Draft guidelines provide clarity on confidentiality regime under South Africa’s competition law

As part of its investigative mandate, the Commission is empowered to request information from merger parties, complainants, and respondents in prohibited practices, as well as third parties. The draft guidelines (34-page / 571KB PDF) set out how the Commission will handle confidential information. They also apply to proceedings before the Competition Tribunal and Competition Appeal Court.

Competition law expert Andrew Attieh of Pinsent Masons said: “Although not yet final, the guidelines will bring certainty and guidance to parties on how they can protect their confidential information and how their confidential information is handled by the competition authorities. This is especially important when they are under investigation or required to provide confidential or commercially sensitive information during investigations into alleged prohibited or restricted practices, market inquiries, and mergers.”

“When responding to a request for information from the Commission, it is important to make the relevant claims for confidentiality in order to ensure that the information will be kept confidential. With these proposed guidelines, parties that provide information to the Commission will be better informed on how the confidential information may be used, their rights to claim confidentiality, and under which circumstances the veil of confidentiality may be pierced,” he said.

Mark Thomas of Pinsent Masons said: “Confidentiality and the protection of a commercial strategy are, naturally, a foremost concern of clients, especially when there is a concern that their information may come into the knowledge of competitors. These guidelines provide clarity on the approach of the competition authorities in this regard. In our recent discussions with competition regulators in other jurisdictions, it was interesting to note that they consider the Competition Commission of South Africa’s approach, as outlined in the various guidelines that they have been publishing, as part of their own research and development of competition regimes elsewhere in Africa and the Middle East”.

The draft guidelines cover several key aspects of the South African competition confidentiality regime, including how parties can effectively claim confidentiality; what are the rules around access to confidential information; and what rights a party has to challenge a decision or claim of confidentiality for information that has been submitted.

A party seeking to claim confidentiality over information submitted to the Commission must file a prescribed form, known as CC7. This form must be supported by a written statement outlining the justification for why the information is confidential. The guidelines emphasise that successful confidentiality claims are claims that provide clear reasons why the information is of a particular economic value and why it is generally unavailable or unknown by others.

The guidelines suggest that in market inquiries, blanket claims over full submissions are not permitted. This is because the Commission publishes participants’ submissions for the public on the market inquiry website, to enhance transparency. Respondents must therefore carefully consider and claim confidentiality, and provide appropriately redacted versions of the submissions removing the confidential information, as public versions of submissions made by respondents in a market inquiry may be published.

The guidelines also outline on how parties to proceedings before the Competition Tribunal of South Africa and Competition Appeal Court can access confidential information provided by third parties, as well as describing the undertakings that external advisors may provide to facilitate the waiver of confidentiality from third parties.

The consultation period for the draft guidelines has ended, with final guidelines to be published and the effective date to be indicated in the Government Gazette.