What To Do In A Dawn Raid – Part One
19 Nov 2015
The Competition Commission is empowered to make on the spot investigations and searches at a company’s premises with or without a search warrant, depending on the circumstances. These searches are typically referred to as dawn raids. The Commission will use these powers when they suspect that a company will not provide them with the evidence that they are looking for, or that evidence may be destroyed.
By following the procedures below, a company’s interests can be protected while ensuring compliance with the law.
General steps to take
Staff should always be co-operative and cordial with the investigators. At the same time, staff must ensure that the investigators abide by the legal restrictions under which they must work. Adequate preparation, before the investigators arrive, will reduce that stress and help guarantee that the company presents itself suitably and acts appropriately.
To ensure that company and individual legal rights are respected at all times during the inspection, it is critical that internal or external legal representatives be involved throughout the process.
Arrival of investigators at reception
For the unannounced visits or dawn raids, investigators will likely arrive without any warning at the start of the day. It is useful to provide the receptionist and security personnel with a list of internal and external contact persons to refer to when a dawn raid occurs.
The receptionist should courteously take the investigators to a suitable meeting room where no files or documents are kept to wait until the contact person(s) arrives. Special badges should be available for investigators that will enable company personnel to identify investigators from all other visitors and staff.
The contact person should inform relevant staff and that an inspection is taking place and give clear instructions that in no case should documents or electronic files be concealed, altered, destroyed or removed nor should anyone outside the company be informed of the inspection.
The company is entitled to have legal representation present during the search. The contact person should inform the investigators that the company wishes to have its lawyers present. The contact person should then ask the company’s legal representatives to come to the site as soon as possible, with at least as many legal representatives as there are investigators. Do not engage in further discussions with the investigators until the legal representatives arrive.
The contact person should check the identity of all of the investigators and ascertain the capacities in which they are acting, and ask them to produce their written authorisation to investigate or the search warrant issued by the High Court. Each investigator should be able to produce an official Competition Commission identification card or other identification that can be verified against the authorisation or warrant. The authorisation or warrant will normally be an official document that identifies the subject matter and purpose of the investigation as well as the offences that may be committed in cases of non-compliance.
If no warrant is presented, the contact person or the legal representative should assess whether the legal requirements for inspection (as per section 47 of the Competition Act 89 of 1998) are met.
Key things to bear in mind:
- an inspection without a warrant must take place in the day time;
- permission to enter and search must be obtained from the owner or person in charge of the premises;
- check the identification of the inspector and obtain an explanation as to the authority by which the
search is being conducted; and
- the inspector must have reasonable grounds for believing that a warrant, if applied for, would be granted, and that the delay involved would defeat the purpose of such search (e.g. documents would be shredded)
Inspection with a warrant
If a warrant is presented, it should also be carefully checked to ensure that it is valid and to determine the exact scope of the investigators’ powers. This should happen with legal representatives present.
The following is required for a warrant to be valid:
- it should specifically and correctly identify the premises that may be entered and searched;
- it should specify the inspectors or police officers authorised to carry out the inspection;
- it should set out the subject matter and purpose of the investigation;
- the warrant must be authorised by a judge, regional magistrate or magistrate with jurisdiction;
- the warrant must not have previously been executed;
- the warrant must not have been cancelled by the person who issued it or, in that person’s absence, by
a person with similar authority;
- the purpose for issuing the warrant must not have lapsed;
- the warrant must be executed during the day unless a night inspection is explicitly authorised by the
judge or magistrate issuing the warrant, in which case the judge or magistrate will determine a time for
a night inspection that is reasonable in the circumstances; and
- the warrant must have been issued no more than 1 month before it is executed.
‘What to do in a dawn raid – Part One’ is the first of a three part opinion piece series, written by Rosalind Lake, Director, Norton Rose Fulbright South Africa Inc. This and other updated information is available from LexisNexis Practical Guidance Competition Law. The LexisNexis Practical Guidance series is an online legal research solution that provides practical, up-to-date guidance, useful templates and other aids and resources to assist in making informed and accurate decisions. The Competition Law practice area is written and updated by Norton Rose Fulbright South Africa Inc. For more information, visit http://practicalguidance.lexisnexis.co.za/practice-areas/competition-law(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)