ARRANGEMENT OF SECTIONS
1. Short title
Establishment of Competition Authority and Commission
4. Competition Authority
5. Functions of Authority
6. Executive Secretary of Authority
7. Tenure of office of Executive Secretary
8. Appointment of employees
9. Competition Commission
11. Tenure of office
13. Removal of member
14. Filling of vacancy
15. Conduct and disclosure of interest
Meetings and proceedings of Commission
16. Proceedings of Commission
17. Validity of decisions
19. Appointment of employees
21. Funds of Authority
22. Financial year
23. Accounts and audit
24. Annual reports
Control of restrictive agreements and dominant position
25. Prohibition of horizontal agreements
26. Prohibition of vertical agreements
27. Other horizontal and vertical agreements
28. Threshold for determining prohibition
29. Interconnected enterprises
30. Abuse of dominant position
31. Threshold for determining dominant position
Exemptions and assessment criteria
33. Revocation of exemption
34. Consultations on exemptions
Investigation of horizontal and vertical agreements
35. Investigation by Authority
36. Entry and search of premises
37. Privileged information
Determination of cases, penalties and remedies
38. Consideration of evidence
39. Initial hearing and referral to Commission
40. Conduct of hearing
41. Proposed decision by Commission
42. Pre-decision hearing
43. Directions on horizontal and vertical agreements
44. Directions on abuse of dominant position
45. Application of remedies
46. Interim relief
47. Acceptance of undertaking
48. Enforcement of directions
49. Conditions for initiating market inquiries
50. Powers of investigation
51. Action following inquiry
Control of mergers
52. Acquisition of control of enterprise
53. Exemptions from merger control
54. Threshold for merger control
55. Mergers above permitted threshold
56. Pre-notification of mergers
57. Consideration of notification
58. Hearing in relation to merger
59. Assessment of merger
60. Determination on proposed merger
61. Acceptance of undertaking
62. Revocation of approval of merger
63. Merger implemented in contravention of Act
64. Enforcement of directions
65. Exclusion of certain agreements and conduct
66. Compliance with other laws
67. Matters subject to appeal
68. Appeal against horizontal and vertical agreements
69. Appeal against abuse of dominance
70. Other appeals
71. Outcome of appeals
72. Determination of relevant market
73. Relationship with sector regulators
75. Claims for damages or other money
76. Offences and penalties
77. Enforcement at request of another State
79. Guidelines and rules
Act 17, 2009,
S.I. 66, 2010.
An Act to provide for the establishment of the Competition Authority, its mandate, the regulation of competition in the economy, and matters incidental thereto.
[Date of Commencement: Parts I-IV:9th July, 2010;
Parts V-XII: On Notice ]
Preliminary (ss 1-3)
(1) This Act may be cited as the Competition Act.
(2) Different commencement dates may be determined under subsection (1) in respect of different provisions of the Act.
In this Act, unless the context otherwise requires-
(a) any form of agreement, whether or not legally enforceable, entered into between enterprises and is implemented or intended to be implemented in Botswana;
(b) a decision by an association of enterprises; or
(c) a concerted practice;
"Authority" means the Competition Authority established under section 4;
"bid rigging" means a horizontal agreement between enterprises whereby, in response to a request for bids-
(a) one of the parties to the agreement agrees not to submit a bid; or
(b) the parties to the agreement agree upon the price, terms and conditions of a bid to be submitted,
but an agreement does not amount to bid rigging where the person requesting the bids is informed of the terms of the agreement before the time when the bid is made;
"concerted practice" means cooperative or coordinated conduct between enterprises achieved through direct or indirect contact, that replaces their independent action but does not amount to an agreement;
"Court" means the High Court of Botswana;
"dominant position" means a situation in which one or more enterprises possess such economic strength in a market as to allow the enterprise or enterprises to adjust prices or output without effective constraint from competitors or potential competitors;
"enterprise" means a person or group of persons whether or not incorporated, that carries on a business for gain or reward in the production, supply or distribution of goods or the provision of any service;
"horizontal agreement" means an agreement between enterprises each of which operates, for the purpose of the agreement, in the same market and would therefore normally be actual or potential competitors in that market;
"member" means a member of the Competition Commission;
"premises" includes any vehicle, vessel, aircraft or container;
"relevant market" means the geographical or product market to be used for the purpose of assessing the effects of a practice, conduct or agreement on competition;
"resale price maintenance" means an agreement between a supplier and a dealer with the object or effect of directly or indirectly establishing a fixed or minimum price or price level to be observed by the dealer when reselling a product or service to the dealer's customers;
"services "includes the carrying out and performance of any engagement, whether professional or not, for gain or reward, other than the supply of goods;
"small enterprise "has the meaning assigned to it under the Small Business Act; and
"vertical agreement" means an agreement between enterprises each of which operates, for the purposes of the agreement, at a different level of the production chain and relates to the conditions under which the parties may purchase, sell or resell certain goods or services.
(1) Except as otherwise provided for in this Act, this Act applies to all economic activity within, or having effect within, Botswana.
