(r) "Undertaking" means commitment to comply with or control, prevent or avoid future breaches of the provisions of the Act made by a person to the Competition Commission as may be required by the Act; and

(s) "small enterprises" shall bear the same meaning as the definition set out in national legislation, public policy guidelines or statements issued by the relevant Government ministry from time to time.


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Office hours and address of the Commission

4. (I) The offices of the Commission are open to the public every Monday to Friday, excluding public holidays, from 08hOO to 17hOO.

(2) Despite sub-paragraph (I), in exceptional circumstances the Commission may accept documents for filing on any day and at any time.

(3) Any communication to the Commission, or to a member of the staff of the Commission, may be -
(a) delivered by hand at the Competition Commission Offices;
(b) addressed by registered post to the Competition Commission;
(c) transmitted by fax; and/or
(d) transmitted by electronic mail.


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Forms

5. All the Commission's ofiicial forms must be made easily accessible to members of the public in both print and electronic format.


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Condonation of time limits

6. On good cause shown, the Executive Director or a duly authorized representative may condone late performance of an act in respect of which these Regulations prescribe a time limit.


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Delegation of Executive Director's functions

7. The Executive Director may delegate, in writing, any function or power to a member of the staff of the Commission, either generally or in connection with a particular matter.


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Delivery of documents

8. (I) A notice· or document may be delivered in any manner contemplated in Regulation 4(3)(a)-(d).

(2) A party shall prove to the Commission that a document was delivered in terms of these Regulations, by providing the Commission -
(a) with a copy of proof of mailing the document by registered post to the other party; a document sent by registered post is presumed to have been received by the person to whom it was sent ten days after it was posted, unless the contrary is proved;
(b) with a copy of the delivery report communicating the document to the other party if sent by electronic mail;
(c) with a copy of the telefax transmission report indicating the successful transmission to the other party of the whole document; or

(d) if a document was served by hand -
(i) with a copy of a receipt, signed by or on behalf of, the other party clearly indicating the name and designation of the recipient and the place, time and date of service; or
(ii) with a statement confirming service made under oath and signed by the person who delivered a copy of the document to the other party or left it at any premises.

(e) if proof of service is provided in accordance with regulation 8(2)(d), it is presumed that the party on whom it was served has knowledge of the contents of the document.

(3) If, in a particular matter, it proves impossible to deliver a document in any manner provided for in these Regulations, the person concerned may apply to the Commission for an order or substituted service.

(4) Subject to Regulation 4(2), if the date and time for the delivery of a document referred to in sub-regulations (I) and (2) is outside of the office hours of the Commission as set out in Regulation 4( 1), that document will be deemed to have been delivered on the next business day.

(5) A document that is delivered by fax shall include a cover page, and a document that is transmitted by electronic mail shall be attached to an e-mail message, in either case setting out-
(a) the name, address, and telephone number of the sender;
(b) the name of the person to whom it is addressed, and the name of that person's representative, if it is being sent to the representative of a person;
(c) the date and time of the transmission;
(d) the total number of pages sent, including the cover page; and
(e) the name and telephone number of the person to contact if the transmission appears to be incomplete or otherwise unsuccessful.


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Issuing of documents

9. (1) If the Act or these Regulations require the Commission to issue a document-
(a) the document would have been issued by the Commission when it has been signed, and delivered to a person to whom it is addressed; and
(b) the document may be signed and delivered at anytime of the day.

(2) Regulation 8(4) does not apply to the service of a document issued by the Commission.


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Filing of documents

10. (1) The Commission must assign distinctive case numbers to each-
(a) complaint;
(b) merger application; or
(c) advisory opinion;

(2) The Commission must ensure that every party who subsequently files a document in respect of the same proceedings marks that document with the same case number.

(3) Where a document received does not bear the appropriate case number or at all, the Commission may mark that document with the case number of the proceedings if the document's case number is reasonably and easily ascertainable from the face of the document.

(4) Despite sub-regulation (3), the Commission may refuse to accept a document subsequently filed in respect of the same proceedings that is not properly marked with the assigned case number, and, if inadvertently accepted, the sender would be deemed to have failed to file the document (whether or not the Commission has returned the document to the sender).

