From Cartel to Courtroom: Why Tembisa Is the Case the Competition Commission Should Be Bringing

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By Joshua Eveleigh and Astra Christodoulou

Introduction

In 2016, an important amendment to the Competition Act 89 of 1998 (the “Act”) was brought into operation. The amendment introduced criminal liability for cartel conduct in the form of section 73A of the Act, which states:

“(1) A person commits an offence if, while being a director of a firm or while engaged or purporting to be engaged by a firm in a position having management authority within the firm, such person –

(a) caused the firm to engage in a prohibited practice in terms of section 4(1)(b); or

(b) knowingly acquiesced in the firm engaging in a prohibited practice in terms of section 4(1)(b).”

Section 74 states further:

“Any person convicted of an offence in terms of this Act, is liable –

(a) in the case of a contravention of section 73(1), or section 73A, to a fine not exceeding R500 000-00 or to imprisonment for a period not exceeding 10 years, or to both a fine and such imprisonment; or

(b) in any other case, to a fine not exceeding R10 000-00 or to imprisonment for a period not exceeding six months, or to both a fine and imprisonment.”

In other words, a manager or director who steers a firm into price fixing, market division or collusive tendering can, under section 74 of the Act, face a fine up to R500,000 or imprisonment for up to 10 years, or both. Section 73A(5) of the Act would provide that a consent order or a finding by the Competition Tribunal (the “Tribunal”) or Competition Appeal Court (the “CAC”) that a firm is guilty of price fixing, dividing markets or colluding on tenders could be used as prima facie proof in criminal proceedings against any of that firm’s directors or managers. It must be noted, however, that while section 73A(1) to (4) came into operation on 1 May 2016, subsections (5) and (6) (the former dealing with the prima facie evidentiary effect, and the latter prohibiting a firm from paying or indemnifying a convicted individual) have not yet been brought into operation.

Despite section 73A having been in force for over a decade, it has not yet been put into practice.

One of South Africa’s largest and ongoing corruption cases, the investigation into the Tembisa Hospital Scandal, offers an opportunity to consider why this is the case. The case involves collusive manipulation of South Africa’s procurement system to the tune of billions of rands; however, the criminal cartel offence and operation of the Act have played no part thus far in the State’s investigation. Setting aside the criminal offence, section 59 of the Act gives the Commission a route against the firms involved that carries administrative penalties measured against their turnover, and that could be pursued independently of the criminal process. Tembisa’s sharpest lesson may lie not in the dormant criminal route but in the unused civil one.

The criminal cartel offence

Section 73A criminalises individual involvement in hardcore cartel conduct prohibited in section 4(1)(b) of the Act, namely price fixing, the division of markets and collusive tendering. It does not address criminal liability for the firm, which remains subject to the civil regime, but for the natural person who directed it.  Liability extends beyond registered directors to anyone “engaged or purporting to be engaged by a firm in a position having management authority”; therefore, the whole management chain may be exposed.

The offence may be committed in one of two ways: by causing the firm to engage in the prohibited practice, or by knowingly acquiescing in it. Section 73A(2) indicates that acquiescence requires actual knowledge of the conduct; therefore, mere negligence or a failure to detect a cartel operating below management level will not found liability.

The consequences of conviction are found in section 74, which provides for a fine of up to R500,000, imprisonment for up to 10 years, or both. Any fine must be paid personally by the convicted individual, and section 73A(6) would, once in operation, prevent a firm from paying it or indemnifying the person against it. A conviction also carries collateral consequences under company law, including potential disqualification from serving as a director.

Crucially, an individual cannot be charged in a vacuum. Section 73A(3) provides that a person may only be prosecuted once the firm has admitted, in a consent order, that it engaged in a prohibited practice under section 4(1)(b), or once the Tribunal or the CAC has made a finding to that effect. The finding against the firm is therefore a precondition to the criminal charge against the individual. Section 73A(5) would then allow that finding to serve as prima facie proof in the criminal proceedings against the individual. That feature, though not yet in operation, has attracted sustained criticism on the basis that it may amount to a reverse onus and could raise constitutional concerns regarding the rights protected in section 35 of the Constitution of the Republic of South Africa, 1996, including the right to be presumed innocent and the right to a fair trial

Enforcing the offence

The difficulty lies not in the definition of the offence but in the conditions attached to prosecuting it. South Africa operates two separate enforcement processes for cartel conduct. The civil process is directed at the firm, is investigated and prosecuted by the South African Competition Commission (the “Commission”) and is adjudicated by the Tribunal. The criminal process is directed at the individual and may be prosecuted only by the National Prosecuting Authority (the “NPA”).

Due to the precondition in section 73A(3), the civil process must ordinarily conclude, whether by consent order or by a Tribunal or CAC finding, before the criminal process against an individual can begin. Cartel matters are frequently litigated for years on technical and jurisdictional grounds before any such finding is made, therefore meaning the ability to prosecute criminal liability tends to arise long after the underlying conduct has occurred.

The interface between the two authorities must also be considered. The Commission cannot prosecute individuals and cannot grant them immunity from criminal prosecution. Under section 73A(4), the Commission is limited to certifying that a person is “deserving of leniency”, in which case it may not itself seek or request that person’s prosecution, and it may make submissions to the NPA in support of leniency. The final decision, however, is that of the NPA, which is not bound by the Commission’s view. Effective enforcement therefore depends on close coordination between the Commission, the NPA and the South African Police Service.

This division of functions establishes a tension with the Commission’s Corporate Leniency Policy, which has historically been its most effective tool for uncovering cartels. Therefore, if a firm’s admission in a consent order can be used as the basis for criminal prosecution of the firm’s own directors and managers, the incentive to cooperate and settle diminishes. Further, as section 73A remains untested in practice, there is also the unresolved tension as to what extent the NPA may access the material a firm hands over in the course of seeking leniency.

Tembisa Hospital and the potential use of the Act

The Tembisa Hospital scandal concerns the alleged looting of more than R2 billion from the procurement budget of the Tembisa Provincial Tertiary Hospital in Gauteng. The scheme is said to have exploited the Request for Quotation system for purchases below the R500,000 threshold (set in National Treasury Practice Note No 8 of 2007/2008 “Supply Chain Management: Threshold Values for the Procurement of Goods, Works and Services by Means of Petty Cash, Verbal / Written Price Quotations or Competitive Bids”, since amended), deliberately splitting orders to circumvent the formal tender process. Investigators have identified several syndicates operating through large networks of companies. One alleged network is said to have controlled dozens of entities, the majority of which were irregularly appointed as suppliers; another is alleged to have funnelled contracts through a cluster of commonly linked companies.

The use of many nominally separate companies gives the matter a competition-law dimension. From the perspective of Tembisa Hospital, there would have appeared to be several separate entities competing for each quotation. In reality, those entities were, unbeknownst to the hospital, allegedly controlled by a single mind, which caused them to submit coordinated and inflated quotations, ensuring that the lowest of several artificially high bids would win. That is the classic mechanism of bid rigging. The appearance of competition is manufactured to conceal an allocation of business that has already been decided among the bidders. Where a single controlling mind allegedly causes several ostensibly independent firms to submit competing quotations, thereby creating the appearance of competition while allocating business among themselves, the conduct falls squarely within collusive tendering or market division of the kind prohibited by section 4(1)(b). On that characterisation, the individuals directing those firms could, in principle, fall within the reach of section 73A. The concealment of common control is foundational in the competition-law analysis because it is what allowed the entities to hold themselves out as independent competitors. The Commission would still need to establish an agreement or concerted practice between them, but the coordinated submission of rigged quotations is itself compelling evidence.

The difficulties of using the Competition Act at Tembisa

Several obstacles arise when considering whether Tembisa is a suitable vehicle for the first practical use of section 73A.

The first difficulty is that the core issue of the Tembisa scandal has been corruption, not cartelisation. Its core is the corrupt relationship between officials inside the hospital and the suppliers they favoured, a relationship between buyer and seller rather than between competitors. The cartel offence is aimed at competitors who secretly agree to rig a market against a buyer, not at insiders who capture a procurement system from within. Whatever residual element of collusive tendering might be found among the front companies is, for criminal purposes, overshadowed by the established offences of fraud, corruption and money laundering.

Furthermore, the structure of the offence makes the utilisation of the route slow. The criminal case against the individual depends on a prior admission by, or adverse finding against, the firm. The Commission would first have to investigate, refer and litigate to a conclusion its case against the firm. Cartel proceedings of that kind practically run for years. One of South Africa’s longest-running cartel investigations, into the alleged manipulation of the rand, lasted close to a decade before the Constitutional Court had ruled only on preliminary questions of pleading and jurisdiction, without yet deciding whether any collusion had occurred at all. A procurement-corruption matter of this severity and national importance cannot sensibly wait on that timetable.

A further consideration is the sanction available under section 73A, which may be viewed as modest against the scale of the conduct. Section 74 caps the penalty at a fine of R500,000 and imprisonment for up to 10 years. Against an alleged scheme running to billions of rand, a fine of that order may be seen as negligible, and the competition route offers nothing equivalent to the asset-recovery machinery that is at the core of the State’s response, namely the forfeiture and preservation of the proceeds of the fraud. By contrast, the ordinary offences of fraud, corruption and money laundering carry heavier penalties and unlock the confiscation of the stolen funds.

This modest cap, however, attaches only to the criminal sanction against the individual. The Act’s civil regime is another matter entirely. An administrative penalty imposed on the firms, by section 59 of the Act, can reach 10% (ten per cent) of the firm’s annual turnover, a figure that, on contracts totalling billions of rand, would be anything but negligible. While imprisonment for up to ten years remains a significant sanction, section 73A offers little by way of asset recovery and may therefore be less attractive to prosecutors than the ordinary offences. The availability of a substantial administrative penalty, by contrast, raises a distinct question about the regulator’s own role.

Taken together, these difficulties explain why the criminal cartel offence, for all its apparent reach, may be seen as a slow and, on its criminal side, ill-suited instrument for a matter such as Tembisa, which largely explains the criminal route the State has taken.

The route the State has taken  

The State has thus far opted not to utilise the Competition Act. The response has been driven by the Special Investigating Unit (the “SIU”), which was authorised by Presidential Proclamation 136 of 2023, to conduct a forensic investigation. Under the Special Investigating Units and Special Tribunals Act 74 of 1996, the SIU refers evidence of possible criminal conduct to the NPA for prosecution and is separately empowered to bring civil proceedings in the High Court or the Special Tribunal to recover the State’s losses.

