2012 ICN Cartel Workshop Panama City, Panama 2 – 4 October 2012 Plenary I: Overview of Anti-Cartel Enforcement Manual Chapters – Best Practices Drafting and Implementing a Leniency Programme A South African perspective 2012 ICN Cartel Workshop Panama City, Panama 2 – 4 October 2012 Bongani Ngema Competition Commission of South Africa

OUTLINE Background Effect of CLP on Anti-Cartel enforcement Major investigations Challenges Recommendations

BACKGROUND Introduced in 2004 Based on US,EU,UK,Canada and Australia Programmes Revised in 2008 to incorporate best practices Markers Wording amended to clarify that immunity will be granted where the applicant meets all then conditions Instigators Discretion for the Commission to consider reduced fines for subsequent applicants Oral submissions Contact person

EFFECT OF CLP ON ANTI-CARTEL ENFORCEMENT CLP Introduced

MAJOR CARTEL INVESTIGATIONS Bread cartel Involved 4 biggest bakeries (60% of the market) Fixed prices and allocated markets Leniency applicant provided information Part of the investigation completed and referred for adjudication in 2 months! Highest fine ever imposed in SA (R340million: US$41million)! Led to investigations into milling

MAJOR CARTEL INVESTIGATIONS Construction cartel Started as a market study into the construction of stadia One of the biggest construction firms applied for leniency Invitation to settle 21 firms applied (24 implicated) Investigations and settlements will be completed within 36 months CLP applications led to investigation into the pilings, reinforcing steel etc.

CHALLENGES The legality of CLP has been challenged in court Leniency applications containing incomplete information or circumstances that do not constitute cartel conduct Implementing the CLP in the environment of criminalised cartel conduct Negative public perception due to instigators escaping sanction or enjoying some leniency

RECOMMENDATIONS Consider a move towards a multiple leniency arrangement rather than the “Winner takes all” approach Awareness programmes to highlight the benefits of CLP Whistleblowing programmes