Update on exemptions and block exemptions – Part 2 of the Sugar Master Plan and Ports, Rail and Key Feeder Road Corridors

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By Michael-James Currie, Tyla Lee Coertzen and Astra Christodoulou

The South African Competition Commission (“the Commission”) had a busy year with regard to exemptions and block exemptions. The South African Competition Act 89 of 1998 (as amended) (the “Act”) permits for exemptions to be granted by the Commission in terms of section 10 upon application by a firm. The Commission’s exemption procedure is applicable only to prohibited practices contained in Chapter 2 of the Act in order to permit certain practices that would otherwise be prohibited (such as certain agreements and concerted practices or categories of agreements and practices and rules of trade associations) if it is required to achieve certain identified socio-economic gains.

The Act allows for two ways in which an exemption may be obtained:

  1. Under section 10(3) of the Act, the Commission may exempt an agreement or category of agreements, from Chapter 2 of the Act if the agreement is required for gains in terms of maintaining or promoting exports, the promotion of a small business or firms controlled by historically disadvantaged persons, changing the productive capacity in order to stop a decline in a specific industry, maintaining economic stability in a specific industry and efficiencies that would promote employment or expansion in an industry.
  2. Under section 10(10) of the Act, the Minister of the Department of Trade, Industry and Competition (“DTIC“) (the “Minister”) may, after consultation with the Commission, issue regulations exempting a specific category of agreements or practices, upon issuance of regulations.

Block exemptions regulated by section 10(10) are increasingly being used by firms as a means of effectively responding to economic and industrial challenges on the one hand while ensuring compliance with what is permitted by the Act on the other.

Block exemptions commonly utilise an ‘in scope confirmation’ measure which ensures that any conduct sought to be engaged in with reference to the block exemption is specifically confirmed by the Commission to fall within the bounds of the exemption, in order to ensure legal certainty as well as to ensure that the conduct will not have a negative effect on consumer welfare and the object of the Act.

Two recent notable block exemptions are elaborated on below.

Ports, Rail and Key Feeder Road Corridors

The Ports, Rail and Key Feeder Road Corridors block exemption came into effect by publication in the Government Gazette on 8 May 2025. The focus of this exemption was to allow key players in the logistics sector to collaborate in a manner that is prohibited by the Act. The exemption was set to allow conduct ordinarily prohibited by section 4(1)(a), 4(1)(b)(i) and (ii) as well as 5(1) of the Act.

The exemption is aimed at assisting the logistics industry through the following envisaged outcomes:

  • reduce the costs associated with infrastructural development and improving services for the benefit of consumers;
  • minimise operational losses and increase infrastructural capacity
  • prevent and mitigate the bottleneck effect that is currently faced in the supply chain, caused by inefficiencies in the sector; and
  • support the security of the movement of goods through South Africa.

Importantly, however, while the block exemption allows for collaboration in terms of section 4(1)(b) of the Act (which places per se prohibitions on price fixing, market division and collusive tendering). The regulations expressly prohibits any arrangements between industry players that would result in price fixing, market division and collusive tendering in respect of selling prices of goods and services to customers and consumers. The block exemption also excludes any discussion which would result in the foreclosure of third-party new entrants, small and medium enterprises and firms owned by historically disadvantaged persons, agreements or practices that are in conflict with sectoral legislation or policy, any conduct that would result in resale price maintenance and any merger transaction.

The exemption has been set to operate for the next 15 years (until year 2040). This period can only be extended by the Minister by way of notice in the Government Gazette.

As is prevalent in many block exemptions, prior to engaging in any such arrangement, any relevant firm must first apply to the Commission in writing, confirming that the specific conduct or agreement is covered by the exemption. Following the Commission’s ‘in scope confirmation’ the firm will be in the clear to engage in the agreement or practice.

Sugar Master Plan

On 13 August 2025, Phase 2 of the Sugar Master Plan (the “Plan”) was finalised and published in the Government Gazette by the Minister, which follows from the implementation of Phase 1 of the Plan on [available here], which laid the foundations for stability and growth in the sugar sector.

The creation of the Plan had stemmed from a number of challenges faced in the sugar industry in South Africa. Specifically, the Sugar Master Plan was developed to promote employment in the South African sugar industry, restructure and balance industry capacity and reduce industrial inefficiencies, enhance transformation of the industry by promotion of broad-based participation in the value chain for workers, and historically disadvantaged persons and prevent further players from exiting the market. The Plan had come into fruition through an exemption granted to the South African Sugar Association by the Commission to enable its members to collaborate. Through this exemption, the Plan was born.

The Plan was scheduled to operate on a phased approach, with Phase 1 being focussed on restructuring and establishing a foundation for diversification. Phase 1 commenced in 2020 concluded in March 2023.

Following the conclusion of Phase 1, industry players subsequently approached the Minister to request a block exemption in terms of section 10(10) of the Act to engage in agreements and practices essential for implementing Phase 2.

The block exemption allows for sugar cane farmers and millers to negotiate, within defined parameters, with commercial food and beverage producers, resulting in prioritising local procurement of sugar over imports. It further allows local farmers and millers to negotiate amongst themselves in order to promote growth through diversified products. Similar to the example mentioned above, the block exemption specifically excludes the fixing of selling prices, market allocation, and collusive tendering in respect of goods and services sold to end consumers (prohibited per se by section 4(1)(b) of the Act) as well as resale price maintenance of goods and services sold to end consumers (prohibited by section 5(2) of the Act).

