Category: South Africa

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

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By Joshua Eveleigh and Astra Christodoulou

Introduction

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

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

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

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

Section 74 states further:

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

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

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

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

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

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

The criminal cartel offence

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

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

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

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

Enforcing the offence

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

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

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

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

Tembisa Hospital and the potential use of the Act

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

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

The difficulties of using the Competition Act at Tembisa

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

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

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

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

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

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

The route the State has taken  

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

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

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

The route the Commission has not taken

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

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

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

What Tembisa means going forward

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

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

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

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

Another Market Inquiry: CompComm Looks at Franchising

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By Jannes van der Merwe and James Outram

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

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

Market Inquiries

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

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

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

Franchising in South Africa

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

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

The Competition Commission’s Reasoning for Initiating the Market Inquiry

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

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

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

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

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

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

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

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

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

The scope of the inquiry

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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By Michael-James Currie and Matthew Freer

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

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

The South African Starting Point

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

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

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

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

Kenya, COMESA, and the March Toward Ex Ante Rules

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

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

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

The AfCFTA’s Role

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

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

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

He identified five concrete ways the AfCFTA complements existing work:  

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

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

The Practitioner’s Warning

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

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

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

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

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

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

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

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

The Unresolved Question

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

Conclusion

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

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

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

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

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By Tyla-Lee Coertzen and Matthew Freer

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

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

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

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

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

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

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

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

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

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

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

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

Merger filing thresholds almost double after a decade

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

By Nicole Araujo and Kelly Baker 

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

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

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

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

New Notification Thresholds:

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

New Filing Fees:

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

 

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

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

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

 

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

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By Jannes van der Merwe and Astra Christodoulou

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

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

Legal and Policy Framework

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

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

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

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

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

Categories of Regulatory Barriers Under Review

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

Administrative Barriers

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

Rules Entrenching Monopoly Supply or Artificial Scarcity

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

Onerous Licence and Permit Conditions

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

Unreasonable Standards and Compliance Requirements

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

Restrictions on Price and Non-Price Competition

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

Poorly Implemented but Facially Reasonable Requirements

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

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

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

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

Practical Implications for Legal Practitioners and Businesses

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

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

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

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

Conclusion

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

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

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

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

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

FUEL AT THE BOILING POINT: Competition Commission Issues Price Gouging Warning

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By Megan Armstrong and Matthew Freer

South African consumers have received warning to expect oil price hikes from 1 April 2026, at a time when households are already price-constrained and cost-conscious. Naturally, as oil prices increase, consumers can reasonably expect these hikes to be passed down through corresponding price increases on the respective goods and services. The question to business is how much of an increase is reasonably permitted within the ambit of competition law, and what should the timing of such an increase be?

The Commission’s Warning

In response to the anticipated price volatility, the Competition Commission of South Africa (the “Commission”) has issued a media statement warning of heightened risks of price gouging across several sectors. The Commission stated the following:

“The risk is prevalent for unregulated fuels such as diesel retail prices and jet fuel; oil-based products such as nitrogen-based fertilisers and plastics; fuel-intensive services such as air, land and sea transport and logistics; and all other products and services that rely on these inputs, particularly food products and delivery services.”

Additionally, the Commission set out clear rules for businesses navigating the looming price increase:

  • “Businesses may not increase prices in anticipation of future fuel cost increases; they may only increase prices once they experience actual fuel cost increases.
  • Businesses that experience fuel cost increases may only increase their prices in proportion to the actual fuel cost increases they experience.
  • In effect, these two conditions mean that product or service margins after the surge in fuel prices should be no higher than the margins prior to the fuel price increase.
  • Furthermore, once fuel costs decline, product or service prices should decline immediately.”

What is Price Gouging?

Price gouging is the act of charging customers unreasonably high prices for goods or services typically in response to a crisis, natural disaster or demand shock where consumers have few alternatives and the product is a necessity. This behaviour sits at the intersection between business ethics and consumer protection in considering exploitation of a demand spike to maximise profits.

South Africa’s legal approach to this issue does not use the term “price gouging” directly in its primary statutes, rather the framework is built upon two distinct pillars. The first pillar is found in the Competition Act 89 of 1998. Section 8(1)(a) of the Act prohibits a dominant firm from charging an “excessive price to the detriment of consumers or customers”, a definition refined by the Amendment Act of 2018 to mean “higher than a competitive price” and where such a difference is “unreasonable”, targeting firms with substantial market power which abuse their dominance. The second pillar is enshrined in the Consumer Protection Act 68 of 2008. Sections 40 and 48 of this Act prohibit suppliers from engaging in unconscionable conduct and from supplying goods or services “at a price that is unfair, unreasonable or unjust”. This provision has a broader application, as it does not require a firm to be dominant. It applies to any supplier who takes unfair advantage of a consumer.

