Three areas in particular have raised red flags for SAPOA, explains SAPOA legal committee member Madelaine Truter, who is the legal advisor to Growthpoint Properties Limited.

The first area of concern focuses on the Bill’s provisions around complex monopolies. SAPOA believes that the provisions would penalize involuntary or regular market activity, and make firms responsible for market factors that are outside their control.

Key concerns for the association include issues of clarity and definition of complex monopolies, as well as the need to consider lessons learned from international experience.

“These provisions could be a significant departure from practices in other competition law jurisdiction,” she notes.

“SAPOA believes that complex monopoly provisions could deter healthy and legitimate business behaviour, as well as discourage foreign investor confidence.”

The second area of concern is the introduction of criminal liability for directors of companies that contravene the cartel provisions of the Competitions Act.

“This is a dramatic departure from the existing civil jurisdiction of the Competition Authorities,” says Truter.

“We recommend that this far-reaching provision should be deferred for implementation at a later time.”

The third area of concern deals with the idea of concurrent jurisdiction, the situation where both general and sector-specific legislation applies.

“SAPOA members are subject to sector-specific legislation and there is no regulator for the property industry,” explains Truter.

“Our question is: how will concurrent jurisdiction be exercised where there is a conflict?”

Truter notes that SAPOA’s comments remain general and high level at this stage, mainly because of the short period of time – just 30 days – allowed by the DTI for submission.

“We believe that limited time to comment and make submissions is too short in view of the far-reaching and serious consequences of the Bill,” says Truter.

“We urge the DTI to extend the time period and afford businesses an opportunity to consider the Bill from all angles.”

SAPOA believes that better comment and input will lead to a more coherent, clearly drafted and legally certain Bill at the end of the day.

“SAPOA supports measures that address any practices that distort or prevent competition,” adds Truter.

“But proposed reforms must be approached with utmost care to avoid any unforeseen consequences, or even defeat the original purpose of the reforms.”