(5) A person who files a document in terms of the Act or these Regulations shall provide to the Commission that person's -
(a) name; (b) telephone number;
(c) if available, e-mail address and fax number; and
(d) if the person is a legal entity, the name of the individual authorized to deal with the Commission on behalf of the person filling the document.


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Fees and threshold

11. (1) The Commission shall not charge a fee to any person lodging a complaint on any matter for investigation under the Act.

(2) Fees are payable to the Commission for the notification of a merger or acquisition, for an exemption application and for the provision of an advisory opinion.

(3) The Commission shall charge an advisory opinion fee ofE3, 500.00 (Three thousand five hundred Emalangeni).

(4) The filing fees for a merger shall be charged on the value of the combined annual turnover or assets of the merging enterprises.

(5) Mergers fall into two broad categories viz: small and large.

(6) Small mergers are exempt from payment of notification fees.

(7) A Small Merger is a merger with combined assets or turnover with a total value of E8 million and less.

(8) The fee charged for all other mergers is 0.1 % (zero point one percent) of the combined annual turnover or assets whichever is greater.

(9) The amount charged for notification of a merger shall not exceed the amount of E600,000.00 (Six hundred thousand Emalangeni) for any single merger notified.

(10) A fee payment will be deemed to be received by the Commission on -
(a) the date that a local bank guaranteed cheque or money order in payment of that fee is delivered to the Commission; or
(b) the date that a direct deposit or an electronic transfer of funds in the amount of that fee is credited to the account of the Commission at the financial institution to which it is transferred.

(I I) The amount of fees set out in this Regulation, or calculated in terms of this Regulation, excludes Sales Tax or VAT, whichever is applicable.


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Initiation of investigations

12. (I) The Commission may, on its own initiative, institute an investigation in respect of alleged anti-competitive trade practice/s in terms of section I I (2)(a) and (b) of the Act by issuing a notice to the enterprise which is the subject of the investigation setting out the following-
(a) the preliminary nature and scope of the alleged anti-competitive trade practices;
(b) the facts on which the complaint is based; and
(c) the provisions of the Competition Act that are applicable to the alleged anti-competitive trade practice/so

(2) A person may file a complaint with the Commission alleging anti-competitive trade practices in Form 2 setting out in broad terms -
(a) the fact on which the complaint is based; and
(b) the provisions of the Act on which the complaint is based, if known.

(3) The Commission may, after instituting an investigation or receiving a complaint against a person, issue a press statement or a notice in the press -
(a) disclosing any act of an anti-competitive or unfair trading nature; and
(b) inviting any person to submit any information or to make representations in relation to any act of an anti-competitive or unfair trading nature set out in the Notice.

(4) An investigation instituted by the Commission shall be instituted by the Executive Director at his own initiative or shall be authorized by the Executive Director where a staff member proposes to investigate or inquire into a matter under the Act, of which such staff member shall make a written statement setting out the grounds on which an investigation shall be based.

(5) Nothing contained in this Regulation shall prevent the Commission from extending the investigation to other areas of alleged anti-competitive trade practices as and when they become apparent during the course of the investigation, save that every new area of investigation shall be notified to the respondent enterprise within a reasonable time after being so added to the original complaint or investigation.

(6) The Commission may consolidate two or more complaints under one investigation if they concern the same firm as potential respondent.


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Settlement agreements

13. (I) The Commission may, in its discretion initiate settlement negotiations with any or all of the respondents in relation to a pending investigation with a view to resolving the competition issues that are the subject of the investigation-

(a) where the Commission intends to initiate settlement negotiations with any respondent in respect of an investigation initiated by a complainant other than the Commission, the Commission shall-

(i) notify the complainant in writing of its intention to initiate settlement negotiations with the respondent;
(ii) invite the complainant to submit its views regarding the proposed settlement negotiations including any remedies preferred by the complainant; and
(iii) consider the complainant's views and proposed remedies in determining whether to proceed with the initiation of the settlement negotiations;

(b) settlement negotiations initiated by the Commission shall follow the same format of negotiations set out in sub-regulation (2) below with the necessary modifications;and

(c) for the avoidance of doubt, the complainant's views and proposed remedies shall not be binding on the Commission.