(2) This Act binds the State to the extent that the State engages in trade or business for the production, supply or distribution of goods or the provision of any service within any market in Botswana that is open to participation by other enterprises.
(3) This Act does not apply to-
(a) any agreement to the extent that the agreement relates to the protection, exercise, licensing or assignment of rights under any law governing intellectual property rights;
(b) enterprises operating on the basis of statutory monopoly in Botswana;
(c) any practice or agreement expressly required or authorised by any law or scheme, including matters falling within the terms of a licence issued pursuant to a regulatory regime established by statute for the purpose of economic or prudential regulation;
(d) any collective bargaining activity or agreement negotiated or concluded in terms of any labour legislation;
(e) conduct designed to achieve a non-commercial socio-economic objective;
(f) any practice, conduct or agreement, to the extent that the practice, conduct or agreement relates to the export of goods from Botswana or supply of services outside Botswana;
(g) any practice, conduct or agreement approved or required under an international agreement to which Botswana is a party; and
(h) service carried out under a contract of employment.
Establishment of Competition Authority and Commission (ss 4-15)
There is hereby established a body to be known as the Competition Authority, which shall be a body corporate capable of suing and being sued and, subject to the provisions of this Act, of performing such acts as bodies corporate may, by law, perform.
(1) The Authority shall be responsible for the prevention of, and redress for, anti competitive practices in the economy, and the removal of constraints on the free play of competition in the market.
(2) Notwithstanding the generality of subsection (1), the Authority shall-
(a) make rules for, and publicise decisions that increase, fair and transparent business practices;
(b) regulate the merging of enterprises;
(c) hold regular consultations with, and receive advice from, sector regulatory authorities in order to clarify who monitors and controls competition matters relating to those sectors;
(d) inform and educate members of the public and persons engaged in trade or commerce, about the powers and functions of the Authority;
(e) advise Government on the actual or likely anti-competitive effects of current or proposed policies or legislation and where appropriate, how to avoid those effects;
(f) offer ongoing advice to the Government on whether exclusions provided for under section 3 should be maintained;
(g) undertake general studies, whether by way of a market inquiry in terms of this Act or otherwise, on the effectiveness of competition in individual sectors of the economy;
(h) collect information for the performance of its functions;
(i) liaise with and exchange information, knowledge and expertise with authorities entrusted with functions similar to those of the Authority, in other countries; and
(j) advise the Minister on international agreements relevant to competition matters and to this Act;
(k) investigate and evaluate alleged contraventions of Part V;
(l) grant or refuse applications for exemption in terms of Part VI;
(m) authorise with or without conditions, mergers of which it receives notification under Part X;
(n) prohibit or refer mergers of which it receives notification under Part X;
(o) refer matters it has investigated under this Act to the Commission for adjudication;
(p) prosecute before the Commission, matters referred to the Commission under paragraph (o) ; and
(q) deal with any matter referred to it by the Commission under this Act.
(1) The Authority shall have a Chief Executive Officer to be called the Executive Secretary, who shall be appointed by the Minister after consultation with the Commission, and upon such terms and conditions as the Minister may determine.
(2) The Executive Secretary shall, subject to the general supervision of the Commission, be responsible for-
(a) the day to day operations of the Authority;
(b) the management of the funds, property and business of the Authority; and
(c) the organisation and management of the employees of the Authority.
(3) The Executive Secretary may, subject to the provisions of this Act, delegate the exercise of any of the Executive Secretary's functions under this Act, to any officer of the Authority.
(1) Subject to subsection (2), the Executive Secretary shall hold office for five years and shall be eligible for re-appointment.
(2) The Minister may, on the recommendation of the Commission, terminate the appointment of the Executive Secretary for-
(a) conduct which undermines the intergrity of the Authority;
(b) prolonged or permanent incapacity; or
(1) The Commission shall on the recommendation of the Executive Secretary, and on terms and conditions determined by the Commission, appoint such employees of the Authority as it considers necessary.
(2) The Executive Secretary may appoint full time or part time inspectors for the purposes of this Act, from amongst the employees of the Authority or any person the Executive Secretary considers suitable.
(3) The Executive Secretary shall determine the conditions of service and remuneration of an inspector who is not in the full time service of the Authority.
(1) There is established a body to be known as the Competition Commission, which shall be the governing body of the Authority and shall be responsible for the direction of the affairs of the Authority.
(2) Notwithstanding the generality of subsection (1), the Commission shall-
(a) adjudicate on matters brought before it by the Authority under this Act; and
(b) give general policy direction to the Authority.
(1) The Commission shall consists of seven persons appointed by the Minister, in writing.
(2) In appointing members to the Commission, the Minister shall select persons who have expertise in industry, commerce, economics, law, consumer affairs or public administration.
(3) The Minister shall appoint the Chairperson of the Commission from amongst the members.
(4) The Minister shall cause appointments to the Commission to be published by notice in the Gazette within 30 days of the appointments being made.
