Lawyers representing four panel beating companies accused of anti-competitive practices recently stopped short of calling for the dissolution of the Competition Commission saying it is too close to the Competition Authority.
The Competition Authority accuses the four companies- Carfill Services, Specialised Panel Beaters, Top Care and Auto Craft Shop- of price fixing. The Competition Commission, which acts as both board (on administrative matters) and Tribunal (adjudication body) of the Competition Authority last week heard points in limine (law) raised by the defendants before the substantive matter can be heard and dealt with. Leading the team of attorneys representing the panel beaters, Sadique Kebonang argued that the relationship between the Competition Authority and Competition Commission was “too intimate” for them to make a fair and balanced decision on the hearing.
He said the Competition Act, which stipulates the powers and functions of both entities, clearly outlines this relationship. However, Duncan Morotsi, Director of Legal Enforcement of the Competition Authority, dismissed the claim on the basis that Kebonang has misinterpreted the Competition Act and is trying to win over the Commission with wrong misconceptions. However Kebonang was adamant that if the Commission was to sit in the hearing they might be biased towards them. “The main test here is what the ordinary man out there perceives the two entities to be,” he said. He said the Competition Authority Act is shallow as to what its exact duties are. Kebonang cited Section 8 (1) of the Competition Act, which empowers the Commission to appoint employees of the Authority while Section 9 (1) establishes the Commission as the governing body of the Authority with an obligation to not only adjudicate but also give general policy direction to the Authority.
He felt strongly that the Commission, which also acts as Board of Directors of respondents cannot sit and adjudicate on the dispute without offending the rule against bias or perceived bias. He said the perceived bias comes from the fact that the commission is the one that appoints senior officers to the Authority, it approves their budget, expenditure, conditions of service and sits quarterly to consider requests and approve the Authority management reports. “For these reasons the applicants request that all commissioners recuse themselves from hearing the matter. We think that Parliament was ill advised when approving the Authority as the relationship between the two entities is blurry,” he said adding that the Competition Act is imperfect and therefore must be challenged to ensure that there is separation between the two entities. But Morotsi insisted that the accusations had no basis and were merely based on ill-conceived and unworthy understanding of the structure and function of the Authority and the Competition Commission.
He pointed out that the applicant’s interpretation of Section 9 (2) (b) is self-serving as it is in sharp contrast to the unambiguous provisions of Section (2) (a) of the Act. That although the Executive secretary of the Authority may attend meetings of the Commission, Section 9 (2) points out that the secretary has no voting rights at such meetings and cannot play a role in the Commission’s adjudication of matters. “Most of the issues raised are managerial issues which cannot by any stretch of imagination be construed to insinuate lack of independence by the Commission,” he said adding that the commission is not involved in investigations carried out by the Authority. He said the system used by Botswana is also used by the Common Market for Eastern and Southern Africa (COMESA) countries and has worked well for them, as it is in line with international best practices.
“A reasonable man given the Botswana structure cannot argue that the Act is biased.” The Tribunal Panel chaired by Commissioner Tendekani Malebeswa asked for time to consider both parties’ arguments and promised to make a decision in due course.