(2) If, at any time before the final determination of a complaint or investigation by the Commission, a respondent is desirous of concluding a settlement agreement with the Commission, it may, in writing, inform the Commission of its intention to negotiate a settlement agreement by

(a) setting out whether it is prepared to admit to a contravention of specific provisions of the Act;
(b) proposing any remedies it considers appropriate for addressing the anti-competitive trade practices complained of; and
(c) specifying the quantum of the penalty it is prepared to pay as part of its settlement agreement with the Commission.

(3) Upon receiving a settlement proposal from a respondent enterprise, the Commission must consider the terms of the proposed agreement and the remedies contained therein.

(4) Where any of the terms of the settlement agreement as proposed are unacceptable to the Commission, the Commission may indicate alternative or additional terms that may be acceptable to the Commission.

(5) Where the Commission and the respondent enterprise reach a preliminary agreement on the terms of the settlement, the Commission shall, thereafter -

(a) notify the complainant, in writing, that a settlement agreement is being considered by the Commission;
(b) furnish the complainant with a copy of the proposed settlement agreement; and
(c) invite the complainant to provide its views including possible remedies in relation to the proposed settlement agreement.
(6) After considering the representations of the complainant, if any, the Commission may advise the respondent enterprise whether it will accept the settlement agreement.

(7) For the avoidance of doubt, the Commission has no obligation to accept the views of the complainant or the terms of the settlement proposal.

(8) Notwithstanding the provisions of this Regulation, the Commission shall not be obliged to initiate or enter into settlement negotiations with any respondent.


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Time periods for the investigation of complaints

14. The Commission must consider and make a determination in relation to any act of an anti­competitive or unfair nature in relation to an investigation of an alleged anti-competitive trade practice which it either initiated or received as a complaint from a third party in terms of section I 1 (2)(a) and (b) and section 33 of the Act -

(a) within ninety (90) days from the date on which the Commission gave a press statement or published a notice in respect of the investigation in terms of these Regulations;

(b) where the Commission is of the opinion that the period referred to in sub-regulation (a) is not sufficient the Commission may, before the expiry of that period, by notice in writing to the respondent enterprise and the complainant, if any, extend the relevant period for a further single period, not exceeding sixty (60) days, specified in the notice; and

(c) an extension of time in terms of sub-regulation (b) begins on the next day following the date on which the initial ninety days period expires.



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Authorization procedures for allowable acts

15. (1) Upon receiving an application for authorization in terms of section 37(1) of the Act, the Commission may -

(a) where the application appears to be incomplete, request the outstanding information that would render the application capable of informed assessment in terms of the - provisions of the Act; and
(b) where the application appears to be materially incomplete, advise the applicant within seven (7) days of receipt of such an application that the application will not be considered by the Commission pending the submission of the required information to the Commission within the time period set out in the notice in terms of this sub regulation.

(2) If information is not received within the time frame set out in the notice in terms of sub regulation (1 )(b), the applicant shall be deemed to have abandoned the application.

(3) When determining whether or not to grant an authorization application for allowable acts, the Commission may consider any of the following factors, namely-

(c) the impact of the authorization on-
(i) the productive capacity of an industry that is in decline;
(ii) the ability of small businesses to be competitive; and
(iii) the maintenance and promotion of exports to markets outside the SACU and SADC regions.

(4) An authorization application shall, when granted, be for a specific period of time.

(5) The Commission may revoke an authorization.

(6) In revoking an authorization the Commission shall follow the same procedures set out in Regulation 27 of these Regulations.


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Time periods of investigations

16. (I) Subject to sub-regulation (2), the Commission must consider and make a determination in relation to a proposed merger of which it has received an application in terms of section 35(3) of the Act -
(a) within ninety (90) days from the date on which the Commission receives that application; or
(b) if the Commission requests further information under sections 13 and 14 of the Act, within thirty (30) days from the date of receipt by the Commission of the additional information.

(2) Where the Commission is of the opinion that the period referred to in sub-regulations (I)(a) and (b) should be extended it may, before the expiry of that period, by notice in writing to the enterprises involved extend the relevant period for a further single period, not exceeding 60 days, specified in the Notice.

