On 18 August 2025, pan-African competition-law boutique firm Primerio continued its “African Antitrust Agencies – In Conversation” series, casting a light on the Tanzanian Fair Competition Commission (“FCC”) in a dynamic exchange which analysed merger control practices, regional competition enforcement and regulatory reform. The discussion featured Director of Research, Mergers, and Advocacy at the FCC, Zaytun Kikula, in conversation with Primerio Director, Andreas Stargard, Primerio Associate Tyla Lee Coertzen, and Advocate at Mwebesa Law Group, Monalisa Mushobozi. You can watch a recording of this session here.
Ms. Kikula highlighted that the FCC’s focus has thus far mainly been on mergers, as well as investigating the dominance of abuse and cartels. She also points out that the FCC have been very active in its merger control regime, handling between 50 and 70 filings annually. Most of the notified transactions are smaller, spanning across sectors from telecommunication, finance, manufacturing, mining and insurance. Ms. Kikula stated that the recent amendments made to the Fair Competition Act 2024, have created a shift in merger reviews. Before these changes, the focus was only market share, whereas now mergers are being evaluated through a broader lens.
Monalisa noted an amendment to the Act now allows for a merger to be approved even it is strengthens the position of a dominant firm, provided the transaction yields a demonstratable public interest benefit. Ms. Kikula further explained that while the FCC has not received a transaction which triggers the above-mentioned amendment, notified transactions are subject to a 14-day notice period which invites commentary in order to ensure that the concerns of the public are adequately considered.
The FCC has encountered numerous instances of unnotified mergers, some voluntarily disclosing these transactions to the FCC, after the fact and others through investigation by the FCC. The FCC engages with these firms and lets them know that if they do not notify the Commission and proceed, this will constitute an offence which is punishable by a fine of between 5% and 10% annual turnover. Ms. Kikula mentioned the FCC assumes the role of a business facilitator and encourages settlements where the firms pay a filing fee as well as an additional settlement fee for instances of non-compliance. Filing fees are determined by the structure of the transaction, for instance, when dealing with a global entity the fees are calculated based on global turnover. When the transaction is domestic fees are calculated based on local turnover. She also pointed out the fact that this fee calculation is unconditionally governed by law and that there is no room for negotiation.
Monalisa mentioned that the law stipulates that the Commission has 60 days to approve the merger and inquired whether there have been cases where this timeframe has been shortened or extended. Ms. Kikula explained that non-complex merger reviews can extend between 30 to 45 days, however, in some cases can extend to 90 days. Noting that it may go up to 135 days, the statutory maximum. With regards to remedies, the FCC typically imposes behavioural conditions which are tailored to the specific sector involved.
The regional integration of competition law across Africa was a key theme which was highlighted. Andreas brought to the listeners attention that the East African Community Competition Authority (“EACC”) will be coming online in November of this year and will be open to receiving merger notifications. She further expressed that dual filings should be avoided in order to lessen confusion, emphasising the importance of confidentiality under a Memorandum of Understanding in order to protect information. Ms. Kikula discussed the two upcoming regulatory reforms which the FCC is in the process of introducing, with the first being a leniency program and the second being specific regulation for the assessment of dominance. She further noted that the threshold for market share has increased from 35% to 40%. This expansive discussion highlights the FCC’s ability to balance application with facilitation, making it a driving force in East African competition law.
The Competition Commission of South Africa (“the Commission”) released a Cost-of-Living Report (“The Report”) on 4 September 2025, setting out a structured, data-driven assessment of affordability pressures faced by South African households, with particular focus on those low-income consumers predominantly impacted by consistently high inflation rates. Its aim is to provide insights into the affordability of basic goods and services so that individuals, households, businesses, and policymakers can assess financial capacity and understand how price movements affect living standards. This is in alignment with the Presidency’s Strategic Plan that identifies tackling the high cost of living as a priority.
The current cost-of-living crisis is framed against entrenched domestic challenges, rising food, fuel and electricity prices against the backdrop of an ongoing energy crisis and interest rate increases that have lifted debt servicing costs in an environment where growth in household income has maintained the same pace.
Background and Goal of the COL Report
The COL Report stems from the Commission’s earlier Essential Food Price Monitoring(“EFPM”) programme, first published in July 2020 to track the prices of staple foods across the value chain, from farm to retail, and to analyse price transmission between producers, processors and retailers. Recognising shifting expenditure patterns and growing inequality, the Commission has expanded the scope of the EFPM, rebranding it as the COL Report. The new format retains essential food price monitoring while including those key non-food items that have a significant impact on lower income households.
