Competition Law in South Africa

Strunz, Balthasar

doi:10.1007/978-3-662-57627-4_5

Balthasar Strunz⁴

Part of the book series: Munich Studies on Innovation and Competition ((MSIC,volume 8))

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Abstract

Before the Competition Act, 1998, competition regulation had neither been government’s priority nor particularly successful. Yet first attempts to introduce competition provisions had been made well before. As early as 1923 the Board of Trade and Industry was ascribed an advisory function to government. In 1944 this board was superseded by a new Board of Trade and Industries, which, however, did not change the fact that its activity was of mere consultatory nature.

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Notes

1.
Republic of South Africa, ‘Board of Trade and Industries Act’, No 28 of 1923.
2.
Republic of South Africa, ‘Board of Trade and Industries Act’, No 19 of 1944.
3.
Republic of South Africa, ‘Regulation of Monopolistic Conditions Act’, No 24 of 1955.
4.
P Sutherland and K Kemp, Competition Law of South Africa (2013) 3-27-28.
5.
On the Act, see JDF Colinese, (1965) 33 (3) S. Afr. J. Econ. 248.
6.
R Legh in M Brassey (ed), Competition Law (2002) 58, 64.
7.
Ibid 65.
8.
Compare OECD, ‘South Africa – Peer Review of Competition Law and Policy’ (2003) 1, 12–13.
9.
P Sutherland and K Kemp, Competition Law of South Africa (2013) 3-30.
10.
B Fine and Z Rustomjee, The Political Economy of South Africa – From Minerals-Energy Complex to Industrialisation (1996) 112.
11.
Ibid 113.
12.
P Sutherland and K Kemp, Competition Law of South Africa (2013) 3-31. This particular wording not only pointed out government’s general hesitancy towards strong competition law but revealed the potential dichotomy between achieving efficiency and accommodating policy concerns.
13.
Ibid 3-31 and 3-33.
14.
Republic of South Africa, ‘Maintenance and Promotion of Competition Act’, No 96 of 1979. See also DJ Mouton and JA Lambrechts, (1982) 15 (1) Finance and Trade Rev. 1.
15.
Republic of South Africa, ‘Maintenance and Promotion of Competition Amendment Act, 1986’, No 5 of 1986. See also B Fine and Z Rustomjee, The Political Economy of South Africa – From Minerals-Energy Complex to Industrialisation (1996) 113.
16.
P Sutherland and K Kemp, Competition Law of South Africa (2013) 3-33-34.
17.
J Gerson, cited by R Legh in M Brassey (ed), Competition Law (2002) 58, 75–76.
18.
Ibid 71.
19.
Ibid 75.
20.
P Sutherland and K Kemp, Competition Law of South Africa (2013) 3-34.
21.
Ibid 3-39.
22.
On the activity and nature of the CB, see D Lewis, Thieves at the Dinner Table: Enforcing the Competition Act (2012) 13ff.
23.
R Legh in M Brassey (ed), Competition Law (2002) 58, 80.
24.
Ibid 81.
25.
Ibid.
26.
B Fine and Z Rustomjee, The Political Economy of South Africa – From Minerals-Energy Complex to Industrialisation (1996) 114.
27.
In the Competition Tribunal’s words, ‘[t]his restructuring effectively meant that SAB sacrificed its wine and spirits interest to CWD [Cape Wine and Distillers Limited] in return for a beer monopoly and a stake in CWD, whilst spirit and wine production was concentrated in the CWD’. Distillers Corporation (SA) Limited and Stellenbosch Farmers Winery Group Ltd 08/LM/Feb02, 19 March 2003 (CT) para 31. See on this below at Sect. 6.1.8.
28.
Ibid para 27.
29.
A Hirsch, Season of Hope – Economic Reform under Mandela and Mbeki (2005) 69.
30.