Considering the existing legislative framework on price gouging behaviour in South Africa, price gouging is then defined as the practice of increasing prices on essential goods or services during a declared disaster or crisis to a level that:

1.         Does not correspond to increased costs of providing the good or service; or

2.         Exceeds pre-crisis profit margins without justification; and

3.         Takes unfair advantage of those consumers with limited alternatives as a result of the emergency situation.

Lessons from COVID-19

The most significant development in South Africa with regards to price gouging came in response to the COVID-19 pandemic. On 19 March 2020, the Minister of Trade and Industry, Ebrahim Patel, published the Consumer and Customer Protection and National Disaster Management Regulations and Directions (the “Regulations“). They were designed to prevent an escalation of the disaster and to protect consumers from exploitative commercial practices during this period of vulnerability.

The Regulations formalised a cost-based test for determining excessive or unfair pricing, that a material price increase of an identified good or service will be considered indicative of excessive pricing if:

  • it “does not correspond to or is not equivalent to the increase in the cost of providing that good or service“; or
  • it “increases the net margin or mark-up on that good or service above the average margin or mark-up for that good or service in the three month period prior to 1 March 2020“.

Furthermore, the Commission’s 2021 Guide for Business Compliance with Price Gouging Regulations, emphasised that during a disaster, price increases must be strictly proportionate to cost increases, and businesses must not exploit temporary demand surges to inflate profit margins.

The Commission’s willingness to act was demonstrated early in the pandemic in the Babelegi case, where a firm was found liable for excessive pricing after increasing mask prices by over 1 000% while its own supply costs remained unchanged.

In essence, South Africa’s legal framework defines price gouging not by the final price itself but by seller behaviour, where an unjustified cost increase representing abuse of a temporary situation in which consumers are a captive market and desperate for essential goods and services. A framework established during COVID-19 now guides current pricing conduct and sheds some light on how the Commission would evaluate seller behaviour in relation to demand shocks arising from emergencies, natural disasters, or market disruptions.

What Businesses Should Do

Business should be mindful of not increasing prices in anticipation of the impact of the oil price increase and engage in corresponding price increases once these price increases have a clear and quantifiable impact on internal pricing mechanisms.

The wider public does have recourse available to contact the Commission, should it appear that a business is engaging in price gouging behaviour, or has responded too erratically to the market disruptions caused by the sudden spike in the oil price. The Commission has stated the following: “Given the heightened risk of price gouging during this period of oil price volatility, the Commission calls on the public and businesses to report instances where they believe price gouging is occurring so that the Commission can investigate.”

Ultimately, the lesson from COVID-19 remains unchanged in that price increases have to be justified by evident supply cost increases and not by opportunity. As the Commission has made clear, anticipation pricing and margin expansion will not be tolerated.

Healthcare Fraud at Tembisa Hospital: R2 Billion Procurement Fraud Exposed

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Courtney Kaplan

A long-running investigation, which is still ongoing, has yielded insights into a massive healthcare fraud at a local South African hospital.

Background

On 23 August 2021, Babita Deokaran, a whistleblower and acting Chief Director of Financial Accounting in the Gauteng Department of Health, was assassinated after exposing around R850 million worth of suspicious procurement payments at Tembisa Hospital. In July 2025, the SIU confirmed that it was finalising the investigation into the assassination.

On 1 September 2023, Proclamation No. 136 of 2023 (the “Proclamation”), was published in the Government Gazette, which gives the Special Investigating Unit (“SIU”) power to investigate accusations of corruption and maladministration regarding Tembisa Hospital and the Gauteng Department of Health. The Proclamation was signed under the Special Investigating Units and Special Tribunals Act 74 of 1996 (“SIU Act”).

In terms of the Proclamation, the SIU is authorised to:

  • Investigate procurement, which is not fair, competitive, transparent, equitable, or cost-effective, or which is prohibited by National Treasury guidelines;
  • Investigate unauthorised, irregular, or fruitless and wasteful expenditure;
  • Institute civil litigation in the High Court or Special Tribunal to recover losses suffered by the State;
  • Pursue pension benefits of resigned or retired officials during investigations;
  • Conduct criminal referrals to the National Prosecuting Authority (“NPA”);
  • Refer conduct to the South African Revenue Service (“SARS”) and National Treasury for blacklisting.

