The article below, fitting nicely with AAT’s prior reporting on the “creeping public-interest factors” in African competition law, was submitted to the Department of Law, University of Cape Town, by guest author Abigail Machine. It reflects the author’s view only.
Public Interest Test and Merger Control in South Africa: The Walmart Case Revisited
The new South African Competition Act 89 of 1998 highlighted an innovative view of a policy which certainly is about efficiencies and growth, yet tempered with its competing non-economic issues of equity, accountability and economic democracy. The policy subscribed to by South Africa is a reflection of the current values and aims of its society. It concerns itself with issues of distribution and power over and above economic efficiency. In this regard, public interest provisions were included as a means to responding to different objectives other than the economic objective of consumer welfare.
The problem with the public interest provisions in the act basically lie with the criticisms levelled against their inclusion, particularly in merger reviews, with critics largely arguing that the public interest issues ought to be addressed in other policies other than the competition act. The paper seeks to provide motivation for a justification of their inclusion in merger reviews by indicating how their presence in the competition policy have actually advanced the original intention of competition through the case study of the gigantic Walmart/Massmart merger case which was contested up to the competition appeal court level and the lessons drawn from the case. A critical analysis of how the case was dealt with from the competition commission stage up to the court of appeal will be illustrated, with particular emphasis on the substantiality of the issues that were raised as well as the difference in consideration of such matters by the three arms dealing with competition. The paper will conclude by indicating the importance of these issues especially in the context of a developing country, by looking at both the advantages and disadvantages of inclusion of public interest considerations in merger review, where competition issues are new and are likely to continue to be on the rise with the developing markets being the targets for further development especially by the western developed countries.
Competition Policy in general
As a general proposition, competition law consists of rules that are intended to protect the process of competition in order to maximise consumer welfare.The systems of competition law are concerned with practices that are harmful to the competition processes, in particular anticompetitive agreements such as those between competitors agreeing to fix prices or restrict output, abusive behaviour for example by a dominant firm with substantial market power enabling it to behave as a monopolist and mergers that can lead to anticompetitive behaviour such as abuse of dominance after merging.The benefits that accrue from competition include lower prices, better products, wider choices and greater efficiency than would be obtained under conditions of monopoly. In recent years, many competition authorities have stressed the central importance of consumer welfare when applying competition law.However it would be reasonable to point out that although consumer welfare is currently in the ascendary, many different policy objectives have been pursued in the name of competition. Issues such as redistribution of wealth (promotion of economic equity rather than economic), protection of competitors (protecting small firms against more powerful rivals), unemployment and regional policy in the technical sense can be ascribed to competition law. This means that competition policy does not operate in a vacuum and its success or failure is a combination of factors other than consumer welfare, which issues need consideration in the realm of competition law.
Overview of the South African Competition Law Policy
The South African competition law is hugely influenced by social and historical factors marked by the apartheid era. The new act formed an important part of the reforms designed to both address the historical economic structure and encourage broad based economic development. The government introduced the micro economic reform strategy in which the role of competition policy is defined as central to the efficient outcomes of the markets. The major criticism by the ANC led government on the competition legislation it had inherited was that it was weak in addressing the extent of concentration of ownership and market share.The competition board was relatively weak. It operated under the maintenance and promotion of Competition Act 96 of 1979. The board was simply administrative in nature without executive authority, but made recommendations to the minister who would decide whether to accept or reject such recommendations.
Its link to the government meant that its impact essentially depended on whether the government wished to use it as a tool for pursuing policy goals. This old structure could be the reason why there was a shift in the new structure as it was learnt from experience that competition issues and politics could not be related if there was any intended achievement in this arena of competition law. The minister as a political figure representing the government forms part of stakeholders affected by competition issues. To be asked to judge on such matters would in most cases result in the neglect of competition issues that this particular stakeholder did not find in its favour, even though such issues enhanced other welfare issues. It was imperative that such duties be removed from the government.
The apartheid government had close relations with big business. The board was largely complaints driven as opposed to assessing practices in highly concentrated industries. The new government having regard to all the old practices which produced inefficiencies affecting a multitude of the South African society, sought a new policy aimed at promoting and maintaining competition in a bid to a) Promote efficiency, adaptability and development of the economy b) Provide consumers with competitive prices and product choices c) Expand opportunities for South Africa’s participation in world markets d) Promote small and medium sized enterprises to participate in the economy e) Give previously disadvantaged South Africans ownership right. It is trite to note that at the time the new legislation was enacted, the government was responding to contextual problems that needed to be solved as Fox indicated and in doing so were answering questions like who in the country was harmed by what practices, how the problems were to be solved and at what cost.
The new policy brought about major changes in the legal provisions relating to mergers, where compulsory premerger notification for certain deals was introduced. It is argued that a notification system allows the authority to respond in a timely manner to external changes in market structure that might significantly impede competition for a long time. The institutions were made independent of the government and three different institutions were set up to deal with competition issues, being the competition commission, the competition tribunal and the competition appeal court. Merger activities are prevalent in South Africa and most common, hence the need to guard against any ill effects associated with such activities. It should be noted as well that in the case of South Africa like in many instances in developing countries, public interest provisions are read together with merger activities.