As James Hodge, the chief economist at the Commission said:
“This analysis plays a crucial role in identifying the economic pressures various socio-economic groups, particularly low-income households, experience in a time of fluctuating prices and growing inequality.”[1]
The COL Report’s overarching intent is to highlight the affordability of basic goods and services in South Africa and to identify the underlying drivers of the cost-of-living crisis.
The COL Report tracks non-food necessities (e.g., electricity, water, rentals, healthcare, minibus taxi fares and petrol, funeral policies, public school fees, and internet usage costs) alongside essential food items such as pilchards, eggs, IQF chicken, brown bread, sunflower oil, maize meal. It further illustrates interest-rate effects by comparing owner’s rent as an equivalent to bond repayments on a standard mortgage. This structured monitoring enables the Commission to highlight where inflation is concentrated, where pricing appears sticky during cost reductions, and where spreads are widening.
COL Report and South African competition law
While the COL Report does not draw conclusions in respect of anticompetitive conduct, it does have notable implications for competition oversight by continuing to apply the Consumer’s International Early-Warning System (“Early-Warning System”) and evidentiary baseline for price transmission across essential value chains.[2] Several features are salient for competition law practice and policy, as drawn directly from the Report’s findings and methodology:
A broadened monitoring mandate across non-food essentials, expands the EFPM’s food focus to include electricity, water, rentals, transport, primary healthcare, funeral policies, education, and internet costs, the Commission positions itself to trackpersistent inflation drivers where administered pricing or sectoral structures may entrench affordability constraints. Assisting in the prioritisation and policy engagement across markets that shape consumer welfare, even where formal competition enforcement is not immediately implicated.
It presents clear analytical boundaries that respect competition law standards. It expressly cautions that the analysis of spreads (aggregate spread between retail and producer prices) is not an inference of anticompetitive conduct. Instead, spreads are diagnostic of price transmission and places in the chain where margins are expanding. The Commission’s reliance on the Early-Warning System underscores that the COL Report is an intelligence and monitoring tool, useful for triage and prioritisation, rather than a determinative finding of collusion or abuse. This delineation aligns with competition law’s evidentiary requirements while still highlighting areas that may merit closer scrutiny.
The Report identifies pricing patterns relevant to oversight, documenting patterns in essential staples where input costs fell or stabilised, but retail prices remained elevated. An example of this is, for instance, the discussion of eggs, sunflower oil, and maize meal, where price stickiness and widening retail margins are observed at various points. In brown bread, producer-level margins rose as wheat prices declined, and retail margins fluctuated as retailers alternated between absorbing and passing through cost movements. Such documented patterns inform areas where the Commission may, in being consistent with its mandate, monitor for potential strategic pricing behaviour over time.
The contextualisation of administered prices as structural inflation drivers, by the Report identifies evidence that electricity prices rose 68% and water prices rose 50% over the last 5 years. This is well above headline inflation and provides a policy context for sustained consumer-facing cost pressure. Although administered tariffs are not set through ordinary market dynamics, persistent increases affect downstream markets and household welfare, which are central concerns of the Commission’s broader public-interest and competition policy ecosystem.
The Report recalls that, following the Commission’s Data Services Market Inquiry in 2019, mobile data prices fell significantly in 2020 and 2021 and have remained comparatively stable. This illustrates how evidence-based monitoring and market inquiries can produce effective outcomes, a tool that the Commission may use in other sectors flagged by the COL Report.
The Report uses an interest rate lens to complement the Consumer Price Index (“CPI”) measures of housing costs, by comparing bond repayments (up 28% over the period 2022 to March 2025) with owner’s equivalent rent, shows how debt-servicing costs meaningfully diverge from CPI’s treatment of owner-occupied housing. This perspective assists competition authorities and policymakers to understand consumer budget constraints that can interact with the market.
Collectively, these features show that the COL Report is intended to guide monitoring and policy dialogue, highlight potential risk zones, without asserting contraventions and maintain an evidentiary base for any future work within the Commission’s statutory toolkit such as market inquiries.
Key Findings Highlighted in the Report
To ground the above effects in the Report’s data, the COL Report records the following notable movements over the past 5 years for the period of 2020 to March 2025:
Key non-food items:
Administered prices: Electricity up 68% and water up 50%, both outpacing headline inflation.[3]
Rentals: Actual rentals for houses and flats up 12%, well below headline inflation (28%).[4]
Primary healthcare (General Practitioners): Cumulative increase 33%, with the latest 6.6% annual rise noted against slowing general inflation.[5]
Transport: Minibus taxi fares increased sharply in mid-2022 following the petrol price spike; fares have been “sticky downwards”, though subsequent increases have trailed CPI, narrowing the gap.[6]
Funeral policies: Up 9% over the period, significantly below headline inflation.
