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Procedural Misstep Topples Interim Order Against Google in Lottoland Dispute, or: the Power of (Missing) Ink

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By Jannes van der Merwe and Jenna Carrazedo

Introduction

On 12 of November 2024, the Competition Tribunal (“the Tribunal”) granted an interim relief order in favour of  Lottoland South Africa (Pty) Ltd (“Lottoland”) against Google Ireland Limited (“Google”) and Google South Africa (Pty) Ltd (“Google SA”). The Tribunal, sitting with a full panel of three members, provided substantive reasons in favour of Lottoland for their complaint lodged in December 2022, regarding the contravention of the Competition Act 89 of 1998 (“the Act”) by Google SA against Lottoland in 2020. The matter before the Tribunal involved Lottoland obtaining an interim relief order against Google SA for a period of six months or until the finalisation of the complaint, whichever occurs first, ordering Google SA to restore Lottoland’s access to Google advertisements (“Google Ads”) after Google SA terminated Lottoland’s access to Google Ads claiming that Lottoland had breached Google SA’s internal policies.[1]

Google brought a review against the decision by the Tribunal, arguing that the Order provided by the Tribunal is irregular because of its failure to adhere to Section 31(2)(a) of the Act. Section 31(2)(a) of the Act requires that the Chairperson of the Tribunal ensure that that at least one member of the panel is a person who has legal training and experience. Google argued that because the Order by the Tribunal was not signed by Adv Tembeka Ngcukaitobi SC (“the Presiding Member”), the appointed member with such legal training and experience, the Order by the Tribunal is irregular.

Google’s legal representatives addressed a letter to the Chairperson of the Competition Tribunal advising that the Presiding Member did not sign the decision and that this contravenes section 31(2)(a) of the Act. Google requested that the decision be withdrawn due to the Competition Tribunal acting beyond the powers conferred onto it by the Act.

Despite Google’s contention that the Order should be withdrawn, both the Chairperson of the Tribunal, and Lottoland, responded to Google, stating that the proceedings have been concluded and that the Order is in accordance with the Act, referencing Section 31(4) and 31(6) of the Act. This stance adopted by Lottoland, as well as the Chairperson of the Tribunal, caused Google to launch their review to the Competition Appeal Court of South Africa (“the Appeal Court”).

Does an irregular decision amount to no decision?

Lottoland argued that the decision taken by the Tribunal was in fact a valid decision, as it was in compliance with Section 31 of the Act. However, Lottoland argued that, while maintaining that there is a valid decision taken, on Google’s own version the Appeal Court would not have jurisdiction to hear the review, as there would have been no decision taken by the Tribunal.

On this version, Lottoland contested whether the Appeal Court has jurisdiction to hear the review matter, stating that the decision itself is not in fact a decision of the Competition Tribunal, as it did not carry the Presiding Member’s express endorsement. In this regard, Lottoland argued that the requirements for the Appeal Court to exercise its review powers in terms of Section 37(1)(a) were not present, as it does not have the power to decide whether a decision is in fact a decision of the Competition Tribunal, or declare a decision invalid, which is not a decision. In support of its argument, Lottoland contended that Google should have pursued its remedies in terms of the Promotion of Administrative Justice Act, 3 of 2000, to set aside the decision of the Tribunal.

Google argued that the ‘decision’ taken by the Tribunal is ultra vires, as the Tribunal’s failure to have all three members of the panel contribute to the proceedings and exercising its functions in terms of Section 27 of the Act, led to the Tribunal’s failure to comply with Section 31(2)(a) of the Act. They further contended that Lottoland’s misinterpretation of their argument is wrong, as Google did not argue that the failure by the Presiding Member to contribute and sign the Order resulted in ‘no decision’ by the Tribunal, but that such ‘decision’ does not comply with Section 31(2)(a) of the Act. Google proffered the argument that the Appeal Court has the authority to review the decision made by the Tribunal in terms of Section 37(1) of the Act.

Accordingly, Google did not request the Appeal Court to determine whether a decision was taken, or whether such decision was unlawful, Google argued that the rendering of the decision is procedurally irregular as it did not comply with section 31(2)(a) of the Act. This is because the Presiding Member did not sign it, and that such a decision should be reviewed and set aside.

It was ultimately found that the Appeal Court has the jurisdiction to hear the review matter.

Procedural Irregularities

It is agreed that the interim relief matter was heard before a properly constituted panel and was properly assigned, however the review application seeks to investigate whether the Presiding Member’s failure to sign the Order caused an irregularity in the decision.

Google argued that the Act empowers three members of the panel to deliberate a matter, acting jointly and their failure to do so results in the panel not acting in accordance with the Act. To this extent, it was argued that the Presiding Member’s failure to participate in the proceedings until the matter is finalised is detrimental, as the interpretation of the Act requires a member with legal training and experience to signal finality. This failure resulted in the two members issuing the decision, which was against the provisions of the Act, as the Tribunal making the decision is an authoritative body encompassed by three members, and the failure to adhere thereto renders their decision irregular.

Lottoland argued that the two-panel member’s decision is in accordance with Section 36(6) of the Act and constituted a lawful decision. Relying on the matter between JSC v Cape Bar[2], Lottoland contested that the authority supports the argument that the members of the panel did not have to act jointly when having regard to the statutory provisions, because when there is a decision made by two-members, this renders a majority decision made by the panel members. Lottoland adopted the approach that the Presiding Member’s failure to render a decision as being “exceedingly passive”, and that the two-member decision is sufficient.

However, the matter brought before the Tribunal was assigned to three members but when reasons for the decision were circulated, no comments were received from the Presiding Member, with no explanation. The Appeal Court answered this question by putting forth that the Presiding Member did not participate in the proceedings, therefore the panel did not act jointly with no explanation for his failure to participate. The Appeal Court held that the decision falls to be reviewed and set aside.

The Appeal Court also considered whether to remit the decision back to the Tribunal or substitute the Order. As confirmed in Glaxo Welcome (Pty) Ltd and Others v Terblanche N O and Others, [3] the Appeal Court can correct the decision of the Tribunal where the result is a foregone conclusion or when further delay would cause undue prejudice. The Appeal Court that there was not a foregone decision but there was delay that has prejudiced Lottoland that Google has not addressed. However, the Appeal Court expressed its concerns and difficulty in granting a substitution order when the skills and expertise of the Tribunal are for the purpose of making these decisions mindfully. Thus, the Appeal Court was not satisfied that a substitution order should be granted as such a solution would be impractical when considering the brief period left in which the interim order will still be in effect.

The decision of the Appeal Court reviewed and set aside the decision of the tribunal.

Implications of the Tribunal’s Decision

This matter again highlights the importance that correct procedure is followed as to avoid decisions from being set aside once handed down. The administrative error of the Tribunal has resulted in more questions than answers.

Lottoland’s complaint, lodged in December 2022, was set down for hearing on 19 July 2023, despite the procedural directives after the hearing, the Tribunal only provided its decision on 12 November 2024, approximately 16 months after the initial hearing. Despite this delay, the Tribunal and its Presiding Member failed to ensure that its Order was compliant with the Act. As a result, and while acknowledging Lottoland’s own failure to launch the interim relief proceedings earlier, Lottoland was prejudiced by severe delays and, according to the Tribunal’s now set aside decision, were being harmed in the market by Google SA’s conduct, restricting Lottoland from making use of Google Ads.

It is worth noting that no reason was given for the lack of the Presiding Member’s participation and signature, only that he failed to do so. The seemingly insignificant act of signing an Order to comply with formalities, alternatively, a member’s failure to contribute, carries substantial weight, this is seen in the setting aside of the decision all because the one panel member with legal training and experienced failed to sign it.

This, unfortunately, resulted in further resources being expended by both Lottoland, Google, the Tribunal, and the Appeal Court. Proper procedure should always be followed to benign topics from evolving into a long, lengthy and costly process.

This judgement sets precedent for the setting aside of a decision of what can be labelled as administrative errors due to an appointed Presiding Member’s lack of participation, leading to procedural irregularities. As the Appeal Court rightfully stated, the Act regulates and controls proceedings and the functions of the authoritative bodies exercising their duties. Failure to comply with the Act should not be disregarded as an exceedingly passive point to take, but a failure to extinguish your duties for which you were appointed in terms of the Act, which causes harm and prejudice to the litigating parties.

[1] See https://africanantitrust.com/2025/01/29/betting-on-fair-play-competition-tribunal-orders-interim-relief-to-lottoland-in-google-ads-dispute/ by Matthew Freer, setting out the merits of the Interim Relief Order.