The block exemption, which will operate for a period of 5 years, also includes a mechanism for in scope confirmation by the Commission, ensuring that all arrangements being entered into by industry players is effectively scrutinised by the Commission and confirmed to fall within the parameters of the block exemption.

The block exemption will allow for joint planning, inclusive decision-making, and stability in the sector, protecting thousands of local jobs in KwaZulu-Natal and Mpumalanga. The exemption will help combat imported sugar flooding the market and ease the strain caused by the Health Promotion Levy (“sugar tax”) on the farmers. The Master Plan aims to reduce the total annual losses caused to the industry of roughly R2 billion.

Conclusion

The use of block exemptions granted by the Minister and monitored by the Commission is becoming increasingly prevalent in South Africa and underscores South Africa’s competition law objectives being applied in a manner which allows flexibility to support industrial policy, economic growth and South Africa’s transformation objectives, while ensuring that no practices fall foul of the Act and well-established competition policy.

Michael-James Currie, director at Primerio says, “Block exemptions are likely to remain an important regulatory tool in South Africa and where exemptions are properly utilised, they provide industry players a pragmatic mechanism and legal certainty with regards to engagements with competitors in the pursuance of broader socio-economic objectives.”

Competition and Consumer Protection enhanced through EAC-COMESA Collaboration

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By Andreas Stargard and Nicole Araujo

In addition to the massive changes occurring in the world of COMESA and its newly-styled COMESA Competition and Consumer Commission, on which we reported here and here, the East African Community Competition Authority (“EACCA”) and the (then) COMESA Competition Commission (“CCC”) had formalised their cooperation on regional competition and consumer protection through a Memorandum of Understanding (“MoU”) back in June 2025.

We wish to return briefly to this development, as it marked a significant effort by the two (potentially competing and decidedly geographically overlapping) regional bodies to address regulatory gaps that emerge where commercial activity extends across multiple regions, but regulatory authority remains confined by jurisdictional limits.

In essence, the MoU aims to strengthen collaboration between the two regional bodies on competition and consumer protection enforcement and creates a practical framework for coordinating cross-border cases and joint investigations into unfair market practices. This coordination will enable effective information sharing in the context of joint investigations, assist in carrying out market inquiries and studies, support technical assistance and capacity-building initiatives, while also helping to avoid duplication in enforcement efforts.

Recognising the need for streamlined coordination, the EACCA and CCC have committed to implementing annual action plans and to reviewing relevant regulations and guidelines to ensure their effectiveness and alignment across the two regional bodies.

The MoU between the EACCA and the CCC represents an important institutional step toward more coherent regional competition and consumer protection enforcement in Africa. While enhanced cooperation, information-sharing and coordinated investigations are necessary to address cross-border conduct, the practical impact of the MoU will depend on effective implementation and sufficient resourcing of both authorities. Ultimately, the success of this cooperation framework will be measured not by its formal commitments, but by whether it delivers predictable, efficient enforcement outcomes that strengthen market integration while safeguarding competition and consumer welfare across the region.

To intervene or not to intervene: a twisted tale in Pepkor’s proposed acquisition of Shoprite’s furniture business

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By Michael-James Currie and Joshua Eveleigh

Participation by third parties in merger control proceedings has long been a fundamental aspect of South Africa’s merger control regime. In this regard, section 53(c)(v) of the Competition Act, 89 of 1998 (“Act”) broadly permits that that any person whom the Tribunal has recognized as a “participant” in a merger hearing, may “participate” in that hearing.

The scope of section 53(c)(v), however, has recently been ventilated before the Tribunal, Competition Appeal Court (“CAC”) and the Constitutional Court (i.e., South Africa’s top court) in respect of Lewis Stores (Pty) Ltd’s (“Lewis”) application to intervene in the proposed merger between Pepkor Holdings Limited (“Pepkor”) and Shoprite Holdings Limited (“Shoprite”) (collectively, the “Merging Parties”)(“Proposed Transaction”).

Background

In brief, the Proposed Transaction relates to Pepkor’s acquisition of the furniture business of Shoprite, consisting of OK Furniture and House & Home retail brands, which will subsequently be incorporated into Pepkor’s existing furniture, bedding and plugged goods retail business.

As part of its investigations, the South African Competition Commission (“SACC”) found that the Proposed Transaction would give rise to horizontal overlaps in the supply of:

  • Furniture products; and
  • Bed sets and mattresses.

The SACC also received concerns about the potential effects of the Proposed Transaction from different market participants, including Lewis. Nevertheless, the SACC found that there would continue to be several alternatives within the product markets which would serve as a competitive constraint against the merged entity post-implementation. It was on this basis that the SACC concluded that the Proposed Transaction would not give rise to a substantial lessening or prevention of competition (“SLC”) and recommended that the Proposed Transaction be approved, subject to public interest commitments.

Lewis’s basis for intervening

During the Tribunal’s consideration of the Proposed Transaction, Lewis brought its application to intervene in the Proposed Transaction on the basis that:

  • Shoprite will be removed as a key competitive constraint on Pepkor and, therefore, resulting in a 3-to-2 merger at the national level in relation to the retail of household furniture; and
  • that the Proposed Transaction will likely result in increased provided for low-to-middle-income consumers.

Lewis also submitted that the SACC did not properly consider the effects that the Proposed Transaction would have on different local geographic markets and, concomitantly, whether any SLC would arise within those specific catchment areas.

Accordingly, Lewis argued that in its capacity as the only national furniture retail chain that competes with both Pepkor and Shoprite on a national basis, it has important knowledge and insights into the furniture retail industry which would assist the Tribunal in assessing the Proposed Transaction.