(3) An extension of time in terms of sub-regulation 15(2) begins on the next day following the date on which the initial 60 days period expires.


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Adjudication of proposed merger

17. (I) In adjudicating a proposed merger, the Commission may -
(a) approve the implementation of the merger without any conditions;
(b) approve the implementation of the merger subject to specific conditions; or
(c) prohibit the implementation of the merger.

(2) When determining whether or not a proposed merger is anti-competitive, the Commission shall consider any factor relevant to competition, including but not limited to the following-
(a) the definition of the relevant market;
(b) the post-merger market concentration;
(c) ease of entry into the market, including tariff and regulatory barriers;
(d) availability of substitute products;
(e) levels of import competition;
(f) levels of countervailing power;
(g) effective remaining competition; and
(h) the probability that the enterprises in the market will after the merger behave competitively or cooperatively -

(i) the ability of national industries to compete in international markets;
(ii) the competitiveness of a particular industrial sector or region in Swaziland; and
(iii) the ability of small enterprises to become competitive.


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General merger requirements

18. (I) Where a merger is proposed, anyone of the primary enterprises involved in the merger, or their duly appointed representatives shall file a joint application to the Commission for authorization of the merger in terms of regulation 20 of these Regulations.
(2) A party to a non-consensual merger may apply to the Commission for the consideration of that merger.


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Joint merger application

19. A joint application shall be made in a single filing by one of the primary enterprises or their duly appointed representative, and shall include -

(a) for each of the primary enterprises, Substantive Statement on the merger in Form 3, which in each case -
(i) satisfies all the filing instructions set out in that Form;
(ii) has attached to it all the documents required by those instructions; or
(iii) is accompanied by the requisite filing fee in the appropriate amount; or
(iv) if paid separately or earlier, is accompanied by proof of payment which is acceptable to the Commission.


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Non consensual mergers

20. (I) A transaction is non-consensual if -
(a) the primary firm filing the joint merger notification first made an offer to purchase the target firm to the management of that firm which was rejected in writing; or
(b) the management of the target firm has publicly stated that it does not support the offer made by the primary acquiring firm; or
(c) the management of the target firm has not responded to an offer made by the acquiring firm within a reasonable time, which shall not be less than 10 days from the date of the offer.

(2) A primary enterprise involved in a non-consensual transaction may tile a joint merger application on behalf of both primary enterprises at any time after the satisfaction of the requirements of a non-consensual transaction set out in this Regulation.

(3) A joint merger notification filed with the Commission must be served on the other primary firm's registered office or principal place of business on the date of filing with the Commission.

(4) Where some of the information contained in the merger notification is confidential to the primary firm or third parties, the notification must be accompanied by a summary of the information classifie

d as confidential, which must set out the reasons why the information is considered confidential and how the other primary firm may gain access to it. (5) The initial period for a merger filed in terms of this Regulation begins on the business day following the date on which the merger notification was served on the other primary firm, provided that -
(a) the Commission does not request additional information in terms of Regulation 22 in respect of the information filed on behalf of the primary firm that filed the joint merger notification.

(6) The primary firm filing the joint notification must-
(a) file a competitiveness report on the date of the filing of the joint merger notification; and
(b) set out in detail the sources of information it relied on in compiling the Substantive Statement of the merger on behalf of the other primary firm.

(7) Non-consensual transactions are subject to the same time frames set out in Regulation 16 of these Regulations.

(8) Where the other primary firm intends to oppose the joint merger notification -
(a) it must tile its corrected Substantive Statement of the merger within 10 business days from the date of filing of the joint merger notification; and
(b) file all attachments within 10 business days from the date of the filing ofthe joint merger notification; or
(c) within 10 business days from the date of filing of the joint merger notification, apply for an extension of time to compile and file its corrected information, which extension shall not exceed 10 business days.

(8) If the other primal}' firm fails to file any document or information within the time periods set out in this Regulation, it shall be bound by the information filed on its behalf by the primary firm that filed the joint merger notification.

