African Antitrust — the Big Picture: 2025 in Review & Outlook for ’26

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Competition-law specialists at Primerio have compiled the following snapshot of 2025.

Competition law enforcement across Africa continued its market trajectory of expansion throughout 2025, with early signals in 2026 enforcing a continent-wide shift towards more assertive, coordinated and policy-driven antitrust regulation. At both a national and regional level, authorities have increasingly moved beyond traditional enforcement and investigative tools.

A defining feature of 2025 has been the growing institutional confidence of African regulators. From the introduction and strengthening of regional regimes to the imposition of significant sanctions against multinational digital market players, African Antitrust enforcement bodies have demonstrated both technical capacity and willingness to ensure compliance with regional and national legislation. At the same time, legislative reform and increases in guidance notes and clarificatory tools signal an increasingly sophisticated regulatory environment, however, one which is more complex for multi-jurisdictional transactional and conduct risk.

This Snapshot spans the key developments we have previously reported on across Southern Africa, the Common Market for Eastern and Southern Africa (“COMESA”), the Economic Community of West African States (“ECOWAS”) and the East African Community (“EAC”), highlighting recent enforcement trends, institutional milestones and new policy innovations that shaped 2025 and which we anticipate will define the African Antitrust landscape as we move further into 2026.

Southern Africa

In South Africa, 2025 and early 2026 have been characterised by increasing interventions in mergers as well as continued use of exemptions and industrial policy.

Digital platform regulation was a defining theme in 2025. The South African Competition Tribunal’s (“SACT”) interim relief order in the Lottoland / Google Ads case signalled a willingness to ensure enforcement over exclusionary conduct in online advertising. This assertiveness was echoed in the GovChat v Meta ruling, where the SACT’s approach to platform access and data inoperability signalled the intention to rest the outer bounds of abuse of dominance enforcement against global big-tech firms.

In parallel, South Africa saw emerging scrutiny from the consumer protection angle, with the South African National Consumer Commission probing e-commerce platforms’ data practices and compliance frameworks, highlighting the convergence between competition and consumer protection enforcement in digital markets.

The South African Competition Commission’s (“SACC”) media and digital platforms market inquiry outcomes, as well as the Google’s agreement to pay ZAR 688 million to South African media, have further illustrated how negotiated remedies and sectoral interventions are being deployed to rebalance digital value chains.

Exemptions and block exemptions have remained a central tool available to parties in South Africa. The granting of Transnet’s 15-year exemption raised significant debate about the appropriate balance between enabling infrastructure coordination and preserving competitive neutrality. Subsequent developments in exemptions, including the block exemption in respect of Phase 2 of the Sugar Master Plan and corridor-based logistic exemptions, confirm that exemptions are being embedded as a long-term sector restructuring tool rather than temporary measures to allow coordination as well as a means to attain specific public interest and industrial policy goals.

Procedural and evidentiary developments have also shaped the landscape. The SACT’s decision granting absolution in the X-Moor tender cartel case clarified the evidentiary burden in collusive tendering prosecutions, reinforcing the need for robust inferential and documentary proof.

In relation to developments in merger control proceedings in South Africa, intervention dynamics were tested in Lewis Stores application to intervene in the merger between Pepkor Holdings Limited and Shoprite Holdings Limited. The South African Constitutional Court permitting Lewis’ intervention have raised much debate as to whether intervention by third parties frustrates and unduly delays the finalisation of merger hearings in South Africa.

The SACC had introduced a number of guidelines in relation to treatment of confidential information, as well as gatekeeper conduct with respect to pre-merger filing consultation processes, online intermediate platforms, notifications of internal restructures meeting the definition of mergers, and price-cost margin calculations. More recently, there have been proposed revisions to the SACC’s merger thresholds and filing fees, signalling a move towards greater ease in deal negotiation.

COMESA

2025 was a landmark year for both regulatory and enforcement developments in the COMESA region.