Perhaps the most important factor to consider in this regard also is the characterisation of South Africa and the effects of such on the development of its policy. South Africa is a developing country which is basically associated with low levels of market development, high government market control, high barriers to trade, high levels of unemployment, and extreme inequalities in distribution of wealth and opportunities and political instability. These characteristics affect the choice of goals, as enshrined in the South African competition act. As a developing country, it strives for inclusive growth. In a recent OECD roundtable on competition and poverty eradication, delegates of competition authorities in developing countries argued that the ‘political stability of the competition policy authorities depends to a large extent on how they are seen as contributing to poverty reduction and employment creation. It would be risky for them to state that their only target is combatting harm to competition by producers and that the impact of their efforts on poverty or inequality is irrelevant.’This reinforces the reason why other competing issues are found in most competition policies of developing countries and why it is not viable for these countries to have a total legal transplant of the practices of liberal markets where their conceptions as developed countries are not necessarily ideal for small and emerging markets.
Fox and Gal have also reinforced the place of development in competition. They argue that development affects goals.Whereas developed economies with already functioning markets can afford to focus solely on efficiency, disregarding distributive effects based on assumption that when the markets are free and open competition itself will generally create positive distributive effects, this is not true of developing jurisdictions. There, the focus must be on efficient inclusive development of their markets, which gives weight to distributive concerns as part of the long term development of the economy. This is because developing countries cannot afford to disregard distributive concerns, for economic, political and social reasons.This is the typical case for South Africa, as a result of its apartheid regime.
Fox states that efficiency is a multifaceted concept and ‘there is no one thing called efficiency’. She points out that conducts, transactions and markets have efficiency and inefficiency properties at the same time and the relative dimensions of each property are affected by assumptions regarding how well markets work. How one applies a goal of efficiency therefore depends on what one values and stresses as well as hunches as to what will produce the most efficiencies in all of its senses.This means therefore that for each competition policy to work it has to consider the conditions under which it will be acceptable and effective. In the South African context, its ambition could only be achieved by addressing issues that responded to public interest test as well.
Fox further supports the manner in which the competition policy of South Africa was drafted when she expressed her sentiments on antitrust or competition law for developing countries. She argues that antitrust for developing countries must be seen in a broader context, instead of focussing on aggregate wealth or welfare goal which would not be necessarily welcome or suitable for developing nations. Access to basic needs and participation to the economy are no longer a big concern for developed countries. However developing countries are still dealing with those basic concerns. Although globalisation and free markets increase wealth and make more business opportunities available to many, they also make the stronger economic actors more powerful and the small businesses weak’… to the extent that efficiency as a goal of antitrust implies disregard of distributional values, it may not be the centrepiece that developing countries would choose.’While all this seems to be making sense and understandable even by critics, the biggest concern especially for critics of this inclusive framework is the ability of competition authorities to strike a balance between economic efficiency goals and non-economic goals.
Before turning to the South African merger regulation, it is also important to look briefly at practices of other countries in relation to public interest issues to see if these align with practices in South Africa. This seeks to give a background to the justification of these provisions to reveal the point that South Africa’s initiative and other competition policy holders are not misguided.
Public Interest in other Jurisdictions
According to Oxenham Botswana, Malawi, Namibia, Swaziland and Zambia are some of the jurisdictions in Africa that include some form of public interest considerations as part of their competition regulation. The provisions in respect of public interest in these jurisdictions are mainly associated with the assessment of merger activity and do not extend to prohibited conduct or exemptions.In Zambia the scope of potential factors for consideration is essentially unlimited including not only unemployment, exports and international competitiveness but also socio-economic factors as may be appropriate. This kind of provision is highly likely to lead to different interpretations which may be tailored to suit different cases as and when they arise. It makes it difficult for precedent setting, which is an important aspect of law. It should be clear what exactly is covered under public interest provisions for proper functioning of such non-economic competing goals. In Kenya public interest considerations include exports, promoting stability or even obtaining a benefit for the public can be used to justify an exemption for otherwise anticompetitive agreements.
In Zimbabwe, public interest provisions also relate to promotion of small and medium sized enterprises, facilitation of indigenisation and localisation of economic activities, as well as development of local brands into regional and international brands.Its provisions are related to the ones provided for in South Africa and are manifest in many of the Zimbabwean competition cases. For example when Pretoria Portland cement from South Africa sought to merge with Portland holding in Zimbabwe, the merger was approved on condition that the acquiring South African company modernise the plant of the target in Zimbabwe and maintain it as a going concern producing cement in Zimbabwe. There was concern that although the merger generated a number of public interest benefits such as facilitating foreign direct investment and increased foreign exchange earnings, stakeholders from Pretoria Portland Cement might close the plant in Zimbabwe and supply the country from its South African Operations, hence the conditions imposed.
The Coca-Cola/Cadbury- Schweppes merger was approved on condition that in addition to acquiring the Cadbury-Schweppes beverage brand, the Coca-Cola company should also acquire Cadbury-Schweppes bottling plant in Zimbabwe, modernise it and dispose of it to local indigenous investors and that Coca-Cola company develops Cadbury-Schweppes local Mazoe and Calypso beverage brands into regional and international brands. The British American Tobacco/Rothmans of Pall Mall merger was also approved on condition that the merged entity disposes of its surplus cigarette making machinery and equipment to other local investors interested in entering the market. The merger would create a monopoly in the industry but it was noted that the amalgation of the two companies had certain public interest benefits as outlined in s32(5) of the act. The conditions imposed were aimed at alleviating possible adverse effects of the monopoly situation created.Conditions imposed were both of a structural and behavioural nature. In China many of the prohibited conduct investigations by the national development and reform commission including cartel investigations appear to focus on products in which there is a substantial interest such as salt, telecoms and inputs for popular medicines.
