Hansard: Competition Amendment Bill: DA's Reservations on its Constitutionality

House: National Assembly

Date of Meeting: 17 Feb 2009

Summary

No summary available.

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Minutes

UNREVISED HANSARD

NATIONAL ASSEMBLY

Wednesday, 18 February 2009 Take: 124

COMPETITION AMENDMENT BILL

(Consideration of Bill and of Report of Portfolio Committee on Trade and Industry thereon)

Declarations of vote:

Dr P J RABIE: Madam Speaker, the Competition Amendment Bill is a very complex piece of legislation and the DA supports this Bill. The DA, however, would like to have its reservations noted regarding the constitutionality of the Bill and the criminal liability provisions, where the findings against a firm at the Competition Tribunal can be used as prima facie evidence in a criminal prosecution.

Both the President and DTI, the Department of Trade and Industry's senior counsels' opinions - what the Portfolio Committee on Trade and Industry viewed - agreed that this provision may violate the right to a fair trial by introducing reverse onus, placing responsibility to establish guilt or innocence on the accused, not the state. While appreciating that this clause makes prosecution easier, it should be borne in mind that the convenience of the state should not outweigh the rights of the individual.

The DA also supports the hon President now that the definitions regarding complex monopolies should have been further defined.

The DA nevertheless supports the Bill in the broad public interest. I thank you, Madam Speaker.

Mr H J BEKKER

END OF TAKE

Dr P J RABIE

Mr H J BEKKER: Madam Deputy Speaker, the IFP will support this Bill. We also – for the record - just say that in terms of the Competition Act, one must also consider that things must be opened up more. Furthermore, if there are real people that want to try and stifle this, consideration should be given to levying a higher rate of customs or excise as action against those people; that is if they don't want to comply with this. Thank you.

Mr S N SWART

END OF TAKE

Mr H H J BEKKER

Mr S N SWART: Madam Deputy Speaker, the ACDP shares the concerns expressed by the President regarding the constitutionality particularly of the reverse onus provision. This clause refers to the criminal liability for directors and individuals with management authority.

Whilst we support giving the Competition Board more teeth to fight uncompetitive behaviour, such penalties might, in our view, be unconstitutional. Reverse onus clauses have in the main been held to be unconstitutional as they violate the right to fair trial guaranteed in the Constitution, and they place the burden of proof on the accused person instead of the state.

Thus, we believe that this could be unconstitutional and we would encourage the President to refer the Bill to the Constitutional Court for final determination. The ACDP will, however, support the Bill. Thank you.

Mr B A D MARTINS

END OF TAKE

Mr S N SWART

Mr B A D MARTINS: Madam Deputy Speaker, hon members, on 4 February 2009, the Portfolio Committee on Trade and Industry, after having heard and deliberated on the legal opinions of the parliamentary law advisers, state law advisers and the Department of Trade and Industry's legal adviser, respectfully concluded that the reservations raised in respect of the Competition Amendment Bill do not justify the call on the President not to assent to the Bill.

Paragraph 19 of the opinion of Adv Semenya, addressed to the presidency, deals with the possible justification for a reverse onus. In arriving at the conclusion that a reverse onus would not be justified, Adv Semenya relies on the complex nature of complex monopoly conduct. However, clause 12(5) of the Bill does not relate to complex monopoly conduct at all. It relates to the prohibited practices in terms of section 4(1)(b) of the Principal Act, that is price fixing, division of markets and collusive tendering.

Therefore, the motivation by Adv Semenya for concluding that reverse onus - if it exists - would be unjustifiable is, with the greatest of respect, based on an incorrect assumption or fact. I thank you.

The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY

END OF TAKE

Mr B A D MARTINS

The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Deputy Speaker, I move that the Bill be passed.

Agreed to.

NB/MC

END OF TAKE

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