(9) The Commission may extend the investigation period ofa non-consensual transaction by 30 days where, in its opinion, having regard to the information filed by the parties and its own independent knowledge of the industry, the transaction is likely to give rise to significant competition concerns.


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Review of international transactions

21. (I) If merging parties submit a merger application in respect of an intemational transaction where the date of closing is likely to occur before the finalization of the Commission's investigation, the parties shall -
(a) indicate in the original application the intended date of closing;
(b) set out how their interests in Swaziland would be insulated from the implementation of the world wide transaction; and
(c) provide legally enforceable undertakings that will ensure that the parties' interest in Swaziland will be managed and run without any interference from the merged firm following closing of the international transaction.

(2) The international closing of a proposed merger is not allowed before the filing of a merger application before the Commission.

(3) In urgent circumstances, the Commission on good cause shown may shorten the time period.


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Review of merger application

22. (1) For purposes of considering a proposed merger, the Commission may, through the office of the Executive Director or any officer delegated by him, refer the application in respect of the proposed merger in terms of section 38(1) of the Act to an officer for investigation and advise the parties to the merger of the name and contact details of the officer in question.

(2) As soon as practicable after a referral in terms of sub-regulation (I), the officer concerned shall -
(a) investigate the merger as expeditiously as possible; and
(b) furnish the Executive Director or his nominee with a report of the investigation before the expiry of the Commission's investigation period.

(3) A person, including a person not involved as a party in a proposed merger, may voluntarily submit to an officer or the Executive Director any document, affidavit, statement or other relevant information in respect of a proposed merger at any time before the conclusion of the investigation.

(4) For avoidance of doubt, the Executive Director and the investigation team shall consider any material information submitted to them before the end of the investigation period or before the Board makes its determination, which information may be presented as an addendum to a final report.

(5) The officer shall properly consider the information given and provide copies of such information to the merging parties where such information is not subject to confidentiality claims for their information and comment.

(6) Where the information submitted is covered by confidentiality claims, the officer shall require the party that furnished the information to prepare a summary of the confidential information for submission to the merging parties.

(7) The Executive Director or officer responsible for the investigation of the merger may, at any time, convene a meeting with any of the parties to the merger or third parties for purposes of inquiring further into any specific issues that may be of concern to the Commission.

(8) A meeting convened in terms of this Regulation shall be conducted in a manner considered expedient by the Executive Director or officer of the Commission.


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Request for additional information

23. At any time during a merger investigation, the Commission may-
(a) informally request additional information from a party to a merger but such request shall not have the effect of extending the Commission's investigation period as envisaged by Regulation 16; and
(b) require a party to a merger to provide additional information, at any time, as provided in Regulation 22 by serving on the party a request in Form 5, setting out the specific information that the Commission requires.


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Certificate of completeness

24. (I) A merger application must be accompanied by a certificate of completeness in Form 6 in the form of an affidavit attested to by an officer of the company filing the application certifying the accuracy and completeness of the information submitted to the Commission in terms of the Act and the Regulations.

(2) If, at any time, the Commission believes that a document filed in respect of a merger contains false or misleading information, the Commission may require the party that tiled the information to submit the correct information, which must be accompanied by an affidavit from the officer who attested to the certificate of completeness setting out -
(a) why the original information was false or misleading; and
(b) the extent to which he has satisfied himself that the new information is complete, correct, reliable and free from any errors or deficiencies.

(3) Where the Commission issues a notice in terms of sub-regulation (2) above, the parties to the merger will not have fulfilled their notification requirements until corrected information has been filed to the satisfaction of the Commission even if the initial investigation period or an extension had already begun.

(4) A party aggrieved by the issuing of Form 6 may appeal the Commission's decision to the Board, of which the Chairperson of the Board shall, within seven (7) days of receipt of such appeal, refer it to the Technical Committee of the Board who shall advise accordingly, with a subsequent and final appeal to the Board of Commissioners.


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Abolishment of a merger

25. (I) The party that filed the merger application may notify the Commission using Form 7 that it has abandoned the proposed merger and has no intention of implementing it.

(2) The notice of abandonment shall be accompanied by a certificate of consent from the other party to the transaction confirming that the merger has been abandoned.