[2]Judicial Service Commission and Another v Cape Bar Council and Another (818/2011) [2012] ZASCA 115; 2012 (11) BCLR 1239 (SCA); 2013 (1) SA 170 (SCA); [2013] 1 All SA 40 (SCA) (14 September 2012)

[3] Glaxo Welcome (Pty) Ltd and Others v Terblanche N O and Others [2001-2002] CPLR 48 (CAC).

Safeguarding Market Integrity and Consumer Welfare: Reflections on the CCC’s 2024 Annual Report

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By Megan Armstrong

The COMESA Competition Commission (“CCC”), released its 2024 Annual Report on 23 July 2025, outlining a narrative of both increased institutional maturity and a growing assertiveness in market regulation. This, against a backdrop of economic turbulence such as regional inflationary pressures, tightened global credit conditions and slowing GDP growth in Member States, the CCC pressed forward, making notable strides in their enforcement, policy advocacy and institutional development.

M&A Activity and a shift in sectoral dynamics

Dr. Willard Mwemba, COMESA Competition Commission Chief Executive

A notable metric from the year under review is the number of merger notifications, the CCC recorded receiving 56 transactions, a 47.4% increase from the previous year (2023). This spike may, in part, be a response to post-COVID19 economic restructurings and macroeconomic volatility prompting consolidation across various sectors. It is also likely that it points to a growing awareness among firms of their obligations to notify under the COMESA Competition Regulations, alongside the CCC’s increasing presence in regulatory enforcement within the region.

A large portion of these notified mergers in 2024 came from the banking and financial services sector, at 7 notified mergers, followed by energy and petroleum with 6 notified mergers, and ICT and agricultural sectors having 4 notified mergers each. Notably, each of these sectors can be linked to economic resilience and infrastructure development across the Member States. Countries like Kenya and Zambia showed the highest levels of enforcement with respect to mergers, affirming their roles as key economic nodes within the COMESA region.

The CCC continued to apply the subsidiarity principle in their merger assessments, deferring to national authorities where appropriate. With this, there were still 43 determinations finalised within stipulated time frames, unconditionally cleared with no mergers being blocked or subject to conditions. This contrasts with 2023, where four such interventions occurred. This unblemished record may suggest procedural compliance and benign effects, it does raise the question of whether these competitive harms are being sufficiently interrogated or whether transactions are being proactively structured to avoid scrutiny.

Restrictive Practices: Building a Hard Enforcement Reputation

Here, the CCC pursued 12 investigations in 2024, increased from 9 in 2023. These investigations touched sectors ranging from beverages, to wholesale and retail, ICT, pharmaceuticals and transport and logistics. The CCC’s increasing use of ex officio powers, particularly in the transport and non-alcoholic beverages sectors is noteworthy, reflecting a strategic pivot from a reactive enforcement regime to a more intelligence-led and proactive regime.

The CCC bolsters this enforcement strategy with an acknowledgement that behavioural change often requires more than deterrence. It maintains research and advocacy at its core focus for market engagements. The CCC’s involvement in collaboration with the African Market Observatory project in the food and agricultural sector highlights the market and policy failures that arise in these areas. This research has spurred dialogue at both national and international levels, including involvement from the OECD and International Competition Network.

Reform and Capacity Building

The CCC has initiated a long-overdue review of its legal framework, seeking to modernise its 2004 Regulations and Rules. These revised instruments, once adopted, are expected to cover emerging regulatory concerns, which includes climate change, and digital markets. These are areas where the intersection between competition and broader public policy goals are becoming more pronounced.

 The CCC has scaled up technical assistance across the region, including providing support to legal reform processes in jurisdictions such as Eswatini, Egypt and Djibouti. The CCC also presented training for competition authority officials in Member States such as Comoros, Zimbabwe and Zambia. These capacity building efforts are critical for the CCC to realise its vision of a harmonised and integrated regional competition regime.

The Year Ahead: A Cartel Crackdown and Consumer-Centric Focus

Looking ahead to 2025, the CCC has signalled a decisive focus on cartel enforcement. There has been a growing recognition that undetected and entrenched cartel operations remain one of the most damaging forms of anti-competitive conduct in the Common Market, resulting in raised priced, limitations to innovation and a stifling of regional integration. The CCC intends to ramp up their detection tools, build cross-border enforcement partnerships, and enhance leniency and whistleblower frameworks. This is a complex undertaking, but does provide the potential to yield transformative results should it be executed effectively.

Alongside this, the CCC intends to intensify its efforts on the consumer protection front, particularly in those sectors that have been flagged through its market intelligence efforts. The digital economy is one such priority sector, the CCC has received anecdotal evidence of exploitative practices in this sector and is positioned to clarify its understanding of the competitive dynamics at play in this sector. Similarly, product safety in the fast-moving consumer goods sector is expected to receive closer scrutiny. 

Conclusion

If 2024 was the year of consolidation, 2025 promises to be the year of forward momentum. The CCC has shifted its weight towards deeper enforcement, increased research and the implementation of a regulatory framework that has the ability to meet and address modern market realities. From cartel detection to digital market fairness and food sector resilience, the CCC has an ambitious agenda for the year ahead.

As regional integration efforts gather pace under the AfCFTA, the CCC’s role as a guardian of market fairness and consumer protection within Member States will only become more central. With this groundwork having been laid, it is time for the harder, but more rewarding task: “building markets that work for everyone”.

Mergers, Markets & a New Mandate: Zimbabwe’s Competition Regulator in Conversation with Primerio

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By Megan Armstrong and Amy Shellard

On 5 June 2025, Primerio hosted the latest instalment of its African Antitrust Agencies – in Conversation series. This session featured Primerio’s Managing Associate, Joshua Eveleigh, alongside Carole Bamu, Primerio’s in-country lead partner for Zimbabwe, and Calistar Dzenga, Head of Mergers at the Zimbabwe Competition and Tariff Commission (“CTC”). Their wide-ranging conversation offered a rare window into Zimbabwe’s merger control regime, recent enforcement developments, and anticipated legislative reforms, thus providing valuable insight into how the regulator is intensifying oversight and sharpening enforcement.

Calistar Dzenga explained that any transaction meeting the combined turnover or asset threshold of USD 1.2 million in Zimbabwe is notifiable under the Competition Act [Chapter 14:28]. Notably, this includes foreign-to-foreign mergers, the activities of which have an appreciable effect within Zimbabwe’s market, a critical point as Zimbabwe becomes an increasingly active jurisdiction in African dealmaking. The CTC’s review process starts with notification and payment of fees capped at USD 40,000, followed by detailed engagement including market research and stakeholder consultations.

Mergers are classified as either “small” or “big,” with smaller transactions typically decided within 30 days, while larger or complex deals taking up to 90 to 120 days. 

While the CTC uses indicators like the Herfindahl-Hirschman Index (HHI) as screening tools, the CTC confirmed that market shares are not determinative on whether a transaction will have anticompetitive effects. Instead, the CTC focuses on, and considers, barriers to entry, countervailing buyer power, and the historical context of collusion. Zimbabwe’s framework embeds public interest considerations within competition analysis, differing from South Africa’s dual-stream approach.

Public interest concerns, particularly employment protection and local industry support, are increasingly central to merger decisions. These conditions often require maintaining junior-level employment for at least 24 months post-merger and increasing local procurement. Industrial development goals also shape decisions, including mandates for mineral beneficiation in sectors such as lithium processing.

One of the most significant recent cases involved CBZ Holdings’ attempt to acquire a controlling stake in ZB Financial Holdings. The proposed merger raised alarms over market concentration in banking, reinsurance, and property, as well as risks to consumer choice. After extensive engagement, the Commission proposed strict conditions, from divestitures in related markets to commitments to maintain separate brands. Ultimately, the merging parties walked away, demonstrating that Zimbabwe’s regulator has the resolve to stand firm even on high-profile deals.

Joshua and Carole explored how Zimbabwe’s CTC collaborates with other African authorities. Calistar highlighted the strong relationships the CTC has with theCOMESA Competition Commission, the South African Competition Commission, as well as the relevant competition authorities in Zambia and Botswana. Such cross-border collaboration plays a crucial role in ensuring that mergers do not slip through regulatory gaps and that decisions are coordinated across the region. The CTC also uses memoranda of understanding with other national regulators, such as the Zimbabwe Stock Exchange and the Reserve Bank, to detect transactions which have not been notified to the CTC.

