Competition Act 1428updated
Competition Act 1428updated
Competition Act 1428updated
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CHAPTER 14:28
COMPETITION ACT
Act 7/1996, 22/2001 (s. 4), 29/2001; S.I 262/2006.
ARRANGEMENT OF SECTIONS
PART I
P RELIMINARY
Section
1. Short title and date of commencement.
2. Interpretation.
3. Application of Act.
PART II
INDUSTRY AND TRADE C OMPETITION C OMMISSION
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.
10. Minister may require member to vacate his office or may suspend him.
11. Filling of vacancies an Commission.
12. Chairman and vice-chairman of Commission.
13. Meetings and procedure of Commission.
14. Committees of Commission.
15. Remuneration and allowances of members of Commission and committees.
16. Members of Commission and committees to disclose certain connections and interests.
17. Appointment and functions of Director of Commission.
18. Policy directions to Commission.
19. Validity of decisions and acts of Commission and committees.
20. Execution of contracts and instruments by Commission.
21. Minutes of proceedings of Commission and committees.
22. Reports of Commission and supply of information to Minister.
PART III
F INANCIAL PROVISIONS R ELATING TO C OMMISSION
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
PART I
P RELIMINARY
PART II
INDUSTRY AND TRADE C OMPETITION C OMMISSION
4 Establishment of Commission.
There is hereby established a commission, to be known as the Competition and Tariff Commission, which
shall be a body corporate capable of suing and being sued in its corporate name and, subject to this Act, of
performing all acts that a body corporate may by law perform.
[Section amended by Act 29 of 2001]
5 Functions of Commission
(1) Subject to this Act, the functions of the Commission shall be—
(a) to encourage and promote competition in all sectors of the economy; and
(b) to reduce barriers to entry into any sector of the economy or to any form of economic activity; and
(c) to investigate, discourage and prevent restrictive practices; land
(d) to study trends towards increased economic concentration, with a view to the investigation of monopoly
situations and the prevention of such situations, where they are contrary to the public interest; and
(e) to advise the Minister in regard to—
(i) all aspects of economic competition, including entrepreneurial activities carried on by
institutions directly or indirectly controlled by the State; and
(ii) the formulation, co-ordination, implementation and administration of Government policy in
regard to economic competition;
and
(f) to provide information to interested persons on current policy with regard to restrictive practices,
acquisitions and monopoly situations, to serve as guidelines for the benefit of those persons; and
(g) subject to Part IV B, to undertake investigations and make reports to the Minister relating to tariff
charges, unfair trade practices and the provision of assistance or protection to local industry; and
[Paragraph substituted by Act 29 of 2001]
(h) to monitor prices, costs, and profits in any industry or business that the Minister directs the Commission
to monitor, and to report its findings to the Minister; and
[Paragraph inserted by Act 29 of 2001]
(i) to perform any other functions that may be conferred or imposed on it by this Act or any other
enactment.
[Paragraph inserted by Act 29 of 2001]
(2) For the better exercise of its functions, the Commission shall have power to do or cause to be done, either
by itself or through its agents, all or any of the things set out in the Second Schedule, either absolutely or
conditionally and either solely or jointly with others.
(3) Subject to this Act, in the lawful exercise of its functions under this Act the Commission shall not be
subject to the direction or control of any other person or authority.
6 Membership of Commission
(1) Subject to subsection (2), the Commission shall consist of not fewer than five and not more than ten
members appointed by the President.
(2) The persons to be appointed under subsection (1) shall be chosen for their ability and experience in
industry, commerce or administration or their professional qualifications or their suitability otherwise for
appointment and, in selecting such persons, the Minister in consultation with the President shall ensure that so far
as possible all interested groups and classes of persons, including consumers, are represented on the Commission.
[Subsection amended by Act 29 of 2001]
7 Disqualifications for appointment as member
(1) A person shall not be appointed as a member, and no person shall be qualified to hold office as a member,
if—
(a) he is not a citizen of or ordinarily resident in Zimbabwe; or
(b) in terms of a law in force in any country—
(i) he has been adjudged or otherwise declared insolvent or bankrupt and has not been rehabilitated
or discharged; or
(ii) he has made an assignment to, or arrangement or composition with, his creditors which has not
been rescinded or set aside;
or
(c) he has been convicted in Zimbabwe or in any other country of an offence involving fraud or dishonesty
and sentenced to a term of imprisonment imposed without the option of a fine, whether or not any
portion of the sentence has been suspended, and he has not received a free pardon.
(2) A member of Parliament shall not be qualified for appointment as a member, nor shall he hold office as a
member.
