The Competition Commission of South Africa (“Competition Commission”) identified a need to guide merger parties and stakeholders on claiming confidentiality over information. In September 2025, the Competition Commission issued Guidelines on the Commission’s handling of confidential information (“Guidelines”), which, however, are not binding on the Competition Commission, the Competition Tribunal or the Competition Appeal Court, but must be taken into account by these authorities when interpreting and applying the Competition Act 89 of 1998 (“Competition Act”).

The Guidelines specifically exclude information that is legally privileged information, information which is protected by the Protection of Personal Information Act 4 of 2013, applications for access to information for discovery proceedings or applications that relate to access in terms of the Promotion of Access to Information Act 2 of 2000.

The Guidelines explain how the Competition Commission handle claims of confidentiality, including the treatment of confidential information to ensure a fair process during any disclosure.

The provisions of the Competition Act grant the right to claim confidentiality, and it should be noted that the disclosure of confidential information is an offence unless it is disclosed for the enforcement of the Competition Act. To be considered valid, a confidentiality claim must include a written statement prepared in the specified format and set out the reasoning for why the information is confidential. The moment a claim for confidentiality is submitted to the Competition Commission, that information is to be treated as confidential until a final determination is made.

When access to confidential information is needed, a party has two options. Firstly, a determination in terms of section 44(9) of the Competition Act concerning access to confidential information, which includes the disclosure of the information to the legal representatives and economic advisors of the person who is seeking access. Secondly, the holder of the confidential information may grant consent or waive the confidentiality to the legal representatives and/or economic advisors, but such consent or waiver is subject to the provision of certain confidentiality undertakings.

How will the Competition Commission assess confidential information?
The Competition Commission will use the definition of confidential information as defined in the Act to determine whether the information claimed is to be considered confidential. The definition is as follows:
“Confidential information means trade, business or industrial information that belongs to a firm, has a particular economic value, and is no[t] generally available to or known by others”

The Competition Commission will look at whether the information belongs to the firm making the claim. The Guidelines state that if only a certain part of the document is confidential, then the party must not claim the entire document as confidential. The Guidelines set out the types of information that will be considered confidential:

• information about a firm’s intellectual property, know-how, trade secrets, techniques, and secret formulas or proprietary processes; 
• a firm’s current pricing strategies and cost structures, including manufacturing, production or marketing costs for its goods or services; 
• information relating to output or the business strategy of a firm;
• financial information such as bank statements, as well as audited annual financial statements, turnover and sales data of unlisted firms; and
• information which, if disclosed, may adversely affect the competitive process in markets.

The Guidelines also include a list of information which will not be considered confidential, such as information that is already publicly available, general information about the company, annual reports of publicly listed firms and information shared with a large group of customers. 

How to claim confidentiality
The claimant must submit Form CC7 together with a written statement which sets out the reasons why the information is confidential. Furthermore, the name of the document which contains confidential information, the page including the line number of the confidential information, the firm owns the confidential information, the economic value of the information, as well as the restrictions on access to the information must be disclosed.

The non-confidential information shall be deemed to form part of the public record, and a member of the public can access this information. It is for this reason that all firms must ensure that their confidentiality claims are specific and accurate.

These Guidelines are not exhaustive, and the Competition Commission has the discretion to consider the issues relating to confidentiality on a case-by-case basis. The Guidelines further states that if more clarity is needed, the participants must approach the Competition Commission for guidance.


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