A major theme of the conversation was the long-awaited Competition Amendment Bill, which is set to overhaul Zimbabwe’s 1996 Act. As Calistar explained, the Amendment Bill will:

(i) give the CTC powers to impose harsher administrative penalties for restrictive practices and cartels;

(ii) introduce clearer rules on public interest considerations;

(iii) allow the CTC to conduct proactive market inquiries rather than just reactive investigations;

(iv) enable anticipatory decisions for failing firms to speed up urgent cases; and 

(v) provide leniency frameworks for companies disclosing collusion. 

The reforms are expected to give the CTC more enforcement capability and help align Zimbabwe with international practices. Joshua mentioned that these changes would give the CTC “more teeth to bite,” a phrase Calistar repeated, showing how the regulator wants to align with global standards.

Right now, Zimbabwe is seeing more merger activity, especially in the financial services and manufacturing sectors. This is predominantly due to consolidation pressures, along with large infrastructure projects. With regulatory scrutiny picking up speed, companies really have to stay on the front foot when it comes to managing clearance risks and be ready for stricter enforcement.

Joshua also pointed out that it’s an exciting period for competition law in Zimbabwe. He believes businesses should start preparing now for the significant changes that are on the horizon. For Primerio’s African antitrust team, this conversation really highlights how important it is to guide clients through an evolving and complex enforcement landscape.

To view the recording of this session, please see the link here.

Off the Rails or on Track? Implications of Transnet’s 15-Year Exemption

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By Matthew Freer & Michael Williams

Introduction  

South Africa’s logistics and freight infrastructure stands at a critical crossroads, with persistent inefficiencies in the rail, port, and road sectors posing a significant threat to the country’s economic competitiveness and growth. In response to this crisis, the government has introduced the Block Exemption for Ports, Rail and Key Feeder Road Corridors which came into effect on 8 May 2025, a landmark regulatory intervention under the Competition Act 89 of 1998 (the “Act”), spearheaded by Trade, Industry and Competition Minister Parks Tau (Government Gazette No. 6182, 2025). This block exemption represents one of the most substantial reforms in South Africa’s competition law landscape, specifically designed to enable greater collaboration among firms operating in the logistics value chain, while still safeguarding against anti-competitive conduct.

The exemption, notable for its 15-year duration, signals the Government’s commitment to long-term, structural support for revitalising the country’s logistics backbone. It allows companies in the transport infrastructure and logistics sectors to apply to the Competition Commission for permission to coordinate efforts aimed at addressing operational inefficiencies, infrastructure capacity shortages, and systemic breakdowns in port and rail infrastructure, all while complying with relevant sector laws and policies. This marks a decisive shift from the traditional competition law approach, which generally prohibits coordination among competitors, to recognise that South Africa’s logistics crisis requires extraordinary, collective action.

Minister Parks Tau’s role has been pivotal, as he gazetted the exemption to promote collaboration that can reduce costs, improve service levels, and minimise losses caused by years of underinvestment and mismanagement in the logistics sector. There is a clear and urgent economic basis for the intervention supported by the fact that South Africa is estimated to lose as much as R1 billion per day due to freight system failures, with follow on effects across production, manufacturing, wholesale, retail, and export sectors (“A billion a day – that’s what SA loses through freight failures”, Freight News, 21 May 2024). Congestion at major ports, a deteriorating rail network, and poorly maintained road corridors have not only undermined daily business operations but have also eroded the country’s position in the broader global trade industry.

By enabling coordinated, pro-competitive solutions-subject to strict oversight and clear exclusions for cartel conduct, the block exemption aims to unlock investment, restore critical infrastructure, and lay the foundation for a more resilient, efficient, and globally competitive logistics system.

Background/History 

South Africa’s ports and rail infrastructure have historically suffered from inefficiencies and significant decay, impacting the country’s logistics and economic performance. The rail network, largely completed by 1925, faced underinvestment from the late 20th century onwards, leading to deteriorating rolling stock, signalling, and track conditions. This decline was arguably caused by theft, vandalism, and outdated systems, most notably within Transnet Freight Rail, which has struggled with equipment shortages and infrastructure damage, including cable theft and adverse weather events such as the 2022 KwaZulu-Natal floods (Dr Mitchell, The Rise and Fall of Rail, Chapter 4). Ports like Durban and Cape Town, originally designed for mostly rail cargo, now face congestion and aging infrastructure challenges, with cranes and gantries exceeding their intended lifecycle, further slowing cargo handling and export throughput. These events trigger a bottleneck for resources waiting to be exported.

To address these challenges, privatisation is often proposed as a solution. However, previous reform efforts including partial privatisation and initiatives to involve the private sector in infrastructure management have largely failed. These failures were primarily due to poor project management, cost overruns, and user resistance, as demonstrated by the Gauteng electronic tolling system. Recognising these shortcomings, the Government now seeks to mobilise private sector financing and expertise through public-private partnerships and concessions, with the goal of enhancing infrastructure delivery and operational efficiency (P Bond and G Ruiters, South Africa’s Failed Infrastructure Privatisation and Deregulation).

Previous key policy milestones that are aimed at addressing these problems include the Transnet Network Statement, which promotes open access reforms to rail infrastructure, the transport ministry’s Request for Information (“RFI”) to explore private sector involvement and innovative solutions, and now the Government Notice issued by Trade, industry & competition minister Parks Tau.

Legal Framework: The Competition Act

The Act ordinarily prohibits agreements between competitors that substantially prevent or lessen competition, with Section 4(1)(b) specifically prohibiting price-fixing, market division, and collusive tendering (Competition Act 89 of 1998, s 4(1)(b)). However, under Section 10(10) of the Act, the Minister of Trade, Industry and Competition may issue exemptions in the public interest Competition Act 89 of 1998, s 10(10). The newly gazetted 15-year Block Exemption for Ports, Rail and Key Feeder Road Corridors, is one such intervention. It permits limited coordination among firms in the logistics value chain to address critical inefficiencies, while maintaining prohibitions on core cartel conduct such as fixing selling prices or excluding small and historically disadvantaged market participants.

The exemption allows for collaboration on operational matters such as joint use of transport infrastructure, coordinated scheduling, and shared logistics data, activities that would typically contravene the Act’s per se prohibitions under Sections 4(1)(b)(i) and (ii). Importantly, each form of collaboration must be reviewed and approved by the Competition Commission, which retains oversight to ensure that such cooperation is pro-competitive, time-bound, and aligned with Competition Commission’s broader transformation and public-interest objectives. The exemption explicitly requires that such collaboration does not exclude new entrants or small, medium, and micro enterprises (“SMMEs”) and instead encourages inclusive participation.

However, the regulations expressly exclude cartel conduct. Section 4(1)(b)(i) and (ii) of the Act prohibits price-fixing, tender collusion, and market division, and these sections remain intact. Any coordination must be submitted for review to the Competition Commission, which will assess whether the collaboration is genuinely pro-competitive and in line with sector-specific goals and transformation mandates.

Rationale: Tackling a Logistics Crisis

The rationale behind the 15-year block exemption lies in its capacity to enable coordinated responses to mounting inefficiencies across the country’s rail, port, and road freight infrastructure, systems upon which the economy’s competitiveness rests.

A recent report by the Council for Scientific and Industrial Research (CSIR) estimates that freight logistics failures cost the economy up to R1 billion per day, affecting production schedules, increasing costs, and undermining export reliability (“A billion a day – that’s what SA loses through freight failures”, Freight News, 21 May 2024). These issues are particularly acute in port terminals such as Durban and Cape Town, where backlogs have resulted in vessel queuing, delayed shipments, and significant demurrage charges.

The rail network, operated largely by Transnet Freight Rail, continues to degrade due to rolling stock shortages, cable theft, signalling issues, and adverse weather events (Transnet Integrated Report 2023). Following the 2022 KwaZulu-Natal floods, major lines experienced months-long disruptions, highlighting the vulnerability of logistics infrastructure (Presidential Climate Commission Brief on the 2022 KZN Floods, 2022). Moreover, a 2024 National Treasury report identified inadequate investment, operational inefficiency, and governance issues as long-standing contributors to the sector’s decline (National Treasury Annual Report 2023/24 (2024). In light of these challenges, the block exemption provides a legal framework through which firms can engage in limited coordination on logistics operations, such as the sharing of transport assets or the synchronisation of delivery schedules, without breaching competition laws. 