Ibid 46. See also A Black and S Roberts in J Aron, B Kahn and G Kingdon (eds), South African Economic Policy under Democracy (2009) 211, 216.
31.
R Legh in M Brassey (ed), Competition Law (2002) 58, 84.
32.
With nationalisation off the table, robust antitrust enforcement remained as an ‘alternative robust intervention in the exercise of private property rights’. D Lewis, Thieves at the Dinner Table: Enforcing the Competition Act (2012) 9.
33.
Ibid 10.
34.
In 2006 the five largest South African conglomerates still accounted for 44.6 per cent of the capitalisation of the Johannesburg Stock Exchange. See A Black and S Roberts in J Aron, B Kahn and G Kingdon (eds), South African Economic Policy under Democracy (2009) 211, 227.
35.
The approach to competition regulation was, as qualified by the new government, characterised by an attitude of laxity. Department of Trade and Industry, ‘Proposed Guidelines for Competition Policy – A Framework for Competition, Competitiveness and Development’ (1997) 3.2.1. See also D Lewis, Thieves at the Dinner Table: Enforcing the Competition Act (2012) 38.
36.
See D Lewis in V Dhall (ed), Competition Law Today – Concepts, Issues, and the Law in Practice (2007) 340, 351. Whereas liberalism and libertarianism profoundly shaped the US’s view of how regulators should intervene in markets, the German approach was more inclusive, with market competition forming the base only of a more socially oriented market economy. Compare DJ Gerber, Global Competition – Law, Markets and Globalization (2010) 124ff and 165ff. In contrast, in South Africa economic policies had all been biased towards the Apartheid regime. Because ideology instead of some sort of market-related logic dictated the terms, competition was never attributed value per se.
37.
D Lewis in V Dhall (ed), Competition Law Today – Concepts, Issues, and the Law in Practice (2007) 340, 342.
38.
Compare D Lewis, (2008) 31 (Third quarter) New Agenda 24, 27. Lewis gives, representatively for so many countries, Indonesia as a contrasting example where competition law was enacted not because of a perceived need but because it was conditional for IMF support.
39.
R Legh in M Brassey (ed), Competition Law (2002) 58, 85; D Lewis in V Dhall (ed), Competition Law Today – Concepts, Issues, and the Law in Practice (2007) 340, 341.
40.
D Lewis in V Dhall (ed), Competition Law Today – Concepts, Issues, and the Law in Practice (2007) 340, 340.
41.
D Lewis, ‘David Lewis on Global Competition: Law, Markets, and Globalization’ (2010).
42.
A Hirsch, Season of Hope – Economic Reform under Mandela and Mbeki (2005) 156.
43.
See D Lewis, (2008) 31 (Third quarter) New Agenda 24, 27.
44.
African National Congress, ‘Reconstruction and Development Programme – A Policy Framework’ (1994) 4.1.5.
45.
Ibid 4.4.6.2.
46.
Republic of South Africa, ‘White Paper on Reconstruction and Development’ (1994) Government Notice 1954 in Government Gazette 16085 3.8.2–3.8.3.
47.
R Legh in M Brassey (ed), Competition Law (2002) 58, 83. Of all the current Act’s provisions reflecting social interest, employment is indeed the most often and most intensely debated. See the following analysis.
48.
Compare African National Congress, ‘Growth, Employment and Redistribution – A Macroeconomic Strategy’ (1996) 5.3.
49.
Department of Trade and Industry, ‘Proposed Guidelines for Competition Policy – A Framework for Competition, Competitiveness and Development’ (1997) 1.1.3.
50.
Ibid 2.4.11.
51.
Ibid 4.3.2.
52.
Ibid 1.2.1.
53.
Ibid 4.3.1.
54.
Ibid 1.1.3.
55.
Ibid 4.2.1.
56.
Ibid 4.2.2.
57.
Ibid 4.2.1.2.
58.
Ibid 4.3.1.1.
59.
Ibid 1.3.2–1.3.3.