Most significantly, 2025 saw the introduction of the newly renamed ‘COMESA Competition and Consumer Commission” (“CCCC”) and the publication of the much anticipated COMESA Competition and Consumer Protection Regulations (2025). Early 2026 has also brought subsequent clarifications released by the CCCC with regard to its new suspensory merger regime in order to provide further insight into the CCCC’s approach in regulating mergers now brought to its attention.

The COMESA Court of Justice’s decision regarding the legality of safeguard measures imposed by Mauritius on edible oil imports from COMESA Member States demonstrated continued willingness of regional bodies policing activities of individual Member States.

Regional integration has been further reinforced through a number of cooperation initiatives, including formalised engagement between COMESA and the EAC on competition and consumer protection enforcement.

At Member State level, national competition regimes continue to interact dynamically with the regional system – this has been demonstrated by merger control retrospectives in Malawi, and regulatory developments in Zimbabwe. The Egyptian Competition Authority has, through recent guidance, also sought to provide further clarity with respect to its merger control regime and align with international best practice.

When considered alongside reflections on enforcement trajectory more broadly throughout the COMESA Common Market, the CCCC appears to be consolidating a far more assertive and procedurally sophisticated authority.

EAC

The operational launch of merger control marked a structural milestone for the East African Community Competition Authority (“EACCA”). The EACCA’s confirmation that it would begin receiving merger notifications from November 2025 introduced yet another operational regional authority on the African continent.

National enforcement has remained active alongside this regionalisation. Tanzania’s merger control developments and enforcement strategy signal a regulator seeking sharper investigative tools and clearer procedural pathways. Institutional cooperation is also deepening, as evidenced by alignment initiatives between the Tanzania Fair Competition Commission and the Zanzibar Fair Competition Commission, aimed at reducing jurisdictional fragmentation.

Kenya has also provided some of the region’s most visible enforcement signals. The upholding of cartel sanctions in the steel sector confirms judicial backing for robust cartel penalties. Leadership transitions at the Competition Authority of Kenya may also influence enforcement measures leading into the new year. More recently, the fine imposed in the Directline decision underscores the reputational and financial stakes attached to non-compliance with Kenya’s competition regime.

ECOWAS

Nigeria has been at the forefront of digital enforcement measures in Africa. The Nigerian Competition and Consumer Protection Tribunal’s landmark decision upholding the Federal Competition and Consumer Protection Commission’s $220 million fine on WhatsApp and Meta for discriminatory practices signals both the scale of sanctions now at play.

Regionally, the Economic Community of West African States Regional Competition Authority (“ECRA”) merger control regime gained operational depth in 2025, having been launched in late 2024. Early analysis framed the regime as a foundational shift towards increased regional review, while subsequent approval decisions demonstrated increasing practical application and institutional learning.

Legislative reform also remains underway at Member State level. The Gambia’s draft competition bill reflects a move towards more proactive market inquiry and enforcement powers, suggesting that more novel African national regimes are evolving in tandem with regional frameworks.

Conclusion and Outlook for 2026

Across the African continent, several cross-cutting themes have emerged. First, in line with global antitrust enforcement, digital market investigations and enforcement remains a focus point. From South Africa’s media and digital platform market inquiries and exclusionary investigations to Nigeria’s abuse of dominance sanctions and COMESA’s recent investigation into Meta, it is apparent that African competition authorities are increasingly asserting jurisdiction over digital platforms. Second, exemptions and public interest tools, particularly in South Africa, are being normalised as structural industrial policy instruments.

Regionalisation is also accelerating. COMESA’s long-awaited regulatory overhaul, the introduction and operationalisation of the EACCA’s merger regime and ECOWAS’ expanding enforcement collectively point towards a multi-layered African merger control framework requiring often complex, parallel and overlapping multi-jurisdictional navigation. Institutional cooperation agreements and memorandums of understanding further reinforce this trajectory, suggesting more coordinated enforcement and increased risk of detection.

Looking ahead, we note three developments which merit close attention. First, the practical implementation of new regional regulations, specifically those of the CCCC in COMESA, will test capacity, compliance as well as appropriateness of new regulatory hurdles in the global M&A space. Hand in hand with these, overlapping regional bodies will likely lead to jurisdictional disputes.  Second, Digital market remedies are likely to evolve. Finally, in line with recent developments elsewhere, the continued blending of competition, consumer protection, and industrial policy objectives suggest that African antitrust enforcement will remain uniquely pluralistic.