Historically in the United Kingdom, competition authorities had a public interest test from 1948 to 1998 which included a number of varying factors such as protection of employment and exports. The then Fair Trade Act gave discretion to the United Kingdom authorities to decide on what they would take into account in determining public interest, which essentially broadened the scope of such considerations beyond the promotion of competition. As of 2002, the only stipulated public interest consideration related to the protection of national interest. In the USA, there seems to be no provision for public interest in the Sherman act or the clayton act with the exception that the small business act confers immunity on joint actions by smaller firms in response to a request by the president pursuant to a voluntary agreement or programme approved by the president to further the objectives of the small business act, if found by the president to be in the public interest as contributing to the national defence.
These illustrations serve to indicate the various forms taken by countries in advancing public interest depending on the socio-economic and political imperatives of an economy. Although there tends to be a natural friction between the considerations of public interest and the economic, efficiency driven principles that underlie competition policy and law, it can be argued that there is a role for public interests in the application of competition policy in developing economies. What needs to be guarded against is the abuse of these provisions and that public interests should only come into play when they are exceptional and should be seen within the context of the primary competitive assessment. A look at the public interest provisions in South Africa provides background to the much publicised Walmart case and the issues it posed not only for South Africa but for the global society as a whole.
Public interest provision in the South African Competition Act
The key provisions of the act that relate to public interest are located in three parts, viz the preamble and purpose of the act, the consideration of mergers and exemptions. The preamble states that the act will benefit all South Africans and is necessary to regulate the transfer of economic ownership in keeping with the public interest. Section 2 of the act outlines the purpose of the act which is intended among other things to promote employment and advancing equity opportunities for small and medium sized enterprises. With respect to mergers, the concept is more fully developed in section 12 of the act, and this is of particular interest to this paper.
A merger is defined as where one or more person acquires direct or indirect control over ‘significant interests in the whole or part of the business of a competitor, supplier or customer…’ Control is defined as ownership of or the ability to vote a majority of the relevant shares. It also includes the ability to materially influence materially the policy of the firm as if majority control was held. Section 12A states that in addition to competition and efficiency considerations, it is also necessary to assess whether a merger can be justified on grounds of substantial public interest or not by assessing the factors set out in section 12A (3). This is to be done whether or not a merger is found to be competitive.
When considering whether or not a merger will be justified on grounds of public interest grounds, the competition commission or tribunal must consider the effects that the merger will have on a) a particular industry sector or region b) employment c) ability of small businesses or firms controlled or owned by historically disadvantaged persons to become competitive d) ability of national industries to compete in international markets.The mergers that are of particular concern in this context are large mergers, which cannot be effected until they have been approved by the competition tribunal.
The meaning of the section 12 interpretation in relation to mergers is that even where a merger has passed the efficiency test, it has to be still considered in terms of public interests provisions, to confirm that such efficiencies as well tally with what public interest seeks to achieve. The only considerations that have to be given are those of a substantial nature. Although this requirement has been qualified and the public interest issues have been restricted to those provided in the act, it still remains a challenge to decide when public interests are trivial especially where they have been raised. The only way that it can be established whether the issues are not substantive is when the authorities consider them, which means that even those that are not substantial are still considered for the authorities to come to a meaningful conclusion. Simple oversight of the issues where they are raised even where prima facie they appear trivial is tricky especially in developing countries where the authorities are still trying to set precedents, and also making effort to be seen to be advancing the goal of competition policy. The considerations of public interest alongside the efficiency issues in the act is an indication of the earlier notion of how the issues compete with each other as opposed to against each other. When issues compete with each other, it means their consideration has to be done in light of their complementing each other to achieve the same goal that they both seek to advance.
For the very consumer that competition law seeks to protect today is the very consumer that is found in the public interest arena either as an employee or business owner, whose concerns still need to be assessed and addressed in so far as competition law is concerned. In light of the provisions highlighted, the writer now turns to the famous Walmart/ Massmart merger case as decided by the three arms of competition. The case is an illustration of a challenge that arose in the field of competition where a multinational company was involved, yet no competition issues were found to exist in the merger, with the resultant argument resting purely on public interest grounds. The giant story is a ground breaking scenario of where competition authorities’ expertise was tested and tried and nevertheless succeeded, confirming the place of public interest as rightfully within competition law.
Issues in the Walmart/Massmart merger
Walmart’s entry into South Africa with the aim of merging with Massmart raised no economic concerns as it was not in competition with Massmart. The two issues that underpinned the whole case were employment and procurement issues, which were brought by the trade unions and the ministers representing the government. The union was greatly concerned with the possible reduction of jobs following the merger as a result of the history of the retailer’s conduct on the conditions of workers in the markets it already operated. Perhaps this argument may have surprised merging parties although this is evidence of the effects of the new age of information circulating 24 hours and instant social media. The government was concerned with procurement being taken away from the local suppliers to foreign suppliers as a result of Walmart’s global purchasing power. It meant loss of business for the small and medium businesses which could not compete with Walmart in this regard and subsequent further loss of jobs. These concerns were as a result of the information gathered on the multinational’s practices in the areas it operated, hence the fear that despite its economic efficiencies, its negative influence would spread to South Africa going to the root of the issues that the competition sought to correct. It was an appeal to the authorities to confirm its commitment from a shift in mind to just attracting foreign direct investment, to considering what foreign direct investment would achieve for South Africa holistically.