Public education: Primary +37% and secondary +42%, both above headline inflation. [7]
Internet usage costs: Wireless +1%; wired +14%, with a notable step-up in 2022 linked to certain higher priced fibre offerings.[8]
Interest rates vs CPI housing proxy: Bond repayments +28% versus more moderate owner’s equivalent rent growth, illustrating the load from higher interest rates on household budgets.[9]
Essential foods:
Pilchards: Retail margins declined over time; early 2025 spreads narrowed to 15% as retailers showed restraint amid rising producer prices.[10]
Eggs: Producer prices fell into early 2025 but retail prices were slow to normalise; later producer-price increases reduced retail margins, with the Report monitoring recovery trajectories post-avian flu.[11]
IQF chicken: Producer prices stable and retail margins held under 40% in 2025 after earlier pressure. [12]
Brown bread: Farm-to-producer spread 77% in 2025 (above historic highs); retail margins fell to 15%, as retailers absorbed later producer increases.[13]
Sunflower oil: Producer margins settled around 25% since late 2023; retail margins elevated (40–45%) due to slow pass-through of producer-price declines.[14]
Maize meal: Producer margins rose rapidly in late 2023 after white maize price drops; retail prices increased in 2025 despite relatively stable producer prices, pushing retail margins to the high end of historic levels.
These findings supply concrete price-formation signals, where margins compress, where they expand, and how quickly costs are transmitted, which are central to the Commission’s ongoing monitoring orientation.
In Conclusion, the COL Report documents a pronounced squeeze on South African households, especially the poorest, driven by elevated inflation in essential services and persistent cost pressures. It demonstrates that while certain categories (e.g., rentals, funeral policies) have increased less than headline inflation, others (e.g., electricity, water, education, and several staple foods) are coming down hard on budgets. In parallel, the COL Report records instances of sticky pricing and widening spreads, and it maintains a clear line between diagnostic monitoring and legal inference.
For competition law and policy, the COL Report delivers three practical gains, by widening the scope to include key essentials beyond food, showing the spreads and pass through clearly, and a continuation of the Early-Warning System. Furthermore, it assists the Commission in fulfilling its mandate by flagging areas which may need attention, guiding debate on administered prices, and grounding future market work in carefully, publicly sourced data.
On 5 June 2025, Primerio hosted the latest instalment of its African Antitrust Agencies – in Conversation series. This session featured Primerio’s Managing Associate, Joshua Eveleigh, alongside Carole Bamu, Primerio’s in-country lead partner for Zimbabwe, and Calistar Dzenga, Head of Mergers at the Zimbabwe Competition and Tariff Commission (“CTC”). Their wide-ranging conversation offered a rare window into Zimbabwe’s merger control regime, recent enforcement developments, and anticipated legislative reforms, thus providing valuable insight into how the regulator is intensifying oversight and sharpening enforcement.
Calistar Dzenga explained that any transaction meeting the combined turnover or asset threshold of USD 1.2 million in Zimbabwe is notifiable under the Competition Act [Chapter 14:28]. Notably, this includes foreign-to-foreign mergers, the activities of which have an appreciable effect within Zimbabwe’s market, a critical point as Zimbabwe becomes an increasingly active jurisdiction in African dealmaking. The CTC’s review process starts with notification and payment of fees capped at USD 40,000, followed by detailed engagement including market research and stakeholder consultations.
Mergers are classified as either “small” or “big,” with smaller transactions typically decided within 30 days, while larger or complex deals taking up to 90 to 120 days.
While the CTC uses indicators like the Herfindahl-Hirschman Index (HHI) as screening tools, the CTC confirmed that market shares are not determinative on whether a transaction will have anticompetitive effects. Instead, the CTC focuses on, and considers, barriers to entry, countervailing buyer power, and the historical context of collusion. Zimbabwe’s framework embeds public interest considerations within competition analysis, differing from South Africa’s dual-stream approach.
Public interest concerns, particularly employment protection and local industry support, are increasingly central to merger decisions. These conditions often require maintaining junior-level employment for at least 24 months post-merger and increasing local procurement. Industrial development goals also shape decisions, including mandates for mineral beneficiation in sectors such as lithium processing.
One of the most significant recent cases involved CBZ Holdings’ attempt to acquire a controlling stake in ZB Financial Holdings. The proposed merger raised alarms over market concentration in banking, reinsurance, and property, as well as risks to consumer choice. After extensive engagement, the Commission proposed strict conditions, from divestitures in related markets to commitments to maintain separate brands. Ultimately, the merging parties walked away, demonstrating that Zimbabwe’s regulator has the resolve to stand firm even on high-profile deals.