60.
Ibid 2.4.11.
61.
Ibid 1.4.2.
62.
Ibid.
63.
Republic of South Africa, ‘Competition Bill, 1998’ (1998) Government Notice 841 in Government Gazette 18913.
64.
P Sutherland and K Kemp, Competition Law of South Africa (2013) 3-44.
65.
Republic of South Africa, ‘Competition Bill, 1998’ (1998) Government Notice 841 in Government Gazette 18913 s 1.
66.
Ibid s 2 and s 10.
67.
S 10, which concerns exemptions, got a fourth public interest ground (to one of these grounds the exemption must contribute in order to be granted): the decline of an industry designated by the responsible minister.
68.
Republic of South Africa, ‘Competition Bill, 1998’ (1998) Government Notice 841 in Government Gazette 18913 s 18 (‘Review power of the Minister’). The competition authorities were initially overseen by the minister of the DTI. Later they were moved under the supervision of the EDD.
69.
Compare Republic of South Africa, ‘Competition Bill – Second reading debate’ (1998) Hansard (22.9.1998) 6837.
70.
The Bill’s predecessor document expressly reads that ‘problems arise from the potential power exercised by the Minister’ and that ‘current arrangements politicise decision-making….’ Department of Trade and Industry, ‘Proposed Guidelines for Competition Policy – A Framework for Competition, Competitiveness and Development’ (1997) 3.4.3.
71.
The tug of war during the legislative process for how to integrate public interest had been considerable. Although the Minister had signalled that he would relinquish his right to decide on public interest, it was due to the most coincidental circumstances that during the parliamentary process the Minister’s decisions-making role was not again included and the Bill passed the cabinet unchanged. Reportedly, before a full-blown Cabinet discussion could take place, a bomb explosion in Cape Town prevented any further debate. See D Lewis, Thieves at the Dinner Table: Enforcing the Competition Act (2012) 33 and 44–45. Republic of South Africa, ‘Competition Act, 1998’, No 89 of 1998, s 18 (‘Minister may participate in proceedings’). S 18 has again been changed through a subsequent amendment. Entitled ‘Intervention in merger proceedings’, it today also limits the authorities’ ambit with respect to transactions in the finance sector.
72.
Originally in Republic of South Africa, ‘Competition Act, 1998’, No 89 of 1998, s 16(3). Today ‘Considerations of Mergers’, including the public interest evaluation, is more logically placed as s 12A, which immediately follows the definition of a merger in s 12.
73.
Ibid 2(a)(b).
74.
In the following, reference to the Competition Act refers to its most recent version. Since first coming into effect in 1999, there have been three amendments, comprising Republic of South Africa ‘Competition Amendment Act, 1999’ No 35 of 1999, Republic of South Africa ‘Competition Amendment Act, 2000’ No 15 of 2000 and Republic of South Africa, ‘Competition Second Amendment Act, 2000’, No 39 of 2000. A fourth amendment was adopted and assented to in 2009. Only parts of it have so far come into effect, namely an amendment granting the Commission the right to conduct market enquiries. Other sections such as on personal accountability have still not come into force. Republic of South Africa, ‘Competition Amendment Act, 2009’, No 1 of 2009.
75.
EM Fox, (2000) 41 (2) Harv. Int’l L.J. 579, 585.
76.
See OECD, ‘South Africa – Peer Review of Competition Law and Policy’ (2003) 1, 26.
77.
M Brassey in M Brassey (ed), Competition Law (2002) 1, 18.
78.
B Rutherford, (1999) 11 S. Afr. Mercantile L.J. 300, 309.
79.
Republic of South Africa, ‘Competition Act, 1998’, No 89 of 1998, s 1(3).
80.
Ibid 4, 5 and 8, 9.
81.