Procurement issues posed a challenge in one or two ways. The localisation drive by the government affects competition in two ways. One, as a procurer of goods and services itself, this drive could from a competition policy perspective be conceived as anticompetitive. They restrict competition by favouring the local producers over importers purely based on geographical location of the producer and not on efficiency grounds. This reduces consumer choices with regards to price and quality and could lead to production inefficiencies as innovation is protected by the protectionist measures.Secondly, as a promoter of competition law in the context of a localisation policy, it could be said the protection of local industries and the advancing of national champions in particular sectors as one of the tools historically and currently used by many governments to stimulate economic growth, protect against job losses and create competitive advantage. This could stimulate the entry of new players into the market or the growth of small businesses, albeit local ones. However, this drive should ideally be limited to defined strategic industries.
It is no surprise that public interest issues had a big part to play in this instance. Walmart’s advantage would surely justify these concerns, which surely needed great consideration as was done by the competition appeal court. By all accounts, technology and scale are at the core of Walmart’s advantage over its rivals. Walmart’s technological edge is in its logistics, distribution and inventory control. It operates the largest private satellite communication in the world. Its advantage has helped it to grow and this has lowered its operating costs through economies of scale. This means that this advantage it has is carried throughout its operations and with its expansion, it will continue to maintain its advantage over its competitors. While it is good for its business, it is problematic for competitors and other rivals which cannot measure to its scale and technological effect.
Consumers favour Walmart for its lower prices. Poorer consumers are much more likely to shop from Walmart than are richer ones and have benefited disproportionately from Walmart’s rise. Its entry into markets tends to lower the prices that incumbent competitors charge and indirectly affects even consumers who shop elsewhere. It will be difficult not to welcome a competitor whose effects extend to the poorest whose welfare competition law seeks to uphold. Its entry which affects the manner in which other competitors behave surely is a bonus for all customers as they are forced to rethink strategy to keep attracting customers.
It is inevitable that in a competitive environment, the emergence of a more efficient firm will tend to edge out some less efficient incumbents and is likely to prompt others to change some of their practices. Against local competitors, Walmart’s entry causes a small number of local competitors in each market to shut down. Its effects on large chain competitors is much more complicated. Walmart creates an even tougher competitive environment because each new Walmart store reduces local competitors’ market share and profit margins, resulting in large reductions in revenue.It is this effect on local competitors that is cause of concern especially in emerging markets where they are trying to promote small and medium local competitors. To their minds, the emerging markets’ intention of welcoming competition is not so as to oust small players merely because of lack of scale. The shift in mindset for most emerging markets, and South Africa is that these small competitors be promoted by the big businesses so that they continue to grow. The question that remains to be answered is how best this engagement can be done.
Its global sourcing has contributed to its advantage over small retailers by allowing it to procure inputs at lower costs and as trade barriers have fallen, making imports cheaper, Walmart’s advantage has increased even further. Its preferred suppliers are foreign suppliers. For example, using its global sourcing advantage, it imported US$18 billion worth of goods from China alone, accounting for 15.4% of USA imports of consumer goods from China that year. While this is good for the US which is a liberal market and is primarily concerned with consumer welfare, this kind of operation would be worrisome for a country like South Africa which has more than one goal for competition law. Such global sourcing will surely shun away local producers even if they are efficient simply because Walmart has already established its preferred source. While its practice may benefit the consumer, it will still hurt the same consumer in the sphere of employment and business. With this kind of effects, which is both on the good and the ugly side, there surely needed to be a big consideration for a balance between retaining foreign direct investment and addressing public interest concerns which the giant threatened to disturb. Turning to the issues that the authorities dealt with, it is sought to analyse how the authorities dealt with the matter from inception.
Walmart/Massmart merger consideration before competition authorities
When the consideration was brought before the competition commission, the competition authorities made recommendations for the approval of the merger without any conditions attached to it. It may be that no considerations were done on the part of the competition commission since it has no authority to approve large mergers, but one would ask themselves if it is correct for authorities to overlook significant issues in their recommendations simply because they have no authority to deal. It may be that the commission has got no sufficient resources to deal with issues that are of concern for the tribunal but then the question of efficiencies is considered from inception and such attitude as the competition commission’s to adequately apply their minds to their recommendations might as well pose a threat to the success of the competition policy. In this regard, there needs to be redress for the competition commission to be fully resourced in order to assist it with efficiency.
Before the competition tribunal, the opposing parties argued against the merger stating that the merger would result in a shift in purchasing away from South African manufacturers towards foreign low costs Asian producers, which would in turn impact on small and medium sized businesses within South Africa and a further consequent loss of jobs. The trade union SACCAWU was fighting for reinstatement of the retrenched 500+ workers, which the union contended had been retrenched in anticipation of the merger. Having realised as well the challenges that would come with the merger, the merging parties approached the authorities with their request to merge armed with conditions to be voluntarily attached to the merger.
The tribunal considered the matter and agreed that indeed there were issues of public interest that needed redress although the merger did not raise any competition concerns in that Walmart did not compete with Massmart in South Africa. Its only presence was its procurement arm of IPL which did no more than purchase South African produce for an export market. It refused the argument that the retrenchment of the employees was as a result of the merger that was anticipated and therefore rejected the suggested reinstatement, but agreed to one of the conditions to the merger that first preference be given to the retrenched employees when opportunities arose. On issues of procurement where it was argued that there would be a shift to foreign producers resulting in job losses, the court held that the argument was less compelling when weighed against the consumer interest in lower prices that favoured the poorest of South Africans. In sum the tribunal accepted that the merger be enforced with conditions to the effect that there would be no retrenchment for a period of two years from the date of merger, that first preference would be given to retrenched employees when opportunities arose, that the merged parties honour existing labour agreements and that a programme be established to deal with development of local suppliers funded in the sum of R100 million.