On the criminal side, the charges brought and contemplated are the offences of fraud, theft, corruption, money laundering, forgery and uttering, and contraventions of the Public Finance Management Act. In August 2026, one of the alleged syndicate masterminds was arrested on his return to South Africa and appeared before the Specialised Commercial Crimes Court facing dozens of counts, before being released on bail; the NPA has indicated that further prosecutions arising from the three identified syndicates are to follow. On the civil side, the Asset Forfeiture Unit has obtained substantial forfeiture orders against assets linked to the alleged networks, and the SIU continues to pursue recovery of the diverted funds.

The logic of this route is straightforward. The ordinary criminal law reaches the corrupt heart of the scheme, which competition law cannot; its offences are broader and well established; it requires no prior finding by the Tribunal as a precondition to charging individuals; and it allows the various enforcement agencies to coordinate a single, faster response.

The route the Commission has not taken

Even if the criminal cartel offence is seen to be ill-suited to Tembisa, the Act’s civil prohibition is not. Section 4(1)(b), enforced by the Commission and the Tribunal, catches the collusive tendering described above directly, and without the features that make section 73A difficult to utilise. It does not depend on the NPA, on the criminal burden of proof, or on the outstanding subsections of section 73A, and it is directed at the firms rather than at the individuals. On a finding of contravention, it carries an administrative penalty of up to 10% (ten per cent) of a firm’s annual turnover, which on contracts of this value would be substantial.

Prosecuting cartel conduct with the goal of administrative penalties is a financial route the Commission can pursue independently of both the NPA’s prosecutions and the Asset Forfeiture Unit’s proceedings under the Prevention of Organised Crime Act. An administrative penalty differs from recovering the specific proceeds of the fraud, since it is calculated on turnover rather than on the amount looted, and it is paid into the National Revenue Fund rather than restored to the hospital. It is not, therefore, asset recovery in the sense that forfeiture is, but it is a substantial financial consequence for the very firms that profited. It operates alongside rather than instead of the forfeiture the State is already pursuing.

On this front, Tembisa is close to an ideal case for the Commission. The NPA is already going forward with prosecutions arising from the same collusive bidding; the conduct has been investigated in exhaustive detail; and the sums involved are vast. It is therefore difficult to understand why the Commission, as the regulator charged with enforcing the very prohibition in question, has not itself moved to secure a finding and the administrative penalties that would follow. Delay is the obvious objection, since a referral to the Tribunal could take years; but that is a reason for the Commission to begin now having its prosecution running alongside the criminal one. The penalty does not turn on the criminal outcome, and the passage of time weakens neither the turnover figures on which it is based nor the public interest in imposing it. A parallel referral would not compete with the criminal prosecutions but complement them and would signal that rigged public tenders attract a competition-law response as well as a criminal one.

What Tembisa means going forward

Tembisa is a revealing test of the criminal cartel offence precisely because it was never invoked. It shows that section 73A is unlikely to become the vehicle for the headline procurement-corruption cases that draw national attention, for the reason that corruption is the core issue the NPA wish to prosecute rather than cartel cases, and the ordinary criminal law is better fitted in this regard.

However, the more pointed lesson of Tembisa concerns the Commission rather than the NPA. The same conduct that supports the criminal charges is also a civil contravention of section 4(1)(b) that the Commission can pursue in its own right. That route asks none of the questions that make section 73A so hard to use. The weight of the administrative penalty alone is justification for the Commission pursuing prosecution in its own right. Over and above the administrative penalties, the message it would send to firms participating in public procurement would be that uncompetitive conduct will not go unpunished by the competition authorities.

Where a genuine horizontal cartel sits behind a public tender, section 73A remains available, and a future consent order or Tribunal finding could still open the door to the prosecution of the directors and managers responsible. The real test of the criminal offence will arise when the Commission secures a clear finding under section 4(1)(b) and the NPA elects to prosecute an individual on the strength of it. Until then, the deterrent value of the offence will remain largely theoretical, depending as it does on the interface between the Commission and the NPA being made to work, on the dormant provisions being brought into operation, and, above all, on a prosecution finally being brought.

The more immediate lesson, however, concerns not the dormant criminal offence but the civil route beside it. The administrative penalty route requires only a civil referral against the firms; it can be pursued by the Commission alone, and it is available now. That is why Tembisa speaks less to an untested criminal provision than about the unused civil one.

Uganda’s Merger Control Regime Kicks Off: First-Ever Transactions Gazetted

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By Olivia Höll

26 June 2026 will be recorded as a watershed moment in Uganda’s competition law history. On this date, and again on 3 July 2026, the Uganda Gazette published General Notices No. 1243/2026 and No. 1305/2026, the country’s first-ever formal merger notifications. This milestone marks the official operationalisation of Uganda’s merger control framework, ending years of anticipation since the enactment of the Competition Act, 2023 (“the Act”).

Background

The gazettement follows the publication of the Competition Regulations, 2025 (“the Competition Regulations”), which were listed as a supplement in the Uganda Gazette on 8 August 2025. These regulations, issued under the authority of the Minister of Trade, Industry and Cooperatives, brought to life a comprehensive framework for implementing the Act, covering anti-competitive practices, abuse of dominance, and merger control.

The journey to this point has been lengthy. The Act required the Minister to present regulations before Parliament by 21 October 2024, but the regulations were published approximately 11 months after this statutory deadline. Despite these delays, the regime is now firmly in place, and businesses must take notice.

The first notified transactions

The inaugural merger notifications involve transactions across two distinct and significant sectors of Uganda’s economy:

1. Fast-moving consumer goods (beverages)

White Showmans Limited’s proposed acquisition of Black Showmans Beverages Limited represents the first test of the merger control regime in the consumer goods sector. This transaction will likely attract scrutiny regarding market concentration in the beverages space and potential impacts on consumer choice and pricing.

2. Private healthcare consolidation

The second notification involves a significant consolidation in Uganda’s private healthcare sector. International Hospital Kampala Limited has proposed the acquisition of:

i. Citadel Holdings Ltd;

ii. Roswell Women and Children’s Hospital Ltd;

iii. Roswell Ear, Nose and Throat Clinic Ltd;

iv. Wellington Clinic Ltd;

v. Wellington Diabetes and Heart Clinic Ltd; and

vi. Dr. Malik Assemera.

This multi-facility acquisition signals a trend toward consolidation in Uganda’s growing private healthcare market, which will now be subject to regulatory scrutiny to ensure competition and patient welfare are protected.

The notification process

The gazettement of these notices activates a statutory process that invites third parties and stakeholders to submit representations or objections within prescribed timelines before the transactions can proceed. This transparent process ensures that competitors, consumers, and other interested parties have an opportunity to voice concerns about potential anti-competitive effects.

The publication requirement serves as a critical safeguard, ensuring that merger control is not conducted behind closed doors but with public accountability.

Understanding the thresholds

The Competition Regulations establish clear thresholds for mandatory merger notification. Transactions must be notified when:

i. the combined turnover or assets (whichever is higher) of the undertakings equals or exceeds 1 billion Ugandan shillings (“UGX”), and the target undertaking’s turnover or assets exceed UGX 500 million;

ii. the acquiring undertaking’s turnover or assets exceed UGX 10 billion, and the merging parties are in the same market or can be vertically integrated; or

iii. in the carbon-based mineral sector, the value of reserves, rights, and associated assets exceeds UGX 10 billion.

These thresholds ensure that only transactions with significant market impact are subject to prior approval, while smaller transactions may proceed without regulatory burden.

The suspensory regime

Uganda’s merger control regime is suspensory. This means that approval must be obtained before the transaction can be implemented. “Gun jumping”, meaning proceeding with a transaction without obtaining necessary approval, is prohibited and can result in significant penalties, including fines and potential imprisonment of up to ten years.

Any merger, acquisition, or joint venture entered into in contravention of this requirement is void, making compliance essential for transaction certainty.

Regional considerations

Ugandan businesses must also consider that mergers with a regional dimension may require notification to regional competition authorities. The Common Market for Eastern and Southern Africa (“COMESA”) Competition Commission retains jurisdiction over cross-border mergers where parties operate in two or more member states, with notification thresholds based on combined turnover or assets exceeding USD 50 million.

Additionally, the East African Community Competition Authority (“EACCA”) began accepting cross-border merger notifications from 1 November 2025. Transactions with cross-border effects in two or more East African Community (“EAC”) partner states are notifiable where the combined turnover or assets in the EAC equals or exceeds USD 35 million.

Until formal coordination mechanisms between COMESA and EACCA are fully operationalised, parties may face dual filing obligations, with attendant costs and complexity.

What this means going forward

The publication of these first merger notifications sends a clear signal to the business community. Uganda’s merger control regime is now operational and will have immediate relevance across key sectors of the economy. Businesses contemplating acquisitions, mergers, or other forms of corporate consolidation should now factor merger notification requirements into their transaction planning from the earliest stages.

The Ministry of Trade, Industry and Cooperatives (“MTIC”), through its technical committee, will administer the regime, with powers to:

i. request information from parties;

ii. conduct hearings;

iii. consult with other government agencies; and 

iv. impose structural or behavioural remedies where competition or public interest concerns arise.

The Ministry retains a “call-in” power to review any deal that may harm competition, even if it falls below the monetary thresholds, meaning few transactions are entirely immune from scrutiny.

Conclusion

The gazettement of Uganda’s first merger notifications on 26 June and 3 July 2026 marks a historic milestone in the country’s economic governance. For the first time, mergers and acquisitions in Uganda are subject to formal regulatory review before implementation. This development aligns Uganda with international best practices in competition law and will contribute to a more competitive, consumer-friendly market environment.

For businesses, investors, and their advisors, merger planning in Uganda now requires competition clearance as a non-negotiable component of transaction execution. As the technical committee gains experience and capacity, we can expect to see an increasing number of notifications across various sectors, cementing Uganda’s place in Africa’s evolving competition law landscape.

Cartel, Courts, and Currency: Inside South Africa’s Longest-Running Bank Collusion Case

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By Matthew Freer, Astra Christodoulou and Natasha Reib

Background

After a decade-long battle over allegations made by the Competition Commission, alleging that up to 18 local and foreign banks had participated in a Single Overarching Conspiracy (“SOC”), the Constitutional Court of South Africa delivered its judgment on the multi-application dispute on 30 June 2026 in BNP Paribas v Competition Commission of South Africa; Credit Suisse Securities (USA) LLC v Competition Commission of South Africa; Competition Commission of South Africa v Bank of America Europe Designated Activity Company and Others [2026] ZACC 28.

