a tripartite report - Unctad

132 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE
(vi) use any computer system on the premises, or
require assistance of any person on the premises
to use that computer system, to search any data
contained in, or available to the computer system,
reproduce any record from the data, or seize any
output from the computer for examination and
copying; and
(vii) attach and, if necessary, remove from the
premises for examination and safeguarding
any document or article that appears to have a
bearing on the investigation.
The Commission is also empowered in terms of
section 55(4) of the Act to give written notices to
any person requiring that person to furnish it with
any information pertaining to any matter speci-
or article which relates to any matter which the
Commission considers relevant to the investigation.
The notices can also require any person to
appear before the Commission to give evidence
into the investigation.
Section 55(9) however provides that “nothing in
this section compels a person to supply any document
or information which the person would be
entitled to refuse to produce or give in civil proceedings
before any court”. This is in line with the
general legal principle that one should not be
forced to incriminate himself or herself. The Commission
can however view the invocation of this
section as an assumption of guilt, therefore requiring
further investigations using other means.
The need for due process and transparency in the
undertaking of the Commission’s investigations
is also strongly enshrined in the Act. In terms of
section 55(3), the Commission is required to give
written notice of the investigation to the person
who is the subject of the investigation or to an enterprise
which is suspected to be a party to the
matter to be investigated. It is however noted that
section 55(6) of the Act provides that “the Commission
may, where it has reasonable grounds to
believe that the giving of a written notice under
subsection (3) … may materially prejudice its investigation,
defer the giving of such notice until after
the investigation is concluded”. This is important
in cases of cartel investigations requiring possible
dawn-raids in which prior notice of the investigation
could result in evidence destruction. The
Commission is also required in terms of section
55(2) to carry out public consultations on the subject
matter of the investigation. The above ensures
that the rules commonly known as the rules of
natural justice are duly observed and, in particular,
that all reasonable steps are taken to ensure that
every person whose interests are likely to be affected
by the outcome of the investigation is given
an adequate opportunity to make representations
in the matter. The Commission is further required
in terms of section 55(10) to publish at the conclusion
of an investigation a report of the inquiry and
its conclusion.
Section 57(1) of the Act allows the Commission to
negotiate suitable arrangements with enterprises
under investigation aimed at ensuring the discontinuance
of the practice under investigation. The
relevant provisions provide that “the Commission
may, at any time, during or after an investigation
under this Part, enter into a consent agreement
with an enterprise under investigation or request
the enterprise to give an undertaking in the prescribed
manner and form”. This reduces the costs
to both the Commission and the business community
of protracted competition investigations.
Section 62(1) also provides for the prohibition
through injunctions or staying orders of certain acts
pending investigation. This is in the case where: (a)
the Commission “has reasonable grounds to suspect
that an enterprise is a party to a prohibited
agreement and has not completed its examination
of the matter, but believes that there is the risk of serious
or irreparable injury to a particular person as a
consequence of the agreement”; (b) an enterprise is
a party to an agreement which is subject to review,
to a monopoly situation or to a merger, on which
the Commission has opened but not completed an
(i) there is a prima facie evidence that competition
is being prevented, restricted, distorted or substantially
lessened and that, in consequence, serious or
irreparable damage may be caused to a particular
person; or (ii) the enterprise is taking steps that
would effectively pre-empt remedial action being
taken that would restore the conditions of competition
existing prior to the investigation.
While staying orders are necessary in circumstances
described above in section 62(1) of the
Act, they need to be issued with extreme caution
since they can have serious adverse effects on the
competitiveness of the affected enterprises if the