a tripartite report - Unctad

ZIMBABWE
competition authorities do adopt guidelines on
CTC should consider adopting guidelines on the
determination of the relevant market based on in-
of relevant market is to be invoked.
vided
for under Section 35 (1) and (2) of the ZCA.
is provided, the timeframe for which the agreement
will be reviewed is not stipulated. In practice,
there have however not been many applications
for authorization of restrictive practices and other
conduct, 185 hence the enforcement practice is not
yet fully established and there is a need for guidance
in this area. The provision also lacks a threshold
for which the agreeing parties are prohibited
in a particular party thus leaving too wide a room
olds
are helpful to establish and thus easier to be
approaches which require in-depth understanding
of competition which is vividly lacking in the
developing world. The Tanzanian law for example
provides as follows: “unless proved otherwise, it
shall be presumed that an agreement does not
have the object, effect or likely effect of appreciably
preventing, restricting or distorting competition
if none of the parties to the agreement has
a dominant position in a market affected by the
agreement and either (a) or (b) applies:
(a) the combined shares of the parties to the
agreement of each market affected by the
agreement is 35 per cent or less; or
(b) none of the parties to the agreement are
competitors’’.
Such a threshold and condition precedent gives
ered
under rule of reason approach. The threshold
also tends to leave out of scrutiny small companies
through various forms of such agreements. It is also
worth mentioning that the provision does not provide
for its restriction in so far as it does not provide
for mergers since mergers too are a form of agreement
that may be construed to be the scrutiny of
this provision. There is an attempt to establish such
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but it is not sharp enough to give users of the law
a clear situation for which they are entering into an
agreement or understanding that is subject to the
Rule of Reason as provided in the ZCA.
With regards to (b) ‘’any business practice or
method of trading; constitute a restrictive practice
to the extent that they restrict competition directly
or indirectly to a material degree in that it has or
is likely to have any one or more of the following
effects …‘’ in the absence of distinction between
conducts, there is a potential for misinterpretation
and confusion for users of the law; the same can
be said for (c) and (d). In particular (c) ‘’any deliberate
act or omission on the part of any person,
whether acting independently or in concert with
any other person’’ there is a connotation of unilateral
conduct (acting independently) which does
not amount to an agreement hence more dilemma
to the users of the law.
With regards to the effects mentioned in (i) to (viii)
again there is a mix up of prohibitions i.e. (i), (ii)
and (iv) seem to refer to Output Restriction which
is an issue dealt with under Per Se approach (iii) refers
to Price Fixing which is also an issue dealt with
under Per Se approach. Effects running from (v)
through to (vii) are issues dealt with under Abuse
of Dominance as Exclusionary Conducts whereas
(vii) is an issue dealt with under Abuse of Dominance
as an Exploitative Conduct.
Based on the analogy above, it is apparent that
the concept of Rule of Reason has been lost as a
result of mixing up of issues as explained.
2.1.2 Unfair Business Practices
practice as restrictive practice or other conducts
generally be considered to be more harmful to
competition and/or consumer welfare and would
be accorded a Per Se Prohibition. Despite their
provision, it should be recalled that that the ZCA
in its current wording does not contain a prohibition
of unfair business practices. These practices
are practices as follows:
2.1.2.1 Misleading Advertising
poses
or in the course of any trade or business,
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