The matter arises from the Competition Commission’s complaint that a number of South African and international banks contravened section 4(1)(b) of the Competition Act, which prohibits restrictive horizontal practices. The section provides that such an agreement or concerted practice is prohibited if:

“(b) it involves any of the following restrictive horizontal practices:

(i) directly or indirectly fixing a purchase or selling price or any other trading conditions;

(ii) dividing markets by allocating customers, suppliers, territories, or specific types of goods or services; or

(iii) collusive tendering.”

The Commission alleged that up to 18 local South African banks and foreign banks, which were identified in the February 2017 referral, colluded to manipulate the United States Dollar/South African Rand (USD/ZAR) exchange rate between 2007 and 2013.

Leniency and settlements

Leniency was granted to three respondents, Absa Bank Limited and the two Barclays entities, on the basis of cooperation with the Commission in prosecuting the complaint. A fourth respondent, Citibank NA, reached a settlement with the Commission. This left 14 of the original 18 remaining respondents as active parties in the referral proceedings.

The Joinder Battles: Adding Banks After Referral

In January 2018, the Commission served an application to join another 5 respondents to the matter. An exception was filed arguing that the Commission could not add more respondents to the matter after the referral had been made. The Constitutional Court held that neither the Competition Act nor the Tribunal Rules impose an absolute prohibition on post-referral joinder. Furthermore, it was confirmed that there is no need for the Competition Commission to initiate an entirely new complaint every time a new respondent is identified post-referral.  A second joinder application followed in September 2020, adding a further five respondents, including Standard Americas Incorporated (“SAI”), which brought the total number of respondent banks to 28.

Pleading a Single Overarching Conspiracy

The respondents filed further exceptions to challenge the referral made in February 2017. They argued that the Commission had not pleaded its case properly; that the Tribunal lacked personal jurisdiction over foreign banks, and that the alleged collusion was not adequately explained. The Constitutional Court had to consider the exceptions raised but mainly focused on the issues regarding pleading, jurisdiction, and the addition of respondents post-referral rather than the allegations of collusion.

As to whether the Commission pleaded its case properly, the Constitutional Court clarified the legal principles governing an SOC and explained that the Commission must plead enough material facts, and not just vague allegations, to make out a prima facie case that each respondent intentionally participated in the collusion.  The order handed down in the earlier Competition Appeal Court judgment illustrates just how granular this pleading standard is. The Commission was required to “provide the facts that are relied on to prove that the particular respondent joined or had joined the SOC” (paragraph 19).

The Court clarified the standard applicable to exceptions of this kind. The question is whether, assuming all the facts pleaded by the Commission to be true, the Tribunal could reasonably conclude that the Commission has established a prima facie case for the relief it seeks. Respondents are generally confined to the Commission’s pleaded case when raising an exception, save where fairness justifies a limited departure.

Jurisdiction Over Foreign Banks: Section 3(1) and the Doctrine of Res Judicata

In terms of the exception regarding the Tribunal’s jurisdiction over foreign banks, section 3(1) of the Competition Act is relevant.  The section provides that “this Act applies to all economic activity within, or having an effect within, the Republic.” The Commission’s own position was that section 3(1) displaced the common law requirements of personal and subject matter jurisdiction entirely, so that any effect within South Africa sufficed to found the Tribunal’s jurisdiction, even over banks with no presence here. That argument was rejected by both the Tribunal and, on appeal, the Competition Appeal Court, which held that personal jurisdiction over foreign banks was still required, while developing the common law so that it could be established where there were “adequate connecting factors” between the Commission’s complaint and the Tribunal as a forum (paragraph 17), such as whether the alleged conspiracy connected pure foreign banks, local foreign banks, and South African banks in a single scheme targeting the rand.

The Commission argued before the Constitutional Court that this interpretation was wrong and should be revisited. But the Constitutional Court did not reconsider the interpretation of the section, as the Competition Appeal Court’s earlier judgment on the point had never been appealed. This attracted the doctrines of res judicata, since the matter had already been finally decided, and peremption, since the Commission’s conduct in pleading its later case on the basis of that judgment showed it had accepted it, both of which prevented the Commission from reopening the issue in these proceedings. As the Court put it, quoting its earlier judgment in Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State [2021] ZACC 28; 2021 (11) BCLR 1263 (CC):

“the principles of legal certainty and finality of judgments are the oxygen without which the rule of law languishes, suffocates and perishes” (paragraph 99).

The previous interpretation of the section accordingly remains binding for purposes of this matter.

The outcome

As to outcome, the Constitutional Court refused BNP Paribas leave to appeal, with costs, so the Competition Appeal Court’s decision against it stands. Credit Suisse Securities (USA) LLC succeeded, its appeal was upheld, and the Commission’s application to join it was dismissed, so it is no longer a respondent. The Commission’s own appeal succeeded only against JPM Bank and SAI, whose cases were reinstated before the Tribunal. The Commission’s appeal failed against all the other banks named above, and HBEU’s cross-appeal was also dismissed.

What this means going forward

Although this judgment did not determine whether the banks participated in the alleged SOC, it is likely to set a new precedent in competition law procedure in South Africa. This is because it establishes guidance on how future multi-application disputes regarding a SOC should be investigated, pleaded, and litigated. The case discusses how exceptions should be decided, the legal requirements for a SOC pleading, the jurisdiction over foreign firms involved in anti-competitive conduct affecting South Africa, and the addition of respondents post-referral.

Another Market Inquiry: CompComm Looks at Franchising

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By Jannes van der Merwe and James Outram

On 26 June 2026, the South African Competition Commission (the “Competition Commission”) published draft Terms of Reference (“Terms of Reference”) for the following concerns that there may be features of the franchise market that prevent or distort competition (“Franchise Market Inquiry”).

The Franchise Market Inquiry is initiated in terms of section 43B(1)(a) of the Competition Act 89 of 1998, as amended (the “Competition Act”), and follows a series of recent market inquiries by the Competition Commission, including the Media and Digital Platforms Market Inquiry, Fresh Produce Market Inquiry and the Online and Intermediation Platforms Market Inquiry.  

Market Inquiries

The Competition Commission is empowered to initiate and conduct a market inquiry as set out in Section 43 of the Competition Act, with Sections 43A, 43B, 43C and 43D being of particular importance. Following the initiation of the Franchise Market Inquiry in terms of Section 43B, the Commission has a duty to determine whether there exist any adverse effects in the market on competition that affect SMEs or firms owned/controlled by HDPs as found in Section 43C. Where such adverse effects are established, the Commission is empowered, under Section 43D, to take any remedial action necessary to prevent, mitigate or remedy any adverse effect on competition. 

In the recent past, there have been several notable instances in which the Commission took binding remedial action against firms identified in the market inquiries. Notably, following the Online Intermediation Platforms Market Inquiry, the Competition Commission imposed binding remedies against Takealot, requiring Takealot to implement significant changes to its marketplace operations and commercial structures to promote fair competition.

In light of the objective of a Market Inquiry and the Competition Commission’s powers, it is reasonably foreseeable that the Franchise Market Inquiry’s final report may similarly give rise to remedial action, which would have a direct and substantial impact on franchisors’ commercial operations and competitive positioning, with particular impetus on how franchise agreements are to be structured and enforced on franchisees. 

Franchising in South Africa

The Terms of Reference define a ‘franchise’ as a business arrangement in which a franchisor grants a franchisee the right to operate a business using its established brand, business model and operational systems in exchange for the payment of fees or royalties. This model enables businesses to expand through independently owned outlets while allowing franchisees to operate under a recognised and proven commercial system.

The Terms of Reference sets out that the franchise business market has become a major role player in the South African economy, with the franchise industry representing approximately 15% of South Africa’s GDP, estimating the industry turnover at R999  Billion, and employing approximately 500 000 people. The vast majority of franchise businesses are homegrown and represent an export opportunity. 

The Competition Commission’s Reasoning for Initiating the Market Inquiry

The Competition Commission initiated the Franchise Market Inquiry following concerns that certain features within the franchise sector limit the equitable participation and ownership of small and medium-sized enterprises (“SMEs”) and Historically Disadvantaged Persons (“HDPs”). Franchising provides an underutilised avenue for SMEs and HDPs as it allows them to invest in an established and reputable company, circumventing some of the barriers that the ordinary industry presents. As a result, this provides an important point of entry, as financial institutions are likely to provide financial assistance for investment into this business model and, as such, allows for an opportunity to address disproportionate ownership in the South African economy. 

The Competition Commission, following several complaints, identified the power imbalances between the franchisor and franchisee as a potential barrier or market feature that prevents negotiating on equal terms. The Terms of Reference indicate that these imbalances may create exploitative practices and terms in agreements that limit effective competition and participation by the identified groups. The Competition Commission posits that the concentration and increased prevalence of acquisitions of franchisees’ businesses by franchisors or other well-established chains further support the concern of franchisors’ overarching power over franchisees, impeding market participation and entry.

The Competition Commission further identifies that financial arrangements in the funding requirements pose a barrier for those attempting to enter the sector, as there are instances where the franchisors require a 50% unencumbered investment as a commitment by the franchisee. This factor, coupled with the need for robust financial support mechanisms, has the unintentional impact of excluding certain groups from entry and participation.

The Competition Commission, in dealing further with the power imbalances, identifies the undue influence of the franchisors through exercising the terms of the franchise agreements in a way that results in a hindrance to market participation and competitiveness. These practices have been identified as causing liability and financial strain on franchisees. The Competition Commission identifies the following unfair practices:

• Restrictive supply requirements and conditions imposed by franchisors that compel franchisees to purchase products and /or stock exclusively from preferred or approved suppliers, or the franchisor itself, even where cheaper substitutes exist.

• The franchisors fail to attribute the supply discounts that they obtain as a result of the franchisee’s purchase of supplies from designated suppliers.

• Non-negotiable promotional, pricing or strategic goals set by the franchisor regardless of the impact or capabilities of the franchisees. The Competition Commission identified instances where the franchisor required the franchisee to sell a product at below cost price or promotion/discounts which unduly impact their cost margins.

• Franchise fees and royalty agreements that are only required by certain franchisees, as others are exempt or on lesser fees. Often representing discriminatory practices as franchisees are given unequal treatment.

The Competition Commission posits that these practices limit the transformation and growth of SME and HDP franchise businesses, as well as a reduction of competition following the exit of franchisees as a result of the oppressive terms and conditions.

The scope of the inquiry

The Terms of Reference state that the objective of the Market Inquiry into all levels of the franchise business sector is to determine whether there are any features of the franchise sector that:

i. impede, distort, or restrict competition in the Franchise sector; 

ii. hinder the entry, growth, and meaningful participation of SMEs in owning and operating franchise businesses; and

iii. negatively affect the increased ownership of franchise businesses by HDPs.

