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THE SMART NEWS SOURCE | Feb 09 2012 09:59 | LAST UPDATED Feb 09 2012 09:59 |
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Newly appointed Competition Tribunal chairperson Norman Manoim says the variable nature of the tribunal’s work makes it similar to a football match. “It’s entirely variable,” he says. “You don’t know which team is going to turn up. “It can be horrendously boring because we are very paper driven and so people get taken through long sets of documents. It’s important, but it’s not thrill-a-minute stuff.“But sometimes there is an engagement, which is quite electric,” he adds. “We had a guy in one of these cases who confessed to perjury just out of the blue -- you expect to see that on LA Law.” The intellectual challenge of getting to the bottom of a case is what has hooked Manoim into the work conducted by this vital organisation, which aims to safeguard the South African consumer and keep capitalists honest. Although Manoim was selected by the Cabinet in April this year to take over the chairperson’s seat from David Lewis, it was signed off by President Jacob Zuma only last week, paving the way for Manoim’s term to start at the beginning of August. He takes over at an important time for South Africa’s competition authorities, with major collusion investigations recently launched into the fuel and construction sectors. “The cartel prosecutions are in the pipeline,” says Manoim. “We are waiting for these prosecutions to come down the line. “So far, most of these cartel cases have been settled,” he says. “I don’t know if that trend is going to change. “We may find people digging in their heels and saying: ‘Although that guy has squealed, we want to have our say in court.’ If that happens we will be very busy trying cartel cases.”So, is corporate South Africa rife with cartels and collusion? The number of cases uncovered by the Competition Commission would suggest so. “The full extent of it we don’t know -- it’s too early to tell,” says Manoim. “We are only at the beginning of this curve. “I think we are surprised by the extent of collusive activity that we have come across,” he says. “We are hearing about blue-chip companies that are involved in this 10 years after the Competition Act has been around. “It’s very unfortunate that leaders of industry are involved in these kinds of things.” When the Mail & Guardian asks Manoim if this is just a result of collusion appearing to be a good business model if you can get away with it for long enough, he agrees that the penalties are not strong enough.  CONTINUES BELOW He says the competition authorities tried to persuade Parliament that penalties should be calculated on the duration of the contravention, but they were not successful in getting this included in the Competition Amendment Bill, which is awaiting Zuma’s signature in order to be promulgated. “In a civil claim you can deal with the full period,” says Manoim. “It’s just that we have weak civil enforcement. “What we really need is the private Bar to be the ambulance-chasers of these cases, taking them on for a percentage of the damages,” he says. “Civil enforcements are a very important component of getting compliance -- we only need one or two to be successful and it will force companies into settling.”So, are the criminal sanctions included in the Amendment Bill the answer to tougher penalties? Manoim says that the lack of clarity about how criminal sanctions will work will introduce uncertainty into the corporate leniency programme, which has been important in enticing companies to blow the whistle on their fellow colluders.“What the commission needs to do with the NPA [National Prosecuting Authority] is to say, ‘these are the rules and this is how we are going to apply them’.” Manoim says there have already been threats of legal challenges to criminal sanctions, but it is only once the first criminal sanction is handed down that we will see how things will pan out. He says he would like to encourage chief executives to challenge Competition Commission cases on their merits, rather than using clever legal arguments to try to avoid prosecution. “It’s very easy for firms to play clever legal games,” says Manoim. “Sure, you are entitled to do that, but I think it is counterproductive when a company’s reputation is at stake. “As long as the case runs there will always be a doubt against the firm and I would like chief executives to take a more long-term view,” he says. “It’s up to them to do that. Law firms aren’t going to change that mindset -- it’s not in their interest to do so and the smarter the point the better the law firm looks.” TOPICS IN THIS ARTICLE
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