The decision to set the exemption for 15 years rather than the more typical short-term period reflects a deliberate strategy to create regulatory certainty. Such long-term clarity is essential to attract private sector investment into joint ventures, infrastructure upgrades, and concessioning models. By providing a legally protected framework for collaboration, the exemption seeks to catalyse systemic reform and reduce South Africa’s long-standing overreliance on inefficient, state-controlled freight logistics.

Competition Analysis: Risk vs Reward

The exemption, while pragmatic, raises legitimate questions from a competition law perspective. One of the key risks is that, under the guise of coordination, dominant firms could entrench their market position and SMMEs and historically disadvantaged persons (“HDPs”). This concern is echoed by academic literature, which warns that crisis-driven exemptions, if not tightly monitored, can facilitate collusion and market foreclosure.

The block exemption also contains an explicit requirement that the collaborative measures must not undermine the participation of new entrants or black-owned logistics firms. In fact, they are encouraged to be integrated into these collective solutions, thereby aligning with the broader objectives of the Act, which focuses on inclusive growth and reducing economic concentration.

Internationally, temporary exemptions have been deployed during times of sectoral distress. During the COVID-19 pandemic, the European Commission issued Temporary Frameworks allowing certain forms of cooperation in sectors such as pharmaceuticals, food distribution, and energy, provided they were transparent, necessary, and time-limited (European Commission, Temporary Framework for State Aid Measures, 2020: 1–9). Similarly, the United Kingdom’s Competition and Markets Authority (CMA) granted exemptions in retail supply chains during 2020, illustrating how temporary coordination can maintain essential operations under stress (UK Competition and Markets Authority, Approach to Business Cooperation in Response to COVID-19, 2020).

Therefore, while there are inherent risks, the reward, a more functional, cost-effective, and inclusive logistics sector which outweighs the downsides if strict oversight is maintained. The exemption represents a calculated, legally bounded exception to orthodox competition principles, in the service of restoring one of the country’s most vital economic sectors.

Conclusion 

The 15-year Block Exemption for Ports, Rail and Key Feeder Road Corridors represents a pivotal recalibration of South Africa’s competition law in response to an unprecedented logistics crisis. By permitting targeted, supervised coordination among industry participants, the exemption offers a legal mechanism to address inefficiencies without compromising core competition rules. It reflects a pragmatic shift in recognising that structural reform and economic recovery in the logistics sector require more than individual market forces can deliver.

While the exemption creates opportunities for collaboration and investment, its success will hinge on rigorous oversight by the Competition Commission to prevent anti-competitive abuse and to ensure inclusive participation by SMMEs and historically disadvantaged groups. Ultimately, if implemented with discipline and accountability, the exemption has the potential to catalyse a more efficient, resilient, and equitable logistics ecosystem, one that supports South Africa’s broader goals of economic transformation and global competitiveness.

Malawi: More than CCCC HQ. A short Retrospective on Mergers in Malawi.

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Updated Malawi Merger Control Thresholds

By Michael Williams

Malawi’s new Competition and Fair Trading Act came into effect in 2024 (“2024 Act”).[1]  While this lags behind one of the best-known competition authorities in Malawi, namely COMESA’s Competition and Consumer Protection Commission (“CCCC”) headquartered in Lilongwe to the tune of over a decade, the domestic antitrust regime is being reinforced, as this legislative update shows. And with this latest edition, it is firmly in place when it comes to those national merger-control matters that escape the one-stop-shop of the CCCC. The Competition and Fair Trading Commission of Malawi (“CFTC”) stated that the goal of the 2024 Act is to:

  1. supplement certain areas that the previous Act lacked; and
  2. improving effective enforcement.

Several notable changes were included in the 2024 Act, particularly in respect of the introduction of a suspensory merger control regime. 

The 2024 Act also introduces a public interest test that the CFTC must apply when evaluating whether a proposed merger can or cannot be justified. This public interest test includes several factors including the effect of the potential transaction on:

  • specific industrial sectors or regions; 
  • employment levels; and 
  • the saving of a failing firm.

The CFTC has also been granted the power to impose administrative orders on parties who violate the 2024 Act, which include administrative penalties of up to 10% of a firm’s annual turnover or 5% of an individual’s income. 

The CFTC can also levy orders to redress wrongdoing, such as instructing refunds, exchange or return of defective products, and termination of unfair and exploitative contracts.

These increased powers come after the High Court of Malawi Civil Division ruled in the 2023 case of CFTC v Airtel Malawi that the CFTC lacked the authority to impose fines under the 1998 Act.[2]

To supplement the 2024 Act, the Minister recently published a Government Notice[3] that provides for the financial thresholds for mandatory merger notifications as well as an overview of other fees payable to the CFTC.

THE FINANCIAL THRESHOLDS FOR MANDATORY MERGER NOTIFICATIONS

Any transaction exceeding the following financial threshold will require prior approval from the CFTC before implementing:

  1. The combined annual turnover or combined value of assets whichever is higher, in, into, or from Malawi, equals to or exceeds MWK 10 billion (approximately USD 5 800 000); or
  2. The annual turnover of a target undertaking, in, into, or from Malawi, equals to or exceeds MWK 5 billion (approximately USD 3 000 000).

FEES PAYABLE TO CFTC FOR COMPETITION FILINGS 

The Government Notice sets the merger application fee payable at 0.5% of the combined annual turnover or total assets whichever is higher of the merging parties derived from Malawi. It is important to note that the Government Notice does not specify a maximum fee payable.

OTHER FEES PAYABLE TO THE CFTC

  1. Application for an Authorization of an Agreement at MWK 10 million (approximately USD 5 800) an agreement, a class of agreements under section 24(1) of the 2024 Act or an agreement which, any person who proposes to enter into, or carry out an agreement which, in that person’s opinion, is an agreement affected or prohibited by the 2024 Act. Importantly, an ‘agreement’ is defined in the 2024 Act, being: “any agreement, arrangement or understanding, whether oral or in writing, or whether or not the agreement is legally enforceable or is intended to be legally enforceable”
  2. Application for Negative Clearance at MWK 10 million (approximately USD 5 749,49) for any party to a merger transaction seeking clarification as to whether the proposed merger requires the formal approval of the CFTC or whose proposed merger is subject to review by the CFTC.
  3. Training on Competition & Consumer Protection at MWK 5 million per training package (approximately USD 3 000);
  4. Non-Binding Advisory Opinions for SMEs: MWK 200 000,00 (approximately USD 115); Micro-enterprises: MWK 100 000,00 (approximately USD 58); Other businesses: MWK 500 000,00 (approximately USD 300).

CONCLUSION

This supplementation by the Government Notice to the 2024 Act is of utmost importance for businesses and competition law practitioners operating within the jurisdiction of Malawi to ensure smooth transactions and to avoid statutory sanctions.

[1] Competition and Fair Trading Act No. 20 of 2024

[2] Competition and Fair Trading Commission v Airtel Malawi Ltd. & Anor. (MSCA Civil Appeal 23 of 2014) [2018] MWSC 3

[3] Government Notices No. 76 and No. 77 of 2024

COMESA Settlement Procedure Alive & Well: a Football Retrospective

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Decision of the appeals board on the appeal lodged by Confederation Africaine de Football and beIN Media Group LLC

By Olivia Sousa Höll

Introduction

In a landmark decision dated 28 March 2025, the Appeals Board of the Common Market for Eastern and Southern African Competition Commission (“CCC”) delivered its ruling on the consolidated appeal by the Confederation Africaine de Football (“CAF”) and beIN Media Group LLC (“beIN”). The appeal challenged the findings of the Committee Responsible for Initial Determinations (“CID”) concerning alleged anti-competitive practices in the award of media rights for CAF competitions.[1] The ruling marks a significant development in the regulation of sports broadcasting within the Common Market for Eastern and Southern African (“COMESA”).