To assess these objectives, the draft Terms of Reference further states that these objectives will be investigated along three broad themes:

i. Finance, Funding and Terms and Conditions – including the availability and accessibility of finance for franchisees and whether funding arrangements or commercial terms give rise to competition concerns;

ii. Franchise Agreements’ Terms and Conditions and Practices – to determine whether contractual provisions or franchising practices impede effective competition or result in unfair outcomes within the franchise sector; and

iii. Exploitation of Information Asymmetries – the collection, use and exploitation of information, to determine whether information-related practices, including the use of commercially sensitive information within franchise systems, distort competition or place franchisees at a competitive disadvantage.

Conclusion

The inquiry will determine whether the features spoken about above do in fact have the effect of creating an impediment to competition in the franchise sector and/or a barrier to entry by SMEs or HDPs into the market. Specifically, the Terms of Reference identified the sectoral focus as the fast food, construction, automotive, grocery, fuel stations and health and beauty sectors. 

The Market Inquiry provides an opportunity for franchisors, franchisees, creditors, funders and any party with an interest in the franchise market to be involved and influence the conduct and eventual outcome of the commission’s report.

Once the final Terms of Reference are published, the Competition Commission will commence the Market Inquiry.

The Competition Commission has invited the public to provide comments on the Terms of Reference on or before 7 August 2026. Any comments can be submitted to MolebohengM@compcom.co.za and KhomotsoM@compcom.co.za.

Egypt’s Central Bank Joins COMESA’s Competition Rules: A simple guide to what the 2026 CBE-CCCC agreement means

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By Gabriella Francesca Paolini, Matthew Freer & Holly Joubert

On 11 May 2026, the Central Bank of Egypt (“CBE”) signed an agreement with the Common Market for Eastern and Southern Africa’s (“COMESA”) Competition and Consumer Commission (“CCCC”). COMESA is a regional trade group covering Eastern and Southern Africa. The deal was signed by the CBE Deputy Governor Mai Aboulnaga and the CCCC Chief Dr Willard Mwemba.  This development carries greater significance than it may initially appear, as it materially alters the application of competition law within Egypt’s banking sector. The Memorandum of Understanding (“MoU”) establishes a formal cooperation framework between CBE and the CCCC, enabling the two authorities to coordinate on merger review, share information, and jointly investigate anti-competitive conduct within Egypt’s banking and financial services sector. To understand why this agreement matters, it must be read alongside the CCCC’s newly adopted 2026-2030 Strategic Plan. The Strategic Plan was published in February 2026 setting out five strategic pillars for the CCCC over its new five-year cycle. These pillars include integrating markets and regulatory harmonisation; effective enforcement and compliance; institutional innovation; contextual leadership; and strategic partnerships and stakeholder engagement. The Plan’s overarching mission is “Advancing Regional Integration through Competitive Markets and Empowered Consumers” (2026-2030 Strategic Plan of COMESA CCCC,2026). This Frames cooperation agreements such as this one not as diplomatic courtesy, but as enforcement infrastructure. This article examines the legal and practical implications of the MoU, situating it within Egypt’s broader history of cooperation with COMESA’s competition framework, and considers what the agreement means for banks, payment providers, and fintech businesses operating across the region.

The current environment

The timing of the MoU is equally significant when read against the broader evolution of COMESA’s competition framework. On 5 December 2025, the COMESA Competition and Consumer Protection Regulations, 2025 came into force, introducing for the first time a dedicated regulatory architecture for digital markets, including a global transaction-value threshold of USD 250 million for mergers involving digital market operators . Fintech and payment-related transactions, by virtue of their data-intensive and multi-sided characteristics, fall squarely within this expanded scope. It is against this backdrop that Dr Willard Mwemba, CEO of the CCCC, welcomed the CBE partnership, noting that it “provides a valuable platform for both institutions to share knowledge and strengthen enforcement of competition laws across member states” (Egyptian Gazette, 2026). Read together, the new digital merger regime and the CBE MoU suggest a deliberate, two-pronged strategy: COMESA is simultaneously expanding its own substantive jurisdiction over digital and fintech transactions, while securing the institutional cooperation, through instruments such as the CBE MoU, necessary to apply that expanded jurisdiction effectively within Egypt’s financial sector specifically.

How We Got Here

Egypt’s first agreement with the CCCC dates back to 2016. The 2016 deal was signed by the Egyptian Competition Authority (“ECA”), not the CBE. It addressed matters relating to information sharing, joint investigations, and avoidance of conflicts of bodies in enforcements, whilst ensuring neither party was required to change their own domestic laws. However, the shortfall with the 2016 agreement is that it did not extend to Egypt’s financial sector. In Egypt, competition rules for the financial sector are not handled by the ECA but rather fall into the jurisdiction of the CBE alone, under the 2020 Central Bank Law. There has been a gap for ten years due to COMESA having no formal link with the regulation of competition involving Egypt’s banking sector (Gazette Staff, 2026).

What the MoU Actually Does

The MoU expressly covers six sub-sectors of Egypt’s financial industry: banking, foreign exchange, money transfers, credit ratings, payment systems, and fintech. This scope reflects both the breadth of cross-border financial activity between Egypt, other COMESA Member States, and the CCCC’s 2026–2030 strategic emphasis on digital financial infrastructure as a priority enforcement area. Operationally, the MoU provides for three core cooperation mechanisms. Firstly, the investigative coordination where the CBE and CCCC may now coordinate on competition cases that have cross-border dimensions within the financial sector. Secondly, expertise and information exchange, the two institutions may share knowledge, data, and analytical capacity on issues of common concern. Thirdly, capacity building, the MoU contemplates structured technical assistance to strengthen the CBE’s competition enforcement capabilities over time. A particularly significant operational development arising from the MoU is that the CBE will establish a dedicated internal competition unit to manage implementation. This is a meaningful institutional commitment. It signals that the CBE intends to treat competition oversight in the financial sector as an ongoing operational function, rather than an ad hoc responsibility. For regulated entities, it is a clearer interlocutory for competition-related queries and procedures within the central bank.

What the New Deal Changes

The 2026 MoU fills the gap. The CBE is now the first central bank in COMESA, and the first sector-specific regulator of any kind, to sign a deal of this nature with the CCCC. It covers banking, foreign exchange, money transfers, credit ratings, payment systems, and fintech. Officials refer to it as a step toward “regional integration” and “fair competition.” Although this is an accurate statement, it undersells the practical changes pertaining to which Egyptian authority now works with COMESA on bank-related competition issues, and what that means for any bank or fintech doing business across the region.

Why It Matters

The biggest change resulting from the MoU is how the CBE and CCCC cases now connect. Before the MoU, the two processes were completely separated: anything admitted to one authority did not affect the other. A positive consequence of this change is that it reduces the risk of the CBE and CCCC reaching different conclusions in relation to the same matters. However, this arrangement creates the possibility that adverse findings or commitments made against a party before one authority may be relied upon against that party in proceedings before another authority.

Egypt now has two agreements with COMESA, the old 2016 agreement focusing on general competition and the new 2026 agreement with the CBE, focusing on the financial sector. The CBE and ECA have collaborated informally on anti-trust and merger cases that overlap; however, it is unclear how the new agreement affects this relationship. This question is sharpened by a further point of friction regarding COMESA’s “one-stop-shop” merger review mechanism, under which the CCCC’s clearance of a qualifying regional merger can substitute for separate national notifications across Member States, but this does not apply to Egypt. If that position holds, then the CBE’s accession to a cooperative framework with the CCCC, specifically in relation to merger control in the financial sector, creates an apparent asymmetry. COMESA-level coordination on financial-sector mergers may now operate co-operatively in substance even as the ECA maintains that the formal “one-stop-shop” mechanism is inapplicable to Egyptian merger notifications generally. Reconciling these two positions, in principle and in practice, is likely to be tested in the cases that follow.

The MoU’s express inclusion of payment systems, payment service providers, and financial technology businesses is also notable, and reflects a broader regional trend of competition regulators extending their analytical frameworks to digital financial infrastructure. Fintech mergers and platform-based payment arrangements often raise competition concerns, network effects, data advantages, multi-sided market dynamics, that sit awkwardly within traditional banking competition analysis (European Parliament, 2019). By bringing this sector explicitly within the CBE-CCCC cooperative framework from the outset, the MoU positions Egypt’s central bank to engage with COMESA on what is likely to be one of the more active areas of cross-border competition enforcement in the coming years.

Closing Remarks

The 2026 MoU is more than just a symbolic step toward “regional oversight”, it is the financial-sector version of the 2016 Agreement, finally closing a gap left when Egypt’s financial sector was taken out of the ECA’s control. For lawyers working with banks and fintechs in the region, should shape how they handle admissions and commitments before both authorities going forward.

Does Africa Need Its Own Digital Markets Act? Key Takeaways from the Centre for Competition Law and Economics’ Webinar on Digital Competition Policy Developments in Africa

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By Michael-James Currie and Matthew Freer

On 9 June 2026, the Centre for Competition Law and Economics (“CCLE”) at Stellenbosch University convened a practice webinar that captured, in real time, the tensions, ambitions, and practical fault lines shaping digital competition policy across the African continent. The timing was deliberate. Across Africa, competition authorities have moved past the abstract question of whether digital markets require special attention. Instead, they are now wrestling with a harder set of questions: how to regulate, who should regulate, and, most exactly, what exactly the objectives of that regulation ought to be.

The webinar brought together three voices, each occupying a distinct vantage point. Professor Willem Boshoff, Co-Director of the CCLE, Department of Economics, Stellenbosch University. He opened with a survey of national and regional developments, sketching a landscape marked by innovation but also fragmentation. Malick Diallo, Head of Competition at the African Continental Free Trade Area (“AfCFTA”) Secretariat, then offered a rare first-hand account of how the continental body is positioning itself within that landscape. And finally, Michael-James Currie, Director at Primerio, brought the practitioner’s lens: what do these proliferating rules mean for clients trying to comply, invest, and compete in an environment where regulatory priorities remain dangerously unclear?

The South African Starting Point

Boshoff began by anchoring the discussion in the South African experience, not because it is representative of the continent, he was careful to say it is not, but because it offers a useful baseline for comparison. What is striking about the South African approach, he observed, is how the competition authorities have relied on existing tools rather than demanding a separate, bespoke digital regulatory regime. They have repurposed market inquiry tools, adapted merger control frameworks to capture killer acquisitions, and sought to develop broader skills across the authority rather than building a dedicated digital unit.

