Competition Act [Chapter 14:28]

 

Chapter 14:28

Competition Act

Act 7/1996, 22/2001 (s. 4), 29/2001; S.I 262/2006.

ARRANGEMENT OF SECTIONS

PART I

PRELIMINARY Section

1. Short title and date of commencement.
3. Application of Act.

PART II

INDUSTRY AND TRADE COMPETITIONCOMMISSION

4. Establishment of Commission.
5. Functions of Commission.
6. Membership of Commission.
7. Disqualification for appointment as member. 8. Terms and conditions of office of members 9. Vacation of office by members.
8. Minister may require member to vacate his office or may suspend him.
9. Filling of vacancies an Commission.
10. Chairman and vice-chairman of Commission.
11. Meetings and procedure of Commission.
12. Committees of Commission.
13. Remuneration and allowances of members of Commission and committees.
14. Members of Commission and committees to disclose certain connections and interests.
15. Appointment and functions of Director of Commission.
16. Policy directions to Commission.
17. Validity of decisions and acts of Commission and committees.
18. Execution of contracts and instruments by Commission.
19. Minutes of proceedings of Commission and committees.
20. Reports of Commission and supply of information to Minister. PART III

FINANCIAL PROVISIONS RELATING TO COMMISSION

23. Funds of Commission.
24. Investment of moneys not immediately required by Commission.
25. Accounts of Commission.
26. Audit of Commission's accounts.
27. Powers of auditors.

PART IV

INVESTIGATION AND PREVENTION OF RESTRICTIVEPRACTICES, MERGERS AND MONOPOLY SITUATIONS

28. Power of Commission to investigate restrictive practices, mergers and monopoly situations.
29. Prohibition of certain acts pending investigation.
30. Negotiations by Commission.
31. Orders by Commission.
32. Factors to be considered by Commission when making orders.
33. Enforcement of orders.

PART IVA

NOTIFIABLE MERGERS

34   Application of Part IVA

34A  Notification of Proposed Merger

PART IVB

INVESTIGATIONOFTARIFF CHARGESAND RELATED UNFAIR TRADE PRACTICES

34B  Interpretation in Part IVB

34C  Investigations by Commission

PART V

AUTHORIZATION OF RESTRICTIVE PRACTICES, MERGERS AND OTHER CONDUCT

35. Application to Commission for authorization.
36. Grant or refusal of authorization.
37. Effect of authorization.
38. Amendment or revocation of authorization.
39. Register of authorizations.

PART VI

APPEALS

40. Right of appeal to Administrative Court.
41. Composition of Administrative Court for purposes of this Act.

PART VII

GENERAL

42. Unfair trade practices.
43. Certain conduct to have no legal effect.
44. Right of action of injured parties.
45. Commission may require returns.
46. Investigating officers.
47. Powers of entry and inspection.
48. Secrecy to be observed.
49. Certificates of Director to be evidence. 49A Exemption of Commission from liability 50.

SCHEDULES

First Schedule: Unfair Business Practices.

Second Schedule: Powers of Commission.

AN ACT to promote and maintain competition in the economy of Zimbabwe; to establish an Industry and Trade Competition Commission and to provide for its functions; to provide for the prevention and control of restrictive practices, the regulation of mergers, the prevention and control of monopoly situations and the prohibition of unfair trade practices; and to provide for matters connected with or incidental to the foregoing.

[Date of commencement :9th February, 1998.]

PART I

PRELIMINARY

                   1    Short title and date of commencement

This Act may be cited as the Competition Act [Chapter 14:28].

[Short title amended by s.i. 262 of 2006]

                   2    Interpretation

(1)   In this Act—

“assistance or protection” bears the meaning assigned to it by section thirty four B;

[Definition inserted by Act 29 of 2001]

“authorised”, in relation to any agreement, arrangement, practice or conduct, means authorized by the Commission under Part V;

“Commission” means the Competition and Tariff Commission established by section four;

[Definition substituted by Act 29 of 2001]

“commodity” means anything, whether movable or immovable, corporeal or incorporeal, which is capable of being acquired or disposed of for value;

“controlling interest”, in relation to—

• any undertaking, means any interest which enables the holder thereof to exercise, directly or indirectly, any control whatsoever over the activities or assets of the undertaking;
• any asset, means any interest which enables the holder thereof to exercise, directly or indirectly, any control whatsoever over the asset;