In line with the arguments made above on developing country competition law, Sutherland and Kemp argue that per se prohibitions make sense in the South African context where there are limited resources to do a rule of reason analysis. Yet, the ‘rigid statutory distinction’ could cause difficulties. See P Sutherland and K Kemp, Competition Law of South Africa (2013) 5-40.
82.
Republic of South Africa, ‘Competition Act, 1998’, No 89 of 1998, s 4(1)(a). Compare Art 101(3) of the TFEU, which provides for a similar efficiency defence.
83.
See P Sutherland and K Kemp, Competition Law of South Africa (2013) 5-67.
84.
Note that in contrast to South African law most other jurisdictions do not draw a explicit distinction between horizontal and vertical restrictions. See ibid 6-10.
85.
Regarding vertical restrictions, a far more permissive approach is applied than with regard to horizontal agreements, see ibid 6-4.
86.
This happened in the form of Guidelines under s 79 of the Act. See most recent version, Competition Commission, ‘Corporate Leniency Policy’ (2008) Government Notice 628 in Government Gazette 31064.
87.
Ibid 10.
88.
See P Sutherland and K Kemp, Competition Law of South Africa (2013) 5-82(7).
89.
Competition Commission, ‘Corporate Leniency Policy’ (2008) Government Notice 628 in Government Gazette 31064 5.9 and 6.4.
90.
That lawmakers would not adopt a ‘big is bad’ approach was clear from the beginning. Compare African National Congress, ‘ANC Policy Guidelines for a Democratic South Africa’ (1992) D2.1. See also Department of Trade and Industry, ‘Proposed Guidelines for Competition Policy – A Framework for Competition, Competitiveness and Development’ (1997) 4.3.2. See further P Sutherland and K Kemp, Competition Law of South Africa (2013) 7-5.
91.
Republic of South Africa, ‘Competition Act, 1998’, No 89 of 1998, s 7(b).
92.
See also P Sutherland and K Kemp, Competition Law of South Africa (2013) 7-46.
93.
Ibid 7-49.
94.
See D Lewis, Thieves at the Dinner Table: Enforcing the Competition Act (2012) 154.
95.
See P Sutherland and K Kemp, Competition Law of South Africa (2013) 7-104.
96.
Republic of South Africa, ‘Competition Act, 1998’, No 89 of 1998, s 11. There are two thresholds, a lower and a higher one. Being below the lower, in between the two, or above the higher threshold determines as what the merger qualifies. Each threshold is defined by two criteria: the combined annual turnover or asset value of the firms involved and the annual turnover or asset value of the target firm. Both must cumulatively be fulfilled. Thresholds as relevant from 1 April 2009 are for the lower threshold R 560 million of combined turnover/asset value and R 80 million of target turnover/asset value and for the higher threshold R 6,600 million and R 190 million.
97.
Ibid 13, 13A.
98.
Ibid 13(3). Small mergers can, if the parties wish formal approval, always be notified voluntarily, s 13(2).
99.
Ibid 14 and 14A, 16(2).
100.
Ibid 16(1).
101.
Ibid 12A(2).
102.
Ibid 12(1)(a)(i).
103.
OECD, ‘South Africa – Peer Review of Competition Law and Policy’ (2003) 1, 17. Today, in most Southern African countries public interest plays a role in merger enforcement. See M Burke and others, ‘Cross-cutting Competition Issues in Regional Industrial Development’, African Industrial Development and Integration Research Programme (AIDIRP) (2017).
104.
Republic of South Africa, ‘Competition Act, 1998’, No 89 of 1998, s 18(1).
105.
Intervention is not limited to the Minister. Before the Commission it extends to trade unions and employees. Before the Tribunal it also extends to third intervenors if they have a material interest in the matter. See Department of Trade and Industry, ‘Rules for the Conduct of the Proceedings in the Competition Commission’ (2001) s 35, 37. Department of Trade and Industry, ‘Rules for the Conduct of the Proceedings in the Competition Tribunal’ (2001) s 29, 46.
106.
