An Interpretation and Application of Section 73A(5) of the Competition Act 89 of 1998, South Africa

• Author: Phindile Raymond Msaule
• Position: Lecturer, Faculty of Management and Law, University of Limpopo, South Africa
• Pages: 94-106

ACTA UNIVERSITATIS DANUBIUS Vol. 12, no. 3/2016

94

An Interpretation and Application of

Section 73A(5) of the Competition Act 89 of

1998, South Africa

Phindile Raymond MSAULE

1

Abstract: The object of this article is to argue that section 73A(5) of the Competition Act of 1998 is

constitutional. Some commentators have argued that this provision creates reverse onus offence and is

therefore unconstitutional. The article argues against this view, necessarily because section 73A(5)

does not implicate any of the definitional elements of the o ffence created by section 73A, which

relates to the malfeasance co mmitted by the director of the firm in causing the firm to engage in

prohibited practice, and it is for this malfeasance that the director is criminally charged. The fact that

the firm had been found guilty of involvement in prohibited practice in different proceedings would

not per se lead to the d irector's conviction at the criminal trial. The state would still be required to

prove beyond reasonable doubt that the director was involved in causing the firm to engage in

prohibited practice. It is asserted that if section 73A(5) creates a reverse onus, such does not relate to

the elements of the offence with which th e director has been charged but such onus is evidentiary in

nature. Furthermore, if this provision creates a reverse onus offence and limits the director's right to

be presumed innocent, such limitation is constitutional.

Keywords: Presumption of innocence; reverse onus; burden of proof; beyond reasonable doubt,

evidentiary burden

JEL Classification: K10

1. Introduction

In light of the unmitigated involvement of firms in cartel activities, parliament

decided to pass legislation criminalising conduct of the directors personally

involved in causing the firms to engage in cartel activities. This is in addition to

administrative fines imposed on the firms. However, during the parliamentary

hearings leading to the promulgation of the Competition Amendment Act 1 of 2009

a number of commentators such as Briscoe, (2009, p. 9) argued that section 73A(5)

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Lecturer, Faculty of Management and Law, University of Limpopo, South Africa, Address: Private

Bag X1106, SOVENGA, 0727, South Africa, Tel: 015 268 2811, Corresponding author:

Raymond.Msaule@ul.ac.za.

AUDJ, vol. 12, no. 3/2016, pp. 94-106