Tribunal’s reasons for permitting Lewis’s intervention

Lewis’s application to intervene was brought in terms of section 53(c)(v) of the Act, read with rule 46 of the Rules for the Conduct of Proceedings in the Competition Tribunal (“Tribunal Rules”).

Tribunal Rule 46(1) provides that any person who has a “material interest” in the relevant matter may apply to intervene in the Tribunal proceedings.

Importantly, the Tribunal nevertheless stated that an intervening party is not entitled to rights that would “displace or supplant” the role of the SACC. Rather, the Tribunal must assess whether the intervening party would be able to assist it in understanding whether the Proposed Transaction gives rise to an SLC or adverse public interest effects.

In this regard, the Tribunal summarized the three-fold test required for a successful intervention application. In this regard, the Tribunal must consider whether the information to be provided by the proposed intervenor:

  • relates to matters within the Tribunal’s jurisdiction;
  • is not already available to the Tribunal; and
  • whether the potential benefits of such assistance outweigh any adverse effects the intervention might have on the speed and resolution of the proceedings.

The Tribunal must also inquire as to whether the intervenor will provide the Tribunal with meaningful assistance for its purposes of assessing the competition and public interest effects of the particular transaction.

In assessing Lewis’s application, the Tribunal found that there are significant and material disputes of fact that have to be ventilated for the Tribunal to understand the relevant market dynamics and that Lewis could assist the Tribunal in this regard.

Accordingly, the Tribunal permitted Lewis as an intervening party on the basis that it demonstrated its ability to provide “significant and material evidence” on the:

  • nature of competition in the market(s);
  • closeness of competition, and
  • characterisation of regional or localised markets.

The Tribunal did, however, limit the scope of Lewis’s intervention rights on the relevant market definitions and whether the Proposed Transaction is likely to lead to an SLC. Lewis was also admitted to assist the Tribunal in respect of potential remedies and/or the imposition of any conditions that might be imposed.

The CAC’s assessment of merger intervention rights

While there were several aspects of the Merging Parties appeal to the CAC, one of the substantive concerns raised was the Tribunal’s supposed outsourcing of the SACC’s functions in merger hearings to Lewis, as an intervenor. This is particularly because the Tribunal granted Lewis with broad powers including: rights to participate in all prehearing conferences; full discovery rights; the right to require the Tribunal to summon people and documents; full participation rights in any and all interlocutory proceedings; the right to adduce evidence and present argument and the right to cross examine any witnesses; the right for Lewis’s legal and economic advisors to access the merger record and all documents filed.

Considering the extensive rights afforded to Lewis, the CAC stated that the scope of rights afforded to Lewis would “retard an expeditious hearing”. The CAC also went on to state that:

“In the light thereof and in the required balancing exercise, this Court must surely take account of these factors together with the possible vested interest of a competitor in the merger proceedings to slow matters down in order to subvert the merger. It must then be satisfied that the contribution which a respondent can bring to the proceedings meets the test laid down by this Court. In particular, that the respondent has shown that it has unique knowledge of the market and can provide evidence in relation to the overall enquiry as to whether a merger should be permitted in order to justify admission.” (own emphasis)

On the latter inquiry, and after a review of Lewis’s affidavits, the CAC found that Lewis had not demonstrated that it was in possession of evidence which would not otherwise be available to the Tribunal after requiring further assistance from the SACC and would assist the Tribunal in understanding the effects of the Proposed Transaction. 

Accordingly, the CAC found that the Tribunal’s reasons for admitting Lewis as an intervenor:

  • did not properly consider to what extent Lewis was likely to assist the Tribunal in circumstances where the information and evidence it was intending to provide could not have been obtained elsewhere; and
  • failed to find a balance between an order which did not undermine the objective of an expeditious resolution of the matter, the interests of the Merging Parties to an expeditious hearing as compared to the value of Lewis’s contribution to the Tribunal.

Importantly, the CAC also confirmed that orders by the Tribunal which relate to applications for intervention are ‘final’ in nature and are subject to appeal.

In sum, the CAC set aside the Tribunal’s order and dismissed Lewis’s application to intervene, stating that:

“It must be emphasised that the approach adopted in this judgment does not represent the end of the road for the respondent. The Tribunal possesses inquisitorial powers. It is more than entitled to summon the respondent to appear before it to provide it with any information and argument relevant to this proposed merger. It also has the power in terms of its inquisitorial powers to require the [SACC] to gather and present additional evidence in relation to the topics which it identified; being market shares, the effects of the merger on specified identified local markets and the role of online sales and economic surveys, demand side analyses of consumer preference. These are matters which clearly represent the kind of investigations that should be undertaken by the [SACC]. It has been alerted to the type of investigations which the Tribunal requires in the reasons provided by the Tribunal. To the extent that the [SACC] or the Tribunal considers that the respondent could be of assistance in this regard it could require the respondent to provide it with further evidence which would be of assistance.”

Further and final appeal to the Constitutional Court

Following the CAC’s order, Lewis approached the Constitutional Court on an urgent basis.

The central tenet of Lewis’s appeal to the Constitutional Court is that the CAC had effectively imposed a new and burdensome threshold for intervention applications for purposes of section 53 of the Act. In brief, Lewis submits that the CAC required that the potential intervenor’s material interest and ability to assist the Tribunal in a proposed transaction was insufficient and that the intervenor must rather demonstrate that its submissions would be “unique” and “could not be obtained elsewhere”. 