Republic of South Africa, ‘Competition Act, 1998’, No 89 of 1998, s 60.
107.
See in particular Republic of South Africa, ‘White Paper on Reconstruction and Development’ (1994) Government Notice 1954 in Government Gazette 16085.
108.
D Lewis in V Dhall (ed), Competition Law Today – Concepts, Issues, and the Law in Practice (2007) 340, 358.
109.
If in Europe the goal of economic integration was a major impetus for common competition law, one may indeed ask why overcoming its racial past should not be a driver for South African competition law. See P Sutherland and K Kemp, Competition Law of South Africa (2013) 4-3.
110.
This wording sufficed to prompt Dr W J Botha, member of the Extended Public Committee, during the discussion of the Competition Bill to state the following: ‘I want to ask the ANC to stop being the eternal martyr now. They must stop whining and complaining and accept responsibility for their work in a professional way. They must break away from this old style and please grow up.’ Prof B Turok subsequently responded: ‘Dr Botha is tired of the ANC complaining about apartheid. Can he imagine how tired we were of the hypocrisy and dishonesty of the old regime, of the constant talk … about how apartheid was not apartheid, of how everybody was being treated fairly and equally? Can he imagine how sick to death we were of all those lies?’ Republic of South Africa, ‘Competition Bill – Second reading debate’ (1998) Hansard (22.9.1998) 6846 and 6852.
111.
Republic of South Africa, ‘Competition Act, 1998’, No 89 of 1998, s 2(a), (b).
112.
Ibid 2(c)–(f).
113.
EM Fox, (2000) 41 (2) Harv. Int’l L.J. 579, 586.
114.
Compare P Sutherland and K Kemp, Competition Law of South Africa (2013) 4-4. The authors contend that despite the fact that puristic competition law might by some have been preferred, there is now no ‘choice but to grapple with a multitude of goals. The Act with its range of goals was born out of dramatic events from which it cannot be isolated.’
115.
On concrete interpretation, see further below.
116.
See M Brassey in M Brassey (ed), Competition Law (2002) 1, 2. The author contends that the primary position of the promotion of efficiency and competitive prices in the Act’s purpose in s 2 is well reflected by case law in terms of how much importance the authorities ascribe to it.
117.
EM Fox, (2000) 41 (2) Harv. Int’l L.J. 579, 587. Any obligation to fulfil public interest conditions raises transaction costs that ultimately bears the consumer.
118.
Considering a current unemployment rate among those under 25 of over 50 per cent, the argument to do so does not weigh little. See ‘Muddle Through Will no Longer Do’ The Economist (1 June 2013).
119.
On Sasol case law, see below at Sect. 6.1.3.2. The examples given are by no means conclusive. For more case law, see P Sutherland and K Kemp, Competition Law of South Africa (2013) 4-13.
120.
See at Sect. 6.1.5.2.2.
121.
See at Sect. 6.3.2.1.1.10.
122.
See P Sutherland and K Kemp, Competition Law of South Africa (2013) 4-5. The authors argue that ‘[b]oth the preamble and section 2 will be important in interpreting the Act and the entire corpus of competition law, whether substantive or procedural, must be developed with reference to the underlying objectives of the Act. They also quote the Judge President of the Competition Appeal Court, Dennis Davis, who in a non-competition case argued for a ‘purposive approach [which] represents the most appropriate within the interpretive repertoire in order to guide the process of interpretation.’ Ibid 4-14.
123.
See on this ibid 4-16.
124.
Republic of South Africa, ‘Competition Act, 1998’, No 89 of 1998, s 10(4) and 10(1)-(3). An exemption can further be applied for by professional associations, where potential losses in efficiency are accepted for maintaining professional standards or the ordinary functioning of a profession. Compare Schedule 1 Part A to the Act.
125.
The term ‘category’ gets closest to what under European law would be termed block exemption.
126.
Republic of South Africa, ‘Competition Act, 1998’, No 89 of 1998, s 10(3)(a).
