Presentation Outline

  • Introduction
  • COVID and competition law: beware excessive pricing
  • Merger control and public interest
  • Protections for SMMEs and HDP firms
  • Cartel conduct
  • Competition in the digital economy
  • Questions

Introduction to Competition Law in South Africa

  • On 1 September 2021, the current competition regime has been in place for 22 years.
  • Three independent competition authorities with dedicated roles. Minister of Trade, Industry and Competition has the ability to "participate" in proceedings.
  • Over the years there have been many significant amendments - 2019 introduced a number of further changes.
  • The competition authorities are well established, well resourced and not afraid to use their powers.
  • Three main policy instruments:
    • Merger review;
    • Investigations and prosecution of prohibited practices; and
    • Market enquiries and proposals.
  • Because the authorities are not afraid to use their powers, many cases are settled even though the legal case may not be very strong. This emboldens the authorities further
  • The Competition Commission and Competition Tribunal tend to import a "greater public good" approach in enforcement activities. The Competition Appeal Court takes a stricter approach to the application of the legislation.

COVID and competition law: beware excessive pricing

  • Measures to address "pandemic profiteering" i.e. excessive pricing on essential goods
  • COVID matters prioritized and lots of settlement agreements with firms agreeing to pay fines
  • Food price monitoring reports
  • Block Exemptions (although also note non-COVID related exemption for sugar industry)
  • COVID price gouging regulations (excessive pricing regulations, housed under the Competition Act's abuse of dominance provisions)
  • Babelegi and Dis-Chem excessive pricing cases
    • Excessive pricing assessment of price increases of dust masks by Babelegi (a supplier of industrial wear) and surgical masks by DisChem (a pharmacy chain) during February and March 2020.
    • Price gouging rather a consumer protection issue rather than competition issue?
    • Introduces the concept of temporary dominance - reliance on the ability to increase prices as evidence of dominance (market power).

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