South Africa’s Corporate Leniency Policy: A Five-Year Review

Five years since the adoption of South Africa’s Corporate Leniency Policy (CLP) in 2004, it is time to take stock. The CLP has proved a formidable tool for assisting the Competition Commission of South Africa in cartel enforcement. Few cartels were uncovered prior to 2004. Since then, major cartels have been dismantled and punished under the Competition Act, mostly as a result of increasing applications for immunity under the CLP. The CLP offers cartel members immunity from fines and from prosecution in return for information on the cartel. The stakes are high: only the first cartel member to approach the Commission gets immunity. The CLP sets out the framework and the conditions for being granted immunity. Recent amendments to the CLP, such as the addition of a marker procedure and oral statements procedure, have further enhanced the CLP’s attractiveness and reach. However, recent legislative amendments introducing criminal liability for persons involving their firms in cartel conduct are expected to affect the future of the CLP. This paper analyses the current provisions of the CLP and its impact on cartel enforcement. Finally, the scope for improvements and the future of the CLP will also be considered.