Acta Universitatis Danubius. Juridica, Vol 12, No 3 (2016)

An Interpretation and Application of Section 73A(5) of The Competition Act 89 of 1998, South Africa

Phindile Raymond Msaule


 The object of this article is to argue that section 73A(5) of the Competition Act of 1998 is constitutional. Some commentators have argued that this provision creates reverse onus offence and is therefore unconstitutional. The article argues against this view, necessarily because section 73A(5) does not implicate any of the definitional elements of the offence created by section 73A, which relates to the malfeasance committed by the director of the firm in causing the firm to engage in prohibited practice, and it is for this malfeasance that the director is criminally charged. The fact that the firm had been found guilty of involvement in prohibited practice in different proceedings would not per se lead to the director's conviction at the criminal trial. The state would still be required to prove beyond reasonable doubt that the director was involved in causing the firm to engage in prohibited practice. It is asserted that if section 73A(5) creates a reverse onus, such does not relate to the elements of the offence with which the director has been charged but such onus is evidentiary in nature. Furthermore, if this provision creates a reverse onus offence and limits the director's right to be presumed innocent, such limitation is constitutional.


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