(3) A person shall not be qualified for appointment as a member, nor shall he hold office as a member, if he
is a member of four or more other statutory bodies.
(4) For the purposes of subsection (3)—
(a) a person who is appointed to a council, board or other authority which is a statutory body or which is
responsible for the administration of the affairs of a statutory body shall be regarded as a member of that
statutory body;
(b) “statutory body” means—
(i) any commission established by the Constitution, or
(ii) any body corporate established directly by or under an Act for special purposes specified in that
Act, the membership of which consists wholly or mainly of persons appointed by the Minister, a
Vice-President, a Minister or any other statutory body or by a Commission established by the
Constitution.
8 Terms and conditions of office of members
(1) Subject to this Part, a member shall hold office for such period, not exceeding three years, as the Minister
may fix on his appointment, and upon the expiry of his term of office he shall be eligible for re-appointment as a
member.
(2) On the expiry of the period for which a member has been appointed, he shall continue to hold office until
he has been re-appointed or his successor has been appointed
Provided that a member shall not continue to hold office under this subsection for a period exceeding six
months.
(3) Subject to this Part a member shall hold office on such terms and conditions as the Minister may fix for
members generally.
[Subsection amended by Act 29 of 2001]
9 Vacation of office by members
A member shall vacate his office and his office shall become vacant—
(a) one month after the date on which he gives notice to the Minister, of his intention to resign, or after the
expiry of such other period of notice as he and the Minister may agree; or
(b) if he becomes a mender of Parliament; or
(c) if he becomes disqualified in terms of paragraph (a) or (b) of subsection (1) of section seven or in terms
of subsection (3) of that section to hold office as a member; or
(d) on the date he begins to serve a sentence of imprisonment, whether or not any portion has been
suspended, imposed without the option of a fine in any country; or
(e) if he is required in terms of section ten to vacate his office.
[Subsection amended by Act 29 of 2001]
10 Minister may require member to vacate his office or may suspend him
(1) The Minister may require a member to vacate his office if the member—
(a) has been guilty of improper conduct as a member or guilty of conduct that is prejudicial to the interests
or reputation of the Commission; or
(b) has failed to comply with any condition of his office fixed by the Minister in terms of subsection (3) of
section eight; or
(c) is mentally or physically incapable of efficiently performing his functions as a member.
(2) The Minister, on the recommendation of the Commission, may require a member to vacate his office if
the Minister is satisfied that the member has been absent without the permission of the Commission from three
consecutive meetings of the Commission, of which the member was given not less than seven days' notice, and
that there was no just cause for the member's absence.
(3) The Minister—
(a) may suspend from office a member against whom criminal proceedings have been instituted in respect
of an offence for which a sentence of imprisonment without the option of a fine may be imposed; and
(b) shall suspend from office a member who has been sentenced by a court to imprisonment without the
option of a fine, whether or not any portion has been suspended, pending determination of the question
whether the member is to vacate his office;
and while the member is so suspended he shall not exercise any functions or be entitled to any remuneration as a
member.
[Subsection amended by Act 29 of 2001]
23 Funds of Commission
The funds of the Commission shall consist of—
(a) moneys payable to the Commission from moneys appropriated for the purpose by Act of Parliament;
and
(a1) fees payable to the Commission in terms of the Act;
[Paragraph inserted by Act 29 of 2001]
(b) any other moneys that may vest in or accrue to the Commission, whether in terms of this Act or
otherwise.
24 Investment of moneys not immediately required by Commission
Moneys not immediately required by the Commission may be invested in such manner as the Minister, acting
on the advice of the Minister responsible for finance, may approve.
25 Accounts of Commission
(1) The Commission shall ensure that proper accounts and other records relating to such accounts are kept in
respect of all the Commission's activities, funds and property, including such particular accounts and records as
the Minister may direct.
(2) As soon as possible after the end of each financial year, the Commission shall prepare and submit to the
Minister a statement of accounts in respect of that financial year or in respect of such other period as the Minister
may direct.
26 Audit of Commission's accounts
(1) Subject to the Audit and Exchequer Act [Chapter 22:03], the Commission shall appoint as auditors one or
more persons approved by the Minister who are registered as public auditors in terms of the Public Accountants
and Auditors Act [Chapter 27:12].
(2) The accounts kept by the Commission in terms of subsection (1) of section twenty-five shall be examined
by the auditors appointed in terms of subsection (1).
(3) The auditors appointed in terms of subsection (1) shall make a report to the Commission and to the
Minister on the statement of accounts prepared in terms of subsection (2) of section twenty-five, and in their report
shall state whether or not in their opinion the statement of accounts gives a true and fair view of the Commission's
financial affairs.
