Competition Commission ruling on the exemption of Guideline Professional Fees
15 February 2016
Posted by: Jacquie Cullis
PRESS RELEASE: 12
SACAP comments on the Competition Commission ruling on the exemption
application – Guideline Professional Fees draft policy.
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
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.
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