An inference from this ruling with firstly, regards to employment is that there is a preference on the part of the tribunal to sacrifice job issues where lower prices favouring the consumers are concerned. This consideration was also premised on the promise of future jobs by the merging party. The attitude adopted by the authorities at this stage is problematic in that it sent a message that in the competition realm, there were instances when something had to be sacrificed for something, in this case jobs for lower prices. Issues of employment cannot afford to be ignored even where it is believed by some that a few numbers will do no harm. South Africa suffers from high unemployment and any reduction in employment adds to the problem. It is also difficult for the authorities to gauge in instances like employment what number would be acceptable as substantial to consider that employment goes to the root of matters when efficiency issues are considered in mergers. Some critics would want to agree with the court’s ruling that even the loss of jobs would be justifiable where mergers are concerned because there is always restructuring that comes with new changes. However, in this case, the writer would want to believe that it would not make much sense for the merged parties to argue that they would be bringing more jobs when they were cutting those that already existed. In any event, there is no definite assurance of what a merger would do after its passing and it would be difficult to solely rely on assumptions or even what is happening in other areas where such competitors are operating.
The tribunal was correct in refusing a condition that the government ministers wanted regarding restrictions on imports in terms of procurement. It ought then to have considered what would be best to attract local procurement to promote the local suppliers and small businesses. In this regard the tribunal agreed with the merging parties on a development fund that was exclusively directed towards the small businesses. This proposal was a good proposal in that the merging parties were alert to the culture of South African industrial policy which promotes local businesses. By voluntarily taking it upon themselves to uplift the small businesses in South Africa, as they carried on with their own businesses, they also reflected on how they embraced their social responsibility as a corporate citizen. By this is meant that they in many ways, as a corporate entity, have the power to affect the society in which they operated which power could equal or exceed that of human citizens. Being a responsible citizen is exhibited in many ways in South Africa, one way which the merged company sought to reflect by being responsible towards its stakeholders. Responding to the needs of the society one operates in is a social license to operate without which it would be difficult to operate. This act alone would see Walmart’s support from the government for its effort to assist government to advance development, and the society in general especially the small businesses and even the consumers.
Inspite of the success by the merged entities at this stage, one trade union still remained unsatisfied with the ruling and appealed to the competition appeal court. The ministers also appealed for a review of the proceedings. Of concern is the appeal which proceeded with the public interest issues as the review was dismissed. The trade union, SACCAWU contended that the tribunal did not apply fully its mind to substantial public interest considerations that came before it. The competition appeal court found that the introduction of the largest retailer in the world to South Africa might pose significant challenges for the participation of South African producers in global value chains which is dominated by Walmart. It held that failure to meaningfully engage with the implications the challenge posed by globalisation could well have detrimental economic and social effects for the South African economy.
The appeal court agreed with the tribunal court that the solution to the possible threats of greater imports and subsequent detrimental effects to local producers did not lie with domestic content requirement as that would pose difficulties. This meant that if the requirement of domestic content was to be imposed, other competitors would be free to import as much as they liked whilst the merged parties were restricted by local content, which issue would also go to the root of world trade organisation agreements to which South Africa is a signatory. Besides, this would lead consumers to having limited choice again as opposed to the goal of choice that competition seeks to uphold. The appeal court‘s main concern was with the insufficient interrogation of the conditions imposed by the tribunal court.
Revisiting firstly the issues of employment and the strategic retrenchment done by Massmart in anticipation of the merger, the court found on evidence led by the parties that indeed the retrenchment was not justified as it was merger related. The merging parties failed to explain how the merger and retrenchment were separated. In this regard, the court ordered the reinstatement of the retrenched employees. The court took its time to look deeper into the timing of the retrenchment and together with evidence of correspondences between the merging parties indicating that it was clear Massmart was the exclusive target, came to conclude that ‘a retrenchment that took place shortly before a merger is consummated may raise questions as to whether the decision forms part of the broader merger decision-making process and would accordingly be sufficiently closely related to the merger in order to determine that the merging parties must justify their retrenchment decision.’
The court further investigated how the development fund was to be used to develop small and medium businesses, as well as how the merging parties had come to a conclusion that a sum of R100 million would suffice. The court was not satisfied with a mere indication of a development fund. It went a step further and ordered an inquiry into the appropriate means by which South African small and medium enterprise suppliers were to participate in Walmart’s global value chain training programmes that might be established to train local suppliers on how to conduct business with the merged entity and the costs which would be reasonably incurred in so far as the development of such a programme is concerned. Experts were engaged in this process to assist the court and the parties concerned. When the inquiry was done and the court was satisfied with the inquiry, it altered the order of the development fund and ordered that a sum of R200 million be effected towards development of the small scale businesses and that the operation should run for a period of five years. This was the final judgement passed on 9 October 2012.
