More expensive to admit guilt than to defend conduct

This according to Kholofelo Kugler, a candidate attorney in competition law at corporate legal firm Bowman Gilfillan. "In general, the fines imposed by the Competition Commission are much higher than those handed down by the Competition Tribunal, which adjudicates competition complaints," said Kugler.

"In a recent case, a company which settled upfront with the Competition Commission faced a fine of 5% of its turnover, while those that chose to challenge the allegations before the Competition Tribunal, received fines of 0.7% and 1.7% of their respective turnovers."

Authorities must re-examine fines

Similar outcomes were seen in at least two other cases over the past 12 months, where the fines imposed by the Competition Commission were at least double those handed down by the Competition Tribunal.

"This goes against the grain of the generally accepted legal practice of showing leniency when firms admit guilt and settle. Perversely, this promotes time-consuming and costly litigation, and encourages the concealment of cartel conduct. The competition authorities - the Commission and the Tribunal - need to re-examine the manner in which they impose fines to encourage companies to come clean rather than to litigate," Kugler said.