That last point is revealing. Boshoff noted, that running a competition authority in Africa comes with limited resources and scarce specialised skills. Building a standalone digital unit is expensive. Instead, the South African authorities have attempted to mainstream digital expertise across the organisation, relying on the two major market inquiries, the Online Intermediation Platforms Market Inquiry and the Digital Media Platforms Market Inquiry, to build institutional understanding from the ground up.

What is equally notable, Boshoff argued, is the preference for time-bound remedies and the distinctly developmental focus that runs through South African competition enforcement. Supporting smaller players, protecting local businesses, and ensuring that digital markets serve broader industrial policy goals have become central features of the approach. “In a sense,” he said, “this is quite different from the approach taken in the European Union, even though it might mean we do a bit more ex ante work within the competition law framework.” The EU has gone for strong, explicit ex ante regulation. South Africa has not, at least not yet.

But Boshoff was careful to emphasise that South Africa is not the continent. When you move beyond its borders, the picture changes dramatically.

Kenya, COMESA, and the March Toward Ex Ante Rules

Kenya represents a different trajectory. Boshoff described a jurisdiction that has historically taken a lighter-touch approach, not unlike South Africa’s. But recent developments, specifically the country’s e-commerce policy and the accompanying amendments to its competition legislation, signal a deliberate shift toward ex ante measures. The competition amendment bill includes alternative thresholds for digital mergers and rethinks how dominance should be assessed in a digital setting. Whether that will translate into dramatically different enforcement outcomes remains to be seen, Boshoff cautioned, but the fact that these provisions are being baked into the legislation itself is significant.

Move up one layer further, to the regional level, and the picture shifts again. COMESA, Boshoff noted, has been remarkably active. Its 2025 regulations align closely with the European DMA-style approach, complete with specific prohibitions, digital merger thresholds, and a posture toward prohibited practices that is far more prescriptive than South Africa’s case-by-case method. That comes with its own set of challenges, Boshoff acknowledged, both for enforcers and for the parties subject to those rules.

Across all these jurisdictions, however, Boshoff identified two common threads. The first is a merger of competition policy and consumer policy, not new, but particularly pronounced in the digital context, where exploitative conduct targeting specific groups of customers has become a focus of attention. The second is an emphasis on protecting small local players, whether through merger remedies or abuse of dominance enforcement. That emphasis on contestability, Boshoff suggested, raises a deeper question: is the goal to have two or three players competing head-to-head, or is it to build ecosystems where one or two large players create opportunities for many smaller ones in adjacent markets? Those are, in effect, industrial policy decisions baked into competition law. And they have not yet been fully debated.

The AfCFTA’s Role

If the national and regional picture is one of fragmentation and divergence, Malick Diallo’s contribution was an attempt to map how the AfCFTA intends to impose order without overriding legitimate local and regional autonomy. Diallo was clear from the outset: the AfCFTA protocol on competition policy was never designed to replace or supersede national or regional frameworks. The preamble explicitly recognises the central role that national and regional authorities will continue to play in promoting fair competition and inclusive growth in intra-African trade.

In describing what the continental body is for, Diallo explained the three-layer architecture. National authorities handle matters of a domestic nature, classic enforcement, abuse of dominance, local measures. Regional bodies like COMESA, ECOWAS, WAIMU, and SAMRC address cross-border conduct within their respective markets. And the AfCFTA Competition Authority steps in only where there is a “continental dimension”, defined in Article 1 of the protocol as conduct, practices, mergers, or agreements that have a significant effect on the markets of at least two state parties that do not share the same regional economic community jurisdiction.

Digital markets are the clearest illustration of why this matters. Diallo pointed to a study by the African Competition Forum showing that Google holds an estimated 90% market share in search across the continent. That dominance is felt in every African country simultaneously. A national authority can deal with purely domestic conduct, and a regional body can handle matters limited to its region, but when conduct cuts across different regions, or when no regional body has jurisdiction, the AfCFTA fills the gap. “We are filling the enforcement gap that arises in cross-regional and truly continental transactions,” Diallo said.

He identified five concrete ways the AfCFTA complements existing work:  

  1. It fills the jurisdictional gap.
  2. It promotes harmonisation of laws and standards. Diallo noted that COMESA has already adopted new provisions on abuse of economic dependence, aligning with the AfCFTA protocol, and the secretariat is supporting other state parties to do the same.
  3. It has established the AfCFTA Competition Network (AFCNet), a platform for regular dialogue, case referrals, joint investigations, and the development of common approaches to market definition, data access, and remedies.
  4. It facilitates capacity building, allowing more advanced jurisdictions like South Africa to share expertise with younger ones.
  5. It provides a structured channel for information sharing, including confidential information, to avoid the inconsistencies and duplicative interventions that currently plague the system.

“What we are trying to build is not a parallel enforcement regime,” Diallo emphasised, “but a continent-wide ecosystem, one where national authorities handle domestic cases, regional bodies handle cross-border intra-regional cases, and the AfCFTA handles truly continental conducts.” Digital markets, given their cross-border nature, network effects, and tendency toward gatekeeper dominance, are the clearest illustration of what the continental authority is meant to tackle.

The Practitioner’s Warning

Speaking from the perspective of a competition lawyer advising clients who must navigate this proliferating regulatory landscape, Michael-James Currie raised a series of pointed questions about whether the current wave of rulemaking is outpacing the capacity of authorities to enforce those rules wisely.

He began with killer acquisitions. Many jurisdictions have lowered their merger thresholds to capture these transactions. But Currie asked a deceptively simple question: what happens after the transaction is captured? Are agencies actually able to make informed, forward-looking assessments in dynamic markets? He noted that while the theories of harm in killer acquisitions are well established, it would be illuminating to conduct an ex post assessment of all the digital mergers captured by lower thresholds over the past ten years. How many of them, with the benefit of hindsight, ought to have been prohibited? The Facebook-Instagram decision is often cited as a cautionary tale, Currie acknowledged, but even there, one must ask: would Instagram be where it is today without Facebook’s investment and synergies?

That question is not merely academic. It goes to the heart of whether new rules are solving a real problem or simply increasing regulatory friction. It leads directly to the issue of capacity. Even the most resourced jurisdictions struggle to make accurate forward-looking assessments in digital markets, Currie observed. For African authorities, many of which lack dedicated digital units, the challenge is magnified. “It’s very difficult,” he said, “not even for a jurisdiction that lacks the resources, even for the most resourced jurisdictions and agencies who have been looking at digital markets for many years, it’s tough for them too.”

Currie then turned to the issue of gatekeepers, which he described as “just one element of digital markets.” He noted that COMESA is currently drafting regulations to define what a gatekeeper is, a process that will not be uncontentious. He pointed to a recent decision where Meta successfully overturned a European Commission designation of Facebook Marketplace as a gatekeeper under the Digital Markets Act, with the General Court of the European Union ruling in Meta’s favour. That decision, Currie argued, shows that there will be a great deal of litigation over who qualifies as a gatekeeper, and that authorities will have a very tough time defining the relevant product markets in which a respondent is said to be a gatekeeper.

Perhaps most provocatively, Currie suggested that the policy conversation is disproportionately focused on platforms and gatekeepers while neglecting digital infrastructure. Currie suggests that if one wants to grow local industries, digital infrastructure is critical. The attention given to platforms, he argued, comes at the expense of the underlying infrastructure that would enable local players to compete in the first place.

It was in the context of competing policy objectives, however, that Currie delivered his most pointed remarks. He observed that South Africa has always mixed industrial policy into its competition regime, protecting employees, supporting SMEs, promoting historically disadvantaged persons. “It all sounds very good on paper,” he said. “But it is very difficult for an agency or regulator, or even government, to say, if there’s a tension between what’s good for consumers and what’s good for a certain class of competitors, who will we prioritise?”

That question is not abstract. It arises in real cases, and it requires an answer. Currie’s concern was that regulators have not provided one. Instead, they have effectively said: trust us. We will arrive at the right conclusion. We don’t want to harm innovation or investment. Just trust us.

“That is a very difficult message to sell to industries and stakeholders,” Currie said. “Policymakers and regulators need to set out, very clearly and deliberately, what they prioritise over what under instances of tension.”

The Unresolved Question

Boshoff, returning to the discussion, noted that Currie’s concerns connected directly to a deeper issue that the webinar had only begun to explore. The implicit industrial policy focus of digital market regulations across the continent has not yet grappled with how best to support African platforms and ecosystems. The EU policy debate, Boshoff observed, is currently centred on digital mergers, scaling, and how merger policy might support European-based platforms in response to the Draghi report. That debate is largely absent in Africa.

Conclusion

The webinar left little doubt that Africa is moving rapidly toward a multi-layered digital competition regime, with the AfCFTA positioning itself as the essential capstone. Malik Diallo’s contribution was valuable precisely because it came from inside the process, he was able to articulate not only the legal architecture but the practical mechanisms, AFCNet, harmonisation efforts, capacity building, through which the AfCFTA intends to make that architecture work.

Currie’s warnings were however valuable. Regulation without clarity of objective is not sound policy. Asking stakeholders to trust that regulators will balance consumer welfare, SME protection, industrial development, and innovation in every case is not a sustainable basis for compliance or investment. As African authorities continue to build out their digital competition frameworks, whether at the national, regional, or continental level, they would do well to answer the question Currie posed. When tension arises between competing objectives, what comes first?

Until that question is answered clearly and deliberately, the risk is not that African competition policy will be too strong or too weak. It is that it will be unpredictable. And for businesses trying to invest and compete across the continent, unpredictability is its own kind of harm. However, the message is equally not one of despair but of opportunity: African competition authorities are building something unprecedented, a truly continental enforcement dialogue, and if they can answer the hard questions about what they value most, they may yet produce a model for digital regulation that is as dynamic as the markets it seeks to govern.

AfCFTA Anchors Aweigh: Novel Pan-African Antitrust Regulator Takes Shape

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Having reported on the promise and challenges of the African Continental Free Trade Area (“AfCFTA”) and its regulatory ambitions previously here, our Editor was fortunate to attend the inaugural AfCFTA conference of competition-law experts this week. Reporting from Lomé, Togo, he relayed an excellently-planned and executed meeting — cleverly scheduled adjacent to the massive annual Biashara Afrika 2026 convention taking place in the Togolese capital this year, drawing thousands of attendees from the trade and commerce world. Together, under the broader umbrella of “Powering Africa’s Economic Transformation through the AfCFTA,” the two events convened policy-makers and business leaders to push for a single market and boosting Africa’s trading position on the global stage.