The competition appeal court reinforced two important issues in its dealing with the appeal. Its broader understanding of the context in which section 12A (3) applied in merger issues and its application of the context revealed that competition authorities need not take an armchair approach when dealing with mergers as large and as threatening as the Walmart/ Massmart merger. It should be understood that once mergers are approved, they cannot be reversed and every effort should be made that in approving the mergers, errors be avoided. This means either approving an anticompetitive merger or refusing an otherwise competitive merger. The merger also posed a major challenge in the competition arena as it involved one of the biggest multinationals, whose effects would not be known by just speculating. The authorities in this instance have to brace themselves for such big challenges for besides being a complex legal aspect, issues that involve multinationals have global influence. In trying to put South Africa on the map as advanced or competitive in issues of competition, cases like this could make or break the system.
What the competition appeal court demonstrated at national and international level was that unless the courts are prepared to assist the state by providing suitable mechanisms for enforcement of statutory obligations, an impression will be created that competitors are free to exploit competition laws of the country for the profit over the lifetime of the mergers. Thereafter they may simply walk away from their competition obligations. This simply cannot be permitted in a constitutional democracy which recognises the interests of all its citizens to be protected from the negative effects of competition. This has as well reinforced the fact that the shift in focus has gone from simply attracting foreign direct investment to what foreign direct investment can do for South Africa. Foreign direct investment in South Africa is viewed as beneficial only when it achieves certain policy aims. Whether or not this message sent by the Walmart case is deterrent for future investments or not is yet to be seen.
The case has revealed that mergers involving multinational enterprises have a global dimension with far reaching implications going beyond the sphere of national competition law. The international dimension of competition and its potential detrimental effects on vulnerable economic actors cannot be gauged in full by a national competition court which has limited resources and time constraints. Therefore numerous aspects in the social and employment fields remain unsolved. They fall victim to the fragmentation of and specialisation of national law which renders it impossible to regulate multinational enterprises more comprehensively. It would appear that an international competition court with independent legal experts might be better off placed to apply directly binding competition rules to Multinational enterprises with the court having the competencies as human and material capacities to look into all merger related implications and to enforce compliance with internationally agreed minimum standards. Since such does not exist, there remains a considerable legal gap, to the advantage of multinational enterprises.
While this may be the case, Walmart in South Africa has also served as a wakeup call to those developing countries with their competition laws which have a different setup from South Africa and worse still those without even a competition policy on the dangers and challenges posed by the entry of Multinationals in their respective jurisdictions. It is particularly interesting to note that if public interest provisions were absent in the competition policy, all the concerns that were raised may not have even been addressed even in areas where critics believe they should be addressed. The purpose of having these issues addressed before any operations commence is to avoid negative effects, therefore in their capacity the competition authorities are proactive rather than reactive.
Implications of the Walmart case
There are several lessons that Walmart learnt from its experience in South Africa, that are relevant to its desired expansion to other developing countries that are relevant to other multinational enterprises considering entering into developing countries. Walmart appears to have considered its business partners as its prime audience in view of the benefits it brought to South Africa.It failed to predict and therefore act on taking measures to soften the news on other stakeholders. Had it recognised the trade union’s importance within South Africa’s politics, they may have taken some initiative to moderate the union’s opposition to its entry. It also failed to appreciate the effects of the new era which is the information age, where news circulate twenty four hours, and the resultant effects of the spread of its operations, which operations create its image. If it had considered all this, it would have revised its strategy on entry and sought to understand first South African culture, whose corporate governance is based on a stakeholder inclusive approach. This means that for South Africa everyone who has the capacity to affect or be affected by the corporation’s activities is subject to consideration and engagement, as opposed to countries like the US where shareholder primacy is the system. This revelation again goes to the argument why public interest issues could not be left to the government, as it forms part of stakeholder group, and it would be inappropriate or rather ineffective to ask a stakeholder to decide what is in the best interests of other stakeholders. The independent competition authorities are better off adjudicating on such issues as they are separated from any such interests.
The case has also established that labour unions in their efforts to protect employees must be aware of the fine line that exists in protecting the local workers versus alienating foreign investors with strict demands that will make them look for more hospitable environments given the fierce competition in developing markets. Whilst their role is to protect workers, they must be wary of deterring foreign investments that might have benefited the host country’s labour force and the local economy.Maybe in this instance, policies need to be revisited to readdress the power of these unions, which may on the face of it simply deter the much needed foreign direct investments. Perhaps there needs to be engaged experts in the unions so that they also assist with rationalising the thinking of an ordinary man who just knows that their rights have to be protected, without delving deeper as to at what cost that has to be done.
Political leaders must be mindful of the implications that domestic policy may have on foreign direct investment. The success of the trade unions and small businesses in requesting concessions which were granted suggest that they won against Walmart, but some fear that the highly charged political discussions as well as the concessions Walmart made to enter South Africa may make other retailers and other multinationals more hesitant to enter contentious markets. For example investors in America worry about countries that impinge on free market capitalisation. It is clear that while Walmart might have the financial clout to appease government and pump money into socio-economic causes, other investors working on narrower margins of profit are less willing to indulge and take the risk.However it should be remembered as well that South Africa’s key position and its strategic regional importance may give it leverage in negotiations with multinational enterprises. The question then will be why not use the leverage if it can to advance its purpose, which surely it is using as illustrated by this case. However smaller economies in emulating South Africa need to tread with care in finding a balance between domestic policy and international investment.
In light of these findings, the next question would be whether or not the competition authorities achieved their purpose in the public interest arena. What Walmart has done after the final judgement serves to illustrate the success
What has the Walmart case achieved since the final judgement?
