a tripartite report - Unctad

ZIMBABWE
The fact that CTC has a competition division with
powers to investigate complaints and that during
hearing of a complaint, CTC accords the offender
an opportunity to make his case heard; the
practice at CTC is more inclined to an inquisitorial
system. The hearing is part of the investigation
procedure that follows after the preliminary investigation
is complete; it means that unlike in a
trial the Court, the CTC continues its investigation
right up to the hearing. The corollary is, that the
hearing itself is nothing but part of the investigation
procedure.
In establishing administrative agencies, the Parliament
passes enabling legislation specifying the purpose,
name, functions, and powers of the agency
(Sections 1, 5 of the ZCA). It further describes the
procedures of the agency for handling issues submitted
(Section 28 of the ZCA) and provides for judicial
review of agency orders (Section 33, 40 of the
ZCA). It is under the enabling legislation (the ZCA)
that the Rulemaking power of the agency is described
(Section 50 of the ZCA). As a general rule,
an agency lacks the power to act beyond the scope
of its enabling legislation (Doctrine of Ultra vires).
The ZCA is unlikely to bring about any issues that
relate natural justice breach in so far as separation
of powers; as such ZCA is mindful of natural justice
principle as it is asserted in Section 28 (4). To avert
fears and speculation, the ZCA may provide that it
shall adopt an inquisitorial approach in its case handling
procedure, so as to sharpen its differentiation
from the commonly known adversarial practice.
Shall there be a need of having an adversarial
practice, which observes strict separation of investigative
and adjudicative functions; then the best
institutional arrangement would be that, there are
three distinct institutions. One for investigation,
one for adjudication and another for appeals, like
it is the case in South Africa. However, this would
be costly to the Zimbabwean economy and dif-
practice currently observed.
3.5 Sanctions
Enforcement of compliance is usually criminal in
nature. The ZCA provides that, “Any person who
contravenes Section … shall be guilty of an offence
prisonment
for a period not exceeding … months/
193
Competition violations are hence criminal in their
nature, the only difference with penal sanctions
being that the accused in competition cases is often
a legal person, i.e. the enterprise and not a
natural person.
The ZCA does not categorically provide for the
procedure to be followed when a person (who is
Responses from interviewed stakeholders show
that there has not been any person who has been
imprisoned for infraction of the ZCA, hence no experience
in implementing these provisions.
The style for which the offences are created and
sanctions are levied in the same provision is good
as it reduces the hassle of going back and forth
to match an offence with penalties as provided in
competition laws of other jurisdictions. However,
and Reform) Act [Chapter 9:23]; this Act provides
for levels which are pre-determined and administered
by a different authority thus , the CTC is not
party to this decision.
There is a possibility for a mismatch of gravity of
offences between competition and other offences
that may make the ZCA less deterrent as is supposed.
The maximum is level 14 which carries a
low as compared to the harm caused by offences
such as cartels.
The ideal situation would be to de-link ZCA of-
provisions and allow ZCA to independently provide
for penalties so as to ensure offences are accorded
commensurate penalties. This will not only
ensure deterrence, but also bring about consistence
because offences for mergers in the same
centum of either or both merging parties’ annual
turnover in Zimbabwe.
Interviews with the legal drafting section at the
indifferent about the issue, citing that the rationale
was to create uniformity across the jurisdiction in
there have not been any problems with its application.
Nevertheless, the idea of improving the law
was welcomed.
ZIMBABWE