(4) In addition to the report referred to in subsection (3), the Minister may require the Commission to obtain
from the auditors appointed in terms of subsection (1) such other reports, statements or explanations in connection
with the Commission's activities, funds and property as the Minister may consider expedient, and the Commission
shall forthwith comply with any such requirement.
(5) If, in the opinion of the auditors appointed in terms of subsection (1)—
(a) they have not obtained any information or explanation they require; or
(b) any accounts or records relating to any accounts have not been properly kept by the Authority; or
(c) the Commission has not complied with any provision of this Part;
the auditors shall include in their report made in terms of subsection (3) or (4), as the case may be, a statement to
that effect.
(6) If in terms of the Audit and Exchequer Act [Chapter 22:03] the Commission's accounts are required to be
audited by the Comptroller and Auditor-General, any reference in this section to auditors appointed in terms of
subsection (1) shall be construed as a reference to the Comptroller and Auditor-General.
27 Powers of auditors
(1) An auditor referred to in section twenty-six shall be entitled to all reasonable times to require to be
produced to him all accounts and other records relating to such accounts which are kept by the Commission or its
agents and to require from any member of the Commission or employee or agent of the Commission such
information and explanation as in the auditor's opinion are necessary for the purpose of his audit.
(2) Any member of the Commission or employee or agent of the Commission who fails without just cause to
comply with a requirement of an auditor in terms of subsection (1) shall be guilty of an offence and liable to a fine
not exceeding level five or to imprisonment for a period not exceeding six months or to both such fine and such
imprisonment.
[Subsection amended by section 4 of Act 22 of 2001]
PART IV
INVESTIGATION AND PREVENTION OF R ESTRICTIVE P RACTICES, MERGERS AND M ONOPOLY S ITUATIONS
PART IVA
NOTIFIABLE MERGERS
[Part IVA inserted by Act 29 of 2001]
PART V
AUTHORIZATION OF RESTRICTIVE P RACTICES , MERGERS AND OTHER C ONDUCT
ARRANGEMENT OF PARAGRAPHS
Paragraph
1. Interpretation.
2. Misleading advertising.
3. False bargains.
4. Distribution of commodities or services above advertised price.
5. Undue refusal to distribute commodities or services.
6. Bid-rigging.
7. Collusive arrangements between competitors.
8. Predatory pricing.
9. Resale price maintenance.
10. Exclusive dealing
1. Interpretation
In this Schedule—
“ group of companies” means two or more companies which—
(a) have the relationship to each other of holding company and subsidiary or wholly owned
subsidiary as defined in the Companies Act [Chapter 24:03]; or
(b) are substantially controlled by the same person or persons, whether as shareholders, directors or
otherwise;
“ publish”, in relation to an advertisement, means to make the advertisement known in any manner
whatsoever to the public or any section of the public;
“publisher”, in relation to an advertisement, means the person who publishes the advertisement or causes it to
be published or on whose behalf it is published.
2. Misleading advertising
(1) For the purposes or in the course of any trade or business, publishing an advertisement—
(a) containing a representation which the publisher knows or ought to knows false or misleading in a
material respect; or
(b) containing a statement, warranty or guarantee as to the performance, efficacy or length of life 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
(c) 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 particular trade,
qualification or skill, which statement, warranty or guarantee the publisher knows or ought to know is
untrue.
(2) For the purposes of subparagraph (1), 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 an advertisement.
3. False bargains
Advertising any commodity or service for distribution at a price—
(a) which is represented in the advertisement to be a bargain price; or
(b) 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.
4. Distribution of commodities or service above advertised price
(1) 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) Subparagraph (1) shall not apply in any case where—
(a) the advertisement prominently stated that the price of the commodity or service concerned was subject
to error or alteration without notice; or
(b) the advertisement was immediately followed by another advertisement correcting the price mentioned in
the first advertisement.
(3) For the purposes of subparagraph (1), the market to which an advertisement relates is the market to which
it could reasonably be expected to reach, unless the advertisement defines its market specifically by reference to a
particular area, store, outlet or otherwise.
5. Undue refusal to distribute commodities or services
(1) Failing or refusing to distribute any by to another person unless the other person—
(a) ceases or refrains from distributing or using a commodity produced by some other person; or
(b) restricts his distribution of a commodity produced by some other person; or
(c) distributes the commodity at a specified price or at a price which is not less than a specified minimum
price.