127.
Compare N Mackenzie and S Langbridge, ‘Understanding Public Policy Exemptions’ (2011), talk given at Fifth Annual Conference on Competition Law, Economics & Policy, Johannesburg, University of Johannesburg, 4–5 October 2011, 12. Since at the time of writing there had just been one single Tribunal decision on exemptions, interpretation of s 10 still amounts to poking around in the dark. Only two questions the Tribunal has clarified. It remarked that, somewhat self-suggesting, the analysis of s 10(3)(b), which contains the ‘contribution’ requirement and the specific exemption grounds, should precede analysis of paragraph s 10(3)(a), which provides for the ‘requirement’ condition. It also held that ‘restriction’ in s 10(3)(a) could only mean restriction of competition, not restriction in an unqualified sense. See Gas2Liquids (Pty) Ltd v Competition Commission and Others 013607, 23 January 2013 (CT) paras 20 and 22. See on this case at Sect. 6.3.1.2.4.
128.
N Mackenzie and S Langbridge, ‘Understanding Public Policy Exemptions’ (2011), talk given at Fifth Annual Conference on Competition Law, Economics & Policy, Johannesburg, University of Johannesburg, 4–5 October 2011, 13.
129.
Republic of South Africa, ‘Competition Act, 1998’, No 89 of 1998, s 4(1)(a), 5(1).
130.
OECD, ‘South Africa – Peer Review of Competition Law and Policy’ (2003) 1, 22.
131.
However according to s 58(2) of the Act, the Competition Tribunal ‘[a]t any time … may adjourn a hearing for a reasonable period of time, if there is reason to believe that the hearing relates to a prohibited practice that might qualify for exemption in terms of section 10.’ This confirms that even if the Commission is not willing to consider exemption grounds, the Tribunal can again review such a decision. Certainly, the Tribunal gets to assess the case only if referred to it by the Commission or a decision to not refer is challenged by the complainant. See Republic of South Africa, ‘Competition Act, 1998’, No 89 of 1998, s 49B, 50 and 51.
132.
J Wilson in M Brassey (ed), Competition Law (2002) 286, 315.
133.
See D Unterhalter in M Brassey (ed), Competition Law (2002) 180, 194.
134.
Republic of South Africa, ‘Competition Act, 1998’, No 89 of 1998, s 6-9.
135.
P Sutherland and K Kemp, Competition Law of South Africa (2013) 11-9.
136.
N Mackenzie and S Langbridge, ‘Understanding Public Policy Exemptions’ (2011), talk given at Fifth Annual Conference on Competition Law, Economics & Policy, Johannesburg, University of Johannesburg, 4–5 October 2011, 5.
137.
See discussion of various exemption applications at Sect. 6.3.1.
138.
See N Mackenzie and S Langbridge, ‘Understanding Public Policy Exemptions’ (2011), talk given at Fifth Annual Conference on Competition Law, Economics & Policy, Johannesburg, University of Johannesburg, 4–5 October 2011, 13–14. The authors argue that due to the prevalence of export cartels inclusion of the promotion of exports in s 10 is unsurprising.
139.
Compare case of Western Cape Citrus Producers Forum at Sect. 6.3.1.1.3.
140.
N Mackenzie and S Langbridge, ‘Understanding Public Policy Exemptions’ (2011), talk given at Fifth Annual Conference on Competition Law, Economics & Policy, Johannesburg, University of Johannesburg, 4–5 October 2011, 15.
141.
Compare UNCTAD’s definition of productive capacities. Available at http://archive.unctad.org/templates/page.asp?intItemID=3894&lang=1.
142.
Compare N Mackenzie and S Langbridge, ‘Understanding Public Policy Exemptions’ (2011), talk given at Fifth Annual Conference on Competition Law, Economics & Policy, Johannesburg, University of Johannesburg, 4–5 October 2011, 16.