Lewis also raised the following key arguments in its appeal to the Constitutional Court:

  • that the CAC’s judgment violated meaningful procedural fairness and constitutional rights; and
  • that the CAC improperly overrode the Tribunal’s specialist discretion, breaching institutional deference.

The Constitutional Court upheld Lewis’s appeal, permitting Lewis to intervene in the Tribunal proceedings, however, its reasons for doing so have not been published at the time of publishing of this article.

Conclusions and Insights

The protracted saga in Lewis’s application to intervene in the Proposed Transaction has raised much debate as to whether intervention by third parties unduly frustrates the finalization of merger hearings in South Africa. It would make little sense, however, for market participants, with direct and substantial knowledge of the potential effects of a particular transaction, from being precluded from participating in merger hearings before the Tribunal. In this regard, ‘rubber stamping’ a contested merger without affording interested parties to ventilate potential competition and/or public interest concerns before the Tribunal may have the consequence of increasing prices, lowering output and quality, foreclosing competitors – all of which the SACC would be hard placed to remediate post-implementation of the merger.

Rather, it should be incumbent on the Tribunal to find a balance between allowing third parties to provide limited assistance to it, on specific disputes of fact, while ensuring that merger hearings do not become extensively protracted.

When power meets accountability: What the Directline fine signals for Kenya’s business landscape

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By Michael-James Currie and Nicole Araujo

In May 2024, two Nairobi-based small and medium-sized automobile repair centres (the “garages”) lodged separate complaints with the Competition Authority of Kenya (“CAK”) against Directline Assurance Company Limited (“Directline”). The complaints alleged persistent delays in the payment of invoices for contracted repair work that had already been completed.

The complaints were supported by authorisation letters, invoices, customer satisfaction notes, and related correspondence. On this basis, the CAK initiated an investigation into the commercial relationship between Directline and the two garages to assess:

(i) whether Directline possessed superior bargaining power; and

(ii) whether such superior bargaining power, if established, had been abused.

At the time the complaints were filed, Directline owed the garages KSh 7.6 million and KSh 5 million, respectively. After the CAK initiated its investigation, Directline made partial payments to each garage. However, it did not respond to the CAK’s formal requests concerning the remaining outstanding balances of KSh 4.7 million and KSh 1.3 million.

Directline initially attributed the delayed payments to inaccessible bank accounts. While in the commercial world late payments are often downplayed as administrative hiccups, such as cash-flow challenges or temporary constraints, for small and medium-sized enterprises (“SMEs”) these delays translate into serious financial and operational strain. CAK Director-General David Kemei stressed that the misuse of buyer power can devastate small businesses, threatening their ability to pay staff, pay suppliers, and ultimately participate fully in the economy. Such practices not only endanger individual SMEs but also undermine broader economic inclusion.

The CAK concluded that Directline had misused its superior bargaining power position to delay payments without reasonable justification. In this regard, the CAK imposed a total penalty of Ksh85 million for two counts of abuse towards the garages. The CAK additionally ordered Directline to settle the outstanding payments in full, including the remaining balances due; amend its supplier contracts to include provisions for interest on late payments and other protections for small suppliers; and cease engaging in conduct that violates the Competition Act.

While abuse of dominance cases have traditionally focused on powerful sellers, this matter highlights the growing regulatory attention on buyer power and the risks it poses to SMEs operating in highly dependent commercial relationships. Beyond the significant administrative penalty imposed, the case raises broader questions about how buyer power should be assessed, when commercial pressure crosses the line into abuse, and whether enforcement in this area adequately balances efficiency, bargaining strength, and supplier protection.

Draft Amendments to South Africa’s Merger Thresholds and Filing Fees Published for Public Comment

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By Matthew Freer

Introduction

On 27 January 2026, the Minister of Trade, Industry and Competition, Mr Mpho Parks Tau, published a series of draft notices in the Government Gazette proposing significant updates to South Africa’s merger control regime. These include draft amendments to the merger thresholds under section 11 of the Competition Act, 89 of 1998 (the “Act”), as well as a separate draft amendment to the merger filing fees payable to the Competition Commission.

Together, the proposed changes reflect the first inflationary adjustment to South Africa’s merger notification framework in several years and are intended to align regulatory thresholds and fees with prevailing economic conditions.

Draft amendment to merger thresholds

In Government Notice No. 7029, published in Government Gazette No. 54020, the Minister, acting in consultation with the Competition Commission, invited public comment on proposed amendments to the Determination of Merger Thresholds set out in Part A of General Notice 1003 of 2017 (published in Government Notice No. 41124 of 15 September 2017).

The notice is issued in terms of section 11 of the Act and confirms the Minister’s intention to:

  • amend the existing merger thresholds; and
  • make a new determination of merger thresholds as set out in the Schedule to the notice.

Method of calculation remains unchanged

Importantly, the Minister has expressly confirmed that the Method of Calculation remains unchanged. The method set out in Part B of General Notice 1254 of 2017 (published under Government Notice No. 41245 of 10 November 2017) will continue to apply. Turnover and asset values must therefore still be calculated in accordance with International Financial Reporting Standards (“IFRS”), applying the same methods and principles currently used by the Competition Commission.

The Schedule further retains the existing definitional framework, including the definition of a “transferred firm” aligned with section 12 of the Act.

Revised lower (intermediate) merger thresholds

A merger will meet the lower threshold if both of the following requirements are satisfied:

  • The combined annual turnover in, into or from South Africa, or the combined asset value in South Africa, of the acquiring and transferred firms is R1 billion or more (up from R600 million); and
  • The annual turnover or asset value in South Africa of the transferred firm is R175 million or more (up from R100 million).

