At 12:00 on 16 February 2015, the extended deadline for commenting on the Competition Commission's draft guidelines for the determination of administrative penalties for anticompetitive conduct expired.  Surprisingly, the Competition Commission's express intention of calculating fines on the basis of parent company turnover for subsidiary wrongdoing has attracted little attention.  While in Europe, any company in a group who commits anticompetitive conduct may trigger a fine calculated on the group’s worldwide turnover, in South Africa to date, each firm has been fined on the basis of its turnover only.  Even then, some of the fines have been enormous. 

That antitrust fines are a gold mine for the State is apparent from figures published in January by the US Department of Justice that as at 30 September 2014, it had collected $1.861 billion in criminal fines and penalties in antitrust prosecutions. This is in addition to jail time given to 21 defendants.

Against this background, it is perhaps an important reminder for South African firms that the criminalizing provisions of the Competition Amendment Act, 1 of 2009 are already law.  The commencement date for these provisions has simply not yet been published.  As soon as these provisions commence, directors and managers can go to jail for the cartel offences of price fixing, market division and tender collusion.