143.
OECD, ‘South Africa – Peer Review of Competition Law and Policy’ (2003) 1, 22.
144.
Because the drafting of s 12(A)(1) was a key issue in the Harmony case, the Tribunal described the order of evaluation precisely: ‘All mergers must first be subject to a competition evaluation. … Two possible outcomes flow from this. If the merger is not found to lessen competition we follow the path set out in sub-section (b). This merger can thus be considered as having passed the competition inquiry. If the merger is found to be anti-competitive … then the next stages enumerated in sub-section (a) follow. First one performs the efficiency trade-off required by (a)(i). This inquiry again can have two outcomes. The efficiency trade-off can be greater than and offset the anti-competitive effects in which case the merger can again be considered to have passed the competition inquiry and be on all fours with the merger that followed the path of subsection (b). If the efficiency trade-off does not redeem the merger then the merger emerges from the competition enquiry as having a net harm to competition.’ Harmony Gold Mining Company Limited and Gold Fields Limited 93/LM/NOV04, 18 May 2005 (CT) 41, 42. See also below at Sect. 6.3.2.1.1.5.
145.
See on this the Commission’s guidelines, Competition Commission, ‘Guidelines on the Assessment of Public Interest Provisions in Merger Regulation Under the Competition Act No. 89 of 1998 (as Amended)’ (2015) paras 5.5–5.6.
146.
P Sutherland and K Kemp, Competition Law of South Africa (2013) 10-92.
147.
Harmony Gold Mining Company Limited and Gold Fields Limited 93/LM/NOV04, 18 May 2005 (CT) para 55.
148.
Ibid para 56.
149.
Shell South Africa (Pty) Ltd and Tepco Petroleum (Pty) Ltd 66/LM/Oct01, 12 February 2014 (CT) paras 37 and 38.
150.
Distillers Corporation (SA) Limited and Stellenbosch Farmers Winery Group Ltd 08/LM/Feb02, 19 March 2003 (CT) para 214.
151.
Anglo American Holdings Ltd and Kumba Resources Ltd 46/LM/Jun02, 23 October 2002 (CT) para 138.
152.
See P Sutherland and K Kemp, Competition Law of South Africa (2013) 10-93.
153.
Harmony Gold Mining Company Limited and Gold Fields Limited 93/LM/NOV04, 18 May 2005 (CT) para 33.
154.
A positive public interest evaluation would be possible, too. This, however, would not lead to an overall assessment contrary to the foregoing competition assessment.
155.
Harmony Gold Mining Company Limited and Gold Fields Limited 93/LM/NOV04, 18 May 2005 (CT) para 46.
156.
Ibid para 35.
157.
Ibid para 59.
158.
Compare Distillers Corporation (SA) Limited and Stellenbosch Farmers Winery Group Ltd 08/LM/Feb02, 19 March 2003 (CT).
159.
Harmony Gold Mining Company Limited and Gold Fields Limited 93/LM/NOV04, 18 May 2005 (CT) para 54. To give an example, the Tribunal argued, that a merger could, on the one side, cost jobs and hence be public interest negative (s 12(A)(3)(b)), and, on the other side, lead to the creation of a national champion and therefore be public interest positive, too (s 12(A)(3)(d).
160.
Note though that the same ground can also be raised on both sides. Tiger Brands Ltd and Langeberg Foods International Ashton Canning Company (Pty) Ltd 46/LM/May05, 23 November 2005 (CT) paras 132–133.
161.
Distillers Corporation (SA) Limited and Stellenbosch Farmers Winery Group Ltd 08/LM/Feb02, 19 March 2003 (CT) para 217.
162.
Ibid para 219.
163.
Ibid para 221.
164.
Compare P Sutherland and K Kemp, Competition Law of South Africa (2013) 10-95.
165.
