The South African Property Owners Association (SAPOA) has urged the National Department of Trade & Industry (DTI) to extend the consultation process for the newly-gazetted Competition Amendment Bill, 2008.
The powerful body believes such an extension would allow for more detailed analysis of provisions that SAPOA believes could have far-reaching negative consequences for South Africa’s commercial and industrial property market.
Three areas of concern have been expressed by SAPOA in a media release quoting legal committee member Madelaine Truter.
The first focuses on the Bill’s provisions around complex monopolies. SAPOA believes that the provisions would penalise involuntary or regular market activity, and make firms responsible for market factors outside their control.
Key concerns for the association include issues of clarity and definition of complex monopolies, as well as the need to consider lessons learned from international experience.
“These provisions could be a significant departure from practices in other competition law jurisdiction,” she notes.
“SAPOA believes that complex monopoly provisions could deter healthy and legitimate business behaviour and discourage foreign investor confidence.”
The second area of concern is the introduction of criminal liability for directors of companies that contravene the cartel provisions of the Competitions Act. “This is a dramatic departure from the existing civil jurisdiction of the Competition Authorities,” says Truter. “We recommend that this far-reaching provision should be deferred for implementation at a later time.”
The third area of concern deals with the idea of concurrent jurisdiction, the situation where both general and sector-specific legislation applies. “SAPOA members are subject to sector-specific legislation and there is no regulator for the property industry,” explains Truter.
“Our question is: how will concurrent jurisdiction be exercised where there is a conflict?”
Truter notes that SAPOA’s comments remain general and high level at this stage, mainly because of the short period of time – just 30 days – allowed by the DTI for submission.
“We believe that limited time to comment and make submissions is too short in view of the far-reaching and serious consequences of the Bill,” says Truter. “We urge the DTI to extend the time period and afford businesses an opportunity to consider the Bill from all angles.”
The association believes that better comment and input will lead to a more coherent, clearly drafted and legally certain Bill at the end of the day.