Background of the dispute

The dispute arose from two Memoranda of Understanding (“MOUs”), a 2014 and a 2016 agreement, between Lagardère Sports and beIN, granting the latter exclusive media rights to broadcast CAF competitions.[2] Following an investigation by the COMESA Competition Commission, the CID found that these agreements contravened Article 16(1) of the COMESA Competition Regulations due to their long-term duration, lack of competitive tendering, and bundling of rights across platforms.[3] As a result, the CID ordered that the agreements be terminated by 31 December 2024, imposed fines of USD 300,000 on each party, and directed CAF to adopt a new framework for awarding media rights in the future.[4] CAF and beIN lodged separate appeals, which were consolidated and heard by the Appeals Board in February 2025.[5]

Legal framework

The central legal provision at issue was Article 16(1) of the COMESA Competition Regulations, which prohibits agreements that may affect trade between Member States and have as their object or effect the prevention, restriction, or distortion of competition.[6]

In their defence, CAF and beIN invoked Article 16(4), which allows an exemption where restrictive agreements can be shown to yield efficiency benefits.[7] Specifically, the exemption requires proof that:

  1. The agreement improves the production or distribution of goods or promotes technical or economic progress;
  2. Consumers receive a fair share of the resulting benefits;
  3. The restrictions are indispensable to achieving those benefits; and
  4. The agreement does not eliminate competition in a substantial part of the market.[8]

The CCC argued that these justifications are cumulative, and that each one must be satisfied for the exemption to apply.[9] It maintained that CAF and beIN failed to discharge their burden of proof, particularly by not showing that the restrictions were indispensable or that consumers benefited proportionately from the arrangement.[10] According to the CCC, the claimed efficiencies, such as increased investment and improved broadcast quality, could be achieved through less restrictive means, such as open and transparent tendering processes.[11]

This interpretation reflects COMESA’s strict approach to Article 16(4), as further explained in its Restrictive Business Practices Guidelines.[12]

The appeals process 

Following the CID’s decision on 22 December 2023, the appellants filed their Notices of Appeal in April 2024, arguing that the CID’s conclusions were flawed both factually and legally.[13] Key arguments raised included:

  1. The absence of actual evidence of foreclosure or harm to competition;
  2. Inappropriate market definition that excluded substitutable football content;
  3. Overreliance on stakeholder interviews lacking methodological rigour;
  4. Failure to consider the pro-competitive benefits of the agreements; and
  5. Imposition of fines without due process.[14]

The CCC responded by defending the findings of the CID and highlighting that the exclusive and bundled nature of the agreements had the potential to restrict competition, even if actual foreclosure was not demonstrated.[15] The CCC also refuted the claim that the SSNIP test (Small but Significant Non-transitory Increase in Price) was a required tool for market definition, noting that qualitative and contextual factors could be equally relevant.[16]

Decision of the appeals board

Rather than deliver a ruling on the merits of each legal issue, the Appeals Board opted to confirm a Commitment Agreement negotiated between the parties.[17] The Board emphasized that the agreement allowed for an efficient and proportionate resolution and noted that its authority to confirm such commitments is provided under Article 15(1) of the Regulations and Article 3(2) of the Appeals Board Rules.[18]

The terms of the Commitment Agreement included the following:

  1. The 2016 beIN Agreement would remain in force until 31 December 2028, to avoid disruption of broadcasts;
  2. CAF and beIN would each pay USD 300,000 to the Commission on a non-admission of liability basis;
  3. CAF committed to conduct future tenders for broadcasting rights through open, transparent, and competitive processes in line with recent commitments made in other cases.[19]

Importantly, the Appeals Board found that maintaining the current agreement until 2028 would not hinder competition due to the additional behavioural safeguards included in the Commitment.[20]

Implications for African Football

The outcome of this appeal will have far-reaching implications for the governance of sports media rights across Africa. By endorsing a settlement that preserves the current arrangement in the short term but introduces future-oriented competition safeguards, the Appeals Board has sent a clear message that long-term exclusive deals without competitive processes will no longer go unchallenged.

This decision aligns COMESA with global best practices, such as those adopted by the European Commission and FIFA/UEFA and provides a blueprint for other African sports bodies seeking to commercialize rights while respecting regional competition law.[21] For broadcasters, it opens new opportunities to participate in tender processes. For viewers, it promises greater access and potentially more diverse coverage of African football events.

Conclusion

The Appeals Board’s decision represents a balanced and pragmatic resolution of a complex legal and economic dispute. While avoiding a full ruling on the disputed legal questions, the confirmation of the Commitment Agreement underscores COMESA’s dual priorities: promoting competition and preserving market stability. The legacy of this case will likely be seen in a more open and competitive broadcasting landscape for African football in the years to come

[1] Appeals Board Decision, COMESA Competition Commission, 28 March 2025, p.2.

[2] (n 1 above) paras 4-5.

[3] (n 1 above) para 6.

[4] (n 1 above) para 8.

[5] (n 1 above) para 3. 

[6] COMESA Competition Regulations, Art. 16(1)

[7] (n 6 above) Art. 16(4)

[8] (n 6 above) Art. 16(4).

[9] (n 1 above) para 51.

[10] (n 1 above) para 51.

[11] (n 1 above) para 51. 

[12] COMESA Restrictive Business Practices Guidelines (2019), para 52.

[13]  (n 1 above) paras 1-2.

[14] (n 1 above) paras 10-11, 34-36.

[15] (n 1 above) paras 13-16, 34-36.

[16] (n 1 above) paras 20-21.

[17] (n 1 above) para 59.

[18] (n 6 above) Art. 15(1); Appeals Board Rules, Art. 3(2).

[19] (n 1 above) paras 64-65.

[20] (n 1 above) para 65. 

[21] (n 1 above) paras 45-46.

The ECOWAS Merger Control Regime: A New Chapter in Regional Competition Law

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By Matthew Freer 

Introduction

The Economic Community of West African States (“ECOWAS”) marked a significant step toward deeper regional integration and market regulation with the formal activation of its merger control regime on 1 October 2024. This regime, now operational under the ECOWAS Regional Competition Authority (“ERCA”), brings a unified, supranational dimension to competition enforcement across the 15 ECOWAS member states. These member states are Benin, Burkina Faso, Cabo Verde, Cote d’Ivoire, The Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo.[1] This new framework aims to safeguard the regional market against anti-competitive mergers and acquisitions, foster economic development, and ensure fair competition. It also positions ECOWAS among the growing number of African regional economic communities introducing comprehensive competition oversight mechanisms.

Established on 28 May 1975 through the Treaty of Lagos, ECOWAS was conceived to promote economic integration across the West African sub-region. Its initial vision was to foster a large economic and trading bloc through cooperation in industry, transport, telecommunications, energy, agriculture, commerce, monetary and financial policy. Over time, ECOWAS has evolved to address broader governance issues, including political stability, security, and economic justice, making its merger control regime a natural extension of its mandate to build a fair and efficient regional economy.

Legal Foundations and Institutional Framework

The legal foundations and institutional framework for the ECOWAS merger control regime are built on a series of key legal instruments that establish the rules for competition within the region. The key foundational document is the Supplementary Act A/SA.1/12/08, adopted in 2008, which introduced the ECOWAS Competition Rules and established ERCA as the institutional mechanism to implement them.[2] This Act was followed by Regulation C/REG.23/12/21, which laid down the procedural rules for merger notification and review within the region.[3] In early 2024, Implementing Regulation No. 1/01/24 was promulgated to clarify notification thresholds, filing requirements, and review timelines.[4] These instruments collectively define the substantive and procedural contours of the regime and signal a shift toward rules-based governance of regional competition policy. 

Scope and Jurisdiction

The scope of the ECOWAS merger control regime is broad and designed to capture transactions with cross-border implications within the Community. The regime is both mandatory and suspensory in nature, meaning that parties must notify qualifying transactions and obtain clearance before implementation. Specifically, a merger must be notified if the parties involved operate in at least two ECOWAS member states and meet certain financial thresholds. The primary thresholds relate to turnover or asset value within the region: the combined turnover or relevant balance sheet total of the merging parties must exceed 20 million West African Units of Account (“WAUA”), roughly equivalent to $26.8 million, and at least two of the parties must individually exceed 5 million WAUA, or approximately $6.7 million.[5] Importantly, these thresholds are based on regional economic activity, rather than global figures, ensuring that the rules are directly tailored to the regional market context in which the member states operate. Still, companies operating primarily in a single large ECOWAS economy, such as Nigeria, may wonder whether regional thresholds fairly reflect domestic realities. 

Definition of Mergers and Control

Under the ECOWAS rules, the term “merger” includes a range of transactions such as acquisitions of control, the creation of joint ventures, or other forms of consolidation between entities.[6] “Control” is broadly defined to include not just the legal ownership of a majority of shares or voting rights but also de facto control—meaning the capacity to exert decisive influence over an enterprise’s strategic commercial behaviour.[7] In simpler terms, this means the ability to influence or decide a company’s major decisions and actions, even without owning it outright. This broad interpretation of control is similar to that used by both the Common Market for Eastern and Southern Africa (“COMESA”) and South Africa, which consider influence beyond shareholding, including through management or policy direction.[8]This mirrors a growing understanding across Africa that control can be exerted in subtle but decisive ways, not unlike influence in boardrooms or state-linked enterprises.