Key Findings

On 29 September 2025, the SIU released an interim report, indicating that approximately R2.043 billion was misappropriated via nine syndicates, including the Maumela, Mazibuko, and X syndicates, manipulating the hospital’s procurement system, which was not used for hospital equiptment. The total amount connected to officials amounted to R122,228,000, with 15 officials being implicated, and 116 disciplinary referrals arranged.

Criminal Charges against Former CFO

On 16 October 2025, criminal charges were laid against the former CFO of the Gauteng Department of Health, Lerato Madyo, who had originally frozen R104 million in questionable payments which had been flagged by Babita, but allowed them to go through and conducted an incomplete related audit report. Lerato resigned in August 2024 before a disciplinary finding was finalised. The charges against Lerato include violations of:

  • Section 34 of the Prevention and Combating of Corrupt Activities Act 12 of 2004 (the “PRECCA”) for failing to report corruption exceeding R100,000;
  • Section 21 of PRECCA for conspiracy;
  • Section 18 of the Criminal Procedure Act 51 of 1977 (conspiracy to commit fraud);
  • Section 38 of The Public Finance Management Act 1 of 1999 (the “PFMA”) for the failure to report irregular expenditure;
  • Section 51 of the PFMA for negligent procurement oversight;
  • Section 81 of the PFMA for financial misconduct; and
  • Theft and fraud.

Asset preservation

On 29 September 2025, the Special Tribunal granted an interim preservation order regarding around R900 million in assets allegedly acquired unlawfully from Tembisa Hospital. On 9 October 2025, an SIU Curator obtained R133,5 million in assets in Gauteng and Mpumalanga. In terms of the preservation order, implicated individuals must declare all assets to the SIU, with failing to do so being considered contempt of court. The SIU is authorised to institute a maximum of 41 civil recovery proceedings within 60 court days.

Arrests and bribery

In April 2025, evidence was given by the SIU to the NPA, Directorate for Priority Crime Investigation (“DPCI”), and Asset Forfeiture Unit (“AFU”) against the Operations Manager of Tembisa Hospital, Zacharia Tshisele, regarding asset recovery and criminal prosecution.

The SIU found that Tshisele obtained unlawful gratification from service providers between 2020 and 2023 and in November 2025, Tshisele paid R13,530,904.27 to the SIU, representing a portion of his proceeds from corrupt conduct.

On 23 November 2025, Papi Tsie, DPCI Sergeant, and Tshisele allegedly gave a R100,000 cash bribe to an investigating officer to attempt to interfere with prosecution. The exchange was a sting operation and led to the arrest of both Tshisele and Tsie, who both pleaded not guilty and were granted R5,000 bail. The case was moved to 27 February 2026 and Lt-Gen Siphosihle Nkosi, Hawks Acting National Head, stated that the investigation would proceed against officials participating in criminal dealings.

Suspensions and estate recovery

On 14 October 2025, Lesiba Arnold Malotana, Gauteng Health Head of Department, was suspended by Gauteng Premier Panyaza Lesufi. On 21 October 2025, an SIU lifestyle audit was released, indicating that Malotana was considered high-risk, and revealed R1,627,300 in ATM deposits which did not coincide with his salary. Malotana challenged his suspension in the Labour Court, which held that the suspension was lawful and rational.

On 4 November 2025, Dr Aaron Motsoaledi, Minister of Health, stated that the government would pursue the estate of the late Tembisa Hospital CEO Dr Ashley Mthunzi for asset recovery as he had allowed irregular purchase orders to go through. As of 8 November 2025, only one of 467 implicated entities had been placed on the National Treasury’s Restricted Supplier Register, prompting an ActionSA complaint to the Public Protector.

Implications

The investigation is still ongoing, with the SIU’s final report not having been released yet. This case illustrates systemic failures in anti-fraud controls in South Africa. Acting Police Minister Firoz Cachalia confirmed to Parliament on 5 November 2025 that criminal cartels have corrupted South Africa’s healthcare procurement at a systemic level beyond Tembisa. The SIU has indicated that Tembisa may represent only the tip of the iceberg across Gauteng’s public health system.