(3) Where there is disagreement between the parties, the Commission may continue with its investigation and both parties shall be obliged to comply with all the requirements of the Act and the Regulations in respect of the submission of any information that the Commission may require.

(4) None of the parties to the merger may re-file the abandoned merger within a period of twelve months from the date of abandonment.

(5) The Commission may in its discretion refund the filing fee or part thereof to the party that paid the fee.


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Third party intervention in merger proceedings

26. (1) A third party may, at their own initiative or at the request of the Commission, make submissions to the Commission in confidence or not, in relation to a merger application.

(2) Third party comments to a merger application may be done orally or in writing to the Commission.

(3) Where the Commission receives anonymous submissions, such submission may be confirmed with other relevant third parties before it is used in the assessment of the merger application.

(4) All submissions against the merger shall, within seven (7) days of their receipt, be availed to the parties to the merger for their comments, of which the parties shall respond accordingly within fourteen (14) days after receipt of same.


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Revocation of authorization of proposed merger

27. (1) The Commission may within the time period set out in this Regulation and after complying with the other provisions of this Regulation revoke a decision authorizing the implementation of a merger if -
(a) the decision was based on materially incorrect or misleading information for which a party to the merger is responsible; or
(b) a condition attached to the authorization of the merger that is material to the implementation is not complied with.

(2) Where the Commission relies on sub-regulation (I )(a) as a basis for the revocation, it may revoke its decision within three years from the date of authorization.

(3) Where the Commission relies on sub-regulation (I)(b) as a basis for the revocation, it may revoke its decision within twelve months from the last day on which the merging parties should have fully complied with the authorization conditions.

(4) If the Commission intends to revoke the authorization of a merger under sub-regulation (I )(a) it shall-
(a) give notice in writing of the proposed revocation to the merging parties and interveners, if any; and
(b) call upon such persons to submit to the Commission, within ten (10) days after receipt of the notice, any representations which they wish to make in respect of the proposed revocation.

(5) If the Commission intends to revoke the authorization of a merger under sub regulation (I)(b), it must first afford the merging parties the opportunity to submit a plan to remedy the breach of the conditions within ten (10) days of receipt of the notice of revocation.

(6) If any of the merging parties submits a plan to the Commission in terms of sub-regulation (5), the Commission may either -
(a) accept the proposed plan; or
(b) reject the proposed plan and present the merging parties with a proposed plan of its own to which the parties shall respond in writing within ten (10) days of receipt thereof.

(7) If no response is received from the merging parties within the ten (10) days set out in sub regulation (6)(b), or the parties reject the Commission's proposed plan, the Commission's initial authorization of the merger will be revoked from the date when the ten (10) days expire or the date when the parties reject the Commission's proposed plan, whichever comes first.


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Oral hearings

28. (I) On receipt of the Executive Director's report in respect of any merger, the Commission may, if it considers it appropriate, direct that an oral hearing be held in relation to a proposed merger.

(2) If the Commission determines that an oral hearing shall be held, it shall before the expiry of the investigation period, give reasonable notice to the enterprises involved -
(a) convening the oral hearing;
(b) specifying the date, time and place for the holding of the hearing; and
(c) stipulating the matters to be considered at the hearing.

(3) A party to the merger or a third party interested in the merger by virtue of information supplied to the Commission in relation to the merger may request an oral hearing once the Executive Director has submitted his report to the Commission but before the Commission has taken its decision in relation to the merger. A party requesting an oral hearing shall do so in writing setting out -
(a) the issues to be dealt with during the oral hearing;
(b) the reasons why written submissions will be insufficient to deal with the issues in its written request; and
(c) the reasons why an oral hearing with the investigation team was not requested before the conclusion of the investigation.

(4) The Chairperson, in consultation with the Board, may determine the procedure for the oral hearing, including the number of people who may speak on behalf of the parties and the length of time they may take to address the Commission.

(5) The Commission may in its discretion grant or reject the request for an oral hearing.

(6) The Commission's decision shall be final.

(7) In the case where the Commission agrees to an oral hearing, the Commission may conduct the hearing in public or in camera-
(a) in an inquisitorial manner;
(b) as expeditiously as possible; and
(c) in accordance with the principles of fairness and natural justice.