Revised higher (large) merger thresholds

A merger will meet the higher threshold if both of the following requirements are satisfied:

  • The combined annual turnover in, into or from South Africa, or the combined asset value in South Africa, of the acquiring and transferred firms is R9.5 billion or more (up from R6.6 billion); and
  • The annual turnover or asset value in South Africa of the transferred firm is R280 million or more (up from R190 million).

Merger classification unchanged

The proposed amendments do not alter the categorisation of mergers under the Act:

  • Small mergers fall below either value of the lower threshold;
  • Intermediate mergers meet the lower threshold but fall below the higher threshold; and
  • Large mergers meet or exceed the higher threshold.

Draft amendment to merger filing fees

Published simultaneously, Government Notice No. 7030 in Government Gazette No. 54021 proposes amendments to Rule 10(5) of the Rules for the Conduct of Proceedings in the Competition Commission and inflationary adjustment to the merger filing fees gazetted in General Notice 1336 of 2018 (published in Government Notice No. 42082 of 4 December 2018), dealing specifically with merger filing fees.

This notice is issued in terms of section 21(4) of the Act, in consultation with the Commissioner, and invites public comment on a draft amendment aimed at effecting an inflationary adjustment to merger filing fees. The fees were last updated in 2018 and have remained unchanged since.

Proposed revised merger filing fees

Under the draft amendment to Rule 10(5), the filing fees for merger notifications will increase as follows:

  • Intermediate mergers: from R165,000 to R220,000;
  • Large mergers: from R550,000 to R735,000.

No changes are proposed to the structure or timing of fee payments, only the quantum payable upon filing.

Public participation and next steps

Stakeholders and interested parties are invited to submit written comments on both draft notices within 30 business days of publication. Submissions must be addressed to the Minister of Trade, Industry and Competition, for the attention of Dr Ivan Galodikwe, either by email or by hand delivery to the Department’s offices in Sunnyside, Pretoria.

If finalised, the combined effect of the proposed amendments will be to:

  • reduce the number of transactions requiring mandatory notification; while
  • increasing the cost of filing notifiable intermediate and large mergers.

Together, these measures signal a recalibration of South Africa’s merger control regime to reflect inflation and economic growth, without altering the underlying legal framework or analytical methodology applied by the competition authorities.

Conclusion

John Oxenham, director at Primerio, notes that “the step taken by the DTIC to increase the financial thresholds for purposes of merger regulation in South Africa demonstrates a move towards greater ease in deal negotiation and has been welcomed by the economy. Parties must still, however, note that while the thresholds may indicate fewer notifications being required be submitted with the South African competition authorities, the Commission may require mandatory notification of small mergers (i.e., mergers which do not meet the intermediate thresholds).”

What’s Changing? An overview of the South African Competition Commission’s recent Draft Guidelines

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by Michael-James Currie and Kelly Baker

Pre-merger filing consultation process

The Competition Commission of South Africa (“Commission”) is fundamentally reshaping how it conducts market oversight through a series of new draft guidelines designed to enhance clarity and a more speedy regulatory processes. One of the most significant changes involves introducing a voluntary, informal, and confidential pre-merger consultation. This process aims to simplify the evaluation of complex Phase II and Phase III mergers, enabling parties to address competition concerns or major public interest issues, including HDP ownership or large-scale retrenchments before they are formally filed. By encouraging merging parties or business rescue practitioners to tender appropriate remedies or competitive assessments upfront, the Commission seeks to reduce regulatory costs and accelerate review timelines.

The draft guidelines on the Pre-Merger Consultation Process can be accessed here.

Online intermediation platforms

For the digital economy, the Commission issued a guidance note for online intermediation platforms, shifting its focus from static market shares to “gatekeeper” characteristics. These platforms often benefit from extreme scale economies and powerful network effects, creating a “virtuous cycle” where a high volume of users makes the platform invaluable to businesses, but also creates significant dependency. The Commission identifies several practices that are likely to harm competition, starting with price parity clauses. Wide price parity prevents businesses from offering lower prices on any other platform, while narrow price parity restricts them from pricing lower on their own websites. As a result, both can entrench a leading platform’s position and discourage price competition. Additionally, a lack of interoperability (the ability for different systems to exchange information and work together) can reinforce a platform’s market power by preventing users from mixing services from different providers. Self-preferencing is another red flag, where vertically integrated platforms favour their own products in rankings or charge lower fees to their own affiliates compared to third-party competitors.

Furthermore, the Commission warns against the misuse of non-public, competitively sensitive data belonging to business users to benefit the platform’s own competing offerings. To protect the participation of SMEs and HDP-owned firms, the Commission scrutinises differentiated trading terms, such as charging higher service fees or providing fewer marketing benefits to smaller businesses compared to global corporate entities. Finally, unfair treatment, such as imposing one-sided contracts, transferring disproportionate risks to sellers (like immediate customer reimbursements at the seller’s expense), or lacking clear dispute resolution mechanisms, is identified as conduct that exploits the dependency of smaller business users.

The draft Guidance Note for Online Intermediation Platforms can be accessed here.

Internal restructuring

The Commission’s final Guidelines on Internal Restructuring clarify that transactions occurring within a group of firms generally do not require notification if they are “purely internal”. A transaction is considered purely internal when it has no implications for the control rights of external shareholders – typically minority stakeholders who are not part of the primary group. A formal merger notification may still be required, however, if the restructuring results in a change, loss, or gain of negative control by these external parties. This includes any alteration to veto rights over strategic commercial decisions such as budgets, business plans, or the appointment of senior management. The Commission distinguishes these from ordinary minority investment protections, such as decisions regarding security listings or alterations to share capital, which do not typically confer control.