Scrap Under Scrutiny: SACC Raids Scrap Metal Firms over Alleged Price-Fixing

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By Tyla Lee Coertzen and Courtney Kaplan

On 13 February 2026, the South African Competition Commission (“SACC”) released a Media Statement (the “Statement”) indicating that it had carried out several search and seizure operations at four scrap metal purchasing companies in Germiston, Nigel, Vanderbijlpark, and Hammanskraal.

The SACC initiated the dawn raid investigations upon grounds of reasonable suspicion that the four companies – namely, Scaw South Africa (Pty) Ltd (“Scaw”), Cape Gate (Pty) Ltd (“Cape Gate”), Shaurya Steel (Pty) Ltd t/a Force Steels (“Force Steels”), and Unica Iron and Steel (Pty) Ltd (“Unica”) – were involved in fixing purchasing prices of shredded or processed scrap metal, used in the manufacturing of steel products, which may amount to a contravention of section 4(1)(b)(i) of the Competition Act 89 of 1998 (the “Act”).

Section 4(1)(b)(i) of the Act prohibits agreements made between competitors, or concerted practices by competitors, including directly or indirectly fixing purchase prices or trading conditions. Firms who are found to be in contravention of section 4(1)(b)(i) may be liable to pay penalties of up to 10% of their annual turnover.

In terms of the Statement, the companies are suspected of having announced their price adjustments of the same prices, to be executed around the same time. The SACC alleges that this conduct amounts to a contravention of section 4(1)(b)(i) of the Act, which prohibits hardcore cartel conduct. The SACC’s investigation is said to have been brought about by a complaint submitted by a third-party in 2023, as well as a complaint initiated by the SACC in February 2026.

Section 48 of the Act empowers the SACC to conduct search and seizure operations and collect documents which concern an ongoing investigation. In respect of the scrap metal dawn raids that took place on 13 February, SACC provided that it received a search warrant from the North Gauteng (Pretoria) High Court authorising it to carry out these operations. The SACC further indicated that documents and electronic data will be seized and analysed with other relevant information to establish whether the companies are engaged in conduct which contravenes the Act.

Search and seizure operations are also known as “dawn raids” and are often initiated at the start of an investigation, usually before the respondents are aware they are under investigation, to enable the SACC to obtain the information before it might be destroyed. These inspections often come as a surprise to parties and are done in an effort to obtain evidence of potential infringements of the Act. The SACC, often accompanied by the South African Police Service, is provided wide powers for search and seizure through dawn raids, and would be entitled through a warrant to inspect company records, employee records, and both company and personal electronic devices.

Cape Gate responded to the allegations stating that it believes the search warrant is unlawful and that it plans on instituting legal proceedings to have the warrant set aside. The warrant was granted ex parte, meaning it was granted in the absence of the affected parties, and thus Cape Gate believes it has the right to institute proceedings against it. Cape Gate alleges that the SACC did not disclose all the necessary information to the Court when it applied for the warrant. Dorothea Ziegenhagen, the CEO of Cape Gate, stated that the company denies any wrongdoing and asserts that its operations fully adhere to competition law.

Interestingly, in 2025, the Competition Tribunal found Cape Gate guilty of being involved in the fixing of prices in the scrap metal market. Cape Gate denied this and has stated that the calculation was decided on in terms of transparent negotiations between buyers and merchants and has maintained that the SACC and Department of Trade and Industry knew of the negotiations and failed to acknowledge such. Cape Gate lodged an appeal with the Competition Appeal Court which is expected to be heard by the end of March 2026.

Commissioner of the SACC, Doris Tshepe, had indicated in a statement that the scrap metal market forms part of industrial intermediary products, one of the priority sectors monitored by the SACC, and thus false coordination of purchase prices may materially interfere with pricing in the downstream steel value chain. Commissioner Doris Tshepe further provided that dismantling any alleged price-fixing cartel in the scrap metal market would significantly assist in getting rid of artificial barriers to entry and foster a favourable environment for all firms, especially small firms and businesses owned by historically disadvantaged persons to contribute to the market.

The dawn raid comes as a surprise, particularly given that while dawn raids are certainly an effective investigative tool that may be utilised by the SACC as part of its enforcement efforts, the use of dawn raids has been significantly limited in recent years, with the last dawn raid conducted in 2022 on a number of insurance firms. The dawn raids, however, indicate the SACC’s continued commitment to enforcement in the metal sector.

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

Posted on by Editor

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

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

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

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

Southern Africa

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

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

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

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

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

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

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

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

COMESA

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

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

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

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

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

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

EAC

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

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

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

ECOWAS

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

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

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

Conclusion and Outlook for 2026

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

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

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