Over 200 participants attended the antitrust conference, with its theme of “Harnessing Competition as a Catalyst for African Market Integration,” assembled by the leadership of Malick Diallo, Head of AfCFTA’s Competition Division and his Ghana-based team of organizers. The competition-focused meetings at the five-star Hôtel 2 Février were well attended throughout both days, covering topics ranging from the tricky subject of multi-jurisdictional mergers with regional overlaps to digital-market regulation and, importantly, listening to the private bar for their input.

In total, the meeting comprised 5 sessions and 3 keynotes over the course of two days, including speeches by NYU’s Prof. Eleanor Fox, the FCCPC legend Babatunde Irukera, Leonard Ugbajah of ERCA, and the European Commission’s DG COMP as well as OECD. Participants notably took in lessons learned from other regional enforcers (Dr. Willard Mwemba and Alexia Waweru from COMESA, Simeon Koffi, and Mor Backhoum from ECOWAS, the EAC, WAEMU and the AU) as well as National Competition Authorities. The latter ranged from Kenya, Egypt, Tanzania, Nigeria, Mauritius, South Africa, Tunisia, and others to the European Union and delegates from Switzerland and the World Bank. While David Kemei (CAK) and Florence Abebe (FCCPC) spoke on behalf of their agencies, notably absent from the discussion were representatives from the United States enforcement agencies, belying a further retrenchment of the DOJ and FTC’s prior capacity-building activities and international involvement under the current administration.

“I see the AfCFTA as perhaps the single most important building block for a truly cohesive, pan-African trade and commerce community so far,” says AAT’s Editor, Andreas Stargard, who attended the conference in his capacity as a practitioner with Primerio International. “Coming from quite a bit of EU and COMESA multi-national experience, I believe that managing those clearly unavoidable  jurisdictional conflicts in a regional body from the get-go will be crucial to its success, lending credence to the ‘Competition as Catalyst’ theme of the conference…”.

Below is the AfCFTA’s Concept Note, outlining further details surrounding the event:

THE AfCFTA INAUGURAL CONFERENCE ON COMPETITION POLICY AND LAW

A joint initiative of the AfCFTA Secretariat, the Organisation for Economic Co-operation and Development (OECD) and the European Union (EU)

Theme: 

“Harnessing Competition as a Catalyst for African market integration”

Lome, Togo                                                                                  19-20th May 2026

Introduction

  • Africa is entering a new phase of its economic integration journey. The African Continental Free Trade Area (AfCFTA) — the largest free trade area in the world by number of participating countries — has set in motion a transformation of the continent’s economic architecture. With a combined market of over 1.4 billion people and a GDP approaching USD 3.4 trillion, the AfCFTA offers an unprecedented opportunity to deepen intra-African trade, accelerate industrialisation, and position Africa as a global economic force. Realising that opportunity, however, requires more than the removal of tariffs and border barriers. It requires markets that are genuinely open, contestable, and fair — markets where competition determines outcomes, not the power of incumbents or the distortions of anti-competitive conduct.
  • That is where competition policy comes in. A dynamic, well-enforced competition framework is not a regulatory luxury; it is a foundational condition for the AfCFTA to deliver. It ensures that the gains of trade liberalisation are not captured by dominant incumbents, cartels, or anti-competitive mergers. It creates the conditions for new entrants, innovative businesses, and African SMEs to compete on merit. It underpins consumer welfare, productive investment, and the structural transformation that Africa’s integration agenda demands.
  • To support this vision, the Assembly of Heads of State and Government of the African Union, at its 36th Ordinary Session held in Addis Ababa, Ethiopia, on 18–19 February 2023, adopted the Protocol to the Agreement Establishing the African Continental Free Trade Area on Competition Policy (the “AfCFTA Competition Protocol”). The Protocol establishes a continental competition regime aimed at enhancing competition within the AfCFTA for improved market efficiency, inclusive growth, and the structural transformation of the African economies.
  • At the same time, African competition authorities and policymakers are being asked to grapple with increasingly complex issues: how to manage overlapping national, regional, and continental competition regimes; how to align competition, trade, and industrial policy objectives; how to tackle long‑standing competition problems in transport and logistics; and how to respond to the rapid rise of powerful digital platforms and new forms of market power in the digital economy. Despite significant progress, important gaps remain. A recent survey of competition frameworks conducted by the AfCFTA Secretariat and the OECD found that while 76.2% of surveyed African jurisdictions have a competition law framework in place, significant disparities persist in enforcement capacity, institutional design, and coherence between national, regional, and continental regimes.
  • The AfCFTA Conference on Competition Policy and Law  2026 is conceived as a practical, forward‑looking response to these challenges. Jointly convened by the AfCFTA Secretariat, the Organisation for Economic Co‑operation and Development (OECD) and the European Union, it provides a continental platform where competition authorities, trade and industrial policymakers, sector regulators, business leaders, legal practitioners, academics and development partners can think together about how competition policy can best support Africa’s integration and development ambitions.
  • The inaugural edition focuses on four interconnected themes that are shaping the continent’s competition agenda today, namely:
  • the emerging architecture of an integrated African competition regime which discusses the interplay between national, regional, and continental competition frameworks;
  • the interaction between competition, trade and industrial policies;
  • competition in the transport and logistics sector as a cornerstone of trade facilitation; and
  • competition and regulation in digital markets.

The Conference is designed not only to exchange experiences, but to generate concrete ideas on how to make these frameworks work in practice for a dynamic and integrated African market.

Conference Theme

  • The theme of the inaugural Africa Competition Conference is “Harnessing Competition as a Catalyst for African market integration”.
  • The theme captures a core belief of the Conference: that competition policy is not simply a compliance obligation, but a powerful driver of economic integration, productive investment, consumer welfare and sustainable development. It challenges participants to reflect on how competition law and enforcement can be shaped, implemented and coordinated across Africa to unlock the full integration gains of the AfCFTA.

Objectives and target audience

  • The overall objective of the Conference is to foster high-level, practical dialogue among competition authorities, regulators, policymakers, business practitioners, academics, and international experts on the key challenges and opportunities in African competition policy; and to generate concrete ideas that can inform future work under the AfCFTA.
  • More specifically, the Conference aims to:
  • Build a shared understanding of how the AfCFTA continental competition framework interacts with existing national and regional regimes, and how overlapping jurisdictions and enforcement responsibilities can be managed effectively;
  • Examine the interaction between competition, trade, and industrial policy under the AfCFTA, with a focus on practical approaches for ensuring coherence and managing tensions in key sectors;
  • Identify priority enforcement and regulatory actions to improve competition in Africa’s transport and logistics sector, with a view to reducing trade costs and facilitating intra-African trade;
  • Advance the understanding and implementation of Article 11 of the AfCFTA Competition Protocol in digital markets, including approaches to economic dependence, gatekeeper designation, and the interpretation of gatekeeper obligations;
  • Solicit practical perspectives from business leaders, legal practitioners, and in-house counsel on how African competition frameworks operate and how they can be strengthened; and
  • Lay the groundwork for a programme of future cooperation, technical work, and capacity-building under the AfCFTA, in partnership with the OECD, EU, regional economic communities, and other partners.

Conference Sessions: Background, Key Issues and Structure

Session 1: The triangle of policies – Competition, trade and industrial policy in Africa

  • Africa’s development strategy relies on an active industrial policy to build productive capacity and accelerate structural transformation, trade policy to manage market access across borders, and competition policy to discipline anti-competitive conduct. These three policy strands share the overarching goal of improving economic performance but can generate significant tensions, particularly at the sectoral level. The way in which these policies interact depends both on their underlying objectives as well as on the way in which they are designed and implemented.
  • Industrial policy instruments such as state aid, sector-specific incentives, special economic zones, and strategic procurement can create market distortions when poorly designed or captured by incumbents. Trade measures such as anti-dumping duties may protect domestic industries at the cost of consumer welfare. Conversely, aggressive competition enforcement, if not carefully attuned to development context, can undermine legitimate scale‑building and coordination efforts that industrial policy seeks to foster. Getting the balance right is one of the defining policy challenges for African integration.
  • This session draws on case studies from Africa and comparative experiences from other regions to explore practical approaches workable within the AfCFTA framework. It will examine:
  • Where competition, trade, and industrial policy are consistent and reinforce each other — and where tensions arise in practice;
  • The role of competition authorities as institutional voices  supporting a pro-competitive design or implementation of industrial and trade policy processes;How State Parties, RECs and the AfCFTA can promote policy convergence across the three domains; and
  • Lessons from jurisdictions that have successfully balanced competition and industrial policy goals.
  • Critical issues: Can African industrial policy ambitions be pursued without sacrificing the competitive market structures that drive long-term productivity? What role should competition authorities play in designing and reviewing industrial policy measures and what policy instruments should be considered to ensure industrial policies are pro-competitive? What level of convergence in competition, trade and industrial policy is realistic and desirable under the AfCFTA, and how can State Parties, RECs and AfCFTA institutions sequence this convergence over time? Which concrete experiences from other regions in aligning industrial strategy with competition rules are most transferable to African conditions, and what adaptations are required to make them fit the AfCFTA context?

Session 2: Towards an integrated African continental competition regime – The interplay between national, regional, and continental competition frameworks

  • Africa’s competition landscape is being reshaped by the AfCFTA Competition Protocol, which adds a continental layer to existing national laws and regional regimes such as those of COMESA, ECOWAS, the EAC and WAEMU. This deepens the integration architecture but also raises practical questions about overlapping jurisdictions, potentially conflicting obligations and greater regulatory complexity for businesses operating across borders. A central concern for practitioners, authorities and policymakers is how these interlocking regimes will function day to day.
  • This session will explore the emerging architecture of an integrated African competition regime. Discussions will cover:
  • The distinct features of existing supranational frameworks and their interaction with national laws and the AfCFTA regime;
  • The opportunities and challenges of cross-border enforcement, including coordinated investigations, merger control, and cooperation between national and regional bodies;
  • How businesses can navigate an evolving multi-level regulatory landscape;
  • Lessons from comparable supranational architectures, including the EU; and
  • The status of AfCFTA competition regulations and the roadmap to operationalisation.
  • Critical issues: How can concurrent jurisdiction be managed to minimise conflict and duplication, while fostering consistent outcomes? What institutional and procedural mechanisms are needed to coordinate enforcement between national authorities, REC bodies, and the future AfCFTA Competition Authority? How can the continental regime support, rather than burden, smaller jurisdictions with nascent competition frameworks?

