ARRANGEMENT OF SECTIONS
SECTION
PART I
Preliminary
1. Short title
2. Interpretation
3. Application
PART II
Continuation of Competition and Consumer Authority and Board
4. Continuation of Authority
5. Functions of Authority
6. Competition and Consumer Board
7. Membership
8. Tenure of office
9. Disqualification
10. Removal of member
11. Filling of vacancy
12. Conduct and disclosure of interest
PART III
Meetings and Proceedings of Board
13. Proceedings of Board
14. Validity of decisions
15. Co-opted members
16. Remuneration
PART IV
Chief Executive Officer and Other Employees of Authority
17. Chief Executive Officer of Authority
18. Tenure of office of Chief Executive Officer
19. Appointment of employees
20. Secretary
PART V
Financial Provisions
21. Funds of Authority
22. Financial year
23. Accounts and audit
24. Annual reports
PART VI
Control of Restrictive Agreements and Dominant Position
25. Prohibition of horizontal agreements
26. Criminal sanction for contravention of section 25
27. Prohibition of vertical agreements
28. Other horizontal and vertical agreements
29. Threshold for determining prohibition
30. Interconnected enterprises
31. Abuse of dominant position
32. Threshold for determining dominant position
PART VII
Exemptions and Assessment Criteria
33. Exemptions
34. Revocation of exemption
35. Consultations on exemptions
PART VIII
Investigation of Horizontal and Vertical Agreements
36. Investigation by Authority
37. Entry and search of premises
38. Privileged information
PART IX
Consideration of Evidence, Acceptance of Undertakings and Enforcement of Directions
39. Consideration of evidence
40. Acceptance of undertaking or settlement agreement
41. Enforcement of directions
PART X
Market Inquiries
42. Conditions for initiating market inquiries
43. Powers of investigation
44. Action following inquiry
PART XI
Control of Mergers
45. Acquisition of control of enterprise
46. Exemptions from merger control
47. Threshold for merger control
48. Mergers above permitted threshold
49. Pre-notification of mergers
50. Consideration of notification
51. Hearing in relation to merger
52. Assessment of merger
53. Determination on proposed merger
54. Acceptance of undertaking
55. Consideration of rejected merger
56. Revocation of approval of merger
57. Appeal on decision made by Authority on merger
58. Merger implemented in contravention of Act
59. Enforcement of directions
60. Exclusion of certain agreements and conduct
61. Compliance with other laws
PART XII
Competition and Consumer Tribunal
62. Establishment of Tribunal
63. Jurisdiction of Tribunal
64. Tenure of office of Tribunal
65. Disqualification, removal and suspension of members of Tribunal
66. Vacation of office of members of Tribunal
67. Filling of vacancy
68. Disclosure of interest and confidentiality
69. Funds of Tribunal
70. Proceedings of Tribunal
71. Appearance before Tribunal
72. Opportunity to make submissions concerning evidence
73. Preliminary hearing and referral to Tribunal
74. Conduct of hearing
75. Proposed decision by Tribunal
76. Directions on horizontal and vertical agreements
77. Directions by Tribunal
78. Directions on appeal against decision on merger
79. Application of remedies
80. Interim relief
81. Penalties
82. Determination of penalties
PART XIII
Appeals
83. Appeals
84. Decision of Tribunal binding
PART XIV
General Provisions
85. Determination of relevant market
86. Relationship with sector regulators
87. Confidentiality
88. Exemption from personal liability
89. Claims for damages or other money
90. Prescription of matters
91. Offences and penalties
92. Enforcement at request of another State
93. Fees
94. Guidelines and rules
95. Regulations
96. Repeal of Cap. 46:09
97. Savings and transitional provisions
Act 4, 2018,
S.I. 156, 2019.
An Act to provide for the establishment of the Competition and Consumer Authority and its mandate; for the establishment of the Competition and Consumer Board, its functions and proceedings; for the establishment of the Competition and Consumer Tribunal to adjudicate over breaches of the provisions of the Act; and for matters incidental thereto or connected therewith.
[Date of Commencement: 2nd December, 2019]
PART I
Preliminary
This Act may be cited as the Competition Act.
In this Act, unless the context otherwise requires—
"agreement" means—
(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 and Consumer Authority continued 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 a bid rigging where the person requesting the bids is informed of the terms of the agreement before the time when the bid is made;
"Board" means the Competition and Consumer Board continued under section 6;
"complainant" means a person who has submitted a complaint or a request to investigate in terms of section 36;
"concerted practice" means co-operative or co-ordinated 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;
"day" means any day from Monday to Friday, and excludes Saturday, Sunday and a public holiday;
"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 supply or distribution of goods, or the provision of any service, and includes partnerships and trusts;
"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 and Consumer Board;
"premises" includes any vehicle, vessel, aircraft or container;
"professional rule" means a rule, as the Minister may prescribe, regulating a professional service or persons providing a professional service, and includes a designated rule, code of practice and a statement of principle;
"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 same meaning assigned to it under the Small Business Act (Cap. 43:10);
"Tribunal" means the Competition and Consumer Tribunal established under section 62; 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 in this Act, this Act applies to all the economic activities 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 provision of any service within any market in Botswana that is open to participation by other enterprises.
