In a move bound to raise both eyebrows and legal objections, the Competition Commission of South Africa has released draft guidelines detailing its approach to handling confidential information. Published in the Government Gazette on February 7, the guidelines are now open for public scrutiny, with comments due by March 7. The Commission’s message to businesses and legal practitioners? If you’re dealing with us, expect less secrecy and more transparency.
The draft guidelines aim to clarify the process of claiming confidentiality in competition-related matters, including mergers, market inquiries, and exemptions. They outline how information can be claimed as confidential, how such claims are assessed, and the conditions under which information may still be disclosed. In essence, they seek to balance businesses’ desire for secrecy with the Commission’s mandate to ensure public access to information where appropriate.
One might wonder why the Commission feels the need to spell out confidentiality rules in such detail. The answer, it seems, lies in the ever-present tug-of-war between competition regulators and businesses that would prefer to keep their dealings away from prying eyes. With the new guidelines, the Commission asserts that while firms can claim confidentiality, such claims will not be accepted at face value.
Under the Competition Act, firms have the right to claim confidentiality over trade secrets, financials, and other sensitive data. However, as the guidelines make clear, merely stamping a document “confidential” will not be enough. The claim must be backed by a written statement justifying why the information deserves protection. And even then, the final arbiter of secrecy is not the business itself but the Commission, the Competition Tribunal, or the Competition Appeal Court (CAC), depending on the case’s trajectory.
If the Tribunal or CAC determines that information should not be kept confidential, it can order its disclosure — potentially to other parties in a dispute or even to the public. And for those who might be tempted to challenge such decisions, the process for appeal is outlined in exhaustive (and, for some, exhausting) detail.
The Commission’s stance is clear: competition law is a public matter, and excessive secrecy undermines its effective enforcement. But for companies navigating complex deals, this approach raises concerns. Will businesses be forced to reveal sensitive data to competitors under the guise of regulatory transparency? The draft guidelines suggest that confidential information will remain protected when it holds “particular economic value” and is not generally known. However, as past rulings have shown, regulators and businesses often differ sharply on what constitutes “economic value.”
Some may see the Commission’s move as an attempt to keep firms honest in their competition practices. Others, particularly within the legal and business community, may regard it as a veiled warning that confidentiality will be harder to secure. The reality, as always, is likely somewhere in between.
The Commission has invited the public to submit comments by March 7, with final guidelines to be published thereafter. Given the high stakes, firms and their legal teams would do well to weigh in — unless they want to find themselves on the wrong side of a ruling down the line.
For those interested, submissions can be sent via email to MpumiT@compcom.co.za. The draft guidelines are available on the Commission’s website, though one must navigate a few bureaucratic errors first — the original Gazette notice, in a fitting bit of irony, contained mistakes regarding the return date and web link.
As the deadline for public input approaches, one thing is clear: South Africa ‘s Competition Commission is making it known that the days of sweeping confidentiality under the rug may soon be over. Whether this enhances market fairness or simply adds another layer of regulatory complexity remains to be seen.
The full document is available here: https://www.compcom.co.za/wp-content/uploads/2025/02/DRAFT-Confidentiality-Guidelines-for-Public-Comment-07022025.pdf