LESOTHO COMPETITION BILL REPORT (1)

REPORT ON THE LESOTHO COMPETITION BILL,2021
PRESENTED
BY
THE PORTFOLIO COMMITTEE ON THE ECONOMIC AND DEVELOPMENT CLUSTER
National Assembly Phone: +266 22323035 P. O. Box 190 Fax: + 266 22310434
Maseru 100
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1.0 INTRODUCTION
On Monday 31st May, 2021 the Hon. Minister of Trade and Industry tabled the Lesotho Competition Bill, 2021 in the House. The Bill was referred to the Portfolio Committee on the Economic and Development Cluster for consideration in terms of Standing Order No. 51 (5). The Committee invited the Ministry of Finance to a briefing session in accordance with Standing Order No. 54 (2).
The Committee, therefore, presents this Report to the House for consideration.
2.0 MINISTERIAL BRIEF
The Ministry of Trade and Industry stated that the purpose of the Bill is to promote and maintain fair competition in the domestic market. It provides the legal basis for undistorted competition and thus contributing to transparency and predictability in domestic market. It also seeks to maintain a fair competition through: Prohibition of agreements or practices that restrict free trading and competition between businesses; banning of abusive behaviour by firms dominating a market or anti competition practices that tend to lead to such a dominant position and lastly supervising the mergers and acquisitions of large corporations.
The Bill establishes the Competition Commission which will be an independent body corporate. The Commission will be an overseer of all competition issues and is bestowed with powers to investigate anti-competitive practices, make decisions and findings including imposing financial penalties on enterprises against whom a finding has been made. The Bill provides for leniency scheme where the financial penalty for an enterprise that cooperates with the commission may be reduced; this
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is to encourage cooperation as competition law cases can be difficult to investigate. The Bill also establishes the Competition Tribunal which is an adjudicative body to hear appeals against decisions of the Commission.
The Ministry further indicated that when the Bill becomes law, consumers will benefit since businesses will compete and refrain from collusion; advertisements will provide accurate information which will enable consumers to make informed decisions; small businesses will also benefit as pricing methods of suppliers will be regulated.
3.0 CONSIDERATION OF HE BILL CLAUSE BY CLAUSE
The Lesotho Competition Bill, 2021 was adopted with the following amendments:

  1. In Clause 6, insert a new sub-clause (3) as follows and renumber sequentially:
    “(3) The Board shall be gender sensitive”
  2. In Clause 9 Sub-Clause (1) line 2, delete the words “further and final term” and substitute them with the word “period”.
  3. In Clause 13, Sub-Clause (2) line 1, delete the words “for a period of 3 years”
  4. In Clause 30, on the heading, delete the words “and publication of findings”.
  5. In Clause 31, Sub- Clause (2) (b) line 2, delete all the words after the word “Act” and substitute them with “will deal with them under Part VII of this Act”.
  6. In Clause 31, Sub-Clause (2) ,insert a new Sub-Clause (c) as follows :
    “(c) insofar as adverse effects for competition are the result of other legislative provisions or regulatory measures, make recommendations to
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    the Minister for such further action, including amendments to this Act and its regulations as is required to provide an effective remedy”.
  7. In Clause 37, Sub-Clause (1) (a) add the word “and” after semi-colon.
  8. In Clause 65, Sub-Clause (2) delete the reference “(b)” and substitute it with “(c)” and renumber sequentially.
  9. In Clause 65, Sub-Clause (2) insert the new Sub-Clause (2) (e) as follows:
    “(e) The composition of the Tribunal shall be gender sensitive”.
  10. In Clause 67, line 2, delete the words “one further and final term” and substitute them with the word “period”.
  11. In Clause 67, insert a new Sub-Clause (a) as follows:
    “(a) the Chairperson shall hold office for a period of 6 years”.
  12. In Clause 71, Sub-Clause (1) delete the words “which is” and substitute them with “or person”.
  13. In Clause 71, Sub-Clause (1) (a) line 1, delete the word “of”’ after the word determination and substitute it with the word “by”.
  14. In Clause 71 , Sub-Clause (1) (a) delete all the words after the word “Commission” and substitute them with the words “that an enterprise has or has not breached a prohibition under sections 18(1) and 19(1),”
  15. In Clause 71, Sub-Clause (1) delete the reference“(a)”under sub-paragraph 2 and substitute it with the reference “(b)” and renumber sequentially.
  16. In Clause 71, delete Sub-Clause (1) (b) and insert new Sub-Clause (b) as follows:
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    “ (b) the imposition of a financial penalty by the Commission or the level of such penalty; and”
  17. In Clause 71, insert new Sub-Clause (1) (c ) as follows;
    “(c) any other determination, directive or decision of the Commission in respect of any competition matter under this Act or Regulations made under this Act;
    may appeal to the Tribunal against the decision, determination or part thereof.”
  18. In Clause 71, delete Sub-Clause (3)(a)(b)(c) and substitute it with the new Sub-Clause (3) as follows:
    “(3) An appeal shall be lodged within 14 days after the receipt of the decision, determination or directive by the Commission, and unless an appeal is lodged, the decision, determination or directive made by the Commission is final and binding.”
  19. In Clause 88 Sub- Clause (2), line 2, delete the number ‘88” and substitute with “89.”
  20. In Clause 91, delete “Clause 9 1’’.
  21. In Clause 93, insert new Sub-Clause (3) as follows
    “(3) The Tribunal may fully review the facts and evidence on which the commission relied in –
    (a) Reaching its decision or determination (b) Formulating any directive
    Determining the amount and proportionality of any financial penalty.”
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    4.0 Recommendations
    After thorough scrutiny of the Bill, the Committee recommends that the House adopt the Bill as amended (Annex 2).
    5.0 Conclusion
    The Committee wishes to submit this report to the House for adoption.
    List of Members 1.
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