South African retailer Massmart was reported to use its international reach of US parent company Walmart to increase export opportunities for emerging South African wine markets under its developing wine programme. This follows the successful entry of the popular seven sisters wines and Zulu king Goodwill Zwelithini’s royal brand Bayede! Wines into the US and China respectively in 2012. Seven sisters are now on the shelves of 300 Walmart stores in US after launching in 54 stores in August 2012, while Bayede! Wines recently shipped around 35000 bottles to China also under a contract with Walmart. According to Massmart, the 19 participating brands have sold almost 17000 bottles locally since the launch of the programme in March 2012. All the brands are in the Makro shops and selected Game stores. Participants in this programme received consulting advice on issues such as customer analysis, packaging and pricing. Getting the wines from the farms to the stores was the biggest challenge and Massmart provides logistics support. This reinforces the structure that the court sought from the merging parties to clearly indicate how they were going to work with small enterprises to ensure the development fund produced the desired results. Whilst the merger is benefitting from local procurement, the small and medium enterprises are benefitting from engaging with a global player which puts them on a global map by engaging with their products both locally and internationally.
Walmart commenced farming projects, contracting with farmers in the Limpopo region whereby the corporation purchases produce from these farmers, as well as providing training, mentoring and assistance with finance and business opportunities. It introduced a direct farming project in South Africa and aims to source 30% of its produce via this project, connecting some 1500 farmers to the group’s value chain by 2016. This is an estimate of how the project is intended to grow but the good news is that these small businesses are already engaged by Walmart. This follows the conditions of the merger. Walmart has its foundation in South Africa which donated 100 fully equipped mobile kitchens to the 94+ school projects for Madiba, for use in under-resourced schools. It is making a commitment to making meaningful contributions to the country, which go beyond consumer benefits. This illustrates as well the fact that it has come to appreciate the country’s culture that recognises a corporate as a citizen with responsibilities. Powerful corporations have the capacity that could exceed government efforts or capacities, which if taken seriously help in improving economies.
The programme ‘empowering women together’ was launched in 2011 to help very small to medium sized enterprises run by women with the aim of integrating them into Walmart’s supply chain. The programme was aimed at all African women from the participating countries including South Africa. An exclusive website aimed at showcasing women entrepreneurs from the nine participating countries was launched. It is a concept which connects shoppers in the US with quality products made by women owned businesses around the world. The vice president of Walmart alluded to the fact that’…and in doing that it helps achieve so much more. Through Walmart’s empowering women together, customers can help the suppliers increase their income, better their lives and create new jobs for others and Walmart can help these suppliers gain experience with buying trend, scaling, product development and acumen they need to build their businesses.’
All these efforts are an illustration that Walmart has learnt its lesson well enough to appreciate the African countries’ culture at large. The voice of many developing countries was echoed through this case and Walmart learnt, as much as other investors who were following the matter, that these concerns established in South Africa are not South Africa’s only, and used its advantage by embracing a culture common to African developing countries to sell its business. The sentiments echoed by the vice president are a reflection of an investor who has come to appreciate that in as much as they have their cultures which they need respect and adherence to, so do other nations as well. Business opportunities cannot be deterred by a country’s culture if investors carefully consider the objectives of a target’s policies. For example in this instance, South Africa simply demonstrated its need to grow as an economy and how it enforces growth mechanisms in the sphere of competition law. All this goes back to the intention of its competition policy which concerns itself with consumer welfare alongside its competing values which have to be viewed holistically.
Perhaps what needs to be elaborated in so far as the competition policy is concerned is its aim in so far as the greater good is achieved. Obviously because of the complexity of some cases dealt with, it cannot be concluded that the Walmart case is a complete precedent of how the other multinational enterprises should expect they will be treated when entering South Africa. Each case is dealt with on its merits and this is what is important to remember, although it needs to be clear that the culture of the country will not change.
As a result of this case and other previously decided matters, there has been massive argument for and against public provisions in the competition act. This obviously means that the public interest provisions in the act are not comprehended at the same level by different stakeholders. It will be trite to look at some of the arguments put forward, having considered all other issues relevant for public interest considerations.
Arguments for and against public interest provisions in the Competition Act
Critics of public interest provisions in the South African act begin by arguing that the provision is subject to many interpretations. As a result, the scope of error, flexible interpretation and objectivity of judgement seems great.Perhaps the time that this argument was put forth in 1999, it could be justified because the new act had just been enacted in 1998 and the authorities were still grappling with balancing the competing interests, dealing with new matters. Precedents had not been set. It would be questionable to still raise the issue almost a decade and half later when the authorities have acquainted themselves with different cases they deal with. It has also been argued that the socio-economic objectives of public interest incorporate redistribution, labour issues and black economic empowerment. Relying on the competition policy to achieve these objectives is inappropriate as there are more specific policies that could be used to address these issues. While it may be true that there is an overlap of responsibilities, it should be borne in mind as well that the socio-economic issues referred to are unique in that they are competition related, more particularly merger related. They arise within the merger considerations and therefore need to be dealt with when issues of competition are being considered. It would be inappropriate to have these issues dealt with by another authority as it means they would have to wear competition garments to understand the relationship and be able to deal with them.
Some have mourned the unnecessary delays caused by considering these non-economic issues especially where economic issues are absent, for example in the Walmart case. Longer periods are needed for proper assessment of competition factors with simultaneously conducting a public interest inquiry and analysis. Sometimes issues like job losses due to mergers will be as a result of a general decline in the industry, with the resultant operational and pricing pressures having already forced a number of players to either consolidate their operations or undertake radical rationalisation. For example in Bucketfull (pty) ltd and Nampak products merger considerations, where a condition relating to employment was attached as part of its considerations of Public interest issues, it was argued that absent merger the two parties would be entitled to reduce employment numbers for operational reasons in terms of the labour relations act.