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Invitation to participate in the Commission's deliberations

29. (I) The Chairperson of the Commission may, in consultation with the Executive Director, in writing issue an invitation to participate in the deliberations of the Commission in terms of section 14(9) of the Act.

(2) The Chairperson's invitation envisaged in sub-regulation (I) shall be preceded by a Commission resolution adopted in a properly constituted meeting.

(3) The Chairperson's invitation letter shall specify -
(a) the duration of the invitation;
(b) the specific issues in respect of which the invitee's expertise and specialist knowledge is sought; and
(c) that none of the parties to the issues in question object to the invitee's participation in the Commission's deliberations; or
(d) if objections were initially received, that these have since been resolved or overruled by the Chairperson.

(4) An acceptance of an invitation to participate in the Commission's deliberations must be in writing and shall be delivered prior to the commencement of the deliberations. The acceptance letter shall, among other things, confirm that -
(a) the invitee accepts the invitation on the terms set out in the Chairperson's invitation letter;
(b) the invitee has signed a confidentiality undertaking with respect to the Commission and any other party whose confidential information would be made available to him; and
(c) to the best of his knowledge, there is no conflict of interest that may preclude him from discharging his responsibilities in respect of the invitation.

(5) A person nominated by the Minister to attend the deliberations of the Commission in terms of Section 14(9) of the Act shall be invited by the Chairperson in terms of this Regulation and the person shall, for all intents and purposes, be regarded as an invitee of the Commission. All the provisions of this Regulation shall be applicable to the Minister's nominee.


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Committees of /the Commission

30. (1) A committee appointed by the Commission in terms of section 15 of the Act may be assigned the responsibility of assisting the Commission with one or more of the following -
(a) the conduct of sector specific studies;
(b) the review of the Act and any other legislation;
(c) the review of any issues concerning any regulations;
(d) the review of any operational issues, including the performance, recruitment and retention of employees; and
(e) the review and/or performance of any other function conferred upon the Commission in terms of section II of the Act.

(2) A committee appointed in terms of section I5 of the Act shall include at least one member of the Commission who shall be the ex officio chairperson of the committee unless otherwise as directed by the Commission.

(3) All committees established in terms of section I5 of the Act shall be appointed by the Commission in a general meeting convened for that purpose.

(4) In appointing the committees, the Commission shall take into account interests not already adequately represented within the Commission as well as the specialist knowledge, expertise and experience required to properly deal with the issues to be assigned to the committee.

(5) Each committee shall be appointed for a specific task, which must be conducted and finalized within a reasonable time from the date of appointment, unless otherwise authorized by the Minister.

(6) The appointment of members of the committees shall be by a show of hands on the basis of a simple majority from a list of candidates compiled by the Executive Director in consultation with the Chairperson of the Commission.

(7) The Commission or a sub-committee duly constituted shall draw up the terms of reference of the committee before the commencement of their mandate.

(8) Each committee shall produce a written report, which deals with the issues referred to it at the conclusion of its mandate.

(9) The Chairperson of the Commission may, from time to time, invite the chairperson of any committee to give regular updates to the Commission in respect of the work done. At the conclusion of the committee's mandate, the chairperson of the committee and members of the committee shall present their findings and recommendations to the Commission at a meeting convened for this purpose.

(10) The Commission shall be guided by the findings of the committee in resolving the issue that was handled by the committee, unless compelling reasons such as a serious error in judgment on the part of the committee preclude the Commission from implementing the committee's report without properly motivated modifications.


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Publication of Commission decisions

31. (1) The Commission shall publish in its website, if any, a summary of its decisions on the first day of every quarter, or, if the first day of the quarter falls on a weekend or a holiday, on the next business day, containing the following information -
(a) the names of the parties;
(b) the industries in which they are involved;
(c) the issues that were brought before the Commission for determination;
(d) the Commission's decision; and
(e) the reasons, in summary form, of the Commission's decision.

(2) A person interested in any of the matters published by the Commission may approach the Commission to copy any documents from the Commission's files that are not covered by confidentiality claims, subject to the payment of the appropriate fee.