(1) A member shall hold office for a period not exceeding five years as may be specified in the notice appointing the member, and on the expiration of that period shall be eligible for re-appointment.
(2) In appointing members, the Minister shall so specify such periods of appointment such that the periods of appointment of not more than one third of the members shall expire in any one year.
A person shall not be appointed as a member or shall not continue to hold office, who-
(a) has in terms of a law in force in any country-
(i) been adjudged or otherwise declared bankrupt and has not been discharged, or
(ii) made an assignment, arrangement or composition with his creditors, which has not been rescinded or set aside; or
(b) has within a period of ten years immediately preceding the date of his or her appointment, been convicted-
(i) of a criminal offence in any country,
(ii) of a criminal offence for which he has not received a free pardon and notwithstanding that the sentence has been suspended, which, if committed in Botswana, would have resulted in a criminal offence having been committed,
the penalty for which would be at least six months imprisonment without the option of a fine;
(c) is a member of the National Assembly or Ntlo ya Dikgosi ; or
(d) is a Councillor.
(1) The Minister may remove a member from office where the member-
(a) is absent, without reasonable cause, from three consecutive meetings of the Commission of which that member has had notice;
(b) is inefficient;
(c) has been found to be physically or mentally incapable of performing his or her duties efficiently, and the member's medical doctor has issued a certificate to that effect;
(d) contravenes the provisions of this Act or otherwise misconducts himself or herself to the detriment of the objectives of the Commission; or
(e) has failed to comply with the provisions of section 15(1).
(2) A member may resign from the Commission by giving 30 days notice, in writing, to the Minister.
(3) The office of a member shall become vacant-
(a) where the member appeals, a period of 30 days from the date a ruling against the member is made on an appeal made in respect of a conviction against the member under section 12 (b);
(b) where the member does not appeal, 30 days from the date the member was convicted of an offence referred to under section 12 (b);
(c) where the member communicates his or her resignation, in writing, to the Minister, in accordance with subsection (2);
(d) where a period of 30 days has elapsed from the date the member is given notice in writing by the Minister to vacate office; or
(e) where a member is removed by the Minister on the grounds of misconduct in terms of subsection (1)(d) .
Where the office of a member becomes vacant before the expiry of the member's term of office by virtue of the member's resignation or removal from office, the Minister may, in accordance with section 10 appoint another person to be a member in place of the member who has vacated office.
(1) A member of the Commission shall not-
(a) engage in any activity that may undermine or undermines the integrity of the Commission;
(b) unless the Commission otherwise directs, participate in making any decision of the Authority in respect of which the member has a direct or indirect financial or other personal interest in a private capacity; or
(c) use any confidential information obtained in the performance of the member's functions as a member to obtain, directly or indirectly, a financial or other benefit for that member or any other person.
(2) Every member shall-
(a) forthwith after the member's appointment, disclose in writing to the Minister, any direct or indirect financial interest which the member has in any business carried on in Botswana or elsewhere;
(b) disclose in writing to the Minister, any direct or indirect financial interest which the member acquires in any business carried on in Botswana or elsewhere, as soon as is practicable after the member acquires such financial interest;
(c) at any meeting of the Commission at which any matter which is the subject of consideration and in which matter the member is directly or indirectly interested in a private capacity, the member shall forthwith upon the commencement of the meeting, disclose such interest and shall not, take part in any consideration or discussion of, or vote on, any question concerning that matter.
(3) A disclosure of interest made under subsection (2)(c) shall be recorded in the minutes of the meeting at which it is made.
(4) Where a member fails to disclose his or her interest in accordance with subsection (2) and the Commission makes a decision which benefits that member, that decision shall be void to the extent to which it benefits the member.
(5) A person who contravenes the provisions of this section commits an offence and is liable to a fine not exceeding P30 000 or to a term of imprisonment not exceeding two years, or to both.
Meetings and Proceedings of Commission (ss 16-20)
(1) Subject to the provisions of this Act, the Commission shall regulate its own proceedings.
(2) The Vice Chairperson of the Commission shall be elected by the members from amongst themselves.
(3) The Commission shall meet as often as is necessary or expedient for the discharge of its functions, which shall not be less than twice a year.
(4) Meetings of the Commission shall be held at such places and times as the Commission may determine and shall be convened by the Chairperson or the Executive Secretary of the Authority.
(5) The Chairperson may convene a special meeting of the Commission within seven days of receipt of a special request in writing from at least four members for such special meeting to be held.
(6) There shall preside at any meeting of the Commission-
(a) the Chairperson;
(b) in the absence of the Chairperson, the Vice Chairperson; or
(c) in the absence of the Chairperson and the Vice Chairperson, a member elected for the purpose of that meeting by the members present from amongst themselves.
(7) A decision of the Commission on any matter shall be by a majority of the members present and voting at the meeting and, in the event of an equality of votes, the Chairperson shall have a casting vote in addition to the Chairperson's deliberative vote.
(8) At any meeting of the Commission, a quorum shall be constituted by not less than one ha
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