Joshua and Carole explored how Zimbabwe’s CTC collaborates with other African authorities. Calistar highlighted the strong relationships the CTC has with theCOMESA Competition Commission, the South African Competition Commission, as well as the relevant competition authorities in Zambia and Botswana. Such cross-border collaboration plays a crucial role in ensuring that mergers do not slip through regulatory gaps and that decisions are coordinated across the region. The CTC also uses memoranda of understanding with other national regulators, such as the Zimbabwe Stock Exchange and the Reserve Bank, to detect transactions which have not been notified to the CTC.
A major theme of the conversation was the long-awaited Competition Amendment Bill, which is set to overhaul Zimbabwe’s 1996 Act. As Calistar explained, the Amendment Bill will:
(i) give the CTC powers to impose harsher administrative penalties for restrictive practices and cartels;
(ii) introduce clearer rules on public interest considerations;
(iii) allow the CTC to conduct proactive market inquiries rather than just reactive investigations;
(iv) enable anticipatory decisions for failing firms to speed up urgent cases; and
(v) provide leniency frameworks for companies disclosing collusion.
The reforms are expected to give the CTC more enforcement capability and help align Zimbabwe with international practices. Joshua mentioned that these changes would give the CTC “more teeth to bite,” a phrase Calistar repeated, showing how the regulator wants to align with global standards.
Right now, Zimbabwe is seeing more merger activity, especially in the financial services and manufacturing sectors. This is predominantly due to consolidation pressures, along with large infrastructure projects. With regulatory scrutiny picking up speed, companies really have to stay on the front foot when it comes to managing clearance risks and be ready for stricter enforcement.
Joshua also pointed out that it’s an exciting period for competition law in Zimbabwe. He believes businesses should start preparing now for the significant changes that are on the horizon. For Primerio’s African antitrust team, this conversation really highlights how important it is to guide clients through an evolving and complex enforcement landscape.
To view the recording of this session, please see the link here.
South Africa’s logistics and freight infrastructure stands at a critical crossroads, with persistent inefficiencies in the rail, port, and road sectors posing a significant threat to the country’s economic competitiveness and growth. In response to this crisis, the government has introduced the Block Exemption for Ports, Rail and Key Feeder Road Corridors which came into effect on 8 May 2025, a landmark regulatory intervention under the Competition Act 89 of 1998 (the “Act”), spearheaded by Trade, Industry and Competition Minister Parks Tau (Government Gazette No. 6182, 2025). This block exemption represents one of the most substantial reforms in South Africa’s competition law landscape, specifically designed to enable greater collaboration among firms operating in the logistics value chain, while still safeguarding against anti-competitive conduct.
The exemption, notable for its 15-year duration, signals the Government’s commitment to long-term, structural support for revitalising the country’s logistics backbone. It allows companies in the transport infrastructure and logistics sectors to apply to the Competition Commission for permission to coordinate efforts aimed at addressing operational inefficiencies, infrastructure capacity shortages, and systemic breakdowns in port and rail infrastructure, all while complying with relevant sector laws and policies. This marks a decisive shift from the traditional competition law approach, which generally prohibits coordination among competitors, to recognise that South Africa’s logistics crisis requires extraordinary, collective action.
Minister Parks Tau’s role has been pivotal, as he gazetted the exemption to promote collaboration that can reduce costs, improve service levels, and minimise losses caused by years of underinvestment and mismanagement in the logistics sector. There is a clear and urgent economic basis for the intervention supported by the fact that South Africa is estimated to lose as much as R1 billion per day due to freight system failures, with follow on effects across production, manufacturing, wholesale, retail, and export sectors (“A billion a day – that’s what SA loses through freight failures”, Freight News, 21 May 2024). Congestion at major ports, a deteriorating rail network, and poorly maintained road corridors have not only undermined daily business operations but have also eroded the country’s position in the broader global trade industry.
By enabling coordinated, pro-competitive solutions-subject to strict oversight and clear exclusions for cartel conduct, the block exemption aims to unlock investment, restore critical infrastructure, and lay the foundation for a more resilient, efficient, and globally competitive logistics system.