(2) Failing or refusing to distribute a commodity or service to any person, under the usual conditions of
distribution, on the ground or belief that that person or someone else connected with him—
(a) has furnished the Commission or a committee or an investigating officer with any information which he
is required to furnish in terms of this Act; or
(b) has given evidence before the Commission at any investigation under this Act; or
(c) has given evidence before a court in regard to any restrictive practice, merger, monopoly situation or
unfair trade practice.
6. Bid-rigging
(1) Entering into or giving effect to an agreement, arrangement or understanding, whether enforceable or not,
with another person whereby—
(a) any of the parties to the agreement, arrangement or understanding undertake not to submit a bid or
tender in response to a call or request for bids or tenders; or
(b) 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.
(2) Subparagraph (1) shall not apply to an agreement, arrangement or understanding between companies
which are all part of a single group of companies.
7. Collusive arrangements between competitors
(1) 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 divided according to
geographical area, class of consumer or otherwise; or
(c) to limit, by number or quantity, the commodities or services produced or distributed.
(2) Subparagraph (1) shall not apply to an agreement, arrangement or understanding—
(a) between companies which are all part of a single group of companies; or
(b) bona fide intended solely to improve standards of quality or service in regard to the production or
distribution of the commodity or service concerned.
8. Predatory pricing
Selling at very low prices or at below production costs as a deliberate strategy of driving competitors off the
market.
9. Resale price maintenance
Specifying the minimum price at which a product must be resold to customers.
10. Exclusive dealing
Engaging in exclusive dealing, that is—
(a) supplying or offering to supply goods or services at a particular price; or
(b) giving or allowing, or offering to give or allow, a discount, allowance, rebate or credit in relation to the
supply or proposed supply of goods or services by the company;
on the condition that the person to whom the supplier offers or proposes to supply the goods—
(i) shall not acquire goods or services of a particular kind or description, or not acquire them except
to a limited extent, directly or indirectly from a competitor of the supplier;
(ii) shall not re-supply the goods or services, or not re-supply them except to a limited extent—
A. to particular persons or classes of persons;
B. in particular places or classes of places.
1 To acquire premises necessary or convenient for the exercise of its functions and for that, purpose, to buy,
take in exchange, hire or otherwise acquire immovable property and interests in and rights over such
property.
2. To buy, take in exchange, hire or otherwise acquire movable property.
3. To maintain, alter and improve any of its property.
4. To mortgage or pledge any of its assets and, with the Minister's approval, to sell, exchange, let, dispose of,
turn to account or otherwise deal with any assets which are not required for the exercise of its functions, for
such consideration as the Commission may determine.
5. To draw, make, accept, indorse, discount, execute and issue promissory notes, bills of exchange, bills of
lading, securities and other negotiable or transferable instruments.
6. To insure against losses, damages, risks and liabilities which it may incur.
7. To make contracts and enter into suretyships or give guarantees, and to modify or rescind such contracts or
rescind such suretyships or guarantees.
8. With the approval of the Minister and the Minister responsible for finance, to establish and administer funds
and reserves.
9. To employ, on such farms and conditions as the Commission thinks fit, such persons as are necessary for
carrying out the Commission's functions and conducting the Commission's affairs, and to suspend or
discharge any such employees.
10. With the approval of Minister and the Minister responsible for finance, to pay such remuneration and
allowances and grant such leave of absence and to make such gifts and bonuses and the like to its employees
as the Commission thinks fit.
11. To provide pecuniary benefits for its employees on their retirement, resignation, discharge or other
termination of service or in the event of their sickness or injury and for their dependents, and for that
purpose to effect policies of insurance, establish pension or provident funds or make such other provision as
may be necessary to secure for its employees and their dependents may or all the pecuniary benefits to
which this paragraph relates.
12. With the Minister's approval, to purchase, take in exchange, hire or otherwise acquire land or dwellings for
use or occupation by its employees.
13. To construct buildings and other improvements for use or occupation by its employees on land which it has
purchased, taken in exchange, hired or otherwise acquired.
14. To sell or let land or dwellings for residential purposes to its employees.
15. With the Ministers approval to realm or guarantee loans to its employees or their spouses for—
(a) the purchase of dwellings or land for residential purposes; or
(b) the construction or improvement of dwellings on land which is the property of its employees or their
spouses.
16. To provide security in respect of loans such as are described in paragraph 15 by the deposit of securities in
which it may invest such moneys as the Commission considers necessary for the purpose.
17. To do anything for the purpose of improving the skill, knowledge or usefulness of its employees, and in that
connection to provide or assist other persons in providing facilities for training, education and research.
18. Generally, to do anything that is calculated to facilitate or is incidental or conducive to the performance of
its functions under this Act or any other enactment.