Title page for ETD etd-09052012-111519


Document Type Master's Dissertation
Author Maphoru, Moshe Ishmael
Email moshe.maphoru@gmail.com
URN etd-09052012-111519
Document Title The right of consumers in terms of section 66 of the Competition Act No. 89 of 1998 to commence claims for financial losses suffered as a result of cartel infringement
Degree LLM
Department Mercantile Law
Supervisor
Advisor Name Title
Prof C van Heerden Supervisor
Keywords
  • Competition Act No.89 of 1998
  • consumers
  • South Africa
Date 2012-04-11
Availability unrestricted
Abstract
The right to claim for civil damages in terms of section 65 of the Competition Act No. 89 of 1998 of South Africa (“CA of 1998”) is likely to contribute significantly to the objectives of the competition law in the country by serving as a deterring measure for companies to engage in anti-competitive behavior. Companies infringing the Competition Act will know that upon a finding of an infringement, they will have to pay back to consumers whatever profits they would have made illegally plus the litigation costs. These payments will be made in addition to the administrative penalties levied by the Competition Commission of South Africa, the Competition Tribunal of South Africa or the Competition Appeal Court of South Africa (“collectively referred to as the competition authorities”) and the possibility of directors’ criminal liability for causing companies to engage in cartel behavior. Therefore, the achievement of the objectives of the CA of 1998 as amended also depends on the effectiveness of civil damages claim provisions of section 65.

However, the effectiveness of civil damages claims in terms of section 65 is compromised when consumers are incapable of exercising the right conferred to them in terms of this section. The recent increase on the findings by the competition authorities for an infringement of the prohibited practices in terms of chapter 2 of the CA of 1998, the period in which the respondents had engaged in those prohibited practices, the financial losses or damages suffered by consumers who in most cases are end users of the products or services and most importantly consumers inactiveness in exercising their rights to claim for such damages in terms of section 65 of the CA of 1998 have influenced the researcher to investigate the relevant section and the impediments to pursuing civil damages claims in terms thereof.

The investigation both from the comparative law and individual consumer response shows amongst others the following as challenges that consumers will normally face to pursue their right in terms of section 65: the cost of litigation, lack of knowledge of consumer rights, lack of consumer activism, financial assistance, dragging of matters before the courts to frustrate consumers, complex procedures to claim damages before civil courts etc.

There appears to be general consensus throughout the data collected by the researcher that private enforcement will discourage companies to engage in any form of anti-competitive behavior thereby serving as a deterrent mechanism for infringement in addition to the administrative penalties and directors’ criminal liability.

Copyright © 2011, University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria.

Please cite as follows:

Maphoru, MI 2011, The right of consumers in terms of section 66 of the Competition Act No. 89 of 1998 to commence claims for financial losses suffered as a result of cartel infringement, LLM dissertation, University of Pretoria, Pretoria, viewed yymmdd < http://upetd.up.ac.za/thesis/available/etd-09052012-111519 / >

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