In early 2015 the Commission published its first guidelines on the public interest regime. See Competition Commission, ‘Guidelines on the Assessment of Public Interest Provisions in Merger Regulation Under the Competition Act No. 89 of 1998 (as Amended)’ (2015).
166.
See at Sect. 6.3.2.
167.
Compare remarks of OECD, ‘South Africa – Peer Review of Competition Law and Policy’ (2003) 1, 34.
168.
See for instance JD Group Limited and Ellerine Holdings Limited 78/LM/Jul00, 30 August 2000 (CT) at 32.
169.
Ibid at 31.
170.
R Legh in M Brassey (ed), Competition Law (2002) 269, 275.
171.
P Sutherland and K Kemp, Competition Law of South Africa (2013) 10-93.
172.
Republic of South Africa, ‘Competition Act, 1998’, No 89 of 1998, s 14(1)(b)(ii), 14A(1)(b)(ii).
173.
JD Group Limited and Ellerine Holdings Limited 78/LM/Jul00, 30 August 2000 (CT) at 33.
174.
See P Sutherland and K Kemp, Competition Law of South Africa (2013) 10-93.
175.
D Lewis in V Dhall (ed), Competition Law Today – Concepts, Issues, and the Law in Practice (2007) 340, 359.
176.
In a merger case the Tribunal discarded this argument, because the parties had failed to demonstrate this outcome. The Tribunal described the parties’ argument as tantamount to ‘arguing a failing firm defence through the back door when it was unsustainable through the front door. Just as much as the failing firm defence requires the merging firms to show that there is no more preferable buyer for the merging firm, so under public interest they need to show that no one else would be willing to buy [the failing firm].’ It thus left open the possibility to invoke any of the criteria in the form of a failing firm defence. See Tiger Brands Ltd and Langeberg Foods International Ashton Canning Company (Pty) Ltd 46/LM/May05, 23 November 2005 (CT) para 135. See also Lonmin Plc and Southern Platinum Corp 41/LM/May05, 22 July 2005 (CT) para 13.
177.
T Webb, ‘South Africa Finalises Public Interest Guidelines’, Global Competition Review (2016).
178.
Competition Commission, ‘Guidelines on the Assessment of Public Interest Provisions in Merger Regulation Under the Competition Act No. 89 of 1998 (as Amended)’ (2015) para 1.2.
179.
Ibid para 6.1.
180.
Ibid paras 8.1.1.2–8.1.1.3.
181.
Ibid paras 8.1.1.4–8.1.1.5.
182.
Ibid paras 8.1.2.4–8.1.2.6.
183.
Ibid para 8.1.3.1.
184.
Ibid para 8.1.4.4.
185.
Ibid para 8.1.5.2.
186.
D Lewis, (2008) 31 (Third quarter) New Agenda 24, 29 and 30.
187.
Ibid 30.
188.
Especially the interplay of the Competition Tribunal and the Appeal Court should become a crucial element in interpreting the law.
189.
Republic of South Africa, ‘Competition Act, 1998’, No 89 of 1998, s 20(1).
190.
Ibid 21(1)(c), (e).
191.
Ibid 21(1)(d).
192.
Ibid 21(1)(f), 49D.
193.
Ibid 21(1)(b).
194.
Ibid 27(1)(a), (c), 10(8), 16(1)(a).
195.
Ibid para 58(1)(b).
196.
Ibid 49C.
197.
Ibid 62(3).
198.
Ibid 36(1).
199.
Ibid 37(1).

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Balthasar Strunz

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Balthasar Strunz
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Strunz, B. (2018). Competition Law in South Africa. In: The Interface of Competition Law, Industrial Policy and Development Concerns. Munich Studies on Innovation and Competition, vol 8. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-57627-4_5

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DOI: https://doi.org/10.1007/978-3-662-57627-4_5
Published: 29 July 2018
Publisher Name: Springer, Berlin, Heidelberg
Print ISBN: 978-3-662-57626-7
Online ISBN: 978-3-662-57627-4
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