Ultimately, the Commission assesses these transactions on a case-by-case basis to determine if an alteration in the market structure has occurred.

The Guidelines on Internal Restructuring are accessible here.

Price-cost margin calculation

Lastly, the Commission has standardised the technical assessment of excessive pricing under Section 8(1)(a) through its price-cost margin calculation guidelines. To determine the actual price charged, the Commission adopts International Financial Reporting Standards (“IFRS 15”) revenue recognition principles, accounting for discounts, rebates, and business cycles. Operational costs are accurately classified as fixed, variable, or semi-variable, with a strong preference for actual costs used internally over those contrived for an investigation. The Commission will also scrutinise internal transfer pricing within groups of companies; if an input cost appears artificially inflated, they will prioritise the actual production cost of the entity producing that input. For calculating capital employed, the Commission prefers market values or depreciated replacement costs for tangible assets over simple book values. A “reasonable rate of return” is determined using the Weighted Average Cost of Capital (”WACC”), calculated via the Capital Asset Pricing Model (“CAPM”) to reflect the risk of the specific industry. This rigorous approach ensures that pricing assessments reflect economic reality rather than inflated accounting figures.

The Guidelines on Price-Cost Margin Calculations are accessible here.

COMESA Competition & Consumer Commission Clarifies New Regulations

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By Tyla Lee Coertzen and Holly Joubert

Introduction

On 13 January 2026, the newly renamed COMESA Competition and Consumer Commission (“CCCC”) issued its Practice Note 1 of 2026 (“Practice Note”), which is intended to provide legal clarification for businesses and legal communities regarding the newly approved COMESA Competition and Consumer Protection Regulations of 2025 (“2025 Regulations”).

By addressing common points of confusion, such as clarification on the commencement of the 2025 Regulations, merger thresholds in respect of transactions in digital markets, and the CCCC’s ability to grant derogations from its suspensory regime, the CCCC aims to ensure a uniform interpretation and a smooth transition to the 2025 Regulations and new suspensory merger regime.

  1. The effective date and “in-flight” transactions

One of the main objectives of the practice note was to correct a previous administrative error regarding the implementation date of the new regime. The CCCC clarified that the effective date of the 2025 Regulations is 4 December 2025, the same date the 2025 Regulations were approved by the COMESA Council of Ministers.

For merger transactions signed shortly before the enforcement of the 2025 Regulations, but were not yet notified or closed, the CCCC has set a clear boundary stating that any matter not under assessment by the CCCC by 4December 2025 will be governed by the 2025 Regulations. Contrarily, any matters instituted before 4 December 2025 and currently under the CCCC’s review will continue to be managed under the repealed 2004 Regulations to ensure procedural continuity.

  • Strict adherence to the new suspensory regime

The Practice Note emphasises and enforces the CCCC’s new suspensory regime, requiring notifiable transactions to be approved by the CCCC before they may be implemented.

While the 2025 Regulations allow for derogations where parties may apply to implement transactions prior to obtaining approval, the CCCC emphasises that such derogations will be granted sparingly and only in exceptional circumstances.

The CCCC, however, clarifies that while there is no longer a deadline by which a transaction must be notified to the CCCC, there are no derogations afforded to the notification requirements themselves. This ensures that all notifiable mergers must be notified prior to implementation.

  • Transactions in digital markets

To ensure the CCCC keeps pace with the rapid development of antitrust enforcement in digital markets, the 2025 Regulations have introduced a specific digital-transaction value threshold in an attempt to regulate big tech.

Under the 2025 Regulations, a transaction involved in digital markets is required to be notified should:

  1. the worldwide value of the transaction reaches over COM$250 million (US$250 million); and
  2. at least one party operates in two or more Member States.
  • Notification requirements in respect of Joint Ventures

When considering the notification requirements and thresholds in respect of a joint venture (“JV”), the CCCC has emphasised that the 2025 Regulations will only apply to JVs that have the intention of performing on a lasting basis all the functions of an autonomous economic entity (commonly referred to as full-function JVs).

A keynote emphasised by the Practice Note is the definition of a “lasting basis”, emphasising that a JV is not subject to notification if the parties to the JV do not have the intention of operating within the COMESA region within the next three years or, once established, operating for a period of three years or more.

  • Extension of merger assessments to non-competition factors

Although the CCCC considers public interest factors under the 2025 Regulations, the Practice Note has clarified that the competition concerns of a transaction carry the most weight in its investigation.

The CCCC priorities ensure that in the future, it is unlikely for the Commission to reject a co-competitive merger based on negative public interest. This is just as a merger that may significantly lessen a competitive market will not be more heavily considered based on the benefits of the public interest.

John Oxenham, director at Primerio International, notes that “ultimately, while the effects of the 2025 Regulations and Practice Note remain to be seen in practice, the Practice Note acts as a helpful road map for navigating the new aspects of the 2025 Regulations.” His colleague Andreas Stargard observes that the latest Practice Note is “not substantive in any significant way, but truly sticks to the theme of mere ‘clarification’ of the existing new 2025 Regs.  Deadlines and time calculations are explained in more detail than in the statute — but not altered — and value thresholds for digital transactions are clarified (again, without substantively modifying the text as found in the new law).  They are basic practice pointers, no more and no less.”