ECOWAS: ERCA Approves first Merger with Conditions

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By Jannes van der Merwe

Since the election of the Council for the Economic Community of West African States’ (“ECOWAS”) competition authority, the ECOWAS Regional Competition Authority (“ERCA”) on 1 October 2024, the ERCA has taken significant strides in bolstering the region’s M&A presence.

The council of the ERCA approved its first merger with conditions on 8 August 2025 when the council approved the acquisition of MultiChoice Group Limited by the Canal+ Group SAS. This decision follows a detailed assessment carried out under the ECOWAS Community Competition Rules and the regulatory framework governing mergers and acquisitions within the common market. The transaction was formally notified to the Authority on 24 March 2025 and was declared complete on 2 May 2025 after all procedural requirements and conditions were satisfied.

The operation involves Canal+ increasing its shareholding in MultiChoice from an existing minority position of c.45.2%, to full control. Both companies are competitors in the distribution of audiovisual services in the ECOWAS region.

The Authority examined the structure of the regional audiovisual market which includes wholesale content supply and retail audiovisual services delivered through satellite digital terrestrial television and online streaming. Although the market is highly concentrated and characterized by strong players the analysis showed limited overlap between the parties due to linguistic segmentation. While the combined entity would hold a significant share at the community level the merger was not expected to substantially reduce competition within national markets. The presence of alternative providers including regional and global digital platforms also contributes to ongoing competitive pressure.

The Council of the ERCA acknowledged concerns expressed by stakeholders and consumers regarding potential risks of market dominance price increases and reduced content diversity. As a result, the acquisition was approved subject to conditions. The first of its kind in the common market.

The Council of the ERCA imposed the following conditions on Canal+:

  1. Canal+ is required to maintain a diverse range of audiovisual offerings for French and English speaking audiences;
  2. Canal+ to preserve existing distribution networks; and
  3. Comply strictly with competition rules and to also annually report to the Authority and notify any price changes to enable effective monitoring.

Michael-James Currie, director at Primerio, states: “This conditional merger is evidentiary that the ERCA intends to strike a balance between promoting investment into the region, while also considering the effects on the market and consumers.”

Clarifying the Suspensory Regime: Key Insights from Egypt’s 2025 Competition Q&A

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By Tyla Lee Coertzen and Holly Joubert

In June 2025, the Egyptian Competition Authority (“ECA”) released a soft-law guidance tool entitled “Q&As concerning the ex ante control of economic concentrations pursuant to Law no. 3/2005 on the Protection of Competition and Prohibition of Monopolistic Practices and its amendments” (the “Q&A”), which provides a number of clarifications with respect to its merger control regime. We summarise the most notable features of the Q&A below, with respect to notification thresholds and procedure.

  1. Notification Thresholds

The Q&A provides clarity as to the definition of an ‘economic concentration’ notifiable with the ECA. In this regard, an ‘economic concentration’ is defined as any ‘change of control or material influence’. The ECA’s determination of a change of control follows the ordinary standards, such as owning over half of the total voting rights or shares in a firm, the ability to use or exploit the majority of assets of another firm, any acquisition of rights which confer the ability to appoint the majority of directors or control the decisions of the board of a firm. The ECA will further consider material influence to arise where a person obtains ownership of 25% or more of the total voting rights of another person, essentially conferring special rights or veto rights in respect of a firm. The Q&A clarifies in this regard that owning less than 10% of the total rights, shares, or stocks is not likely to result in material influence.

Additionally, the ECA reaffirmed that market shares are irrelevant to the notification requirement. If parties in a transaction meet the specified threshold, a filing is a mandatory step regardless of their market position.