In instances like this, it would be difficult for competition authorities to still concern themselves where there is evidence to the inevitable consequences of merging, as it is always natural to expect restructuring. In this instance, it can be said, unless the courts inquire into the full factors arising out of the mergers, they would not be in a position to know at face value whether such interests need consideration or not. Their substantiality is always informed by inquiry. This in turn leads to a problem of lack of guidance on how to measure substantiality. Although public interest issues have been said to only come into play when they are substantial, the difficult question is what constitutes substantiality. The differing views of the three arms of competition for example in the Walmart case is a clear indication of this difficulty. The tribunal court found issues of job losses less appealing compared to lower prices, whilst the appeal court found in favour of job losses as it considered that this was a substantial issue that needed great consideration.
The mere uncertainties of what mergers will actually achieve after their passing is also problematic. It is not known whether the behavioural and structural conditions that are often attached to mergers will really serve their purpose as in most instances they are temporary. For example behavioural conditions attached to the Walmart case not to retrench for the next two years from date of approval of the merger were not a guarantee that these jobs would remain after the period had lapsed. The temporary measures to some are not adequate remedies. There is also a criticism that the inclusion of these provisions lead to a paradox in that they are often divorced from their primary objectives of competition law and policy, for example section 12A (3) provisions prevent a merged entity from being as efficient at it otherwise would be resulting in less competition and knock on effects of higher prices and less innovation. Giving priority to the specified categories can undermine primary competitive analysis in mergers thus harming the broad public interest that competition policy aims to promote.
Those in favour of the inclusion of the provisions begin by answering the question of other policies being better placed to address issues of public interest. As David Lewis put it in 2002, it is preferable to allow simultaneous consideration of competition and public interest issues by the competition authorities in analysing a merger. For one authority to decide on competition grounds and another to take on the public interest decision would initiate massive lobbying and would lack the openness and transparency of the unified process. The single forum and holistic inquiry allows conditions to be imposed either to protect public interest where a procompetitive merger would otherwise be prohibited due to its negative impact on public interest, or to protect competition where an otherwise anticompetitive merger is approved due to its positive public interest effect.
Another argument supporting the sentiments by Lewis is that public interest competition issues need not be handled by different authorities as this is the major source of clashes. Allowing political organisations or other public institutions to handle public interest issues may unnecessarily result in competition issues being totally ignored out of the equation. Given the power that these organisations have for example the department of trade and industry, compared to the competition authorities, this is more likely to result in competition issues being sacrificed. It is important that policy makers or authorities applying public interest test do so in a manner which is independent from political influence. Perhaps this argument find its merits in that such a practice was tried and tested before the new act was implemented and it was found out that it was not working, and also given that that power resided with an interested stakeholder, who could abuse the power to their advantage, serving a few minority.
The history of South Africa makes inclusion of public interest provisions good policy sense. Employment creation and black economic empowerment are major challenges to sustainable development in South Africa. Explicit reference to these factors is thus to be expected in a significant area of policy and law such as the competition act. Lewis emphasises that in a country such as South Africa, where distributional and poverty problems are at the forefront, all social and economic policies are expected to contribute to the alleviation of these problems and competition policy is not exempt from this expectation.Thus the competition act complements the government’s efforts to improve on employment issues, support promising entrepreneurs, particularly those who are from a historically disadvantaged background. Hovenkamp aptly puts it that other competing values could also be considered when looking at competition policy.
Competition policy needs to address the needs of citizens of poorer societies in their capacities as producers in addition to their capacity as final consumers. While the enhancement of the purchasing power enjoyed by the final consumers is undoubtedly crucial to the goal of poverty reduction, efforts to enhance living standards particularly in developing countries will only be successful if citizens have sustainable means of earning their livelihoods and are provided with improved opportunities for participation in the local and global economies. Consequently the vigorous enforcement of competition law in relation to practices and market structures that unnecessarily raise business input cost or impede access to markets is likely to be central to the role of competition policy as a tool for poverty eradication.Although there are concerns that arise from inclusion of public interest in the competition act, it would still be preferable to still include them as such concerns have successfully been remedied by the structural and behavioural conditions normally attached where public interest issues arise.
The application of Public Interest provisions and their resultant effects in merger review analysis is subject to controversy, given the advantages and disadvantages attached to their inclusion. Most developing countries including South Africa have explicitly made provision for their inclusion in their merger review, as it is apparent that mergers constitute a high proportion of competition activity in many jurisdictions. It is argued that the basic inclusion for public interest provisions in a competition policy is to help make the markets work for the good of the people. It is an inevitable reality that the development of a country affects its goal, and consequently competition policies of countries differ as they are tailored to meet the unique needs of each country. The definition of competition is aligned to each country’s objectives and therefore to call for a single model which would apply to all jurisdictions will be a problem. The public interest provisions in South African competition law are rightfully placed as they compete with the economic goal of economic efficiency, therefore need to be balanced whenever issues concerning mergers are concerned to effectively promote the goal of competition in the country. Until such a time that the country changes its status to become a liberal market, it is argued that such provisions cannot possibly be removed, for they have so far served their purpose as can be illustrated from decided matters.
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Duncan op cit (n27) 253
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