South African Competition Tribunal grants absolution in the X-Moor Transport tender collusion case: clarifying the evidentiary threshold for collusive tendering

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By Kelly Baker

Introduction

The South African Competition Tribunal (“Tribunal”) recently handed down its reasons in the X-Moor Transport case, granting absolution from the instance in favour of X-Moor Transport t/a Crossmoor Transport (Pty) Ltd (“Crossmoor”) and dismissing the South African Competition Commission’s (“Commission”) complaint referral at the close of its case.

The Tribunal’s decision, issued on 25 June 2025, provides important guidance on the evidentiary threshold required to establish collusive tendering prohibited under section 4(1)(b) of the South African Competition Act 89 of 1998 (as amended (“Act”), particularly where the Commission relies exclusively on circumstantial evidence and inferences drawn from parallel pricing.

Background to the Complaint

The matter arose from a tender issued in October 2012 by Pikitup SOC Ltd (“Pikitup”) for the supply, operation, and maintenance of plant and equipment at designated landfill sites and depots in Johannesburg. The tender covered a three-year period and closed on 12 November 2012.

During the evaluation process, Pikitup identified several similarities between the tenders submitted by Casalinga Investments CC t/a Waste Rite (“Waste Rite”) and Crossmoor, including:

  1. nearly identical overall bid prices of R350 million and R351 million; [1]
  2. fixed costs that were identical to the cent across multiple line items and years; [2]
  3. tender documents that appeared to have been printed and bound by the same service provider;[3] and
  4. similarities in the manner in which the bids were completed and signed.[4]

Following a forensic investigation by Gobodo Forensic Investigative Accounting, Pikitup referred the matter to the Commission.[5] The Commission subsequently alleged that Waste Rite and Crossmoor had engaged in collusive tendering and price fixing in contravention of sections 4(1)(b)(i) and (iii) of the Act.[6]

Waste Rite settled with the Commission in 2018, admitting liability. Crossmoor did not settle, and the matter proceeded to a contested hearing before the Tribunal in April 2025.

The Commission’s Case

The Commission argued that that the respondents were competitors in the market for waste management and that the similarities between their tenders could only be explained by an agreement to collude.

The Commission called a single witness, Ms Christa Venter, a former Chief Operations Officer of Pikitup and a member of the Bid Adjudication Committee. Ms Venter gave detailed evidence on the tender process and explained why, in her view, it was highly improbable for two independent bidders to arrive at identical fixed pricing across numerous items, given the variability inherent in fuel costs, maintenance, fleet age, tyre usage, operator wages and operating conditions at landfill sites.

Notably, the Commission did not call any witnesses from Waste Rite, despite Waste Rite having settled and undertaken to cooperate with the Commission. Witness statements contained in the record from Waste Rite representatives did not support the Commission’s theory of a bilateral agreement and instead suggested a unilateral copying of Crossmoor’s pricing (i.e., without any bilateral agreement or understanding to price the same).

Application for Absolution from the Instance

At the close of the Commission’s case, Crossmoor applied for absolution from the instance. The Tribunal was then required to determine whether there was evidence upon which it could reasonably find that:

  1. an agreement or concerted practice had been concluded between Crossmoor and Waste Rite; and
  2. the similarities in pricing constituted collusive conduct prohibited by section 4(1)(b).

While acknowledging that the threshold for resisting absolution is low, the Tribunal emphasised that the Commission was nevertheless required to establish a prima facie case on every element of the alleged contravention.

Key Findings

The Tribunal made the following key findings.

No evidence of an agreement

The Tribunal found that the Commission had led no direct evidence of an agreement, arrangement or understanding between Crossmoor and Waste Rite. While the Act defines an “agreement” broadly, it nevertheless requires consensus between firms.

The Tribunal held that identical or near-identical pricing may give rise to suspicion, but it does not, without more, establish that consensus was reached. The Tribunal identified several possible explanations for the similarities, including unilateral copying by one party, and noted that the Commission’s own witness statements undermined the inference of a bilateral agreement.

Importantly, the Tribunal rejected the Commission’s invitation to speculate that cross-examination of Crossmoor’s witnesses might later yield evidence of collusion. Absolution could not be refused on the basis of conjecture or the hope that a case might be made later.

Parallel pricing and “plus factors”

The Tribunal reaffirmed that parallel pricing is not per se unlawful and requires “plus factors” to justify an inference of collusion. While the Commission argued that the similarities in tender presentation and pricing constituted such factors, the Tribunal found that these commonalities were capable of innocent explanation and did not establish conscious parallelism on the part of Crossmoor.

The Tribunal emphasised that while the pricing similarities were unusual, there was no evidence that they were the result of an agreement, and that alone was not enough.

Impact of the Judgement – our insights

The Competition Tribunal granted absolution from the instance in favour of Crossmoor and dismissed the Commission’s case at the close of its evidence. The Tribunal clarified, however, that the Commission was not precluded from instituting the complaint referral afresh should it find new evidence to support its allegations.

The significance of the judgment lies in what it does not do. The Tribunal did not endorse collusive tendering or suggest that identical pricing is permissible. Rather, the decision turns on whether the Commission put forward sufficient evidence to establish a prima facie case of an agreement or concerted practice between the respondents. In the Tribunal’s view, it did not. Despite the striking similarities in pricing, the Commission failed to show that those similarities were the result of consensus rather than unilateral conduct.

