Authored by Marianne Wagener & Adriaan Lourens.
Competition authorities are increasingly looking for new tools to detect and prosecute cartels. Corporate leniency programmes have long been the primary mechanism for obtaining evidence of cartel conduct. Under these programmes, a firm involved in a cartel voluntarily discloses its involvement to the competition authority, provides evidence, and cooperates fully with the investigation. In return, the firm receives immunity or a substantial reduction in administrative penalties.
However, in recent years, corporate leniency applications have declined significantly across jurisdictions.
Why are leniency programmes losing their appeal?
Leniency may protect an applicant from competition law penalties, but it does not shield them from follow-on civil claims brought by third parties who suffered loss as a result of the cartel. With follow-on civil litigation on the rise globally, leniency has become less attractive: a leniency application is effectively an admission of liability, which claimants can use against the applicant in subsequent civil damages proceedings. The exposure to civil damages can be substantial.
Another weakness is exposure to personal criminal liability. In several jurisdictions, including South Africa, criminal sanctions may be imposed on directors and executives involved in cartel conduct, with the risk of substantial fines or imprisonment. Such individuals may resist a corporate leniency application to protect themselves from potential criminal prosecution.
For multinationals involved in global cartels, leniency applications may need to be filed simultaneously in multiple jurisdictions, each with distinct requirements, timelines, and obligations. Leniency may be unavailable in some jurisdictions, which creates the risk that evidence from one jurisdiction may be used against the applicant elsewhere.
The consequences of declining leniency applications
The combined effect of these issues has led to a significant decline in leniency applications globally, which in turn has weakened cartel enforcement. Without the insider evidence and witness testimony that leniency applicants typically provide, competition authorities must rely on more resource-intensive and less effective tools, such as dawn raids, surveillance, and data analytics, to detect cartels.
While competition law awareness has increased in recent years and firms have invested in compliance, experience suggests that some firms still resort to anti-competitive behaviour in difficult economic times. Cartels have become more sophisticated in concealing their conduct, and the reduced incentive to self-report means less anti-competitive conduct is coming to light.
The United States Whistleblower Programme: a new approach
In response to these challenges, the United States Department of Justice's Antitrust Division has announced a significant new detection tool: the Antitrust Whistleblower Rewards Programme.
The programme offers cash rewards to individuals (not companies) who voluntarily come forward with original information about suspected antitrust violations, such as price fixing, bid rigging, or market allocation. The programme was formally established through a Memorandum of Understanding with the United States Postal Service and requires that the antitrust violation has some connection to postal activity. However, early indications suggest that the authorities will interpret this requirement broadly. The first payout under the programme, made in early 2026, suggests that the programme will extend across most of the US economy.
To qualify, an individual must provide information not already known to the authorities and not received through privileged communications. The alleged violation must ultimately result in a criminal fine or recovery of at least one million US dollars.
The financial incentive is substantial. Whistleblowers may receive between 15% and 30% of the fine recovered. Given that US antitrust fines can reach hundreds of millions of dollars, potential rewards are exceptionally large.
The programme is gaining traction. Awards have already been made in 2026, and the US authorities have reported substantial interest from potential whistleblowers. US law firms are also actively marketing their services to prospective whistleblowers with some offering representation on a contingency-fee basis.
While whistleblower programmes may be welcomed by competition authorities, they introduce new risks for businesses. Concerns include retaliatory reporting by disgruntled employees and the risk that employees may report externally rather than internally, depriving the firm of the chance to address the conduct itself.
If this new US programme proves successful, other jurisdictions may follow suit and introduce similar programmes.
The South African position
South Africa's whistleblower protection regime is governed primarily by the Protected Disclosures Act, 2000, which protects employees who disclose unlawful or irregular conduct by their employers. There is currently no whistleblowing programme in South Africa specifically designed for competition law reporting.
South Africa's whistleblower framework also does not currently provide financial rewards to informants. The Zondo Commission criticised this gap and recommended legislation for better whistleblower protection and possible awards.
In response, the Protected Disclosures Bill was published for comment in April 2026. Its key reforms include criminal liability for revealing a whistleblower's identity, state-funded legal assistance, and financial incentives for successful disclosures. The Bill is aimed at corruption rather than competition law. Even so, it signals a shift in approach and could pave the way for a competition-law-specific programme in the future.
A competition-law-specific whistleblower programme could become an important detection tool for the South African Competition Commission. International practice shows that financial incentives materially increase reporting. Such a programme could also complement, rather than replace, the corporate leniency regime by targeting individuals whose employers choose not to self-report. Appropriate safeguards against false reporting would, however, be essential.
What should firms be doing now?
Whistleblower programmes may represent the next wave of robust cartel enforcement. To prepare, firms should invest in practical, well-resourced compliance programmes that are refreshed regularly, and foster a culture of compliance throughout the organisation. Robust and defensible internal reporting channels should be established.
Firms should also give careful consideration to information management, access controls and data retention, and to how these may impact their exposure to competition law risk.
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