(3) A request submitted to the Commission in respect of this Regulation shall be satisfied within seven days from the date of filing of the request.


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Interaction with regulatory authorities

32. (1) The Commission may, in terms of section. II (2)(i) of the Act, at any time, invite any regulatory authority to participate in its proceedings if it is of the opinion that such regulatory authority possesses specialist knowledge and enjoys regulatory oversight in respect of an industry that is the subject of an investigation by the Commission.

(2) An invitation to participate in an investigation in terms of this Regulation shall be issued in writing by the Executive Director specifying -
(a) the names of the parties before the Commission;
(b) the issues under investigation and/or consideration; and
(c) the specific assistance sought from the regulatory authority.

(3) A submission made by a regulatory authority shall not be binding on the Commission where it concerns the interpretation and/or enforcement of the principles of the Act.

(4) The Commission shall, review any legislation or regulations administered by any regulatory authority with a view to harmonize them with the Competition Act and it's Regulations -

(a) when conduction a review in terms of section II (2)(i) of the Act, the Executive Director shall notify the head of a regulatory authority that may have an interest in the review. The Executive Director's notice shall-
(i) identify the provisions of the Act or regulations which are the subject of the Commission’s review;
(ii) the impact that these provisions are perceived to have on competition in the sector; and
(iii) invite the regulatory authority to suggest any possible solutions to the issues under review;

(c) a regulatory authority notified of a review in terms of this regulation may submit information or representations to the Commission before the finalization of the review;

(d) a regulatory authority that initiates a review of its own legislation shall notify the Commission of its intention to do so where -
(i) the contemplated review is anticipated to have implications on the enforcement of the Competition Act in that sector; or
(ii) the nature of the sector justifies, in the regulatory authority's view, a departure from normal competition principles;

(e) an invitation in terms of this sub-regulation shall be directed to the Executive Director of the Commission;

(f) the Commission shall, through the Executive Director, advise the regulatory authority of its views regarding the proposed review;

(g) a regulatory authority furnished with the Commission's views in relation to its proposed review of its legislation shall formulate its proposed amendments in a manner consistent with the views of the Commission.


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Undertakings and compliance programs

33. (I) Where the Commission perceives that the market situation in which a person is involved requires specific market behavior from such person which may only be effective monitored through undertakings, the Commission may require such person to provide undertakings under section 11(1), 11 (2)(i), 35, 36 and 37(1) of the Act.

(2) When providing undertakings, the person shall ensure that the undertakings are -
(a) relevant to the competition and unfair trading issues that are of concern to the Commission;
(b) practical;
(c) self-regulatory -such as would not require the Commission's constant vigilance; and
(d) do not impose obligations on the Commission.

(3) The Commission may also require that such undertaking be signed between the Commission and the person/s through a Memorandum of Understanding which shall detail information such as, but not limited to the following -
(a) the name of the person giving the undertakings as well as that of the Commission;
(b) the preamble i.e. background information that triggered the request for undertakings;
(c) the actual undertakings;
(d) a declaration that the Commission shall make the undertakings public;
(e) signatories of the person and the corporate seal thereof, if applicable, but which seal shall not have legal consequences if not affixed as long as the corporate representatives at director level have signed; and
(f) a Commission representative's signature and the seal of the Commission.

(4) Depending on the gravity of the matter to the Commission, a Competition and Fair Trading Compliance Program may also be proposed by the Commission, which compliance program shall contain the information as in the Memorandum of Undertakings but also include information such as but not limited to the following -
(a) purpose of the compliance program;
(b) details of how the person shall comply with the provision of the Act; and
(c) a name and position of a senior officer in the entity who shall be responsible for ensuring compliance issues.


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Forms

  • Form #1 Demand for Notification of Merger and AcquisitionMore info...
  • Form #2 Complaint Against Monopolies, Anti-competitive Practices and Concentration of Economic PowerMore info...
  • Form #3 Joint Merger ApplicationMore info...
  • Form #4 Consensual MergersMore info...
  • Form #5 Request for Additional InformationMore info...
  • Form #6 Certificate of CompletenessMore info...
  • Form #7 Notice of Merger AbandonmentMore info...
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