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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 179 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, ZIMBABWE
180 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE publishing an advertisement containing a representation which the publisher knows or ought to know is false or misleading in a material respect; or containing a statement, warranty or guarantee of any commodity, which statement, warranty or guarantee the publisher knows or ought to know is not based on an adequate or proper test thereof; or containing a statement, warranty or guarantee that any service is or will be of a particular kind, standard, quality or quantity, or that it is supplied by any particular person or by a person of a ment, warranty or guarantee the publisher knows or ought to know is untrue. The ZCA also provide for the purposes of misleading advertising a representation, statement, warranty or guarantee expressed on or attached to an article offered or displayed for sale, or expressed on the wrapper or container of such an article, shall be deemed to have been made in an advertisement. 2.1.2.2 False Bargains modity or service for distribution at a price: (i) which is represented in the advertisement to be a bargain price; or (ii) which is so represented in the advertisement as to lead a person who reads, hears or sees the advertisement to the reasonable belief that it is a bargain price; if the distributor of the commodity or service does not intend to distribute it at that price, or has no reasonable grounds for believing that he can do so, for a period that is, and in quantities that are, reasonable in relation to the nature of the commodity or service concerned and the nature and size of the distributor’s undertaking. 2.1.2.3 Distribution of Commodities or Services above Advertised Price Having advertised any commodity or service for distribution at a particular price, distributing it, during the period and in the market to which the advertisement relates, at a higher price than that advertised. 2.1.2.4 Undue Refusal to Distribute Commodities or Services modities or services as failing or refusing to distribute any commodity to another person unless the other person: (i) Causes or refrains from distributing or using a commodity produced by some other person; or (ii) Restricts his distribution of a commodity produced by some other person; minimum price. 2.1.2.5 Bid Rigging Entering into or giving effect to an agreement, arrangement or understanding, whether enforceable or not, with another person whereby: (i) any of the parties to the agreement, arrangement or understanding undertakes not to submit a bid or tender in response to a call or request for bids or tenders; or (ii) in response to a call or request for bids or tenders, some or all the parties to the agreement, arrangement or understanding submit bids or tenders that have been arrived at by agreement between themselves. The provision shall not apply to an agreement, arrangement or understanding between companies which are all part of a single group of companies. 2.1.2.6 Collusive Arrangements between Competitors The ZCA provides that, ‘’Being a producer or distributor of any class or type of commodity or service, entering into or giving effect to any agreement, arrangement or understanding, whether enforceable or not, with another person who produces or distributes a commodity or service of the same or a similar class or type: (a) to distribute the commodity or service at a particular price or within a particular range of prices; or (b) to share the market for the commodity or service, whether the market shares are
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Page 174 and 175: ZIMBABWE FULL REPORT ZIMBABWE
Page 176 and 177: ZIMBABWE TABLE OF CONTENTS PREFACE
Page 178 and 179: ZIMBABWE This report is part of the
Page 180 and 181: ZIMBABWE With the growing political
Page 182 and 183: ZIMBABWE of restrictive practices,
Page 186 and 187: ZIMBABWE divided according to geogr
Page 188 and 189: ZIMBABWE The Commission in 2006 whi
Page 190 and 191: ZIMBABWE to take care of themselves
Page 192 and 193: ZIMBABWE (under Section 9); basical
Page 194 and 195: ZIMBABWE Full scale investigation i
Page 196 and 197: ZIMBABWE (ii) to produce any book,
Page 198 and 199: ZIMBABWE The fact that CTC has a co
Page 200 and 201: ZIMBABWE tariat of technocrats, who
Page 202 and 203: ZIMBABWE Table 2: Number of Competi
Page 204 and 205: ZIMBABWE Regarding the handling of
Page 206 and 207: ZIMBABWE (Emphasis by the author) b
Page 208 and 209: ZIMBABWE Section 5 (1) (f) that pro
Page 210 and 211: ZIMBABWE Whilst the arguments can b
Page 212 and 213: ZIMBABWE Anti competitive agreement
Page 214: ZIMBABWE by conducting its case det
Page 227: Printed at United Nations, Geneva -
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