Session 3: Levelling the playing field – Competition in Africa’s transport and logistics sector

  • The transport and logistics sector constitutes a cornerstone for the development of an integrated internal market in Africa. However, transport and logistics costs are among the highest globally, operating as a de facto tariff on intra‑African trade. Regulatory shortcomings and anti‑competitive conduct in this sector are a major part of the problem: restrictive and onerous licensing and access regimes, fragmented multi‑modal regulation across borders, cartels in road freight, concentrated control over ports and terminals and gaps in essential infrastructure access all depress trade, push up prices and undermine the competitiveness of African producers.
  • As the AfCFTA deepens tariff liberalisation, the relative importance of logistics costs as a constraint on trade increases. Sector-specific regulatory assessment and reform, complemented by robust competition enforcement, is therefore a necessary companion to trade liberalisation. This session brings together competition authorities, transport regulators, corridor agencies, and industry representatives to identify the main sources of competitive harm, share enforcement and regulatory experience, and discuss targeted reforms.
  • The session will address:
  • How existing regulatory frameworks (licensing, concessions, access rules, corridor agreements) shape market structure and entry, and where they unintentionally hinder access, increase discretionary powers and entrench monopolies or cartels;
  • The main patterns of anti‑competitive conduct in key transport and logistics markets (road freight, ports and terminals, aviation, multimodal logistics), and how they affect prices, service quality and reliability;
  • The Yamoussoukro Decision and Single African Air Transport Market (SAATM) from a competition perspective;
  • Practical cooperation models between competition authorities, transport regulators and corridor institutions for investigating and remedying harmful practices;
  • The role of competition assessments and market studies in informing transport and logistics reform under the AfCFTA; and
  • How to incorporate competition objectives into ongoing regional infrastructure initiatives and corridor development programmes.
  • Critical issues: How can competition authorities and transport regulators coordinate to address practices that span their respective mandates? Which regulatory reforms would most effectively improve contestability in key transport markets? How can the AfCFTA regime support an effective and coordinated approach to removing competition barriers in logistics?

Session 4: Competing in the digital age – Digital trade, platform markets, and Article 11 of the AfCFTA Competition Protocol

  • Digital trade is reshaping African markets and will increasingly determine whether African businesses and consumers participate competitively in the broader global economy. Africa’s digital economy is characterised by fast-growing platform markets, expanding mobile and fintech ecosystems, and the rapid penetration of digital intermediaries into commerce, payments, logistics, and communications. This creates new opportunities but also new forms of market power and dependence.
  • Article 11 of the AfCFTA Competition Protocol is the continent’s primary legal tool for tackling competition concerns in digital markets. It introduces the notion of “economic dependence”, prohibits abuses of that dependence that significantly harm competition in the AfCFTA market, sets out a detailed list of forbidden practices for core platforms (such as self‑preferencing, certain parity and anti‑steering arrangements, tying, and unjustified limits on data portability and interoperability), and mandates the development of a Regulation to identify and subject “gatekeeper” platforms to these obligations.
  • At the same time, the AfCFTA Digital Trade Protocol, adopted in February 2024, sets harmonised rules on e‑commerce, data flows and digital identities, making coherence between competition and digital trade rules an important implementation challenge.
  • The session will explore:
  • Defining and assessing economic dependence in African digital markets in practice; what indicators and evidence are relevant, and how this differs from standard dominance analysis;
  • The specific prohibited practices in Article 11; how they should be interpreted, which are most relevant to African market realities, and what enforcement challenges they present;
  • Options for a gatekeeper designation framework under Article 11(5), drawing on the EU Digital Markets Act and other international experience while calibrating criteria and thresholds to African conditions;
  • The enforcement capacity and institutional tools that authorities need to investigate digital platform conduct under Article 11; and
  • The interface between Article 11 and the Digital Trade Protocol on data portability, interoperability, and access to data.
  • Critical issues: How should economic dependence be assessed where multi-homing is possible but switching costs are high? What designation criteria would be both rigorous and proportionate for African digital markets? How can authorities with limited resources build capacity to investigate platform conduct? How can coherence between Article 11 and the Digital Trade Protocol be ensured?

Special Segment: The Lome Roundtable: Voices from business and the bar

  • This special segment departs from the formal panel format to provide an open forum where business leaders, legal practitioners, and in-house counsel engage directly with competition authorities and policymakers. The Lome Roundtable is designed to bring out the day‑to‑day concerns and realities of dealing with African competition regimes: compliance costs, merger clearance timelines, enforcement unpredictability, market access barriers, and the challenges of navigating multi-level competition regimes, that may not be fully visible from a purely institutional perspective.
  • The Roundtable reflects the Conference’s commitment to ensuring that competition law serves not only as an enforcement instrument but as a framework that enables businesses to operate, grow, and trade across African borders with confidence. Open and structured dialogue between enforcers and the business community is a hallmark of mature competition systems, and the Lome Roundtable is designed to institutionalise this practice at the AfCFTA level.
  • It will address:
    • Practical experience with African competition regimes: what works, what creates uncertainty, and what imposes disproportionate compliance costs;
  • How authorities can improve transparency, predictability, and responsiveness including in merger review, guidelines, and stakeholder engagement;
  • The specific challenges of operating across multiple overlapping competition jurisdictions; and
  • Practical suggestions for how the relevant stakeholder can improve competition frameworks from a business perspective.
  • Critical issues: What are the most significant compliance and enforcement challenges for businesses operating across African borders? How can merger review be made more streamlined and predictable? What kinds of guidance, tools or platforms would most help businesses navigate overlapping competition regimes?

Expected Outcomes

  • The expected outcomes of the Conference include:
  • A shared, practical understanding of how the AfCFTA continental competition framework interacts with regional and national regimes and the roadmap for its operationalisation;
  • Concrete insights and practical approaches for managing the interaction between competition, trade, and industrial policies at the national, regional, and continental levels;
  • A set of regulatory actions and priority enforcement to identify and address regulatory barriers and anti-competitive practices in Africa’s transport and logistics sector, with concrete suggestions for cooperation between competition authorities and sector regulators;
  • Key questions, indicators, and options for implementing Article 11 of the AfCFTA Competition Protocol in digital markets — including ideas for a gatekeeper designation framework and priority areas for guidance and capacity-building; and
  • Practical suggestions from business leaders and legal practitioners on improving the clarity, predictability, and accessibility of African competition frameworks.

Changing Channels: Competition Commission Tunes Into MultiChoice and Altech’s Alleged 2014 Market-Sharing Agreement

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By Tyla-Lee Coertzen and Matthew Freer

On 15 April 2026, the South African Competition Commission (the “Commission”) referred a complaint against MultiChoice South Africa (Pty) Ltd (“MultiChoice”) and Altech UEC South Africa (Pty) Ltd (“Altech”) to the Competition Tribunal for prosecution.

The Commission’s complaint centres around allegations of breaches of section 4(1)(b)(ii) of the Competition Act 89 of 1998 (the “Act”) regarding a market-division agreement entered into between Multichoice and Altech. Specifically, the Commission’s complaint alleges that that, in February 2014, the firms agreed that Altech, a manufacturer of Set Top Boxes (“STBs”), would refrain from entering the pay-television (“pay-TV”) market as a competitor to MultiChoice.

At the time, Altech was a key supplier of STBs to MultiChoice. The Commission argues that this arrangement effectively resulted in allocation of the pay-TV market, where MultiChoice remained a dominant provider of subscription television services, while Altech remained confined to the hardware manufacturing space, despite having the theoretical capability to become an effective competitor.

The referral was announced on 4 May 2026, by way of a media statement released by the Commission issued a media statement announcing the referral of a collusion complaint against pay-TV giant MultiChoice and electronics manufacturer Altech. The referral marks a significant escalation in the Commission’s enforcement of cartel conduct within the broadcasting and technology sectors.

Section 4(1)(b)(ii) of the Act prescribes as follows:

  • An agreement between, or concerted practice by, firms, or a decision by an association of firms, is prohibited if it is between parties in a horizontal relationship and if-
  • it involves any of the following restrictive horizontal practices:
  • dividing markets by allocating customers, suppliers, territories, or specific types of goods or services;

The allegations are founded on a potential per se prohibition, meaning that the Commission is not required to prove that the agreement had actual anti-competitive effects, the existence of the agreement itself is sufficient to establish a violation of the Act.

If the Tribunal ultimately finds against the firms, they face administrative penalties of up to 10% of their respective annual turnovers.

To understand the competition concerns arising from the Commission’s complaint, one must examine the relationship between the two entities during the 2014-2015 period. At the time of the alleged agreement, Altech was a unit of the JSE-listed Altron group (Business Day, 2026). Beyond manufacturing decoders, Altech launched a product known as the “Node,” an interactive smart home and video-on-demand device that utilised satellite connectivity. The Commission appears to view the “Node” as a potential competitive threat to MultiChoice’s DStv service (Business Day, 2026). The agreement in question, according to the regulator, ensured that Altech would not transition from a supplier of hardware to a rival provider of pay-TV services, thereby protecting MultiChoice’s market dominance.

In response to the media statement and the referral, MultiChoice issued a formal statement to the press denying any contravention of the law. The company confirmed that the agreement in question was a “historical supply agreement” that has since come to an end in 2015 (Business Day, 2026).

Multichoice asserts that the arrangement was a standard commercial supply agreement rather than a cartel arrangement. MultiChoice also noted that it is “considering the referral and will respond fully within the prescribed timelines,” indicating that it will challenge the Commission’s interpretation of the facts in due course during the subsequent proceedings before the Tribunal. As of the publication of the Commission’s statement, Altech, which was sold by Altron to Skyblu Technologies, a Skyworth affiliate, in 2019, had not issued a public response.

John Oxenham, Partner at Primerio notes: “The referral of MultiChoice and Altech illustrates the Commission’s continued vigilance regarding market allocation in the digital broadcasting sector. While the Commission asserts that the 2014 agreement served to push a potential competitor out of the market, MultiChoice argues that the historical agreement was benign. The case analysis will likely hinge on whether the Tribunal views Altech as a potential competitor in the pay-TV market at the time of the agreement.”

Merger filing thresholds almost double after a decade

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South Africa Merger Control: New Notification Thresholds and Filing Fees in Force

By Nicole Araujo and Kelly Baker 

For the first time since 2017, South Africa’s merger notification thresholds and associated filing fees have been revised.  On 4 May 2026, Parks Tau, the Minister of Trade, Industry and Competition, signed the new Merger Thresholds and Filing Fees into force, with effect from 1 May 2026. This was done by the Minister in consultation with the Competition Commission of South Africa. 

For intermediate mergers, the combined annual turnover or assets of the acquiring and target firms must now equal or exceed R1 billion, up from R600 million, while the annual turnover or asset value of the target firm alone must equal or exceed R200 million, up from R100 million.