(3) This Act shall 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) any service carried out under a contract of employment.
PART II
Continuation of Competition and Consumer Authority and Board
(1) The Competition Authority established under section 4 of the repealed Act is hereby continued under the new name of the Competition and Consumer Authority and shall continue as if established under this Act.
(2) The Authority 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 regulators 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, outside Botswana;
(j) advise the Minister on international agreements relevant to competition matters and to this Act;
(k) investigate and evaluate alleged contraventions of Part VI;
(l) grant or refuse applications for exemption in terms of Part VII;
(m) authorise with or without conditions, mergers of which it receives notification under Part XI;
(n) prohibit a merger, or refer a merger, of which it receives notification in terms of section 49, to an inspector in terms of section 50;
(o) refer matters it has investigated under this Act to the Tribunal for adjudication;
(p) prosecute before the Tribunal, matters referred to the Tribunal under paragraph (o);
(q) deal with any matter referred to it by the Board under this Act; and
(r) report the investigation of all criminal matters under this Act to the Botswana Police Service.
6. Competition and Consumer Board
(1) There is established a body to be known as the Competition and Consumer Board 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 Board shall give general policy direction to the Authority.
(1) The Board shall consist of seven persons appointed by the Minister, in writing.
(2) In appointing members to the Board, the Minister shall select persons who have experience and expertise in industry, commerce, economics, law, consumer affairs, public administration or any other area relevant to the objects and functions of the Board.
(3) The Chief Executive Officer shall be an ex-officio member of the Board and shall not vote.
(4) The Minister shall appoint the Chairperson of the Board from amongst the members.
(5) The Vice Chairperson of the Board shall be elected by members from amongst their number.
(6) The Minister shall cause appointments to the Board 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 for a term not exceeding five years.
(2) In appointing members, the Minister shall so specify such periods of appointment such that the period 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 or insolvent and has not been discharged, or
(ii) made an assignment, arrangement or composition with his creditors, which has not been rescinded or set aside;
(b) has, within a period of 10 years immediately preceding the date of his or her appointment, been convicted—
(i) of a criminal offence within Botswana, or
(ii) outside Botswana, of an offence which if committed in Botswana, would have been a criminal offence,
and sentenced by a court of competent jurisdiction to imprisonment for six months or more without the option of a fine, whether that sentence has been suspended or not, and for which he or she has not received a free pardon;
(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 Board of which that member has had notice;
(b) is inefficient in the performance of his or her duties;
(c) has been found to be physically or mentally incapable of performing his or her duties efficiently and a 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 Board; or
(e) has failed to comply with the provisions of sections 12(2)(a) and (b).
(2) A member may resign from the Board by giving 30 days notice, in writing, to the Minister.
(3) The office of a member shall become vacant—
(a) if he or she is disqualified in terms of section 9;
(b) if he or she is absent from three consecutive meetings of the Board without reasonable excuse;
(c) upon his or her death;
(d) upon the expiry of such time as the Minister may specify in writing, notifying the member of his or her removal from office by the Minister;
(e) upon the expiry of the 30 days’ notice in writing to the Minister of his or her intention to resign from office;
(f) if he or she becomes physically or mentally incapable of performing his or her duties efficiently and a medical doctor has issued a certificate to that effect;
(g) if he or she is convicted of an offence under the Act or any other Act for which he or she is sentenced to imprisonment for a term of six months or more without an option of a fine; or
(h) if he or she is summarily dismissed by the Minister on the grounds of contravening the provisions of this Act.
(4) The Minister may, in writing, suspend from office, a member against whom criminal proceedings are instituted for an offence in respect of which a sentence of imprisonment without the option of a fine may be imposed, and whilst that member is so suspended, he or she shall not carry out any duties under this Act or be entitled to any remuneration or allowances as a member of the Board.
(1) 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 7, appoint another person who qualifies to be a member in place of the member who vacates office, until the expiry of a period which such member would have otherwise continued in office.
(2) Subregulation (1) shall not apply where the remainder of the period for which the member whose office has been vacated would otherwise have held office is less than six months.
12. Conduct and disclosure of interest
(1) A member shall not—
(a) engage in any activity that may undermine or undermines the integrity of the Board;
(b) participate in making any decision of the Board 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; and
(c) at any meeting of the Board 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, 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)(c) and the Board makes a decision which benefits that member, that decision shall be void to the extent to which it benefits the member.
(5) A member 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.
PART III
Meetings and Proceedings of Board
(1) Subject to the provisions of this Act, the Board may regulate its own proceedings.
(2) The Board shall hold its first meeting on such date and at such a place as the Minister may fix and thereafter the Board shall meet as often as is necessary or expedient for the discharge of its functions, which shall not be less than twice a year.
(3) Meetings of the Board shall be held at such places and times as the Board may determine and shall be convened by the Chairperson or the Chief Executive Officer.
(4) The Chairperson may convene a special meeting of the Board within seven days of receipt of a special request in writing from at least four members for such special meeting to be held.
(5) There shall preside at any meeting of the Board—
(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 selected for the purpose of that meeting by the members present.
(6) A decision of the Board 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.
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