Procedural Review Timelines

Once a notification is submitted, ERCA’s Executive Director is tasked with the initial review of the merger, which must be concluded within 60 working days. If further information is required, the Director may extend this deadline by another 30 working days. After the completion of the initial review, the ERCA Council is granted an additional 30 working days to make a final decision on the transaction. This period may be extended by a further 15 days where necessary. Therefore, the total possible days for a final decision from the date of the initial notification is 135 working days. Although the legislation provides these timelines, it does not clarify the frequency of Council meetings, raising possible questions about potential procedural delays and administrative backlog. 

Understandably, given the novelty of the regime, there is a risk that administrative capacity may initially lag behind its procedural ambitions—though this is a challenge that is likely to diminish as institutional experience and capacity builds over time.

Notification Fees and Enforcement Penalties

The financial obligations imposed on notifying parties also deserve attention. A notification fee is payable and may amount to 0.1% of the combined annual turnover or asset value—whichever is higher—of the companies involved within ECOWAS. This fee structure, notably, has no statutory ceiling, which could render compliance particularly costly for large-scale mergers. Such uncapped fees introduce a level of uncertainty into the merger planning process and may discourage investment or create disparities between firms of different sizes. Given this, it might be worth considering a sliding scale or a cap to ensure that start-ups and small and medium enterprises (“SMEs”) are not unfairly burdened by compliance costs. Nevertheless, this mechanism reflects a growing trend among African competition authorities to align filing fees with the potential market impact of a transaction. 

If parties fail to notify a qualifying merger, or proceed with implementation before clearance is granted, ERCA may impose fines of up to 500,000 WAUA per day. These penalties, which equate to approximately $660,000 daily, are designed to ensure compliance and deter strategic non-disclosure.[9] This is notably harsher than COMESA’s flat $500,000 fine.[10] Such a stringent approach is consistent with the practices of more established jurisdictions and signals ERCA’s intent to enforce its mandate robustly. However, in a region where the ability to enforce regulations and the private sector’s understanding of competition law are still developing, this tough enforcement model could cause problems and require ongoing efforts to build capacity.

Substantive Assessment and Public Interest Considerations

In terms of substantive assessment, ERCA is empowered to block a merger that substantially lessens or is likely to substantially lessen competition within the ECOWAS common market. However, the authority also retains the discretion to approve otherwise anti-competitive mergers if they are deemed to serve a compelling public interest. This approach being similar to other African jurisdictions, particularly South Africa. Factors that may justify such exceptions include the promotion of socio-economic development, the protection of SMEs, and broader regional development goals.[11] This public interest override introduces a layer of flexibility to the competition assessment, but also demands careful balancing to ensure that economic efficiency is not sacrificed in pursuit of political or social objectives. Used wisely, this discretion can empower regional development—but overuse however could compromise the credibility of competition law as a neutral economic tool.

Appeals Mechanism and Judicial Review

The possibility of judicial review also reflects ECOWAS’s commitment to transparency and the rule of law. Parties aggrieved by ERCA’s decisions may appeal to the ECOWAS Court of Justice. This appeals mechanism is essential in safeguarding procedural fairness and offers a vital check on the Authority’s exercise of power.[12] However, the ECOWAS Court’s experience and ability to handle competition law cases are still developing, and it’s unclear how actively and effectively it will deal with these disputes. Building a body of jurisprudence will take time, but even a few early decisions could establish helpful precedent for future cases.

Emerging Challenges

Despite its promise, the implementation of the ECOWAS regime is not without its challenges. First among these is the potential for jurisdictional overlap with national competition authorities and with the West African Economic and Monetary Union (“UEMOA”), which also exercises competition law functions within several ECOWAS states. This duplication may result in regulatory uncertainty, forum shopping, and increased compliance costs for businesses operating in the region. In the East, COMESA faced similar early coordination challenges, and ECOWAS would do well to draw lessons from that experience in harmonising efforts with UEMOA. Moreover, the regime enters into force at a time of political uncertainty in West Africa, with three ECOWAS member states—Burkina Faso, Mali, and Niger—currently suspended or in the process of exiting the Community. The regional political context may complicate the regime’s uniform application and threaten its credibility as a pan-West African legal instrument.

Conclusion

Notwithstanding these concerns, the ECOWAS merger control framework represents a landmark moment in the evolution of African competition policy. It brings the region into alignment with global and continental trends, offering a platform for increased regulatory convergence and cross-border cooperation. For legal practitioners and multinational corporations operating in the region, the message is clear: compliance with ECOWAS merger rules is no longer optional, and legal due diligence must include early engagement with ERCA’s requirements. While aspects of the regime may still require some clarification and refinement, particularly in relation to thresholds, procedures, and enforcement modalities, the overall architecture provides a strong foundation for fostering competitive regional markets.

The operationalisation of the ECOWAS merger control regime is a welcome development for those advocating deeper economic integration and regulatory harmonisation in West Africa. As the Authority gains experience and jurisprudence begins to develop, ERCA is likely to become a central actor in shaping the competitive landscape of the region. For this to succeed, continued engagement between regional institutions, national authorities, and the private sector will be essential. The challenge ahead lies not only in enforcing the rules but in embedding a culture of compliance and competition across ECOWAS’s diverse and dynamic member states. In time, perhaps ECOWAS could even serve as a model for other African regions where economic integration is still at a conceptual stage.

 

[2] Economic Community of West African States (ECOWAS), Regulation C/REG.23/12/21 on the Implementation of the ECOWAS Competition Rules by the ECOWAS Regional Competition Authority (ERCA), December 2021

[3] Regulation C/REG 23/12/21 on the Rules of Procedure for Mergers and Acquisitions in ECOWAS

[4] Regulation C/REG.1/01/24 on the Procedural Manuals on Thresholds for Mergers and Acquisitions in ECOWAS. 

[5] Manual of Threshold for Mergers and Acquisitions and Threshold Indicating a Dominant and Monopolistic Position.

[6] Manual of Threshold for Mergers and Acquisitions and Threshold Indicating a Dominant and Monopolistic Position. At page 3.

[7] Supplementary Act A/AS.1/12/08 Adopting Community Competition Rules and the Modalities of their Application within ECOWAS.

[8] COMESA Merger Guidelines (2014), sec. 2.3.

 

[10] COMESA Competition Rules, Art. 24.

[11] Economic Community of West African States (ECOWAS), Regulation C/REG.23/12/21 on the Implementation of the ECOWAS Competition Rules by the ECOWAS Regional Competition Authority (ERCA), December 2021.

[12] ECOWAS Regional Competition Authority (ERCA), Welcome to ECOWAS Regional Competition Authority, available at: https://www.arcc-erca.org/ (accessed 25 April 2025).

Borrowed Blueprints, Unintended Consequences: South Africa and the EU’s Digital Markets Act

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By Matthias Bauer and Dyuti Pandya*

South Africa risks adopting the essence of the EU’s Digital Markets Act (DMA), if not its exact form, with the aim of reshaping the business models of online intermediation platforms. This marks a significant shift away from the principles of traditional competition regulation. 

In 2020, the Competition Commission of South Africa (CCSA) concluded that traditional enforcement tools might be inadequate to tackle structural barriers in digital markets particularly those that prevent new entrants or smaller players from expanding. This realisation led to the launch of the Online Intermediation Platforms Market Inquiry (OIPMI). By borrowing a regulatory blueprint designed for the EU, South Africa could undermine its own digital ecosystem, stifle investment, and entrench local inefficiencies. The country’s growing interest in ex ante competition regulation via the Competition Commission’s market inquiries reflects an accelerating trend of policy mimicry without consideration of domestic realities. While there is broad agreement on the need for digital competition regulation, there is little consensus on how these rules should be structured, and approaches to implementation remain highly varied across jurisdictions. 

The OIPMI’s final report identified platforms such as Google, Apple, Takealot, Uber Eats, and Booking.com as dominant players distorting competition. It is claimed that, due to the significant online leads and sales these platforms generate and the high level of dependency business users have on them these scaled platforms can influence competition among businesses on the platform or exploit them through fees, ranking algorithms, or restrictive terms and conditions. However, this conclusion raises concerns about the underlying methodology. A central concern with the market inquiry approach is that it allows certain platforms to be identified as market leaders or sources of competitive distortion without requiring a formal finding of dominance, since such inquiries do not mandate that dominance be established. 

