Competition Commission ruling on the exemption of Guideline Professional Fees
PRESS RELEASE: 12
SACAP comments on the Competition Commission ruling on the exemption application – Guideline Professional Fees draft policy.
The South African Council for the Architectural Profession (SACAP) is legally charged with regulating the architectural profession in South Africa in terms of the Architectural Profession Act, (Act No. 44 of 2000) (the Act).
in terms of Section 34(2) of the Act,
is permitted to regulate the architectural profession by issuing Guideline
Professional Fees on an annual basis, which are used by the architectural professional in the dispensing
of their professional services.
Background: On 4 February 2014, Council filed an exemption application with the Competition Commission for the publication of professional fees guidelines in terms of schedule 1, chapter 2 of the Competition Act.
On 10 February 2016, the Competition Commission declined to grant the exemption application in terms paragraph 4(a) to (c) of schedule 1 of the Competition Act.
The refusal by the Competition Commission to grant exemption in relation to the issuing of Guideline Professional Fees places Council in a compromised position in relation to compliance with the Architectural Profession Act and the fees that registered professionals in the architectural profession are permitted to charge members of the public.
Furthermore, in relation to professional fees guidelines, section 34 of the Architectural Profession Act mandates Council to determine guideline professional fees and publish them in the Gazette. Section 4 (k) (v) of the Council for the Built Environment Act, 2000 states that Council must determine fees in accordance with any legislation relating to the promotion of competition. While Council is required to determine fees in accordance with any legislation relating to promotion of competition, Council is obliged to annually determine guideline professional fees by an act of Parliament. Section 34 (2) uses peremptory and commanding words, such as must, which means it is mandatory for Council to determine fees guidelines.
With the Competition Commission decision, Council finds itself in a position where its regulatory powers in the architectural profession are being subsumed by the Competition Commission. While we accept that the Competition Act applies to all economic activities in South Africa, the Architectural Profession Act applies to all architectural activities in South Africa. Therefore, it is judicious for Council to appeal the decision of the Competition Commission to the Competition Tribunal so that powers of the Competition Commission and the Council can be clarified.
SACAP will be appealing against the Competition Commission decision.