Helpfully, the Q&A provides helpful insight in relation to the ECA’s financial thresholds required for notification of economic transactions. Generally, the ECA prescribes both a domestic threshold and an international threshold:

DomesticWorldwide
Threshold met if the combined annual turnover or asset value (whichever is higher) of parties to the economic concentration in Egypt equals or exceeds EGP 900 million (c. USD 19 million) and individually each party exceeds turnover of EGP200 million (c. USD 4 million) in Egypt.Threshold met if the worldwide combined annual turnover equals or exceeds EGP 7.5 billion (c. USD 159 million) and the target firm exceeds turnover in Egypt of EGP 200 million. (c. USD 4 million)
  • Clarity in respect of the ECA’s simplified notification procedure  

Under the ECA’s notification procedures, it prescribes the ability of parties to notify economic concentrations under a ‘simplified procedure’. This procedure was introduced to enable low-risk transactions that will not result in substantial competition concerns, and which are capable of expeditious review to be assessed and cleared within 20 business days. Under the ordinary notification procedure, the ECA prescribes a review period of 30 business days for Phase 1 notifications and 60 business days for Phase 2 (complex) notifications. Additionally, both Phases 1 and 2 reviews are capable of being extended by a further 15 business days if remedies are proposed.

Under the simplified notification procedure, parties are required to complete a short-form notification file with the ECA, which significantly assists in the preparation and finalisation of economic concentration notifications, particularly with respect to large-scale multinational transactions.

The simplified procedure is, however, only available to parties who meet the notification thresholds prescribed above and who also fall within the following simplified financial thresholds. These are also split between a domestic and worldwide threshold:

DomesticWorldwide
Domestic threshold will be met where the combined annual turnover or asset value of the parties in Egypt does not exceed EGP 2 billion.Worldwide threshold will be met where the annual turnover or asset value in Egypt of the target does not exceed EGP 500 million. (c. USD 10.6 million)

John Oxenham, director at Primerio notes that “Importantly, prior to utilising the simplified procedure and in order to prevent delays in assessment, parties should be minded to engage with the ECA as to whether these requirements are met, particularly where it appears that parties are able to meet one of the simplified thresholds.”

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

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

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

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

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

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

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

Two recent notable block exemptions are elaborated on below.

Ports, Rail and Key Feeder Road Corridors

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

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

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

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

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

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

Sugar Master Plan

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

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

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

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

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

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

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

Conclusion

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

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

Competition and Consumer Protection enhanced through EAC-COMESA Collaboration

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By Andreas Stargard and Nicole Araujo

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

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

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

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

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

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

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By Michael-James Currie and Joshua Eveleigh

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

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

Background

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

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

  • Furniture products; and
  • Bed sets and mattresses.

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

Lewis’s basis for intervening

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

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

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

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

Tribunal’s reasons for permitting Lewis’s intervention

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

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

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

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

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

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

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

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

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

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

The CAC’s assessment of merger intervention rights

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

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

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

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

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

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

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

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

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

Further and final appeal to the Constitutional Court

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

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

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

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

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

Conclusions and Insights

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

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

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

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By Michael-James Currie and Nicole Araujo

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

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

(i) whether Directline possessed superior bargaining power; and

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

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

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

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

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

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

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By Matthew Freer

Introduction

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

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

Draft amendment to merger thresholds

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

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

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

Method of calculation remains unchanged

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

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

Revised lower (intermediate) merger thresholds

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

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

Revised higher (large) merger thresholds

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

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

Merger classification unchanged

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

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

Draft amendment to merger filing fees

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

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

Proposed revised merger filing fees

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

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

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

Public participation and next steps

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

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

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

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

Conclusion

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

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

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by Michael-James Currie and Kelly Baker

Pre-merger filing consultation process

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

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

Online intermediation platforms

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

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

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

Internal restructuring

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

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

The Guidelines on Internal Restructuring are accessible here.

Price-cost margin calculation

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

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

COMESA Competition & Consumer Commission Clarifies New Regulations

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By Tyla Lee Coertzen and Holly Joubert

Introduction

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

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

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

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

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

  • Strict adherence to the new suspensory regime

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

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

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

  • Transactions in digital markets

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

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

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

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

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

  • Extension of merger assessments to non-competition factors

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

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

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