The designation has been based on characteristics typically associated with globally leading technology firms. Amazon, which currently maintains only a minimal presence in South Africa, was nevertheless singled out as a potential threat to competition. It is claimed that Amazon faces similar complaints in other jurisdictions, and it is argued that fair treatment of marketplace sellers is unlikely to become a competitive differentiator capable of overcoming barriers to seller competition. Moreover, the CCSA has indicated that it would enforce the same provisions against Amazon if it were to enter the market in a way that breaches the proposed remedial measures.

Regulating for hypothetical risks while ignoring tangible consumer benefits risks becoming a self-fulfilling prophecy: global platforms may decide not to enter the market at all, leaving consumers, including small businesses and public services organisations with fewer options and slower innovation.

The OIPMI focuses on structural features that restrict competition both between platforms and among business users, facilitate the exploitation of business users, and hinder the inclusion of small enterprises and historically disadvantaged firms in the digital economy. Despite the absence of formal dominance findings, the OIPMI proposes a range of heavy-handed interventions, including the removal of price parity clauses, the introduction of transparent advertising standards, a ban on platform self-preferencing, and limitations on the use of seller data, many directly inspired by the EU DMA. 

In both of CCSA’s  2022 and 2023 findings, Google Search was explicitly accused of preferential placement and distorting platform competition in South Africa. More concerning still are the CCSA’s proposed remedies in its final report- requiring targeted companies to offer free advertising space to rivals, artificially boost local competitors in search rankings, and redesign their platforms to favour smaller firms. The SACC has recommended that Google introduce identifiers, filters, and direct payment options to support local platforms, SMEs, and Black-owned businesses, and contribute ZAR150 million (around EUR 7 million) to offset its competitive advantage. For search results, Google is required to introduce a new platform sites unit (or carousel) that prominently showcases smaller South African platforms relevant to the user’s query such as local travel platforms in travel-related searches entirely free of charge. This goes beyond competition enforcement and crosses into market engineering, compelling global firms not just to compete by government decree, but to subsidise rivals and actively shape market outcomes.

In 2025, South Africa’s Competition Commission also doubled down with its provisional Media and Digital Platforms Market Inquiry (MDPMI), calling for additional remedies targeting online advertising, content distribution, and the visibility of news media. These recommendations are again influenced by EU-style regulations, particularly the EU Copyright Directive, which harms the diversity and sustainability of small news publishers. However, the report downplays South Africa’s unique institutional constraints and specific market dynamics. If adopted, the proposals would compel digital platforms to subsidise select publishers based on arbitrary and hard-to-measure assessments of news content’s value to Google’s business. This could limit access to information, hinder innovation, and monetisation efforts, ultimately narrowing consumer choice and weakening the vibrancy of the content ecosystem.

More broadly, through these market inquiries South Africa risks undermining its evolving digital economy by pursuing an approach that will deter foreign investment due to ambiguous and discretionary enforcement. At the same time, the proposed regulatory burdens could disproportionately affect domestic firms that simply lack the resources to comply. This regulatory uncertainty threatens to stifle innovation and hinder progress toward regional digital integration. In a country where corruption remains a persistent challenge, granting regulators wide discretionary powers over digital market outcomes also raises serious governance concerns. Moreover, by enforcing a narrow and politicised notion of “fairness”, South Africa risks sacrificing consumer choice and strangling the diversity of digital services that a competitive market would otherwise deliver.

Notably, coming back to the EU’s DMA, it was crafted for specific European conditions, particularly in markets where technologically-leading global platforms held relatively high market shares in many EU Member States. Yet even within the EU, the DMA remains hotly disputed – not least because it targets large non-European companies that have long been politically embraced for injecting digitisation into traditional industries and, through competition, helped European businesses and consumers benefit from technology innovation. 

EU digital policies, developed from the perspective of wealthy, mature (Western) European markets, should not be assumed to be readily applicable elsewhere. South Africa’s digital markets are still in their infancy, ICT infrastructure remains unevenly developed, and regulatory institutions face significant resource constraints. Emulating the DMA – even informally – risks premature intervention, regulatory overreach, and the distortion of competitive dynamics before they have had a proper chance to emerge and mature.

Competition policy undoubtedly has a role in promoting competition. But poorly tailored rules may end up punishing the very firms that South Africa needs to scale and empower its own digital economy. Instead of replicating the EU’s Digital Markets Act, South Africa should focus on evidence-based case-by-case enforcement – grounded in its own market realities and institutional capabilities. Otherwise, South Africa risks becoming the casualty of a regulatory experiment designed for a different continent – with consequences its digital economy can ill afford.

*The authors are affiliated with ECIPE, the European Centre for International Political Economy

Nigeria Flexes Regulatory Muscle: Tribunal Upholds $220 million fine against WhatsApp and Meta over data discrimination practices  

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By Nicole Araujo

On 25 April 2025, almost a year after the Federal Competition and Consumer Protection Commission (“FCCPC”) imposed a hefty $220 million fine on WhatsApp and its parent company, Meta, the Competition and Consumer Protection Tribunal (“Tribunal”) delivered its landmark decision, upholding the fine and ordering a further – almost negligible, when compared to the substantive fine – $35,000 administrative penalty against the social media giants for fact-finding costs incurred during the 38-month long investigation. This regulatory win for Nigeria’s digital rights landscape has contributed to reinforcing Nigeria’s growing resolve to regulate big tech.

The decision stemmed from findings that the companies engaged in discriminatory data practices and violated Nigerian data protection laws, affecting more than 51 million users.  As Andreas Stargard, a competition-law practitioner with Primerio, notes, “not only did the FCCPC’s investigation uncover WhatsApp’s unauthorised sharing of user data and a lack of meaningful consent mechanisms, but it also revealed discriminatory practices compared to other regions – I believe this is where the differentiation in the FCCPC’s consumer-protection jurisdiction (as opposed to that of the domestic data protection authority) comes in meaningfully.  It remains to be seen what an independent, judicial review of the Tribunal decision will yield in this regard, but the FCCPC has had a comparatively strong track record so far in terms of having its novel, forceful, and ‘creative’ enforcement strategies upheld, with the B.A.T. matter perhaps being the most powerful example.  The recent Dangote matter, involving the shocking fact pattern of a lack of refining capabilities in oil-rich Nigeria, is an interesting counter-point, though, as the FCCPC lost an attempt to intervene in that matter in Abuja’s Federal High Court.”

So far, the appellate-level Tribunal has sided with the Commission, dismissing an appellate request for review by WhatsApp and Meta, which challenged the fine on 22 grounds, ranging from procedural errors to allegations of vagueness and technical impossibility in respect of the timeframe given by the FCCPC. Meta’s legal team relied on the grounds that the FCCPC’s orders were unclear, unsupported by Nigerian law, and financially impractical to comply with. However, the FCCPC argued that the penalties were not financially punitive but rather corrective and aimed at rectifying the tech giant’s alleged discriminatory practices.

In its decision, the Tribunal emphasised that the FCCPC acted within its lawful mandate and that WhatsApp and Meta were afforded a fair hearing. It further upheld that the reliance on foreign legal standards, while not binding, was appropriately persuasive in determining issues of data protection and consumer rights.

The Tribunal ordered WhatsApp and Meta to inter alia, reinstate Nigerian users’ rights to control their personal data, revert to their 2016 data-sharing policy, and immediately cease unauthorised data sharing with Facebook and other third parties without obtaining the necessary consent from users. In this regard, compliance letters must be submitted by July 1, 2025, and a revised data policy must be proposed and published. 

This case marks a significant moment in the Nigerian Authority’s forceful use of the regulatory tools available to it — as well as overall for Africa’s evolving digital economy, highlighting the demand for global corporations to acknowledge local presence and effects and adapt to robust local compliance expectations. While Big Tech companies such as Amazon, Google and Meta have been subject to significant penalties under the European Union’s General Data Protection Regulation, as one of Africa’s digital technology pioneers, Nigeria’s move could inspire similar enforcement actions across the African continent. This decision can be seen as a “gentle” reminder for multinational digital and tech firms that compliance with local data protection laws is no longer optional, it is imperative.

