South Africa Competition Act 89 of 1998 9: Dominant sellers: no prohibited price discrimination between purchasers

What does 9 require?

A dominant firm selling goods or services of similar grade and quality in comparable transactions must not discriminate between purchasers in price, discounts, allowances, rebates or credits, the services provided, or payment for services, where that will probably weaken competition substantially or hamper SMEs' or HDP-controlled firms' ability to participate effectively (section 9(1)). Differential treatment is permitted where the firm establishes that it makes only reasonable allowance for cost differences from place, method or quantity of supply, meets a competitor's price or benefit in good faith, or responds to changing market conditions such as perishables, obsolescence, liquidation or discontinuance (section 9(2)); the quantity-based cost defence falls away where the prima facie case concerns impeding SME and HDP participation, and the firm must then show its action did not impede them (section 9(3)). Refusing or avoiding sales to an SME or HDP purchaser to circumvent the rule is itself prohibited (section 9(1A)).