For large mergers, the combined threshold has been raised to R9.5 billion from R6.6 billion, and the target firm threshold to R280 million from R190 million.

Intermediate merger filings now attract a fee of R220 000, while large merger filings cost R735 000.

New Notification Thresholds:

CategoryCombined turnover or assetsTarget firms turnover or assets
Intermediate mergerR1 billionR200 million
Larger mergerR9.5 billionR280 million

New Filing Fees:

CategoryPrevious feeNew fee
Intermediate mergerR165 000R220 000
Large mergerR550 000R735 000

 

This significant adjustment means that a number of transactions previously notifiable as intermediate mergers may now fall below the revised thresholds and qualify as small mergers, which are generally exempt from pre-implementation notification (subject to certain exceptions).

The practical upshot for dealmakers is a lighter regulatory footprint, with improved deal certainty and potentially shorter implementation timelines. Overall, the revised thresholds align South Africa’s merger control regime more closely with the current deal landscape and reduce the unnecessary notification burden associated with transactions that pose no real competitive concern.

Parties to transactions with a South African nexus should reassess their filing position against the revised thresholds, as deals previously assessed as notifiable may now fall below the filing thresholds altogether. Where notification remains required, parties should also be mindful of the adjustments to the applicable filing fees.

 

Regulation as a Barrier to Entry: The Competition Commission’s Review of Regulatory Impediments to Competition and SME Participation

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By Jannes van der Merwe and Astra Christodoulou

On 22 April 2026, the South African Competition Commission (“the Commission”) launched a review of regulations that may act as barriers to competition and the entry and expansion of firms with particular focus on small and medium enterprises (“SMEs”) across all Markets in South Africa (the “Review”). The Review forms part of a broader national policy effort to support inclusive economic growth, reduce compliance burdens and modernise the regulatory environment in a manner that promotes competitiveness at all levels in the market. The Review was initiated against the backdrop of President Cyril Ramaphosa’s 2026 State of the Nation Address (“SONA”), in which one of the topics addressed was the need to reduce red tape and improve the ease of doing business.

This announcement follows several prior market inquiries by the Commission, including those in the grocery retail, data services and healthcare sectors, in which the Commission found that regulatory design to be a recurring impediment to competitive market outcomes.  The Review, therefore, demonstrates a meaningful evolution in the Commission’s approach, moving from a reactive, conduct-based enforcement toward a more structural and upstream engagement with the rules that govern market participation.

Legal and Policy Framework

The Commission’s mandate to engage with legislation and public regulations is well established under the Competition Act 89 of 1998 (the “Act”). Section 21(1)(k) of the Act empowers the Commission to “review legislation and public regulations, and report to the Minister concerning any provision that permits uncompetitive behaviour.”This regulatory review function is distinct from, and complementary to, the Commission’s market inquiry powers under Chapter 4A of the Act.

The Competition Amendment Act 18 of 2018 (the “Amendment Act”), which introduced significant reforms to the Act with effect from 12 July 2019, reinforced the Commission’s structural mandate by addressing two persistent constraints on the South African economy: elevated levels of economic concentration and the skewed ownership profile of the economy. The Amendment Act strengthened provisions relating to abuse of dominance, price discrimination, and public interest considerations in mergers, while also enhancing the market inquiry framework to ensure that outcomes result in enforceable action.

The Commission has actively pursued change and reform in favour of SME’s following the Amendment Act. The Commission issued Regulations on Buyer Power on 13 February 2020, which included factors and considerations to combat unfair practices by dominant firms that will impede effective participation by SMEs. The Commission further issued the Block Exemption Regulations for Small, Micro and Medium-Sized Businesses on 23 May 2024, with the purpose of stimulating the growth and participation of SMEs in the economy.

Further, the Commission issued a Guide for SMEs in September 2022 with the aim of assisting and informing SMEs about their rights and the Commission’s functions and processes in protecting and promoting SMEs in the broader South African market.

This Review takes the next logical step by addressing regulatory structures early, before market distortions become entrenched competitive problems. Section 2 of the Act articulates the purposes of competition policy in South Africa, which include ensuring that SMEs have an equitable opportunity to participate in the economy and promoting a greater spread of ownership, in particular to increase the ownership stakes of historically disadvantaged persons (“HDPs”)

Categories of Regulatory Barriers Under Review

The Commission has identified six broad categories of regulatory barriers that fall within the scope of the Review.

Administrative Barriers

Complex, lengthy or uncoordinated authorisation and licensing processes that delay market entry or expansion are identified as a primary category of concern. These barriers weigh most heavily on SMEs, which generally lack the organisational capacity and financial resilience to withstand the prolonged regulatory delays that larger, established operators can absorb with relative ease. Earlier Commission market inquiries, particularly those examining the healthcare and grocery retail sectors, found that licensing and authorisation delays had a measurable constraining effect on competitive entry.

Rules Entrenching Monopoly Supply or Artificial Scarcity

Regulations that create or entrench monopoly supply or an artificially limited number of suppliers, through exclusive rights, long-term contracts or restrictive licensing, are a second category. These mechanisms often reflect the legacy of the pre-democratic regulatory order and persist across sectors ranging from electricity generation to port logistics. Where such frameworks are not the product of a deliberate and demonstrably justified policy choice, they function as state-conferred barriers to competitive entry.

Onerous Licence and Permit Conditions

Licence and permit conditions that unduly limit who may operate in a market, including conditions that are disproportionately costly or time-consuming, or that impose unnecessary caps on licence holders, are the third category that will be considered in the Commission’s Review. This includes regulatory frameworks in sectors such as liquor retail, transportation and financial services, where licensing regimes have historically served to consolidate market access among established players.

Unreasonable Standards and Compliance Requirements

The Commission also identifies unreasonable or unnecessary standards and licensing requirements for operating, registering, constructing or meeting compliance obligations as a source of competitive harm. While minimum standards serve a legitimate function in protecting consumers and ensuring safety, the design and implementation of such standards can effectively foreclose entry where requirements are disproportionate to the relevant risk or are not calibrated to accommodate smaller-scale operators.

Restrictions on Price and Non-Price Competition

Restrictions that limit competition on price or non-price factors, including constraints on pricing, location, quality or marketing, constitute the fifth identified category. Such restrictions, whether explicit or the incidental product of regulatory design, diminish the incentive and ability of market participants to compete on the merits. The Commission also flags requirements that are reasonable in principle but are poorly implemented, resulting in administrative backlogs, inconsistent interpretation and unpredictable outcomes. This final category acknowledges that competitive harm may arise not only from the content of a regulatory rule but from the manner of its administration.

Poorly Implemented but Facially Reasonable Requirements

The sixth category is notable in that it acknowledges a source of competitive harm that is distinct from substantive regulatory design: requirements that are reasonable in principle but poorly implemented, leading to extensive delays, inconsistent interpretation, administrative backlogs or unpredictable outcomes. This category reflects an important analytical refinement. Competitive harm may arise not only from the content of a rule but from the dysfunction of the administrative machinery through which it is applied. For SMEs with limited resources to sustain protracted regulatory engagement, unpredictability and delay in implementation can be as effective a barrier to entry as an explicitly restrictive provision. This category also opens the door for the Commission to recommend administrative and institutional reforms, not merely amendments to the text of regulations, as a remedy.

B-BBEE, Transformation and Competition Policy: An Intersecting Mandate

The Review’s express attention to whether current regulatory frameworks adequately enable meaningful participation by historically disadvantaged persons (“HDPs”) raises a significant question regarding the relationship between B-BBEE regulatory requirements and competition policy. The Amendment Act reinforced the Commission’s obligation to consider the adverse effects of market structures and conduct on firms owned or controlled by HDPs. This represents an area where competition policy and transformation objectives must be carefully reconciled.

Regulatory frameworks that ostensibly promote transformation, through preferential procurement requirements, equity thresholds or ownership conditions, may in some instances operate to elevate compliance costs for new entrant firms to a degree that forecloses rather than facilitates participation. The Review presents an important opportunity to examine whether the architecture of transformation-focused regulation is designed in a manner that advances both its stated equity objectives and the competitive functioning of markets, or whether refinements to its implementation are warranted.

Practical Implications for Legal Practitioners and Businesses

The Commission has invited businesses and other stakeholders to make written submissions by close of business on 5 June 2026, to be directed to regulation@compcom.co.za. Submissions should identify the relevant regulation and specific provision, describe the manner in which it restricts competition or participation (including practical compliance experience), and propose reforms to remove or modify the barrier while maintaining the regulation’s underlying purpose.

For legal practitioners advising clients in regulated sectors, the Review represents a significant and time-sensitive engagement opportunity. A well-constructed submission should situate the identified barrier within the statutory framework of the Act, particularly the section 2 purposes relating to SME participation and HDP ownership and should be grounded in demonstrable commercial experience of the regulatory impediment in question. Submissions that propose targeted, evidence-based reforms, rather than wholesale deregulation, are likely to carry greater persuasive weight with the Commission.

Sectors in which practitioners may wish to consider engagement include, without limitation:

  • construction and property development (certificate of need and development authorisation processes);
  • healthcare (facility licensing and certificate of need requirements);
  • logistics and freight (port access and operator licensing);
  • retail liquor (licence conditions and geographic restrictions); and
  • financial services (entry-level licensing thresholds and FAIS compliance burdens on smaller advisory firms).

Conclusion

The Review represents a significant exercise of the Commission’s regulatory advocacy function and marks a notable shift in the focus of competition policy intervention. By turning its analytical lens toward the rules and regulations in the market rather than exclusively toward the conduct of market participants, the Commission is engaging with the structural determinants of market concentration and exclusion at their source.

The effectiveness of this initiative will, however, depend substantially on two variables:

  1. the quality and breadth of submissions received from market participants with direct experience of the identified barriers and;
  2. the political will within the relevant line departments and regulatory bodies to implement the Commission’s eventual reform recommendations.

The Commission’s regulatory review function under section 21(1)(k) is advisory in nature; its recommendations do not bind regulators or the legislature. The Review’s long-term significance will therefore be measured not only by the rigour of its analysis but by the extent to which its findings translate into durable regulatory reform. The recommendations proffered by the Commission will have to be well structured and presented, to ensure that those who can impose regulatory reform, such as the Minister of Trade, Industry and Competition and other ministers engaged through the review process, are encouraged to impose the required reform.

Stakeholders operating in regulated markets are strongly encouraged to engage with this process. The submission deadline of 5 June 2026 affords sufficient time to prepare substantive, sector-specific contributions that could meaningfully shape the Commission’s findings and, ultimately, the regulatory landscape within which South African businesses operate.