The shortcomings in the Commission’s case are evident from the Tribunal’s findings. The Commission relied almost entirely on inference drawn from parallel pricing and common features in the tender submissions, without leading direct or supporting evidence of an agreement. This was compounded by the Commission’s decision not to call witnesses from Waste Rite, despite Waste Rite having settled and undertaken to cooperate. As a result, the Commission was unable to overcome alternative explanations for the pricing similarities or meet even the low threshold required to resist absolution.

John Oxenham, director at Primerio International, describes that ultimately, the Tribunal’s decision underscores the importance of solid evidence in cartel enforcement. While the Commission remains entitled to pursue cases based on circumstantial evidence, this judgment confirms that suspicion, no matter how strong, cannot substitute for proof of agreement. The outcome therefore reflects not a limitation on the Tribunal’s approach to cartel conduct, but rather the consequences of an evidentially weak case.

[1] X-Moor para 9.4.

[2]  X-Moor para 9.4.

[3] X-Moor para 9.3.

[4] X-Moor para 9.5.

[5] X-Moor para 6.

[6] Sections 4(1)(b)(i) and (iii) of the Competition Act 89 of 1998.

One Statute, Wider Reach: The Gambia’s 2025 Draft Bill and the Shift to Proactive Market Enforcement

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By Michael Williams

The Gambia Competition and Consumer Protection Commission (GCCPC) has published the draft Competition and Consumer Protection Bill 2025 (the Bill). The Bill is intended to consolidate and repeal the Competition Act 2007 and the Consumer Protection Act 2014 within a single statutory framework, signalling a shift towards a more robust enforcement regime across both competition law and consumer welfare.

Institutionally, the Bill maintains the GCCPC as an independent corporate regulator, overseen by a Board of Commissioners and supported by an Executive Secretariat. The Bill also reflects a more proactive regime by empowering the GCCPC to inter alia act on its own initiative or in response to complaints, publish decisions supported by reasons, impose corrective measures and administrative penalties, and facilitate alternative dispute resolution in appropriate consumer matters.

On competition enforcement, the Bill reinforces the abuse of dominance regime by addressing both exploitation of customers and foreclosure of competitors. In practice, this equips the GCCPC to intervene against conduct such as unfair pricing outcomes, exclusionary strategies, and access-related restrictions (including scenarios associated with essential facilities), and it also contemplates risks arising in platform markets, including self-preferencing by dominant digital intermediaries. The Bill further introduces an “abuse of economic dependence” framework by defining the conduct of enterprises with “strategic market status” that will amount to abuse of economic dependence.

The Bill adopts a broad concept of “merger”, including full-function joint ventures and acquisitions conferring material influence, introduces notifiability criteria linked to turnover or assets in The Gambia, and contemplates transaction-value thresholds for digital and emerging technology transactions. The regime is suspensory: implementation before approval is prohibited and non-compliant mergers are treated as void. The GCCPC may also call in certain non-notifiable transactions where they appear likely to substantially prevent or lessen competition. Further guidance in relation to merger control is provided for in a dedicated GCCPC Draft Merger Regulations & Guideline.

Consumer protection is integrated into the same statute and supported by a clearer redress pathway. Consumers are expected, in the first instance, to seek redress from suppliers or follow a sector regulator’s process where applicable, with escalation to the GCCPC where the supplier does not respond within seven days or does not provide satisfactory redress within a reasonable period. The Bill also provides for investigations and consensual referrals to Alternative Dispute Resolution. It addresses aspects of digital commerce by introducing joint liability for digital platforms in defined circumstances, subject to specified defences.

Finally, the Bill strengthens enforcement mechanics and deterrence through a combination of investigatory powers including: channels for confidential or anonymous information, turnover-based administrative fines for certain infringements, including abuse of dominance and abuse of economic dependence, and potential personal exposure for directors and officers in specified circumstances, subject to statutory defences. Altogether, the Bill is likely to broaden compliance risk for businesses operating in The Gambia, particularly in relation to merger implementation risk and the accessibility of consumer complaint mechanisms.

Tanzania: FCC and ZFCC align enforcement

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By Michael Williams

The TZ Fair Competition Commission (FCC) and the Zanzibar Fair Competition Commission (ZFCC) concluded a Memorandum of Understanding (MoU) on 29 September 2025 intended to deepen institutional cooperation in safeguarding fair competition and consumer interests across the United Republic of Tanzania. The stated objective is to increase joint strength and capacity to address unfair competition and consumer rights infringements that may affect both mainland Tanzania and Zanzibar.

In remarks reported at the signing ceremony, the Permanent Secretary of Tanzania’s Ministry of Industry and Trade (mainland Tanzania), Dr Hashil Abdalah, emphasised execution mechanics as the MoU’s immediate priority. In particular, he indicated that the FCC and ZFCC should designate responsible persons or a dedicated team to oversee implementation and should develop a “roadmap” or “plan of action” to guide delivery, with an indicative timeline referenced as within three months. He further underscored that individual tasks should be time-bound, and that training and orientation seminars for FCC and ZFCC staff should be used to build a shared understanding of the cooperation’s purpose, alongside a structured monitoring cadence to evaluate implementation progress. 

From the FCC’s side, the Acting Director General, Ms Khadija Ngasongwa, characterised the MoU as an expression of institutional solidarity and a strategic step to pool capacity in confronting unfair competition and consumer protection challenges that may have cross-territorial dimensions within the Union. The same coverage links the cooperation agenda to wider governmental priorities of enabling trade and improving the business environment, referencing the policy direction associated with President Samia Suluhu Hassan and the President of Zanzibar, Dr Hussein Ali Mwinyi, as the contextual backdrop for closer regulatory coordination.