“Director” means the Director of the Commission appointed in terms of subsection (1) of section seventeen;

“distribute”, in relation to—

• any commodity, includes to supply, sell, let for hire, store or transport the commodity;
• any service, means to supply or provide the service, whether or not it is attended by the supply of a commodity;

“investigating officer” means a person appointed as an investigating officer in terms of section forty-six; “local industry” bears the meaning assigned to it by section thirty-four B;

[Definition inserted by Act 29 of 2001]

“member” means a member of the Commission, including the chairman and deputy chairman;

“merger” means the direct or indirect acquisition or establishment of a controlling interest by one or more persons in the whole or part of the business of a competitor, supplier, customer or other person whether that controlling interest is achieved as a result of—

• the purchase or lease of the shares or assets of a competitor, supplier, customer or other person;
• the amalgamation or combination with a competitor, supplier, customer or other person; or
• any means other than as specified in paragraph (a) or (b);

[Definition substituted by Act 29 of 2001]

“Minister” means the Minister of Industry and Commerce or any other Minister to whom the President may, from time to time, assign the administration of this Act;

“monopoly situation” means a situation in which a single person exercises, or two or more persons with a substantial economic connection exercise, substantial market control over any commodity or service;

“order” means an order made by the Commission in terms of section thirty-one; “prescribe” means prescribe by regulations made in terms of section fifty;

[Definition inserted by Act 29 of 2001]

“price” includes any consideration whatsoever in respect of the distribution of a commodity or service;

“restrictive practice” means—

• any agreement, arrangement or understanding, whether enforceable or not, between two or more persons, or
• any business practice or method of trading; or
• any deliberate act or omission on the part of any person, whether acting independently or in concert with any other person; or
• any situation arising out of the activities of any person or class of persons; which restricts 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—
• restricting the production or distribution of any commodity or service;
• limiting the facilities available for the production or distribution of any commodity or service;
• enhancing or maintaining the price of any commodity or service;
• preventing the production or distribution of any commodity or service by the most efficient or economical means;
• preventing or retarding the development or introduction of technical improvements in regard to any commodity or service;
• preventing or restricting the entry into any market of persons producing or distributing any commodity or service;
• preventing or retarding the expansion of the existing market for any commodity or service or the development of new markets therefor;
• limiting the commodity or service available due to tied or conditional selling;

[Paragraph inserted by Act 29 of 2001]

“service” includes any service, whether personal, professional or otherwise, including any storage, transportation, insurance or banking service and any service provided in conjunction with the distribution of any commodity;

“substantial market control” has the meaning assigned to it in subsection (2); “tariff charge” bears the meaning assigned to it by section thirty-four B;

[Definition inserted by Act 29 of 2001]

“tied or conditional selling” means any situation where the sale of one commodity or service is conditional on the purchase of another commodity or service;

[Definition inserted by Act 29 of 2001]

“undertaking” means any person engaged for gain in the production or distribution of a commodity or service;

“unfair business practice” means a restrictive practice or conduct specified in the First Schedule;

[Definition inserted by Act 29 of 2001]

“unfair trade practice” bears the meaning assigned to it by section thirty-four B;

[Definition substituted by Act 29 of 2001]

(2) A person has substantial market control over a commodity or service if—

• being a producer or distributor of the commodity or service, he has the power, either by himself or in concert with other persons with whom he has a substantial economic connection profitably to Rise or maintain the price of the commodity or service above competitive levels for a substantial time within Zimbabwe or any substantial part of Zimbabwe,
• being a purchaser or user of the commodity or service, he has the power, either by himself or in concert with other persons with whom he has a substantial economic connection, profitably to lower or maintain the price of the commodity or service below competitive levels for a substantial time within Zimbabwe or any substantial part of Zimbabwe.

(3) An agreement, arrangement or understanding to engage in a restrictive practice is presumed to exist between two or more persons if—

• any one of them owns a substantial shareholding, interest or similar right in the other or they have at least one director in common; and
• any combination of them is involved in such restrictive practice; unless the person concerned or the directors, as the case may be, can establish the absence of an agreement.

[Subsection inserted by Act 29 of 2001]