Babatunde Irukera, Florence Abebe, Andreas Stargard at the African Antitrust Salon hosted by Primerio

While more African countries are pushing back against big tech companies and are focusing on unchecked data exploitation within their borders, there is a need, however, for the continent to build towards a larger, sustainable strategy to manage the presence and power of big tech.  Says Andreas Stargard, “the quarter-billion dollar Meta fine, if upheld, would firmly cement Nigeria’s antitrust global relevance in the minds of international lawyers and businesses.  This comes as a surprise in some ways, as the FCCPC was first put on the map only fairly recently, by its inaugural Chief enforcer, Tunde Irukera: his vision for creative enforcement tools and encouragement of the agency’s staff to employ heretofore unused investigatory mechanisms and strategies – often seen only in U.S.-style civil litigation, and certainly not in many government agencies worldwide, much less among other African jurisdictions – show that the Commission potentially has the necessary intellectual capacity and investigatory stamina to pursue cases of equal or greater dimensions in the future.  It will depend on its leadership where the FCCPC’s path is charted next…”

Of course, there needs to be a balance struck between the value of personal data and that of innovation and tech adoption, which calls for a coordinated regulation policy that will strive to balance economic and non-economic features of the continent. 

As observed by Leonard Ugbajah, a competition law consultant, a balanced and pragmatic approach is essential when opting to address the regulatory landscape around big tech: 

“A common approach would harness the capabilities of countries, moderate opportunism by state and non-state actors in pursuing enforcement, recognise the economic importance of big tech, properly calibrate the various pain points (economic and non-economic) and safeguard the interests of the not-so-capable African countries.” 

The social media giants have 60 days, starting from 30 April 2025, to comply with the $220 million fine ordered by the Tribunal. Notably, following the decision, WhatsApp has indicated that it intends to seek a stay of the Tribunal’s decision and pursue an appeal. 

Slippery Business: COMESA Court Invalidates Mauritius’ Edible Oil Tariff

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By Matthew Freer

Introduction

On 4 February 2025, the First Instance Division (the “FID”) of the COMESA Court of Justice (the “CCJ”) delivered a landmark judgment in Agiliss Ltd v. The Republic of Mauritius and Others (Reference No. 1 of 2019). This case examined the legality of a safeguard measure imposed by Mauritius on edible oil imports from COMESA member states, raising fundamental questions about trade remedies, due process, and compliance with the COMESA Treaty and its subsidiary legislation.

The judgment is significant as it clarifies the procedural and substantive requirements for imposing safeguard measures under the COMESA Treaty (the “Treaty”) and the COMESA Regulations on Trade Remedy Measures, 2002 (the “2002 Regulations”). It reinforces the principle that such measures cannot be used arbitrarily or as disguised trade barriers but must follow due process, including proper investigation, consultation, and notification requirements.

Background

The Common Market for Eastern and Southern Africa (“COMESA”) is a regional economic organization established in 1994 to promote economic integration and development among its member states. It has a primary goal of creating a large, integrated economic area through the removal of trade barriers and the promotion of cooperation in areas such as trade, industry, and agriculture. COMESA comprises 21 member states, including countries like Kenya, Egypt, Zambia, and Ethiopia, and focuses on fostering intra-regional trade through the harmonisation of customs procedures and the elimination of tariffs between member states. Article 46 of the Treaty specifically states that Member States of COMESA are required “to eliminate customs duties and other charges of equivalent effect imposed on goods eligible for Common Market tariff treatment” (COMESA Treaty, Art 46). This common market was ultimately formed to enhance trade and economic stability within the region, improve competitiveness, and encourage sustainable development through collective economic policies and regional cooperation.

Agiliss Ltd, a Mauritian based, imports various basic commodities which includes pre-packaged edible oils, from Egypt, a fellow COMESA Member State. Agiliss Ltd is “principally an importer and distributor of staple food in the Republic of Mauritius with the edible oil segment representing some 30% of its business” (para 11). In 2018, the Government of Mauritius (the “Government”), after seeing an increase in edible oil imports, invoked Article 61 of the Treaty to impose a 10% customs duty on edible oils imported from COMESA countries (para 12). This safeguard measure was said to be necessary to protect Mauritius’ domestic edible oil industry from serious economic disturbances.

Agiliss, however, raised its concern that the measure was imposed without proper notification, consultation, or investigation, violating various COMESA legal frameworks. After unsuccessful engagements with the Government, Agiliss Ltd filed a Reference before the CCJ, challenging the legality of the safeguard measure and requesting an order to prohibit its enforcement.

Findings of the Court

In this case, Ms. Ramdenee, CEO of Agiliss Ltd, and her expert witness, Mr. Paul Baker, presented a case to challenging the decision by the Government to impose a safeguard measure on edible oil imports from Egypt, a COMESA Member State, using Article 61 of the Treaty (para 151). Article 61 of the Treaty states, “In the event of serious disturbances occurring in the economy of a Member State following the application of the provisions of this Chapter, the Member State concerned shall, after informing the Secretary-General and the other Member States, take necessary safeguard 79 measures” (COMESA Treaty, Art 61).

The central claim was that Government violated the Treaty and the 2002 Regulations by not adhering to required processes, particularly in terms of the investigation and consultations related to the imposition of the safeguard measure.

The key issue was whether the Government conducted the investigation required by the 2002 Regulations and the Treaty before imposing the safeguard measure. The Government’s report on “Investigation on Imports of Oil” was deemed insufficient and non-compliant (para 163). Although the report referenced Regulation 7.1 of the 2002 Regulations, which allowed for safeguard measures due to “serious injury” caused by increased imports, it failed to comply with the more detailed procedural requirements of Regulation 8 of the 2002 Regulations, which mandates that investigations must include public notice, hearings, and the opportunity for stakeholders to provide evidence (para 162). Ms. Ramdenee argued that her company, as a major importer, was not consulted, and that this lack of due process would severely impact her business (para 157).

Moreover, the investigation was criticized for not being thorough or adequately substantiated. Mr. Baker pointed out inaccuracies, such as the failure to compare oil prices internationally, and argued that the alleged “surge” in imports was not supported by data (para 165). He further noted that the report’s conclusions about the link between import increases and the domestic industry’s decline lacked comprehensive evidence, specifically disregarding other relevant factors affecting the industry. The Government did not provide rebuttal evidence to counter these criticisms (para 165).

Additionally, the Government’s failure to notify the COMESA Committee on Trade Remedies as required by Regulation 15 of the 2002 Regulations was a significant violation (para 168). Although the Government argued that the Trade Remedies Committee did not exist at the time, the Court found that the absence of the Committee did not absolve the Government from conducting the investigation as required by Regulation 8 of the 2002 Regulations, which was not dependent on the Committee’s existence (para 171).

Lastly, the Court examined whether the safeguard measures imposed were necessary and proportionate. The proposed safeguard measure, which included a 10% customs duty on oil imports above a 3,000-tonne quota, lacked justification. There was no explanation provided for why these specific thresholds were chosen, and Mr. Baker suggested that the 10% rate appeared arbitrary and unsupported by any modelling or analysis of the impact on imports (para 177). Furthermore, the application of a quota and tariff did not align with Regulation 10.1 of the 2022 Regulations, which demands a careful analysis of market conditions to ensure that safeguard measures are not overly restrictive (para 178).

Ultimately, the Court found that the investigation carried out by the Government did not comply with the provisions of the Treaty and 2002 Regulations, and the proposed safeguard measure was not justified by sufficient evidence or proper procedures. In the final analysis, the Court has issued several key orders. First, the decision of the Government to impose the safeguard measure, along with all consequential steps taken, is declared a nullity (para 227(a)). In terms of costs, the Court has ordered the Government to pay half of the Agiliss Ltd’s costs incurred in this Reference (para 227 (c)).

Key aspects of the case

This case marks a significant milestone for the COMESA Court of Justice due to its critical examination of safeguard measures within the context of Common Markets. The FID’s ruling highlights key aspects of trade remedy procedures, particularly emphasising the importance of compliance with the COMESA Treaty and the 2002 Regulations. The Court’s findings reinforce that safeguard measures cannot be applied arbitrarily; they must adhere to proper investigation, consultation, and notification processes.

Furthermore, the judgment serves as a reminder that such measures must be substantiated with sufficient evidence to avoid being used as disguised trade barriers. The ruling clarifies procedural expectations for all COMESA member states, ensuring that trade remedies are transparent, fair, and justifiable in line with regional economic integration goals. Although safeguards are a vital tool for shielding domestic industries, the ruling underscores that they must not be applied without the proper investigations and Member State consultation processes. This case establishes a key precedent for future trade disputes within COMESA and emphasises the Court’s essential role in upholding the rule of law and interpreting the Treaty and its related regulations.