South African President Cyril Ramaphosa is expected to sign the Competition Amendment Bill into law today, February 13, 2019, continuing a busy seven-day streak for major legislative antitrust developments on the continent (see here). The new law will be amending the venerable Competition Act, one of the preëminent antitrust statutes of the continent. The amendment has been pushed for by Minister for Economic Development, Ebrahim Patel. The official Presidential commentary on today’s signing notes the novel fights against “concentration and economic exclusion as core challenges” to the country’s growth, as well as the perceived dangers of economic exclusion from major markets of small and black-owned businesses.
As a trio of competition attorneys write in a recent article in the Journal of European Competition Law & Practice, the Amendment Bill alters key provisions of the South African Competition Act focusing specifically on the redistribution of wealth and transformation of ownership in lieu of pursuing traditional antitrust goals.
The Bill provides for greater ministerial intervention at the initial stage of a merger (based on national security), during the merger investigation (based on public-interest grounds) and broadens the right of appeals to parties outside the merger control review.
The Bill lowers the standard that the South African Competition Commission must meet to prosecute cases and foreshadows a risk of increased third-party interventionism more generally.
The departure from a traditional substantial lessening of competition (SLC) test to an adverse effects-based test, which takes public interests considerations into account, is likely to result in the injection of greater subjectivity into the decision-making process and parties’ increased difficulty in self-assessment of conduct particularly in relation to dominant firms.