Background/History
South Africa’s ports and rail infrastructure have historically suffered from inefficiencies and significant decay, impacting the country’s logistics and economic performance. The rail network, largely completed by 1925, faced underinvestment from the late 20th century onwards, leading to deteriorating rolling stock, signalling, and track conditions. This decline was arguably caused by theft, vandalism, and outdated systems, most notably within Transnet Freight Rail, which has struggled with equipment shortages and infrastructure damage, including cable theft and adverse weather events such as the 2022 KwaZulu-Natal floods (Dr Mitchell, The Rise and Fall of Rail, Chapter 4). Ports like Durban and Cape Town, originally designed for mostly rail cargo, now face congestion and aging infrastructure challenges, with cranes and gantries exceeding their intended lifecycle, further slowing cargo handling and export throughput. These events trigger a bottleneck for resources waiting to be exported.
To address these challenges, privatisation is often proposed as a solution. However, previous reform efforts including partial privatisation and initiatives to involve the private sector in infrastructure management have largely failed. These failures were primarily due to poor project management, cost overruns, and user resistance, as demonstrated by the Gauteng electronic tolling system. Recognising these shortcomings, the Government now seeks to mobilise private sector financing and expertise through public-private partnerships and concessions, with the goal of enhancing infrastructure delivery and operational efficiency (P Bond and G Ruiters, South Africa’s Failed Infrastructure Privatisation and Deregulation).
Previous key policy milestones that are aimed at addressing these problems include the Transnet Network Statement, which promotes open access reforms to rail infrastructure, the transport ministry’s Request for Information (“RFI”) to explore private sector involvement and innovative solutions, and now the Government Notice issued by Trade, industry & competition minister Parks Tau.
Legal Framework: The Competition Act
The Act ordinarily prohibits agreements between competitors that substantially prevent or lessen competition, with Section 4(1)(b) specifically prohibiting price-fixing, market division, and collusive tendering (Competition Act 89 of 1998, s 4(1)(b)). However, under Section 10(10) of the Act, the Minister of Trade, Industry and Competition may issue exemptions in the public interest Competition Act 89 of 1998, s 10(10). The newly gazetted 15-year Block Exemption for Ports, Rail and Key Feeder Road Corridors, is one such intervention. It permits limited coordination among firms in the logistics value chain to address critical inefficiencies, while maintaining prohibitions on core cartel conduct such as fixing selling prices or excluding small and historically disadvantaged market participants.
The exemption allows for collaboration on operational matters such as joint use of transport infrastructure, coordinated scheduling, and shared logistics data, activities that would typically contravene the Act’s per se prohibitions under Sections 4(1)(b)(i) and (ii). Importantly, each form of collaboration must be reviewed and approved by the Competition Commission, which retains oversight to ensure that such cooperation is pro-competitive, time-bound, and aligned with Competition Commission’s broader transformation and public-interest objectives. The exemption explicitly requires that such collaboration does not exclude new entrants or small, medium, and micro enterprises (“SMMEs”) and instead encourages inclusive participation.
However, the regulations expressly exclude cartel conduct. Section 4(1)(b)(i) and (ii) of the Act prohibits price-fixing, tender collusion, and market division, and these sections remain intact. Any coordination must be submitted for review to the Competition Commission, which will assess whether the collaboration is genuinely pro-competitive and in line with sector-specific goals and transformation mandates.
Rationale: Tackling a Logistics Crisis
The rationale behind the 15-year block exemption lies in its capacity to enable coordinated responses to mounting inefficiencies across the country’s rail, port, and road freight infrastructure, systems upon which the economy’s competitiveness rests.
A recent report by the Council for Scientific and Industrial Research (CSIR) estimates that freight logistics failures cost the economy up to R1 billion per day, affecting production schedules, increasing costs, and undermining export reliability (“A billion a day – that’s what SA loses through freight failures”, Freight News, 21 May 2024). These issues are particularly acute in port terminals such as Durban and Cape Town, where backlogs have resulted in vessel queuing, delayed shipments, and significant demurrage charges.
The rail network, operated largely by Transnet Freight Rail, continues to degrade due to rolling stock shortages, cable theft, signalling issues, and adverse weather events (Transnet Integrated Report 2023). Following the 2022 KwaZulu-Natal floods, major lines experienced months-long disruptions, highlighting the vulnerability of logistics infrastructure (Presidential Climate Commission Brief on the 2022 KZN Floods, 2022). Moreover, a 2024 National Treasury report identified inadequate investment, operational inefficiency, and governance issues as long-standing contributors to the sector’s decline (National Treasury Annual Report 2023/24 (2024). In light of these challenges, the block exemption provides a legal framework through which firms can engage in limited coordination on logistics operations, such as the sharing of transport assets or the synchronisation of delivery schedules, without breaching competition laws.
The decision to set the exemption for 15 years rather than the more typical short-term period reflects a deliberate strategy to create regulatory certainty. Such long-term clarity is essential to attract private sector investment into joint ventures, infrastructure upgrades, and concessioning models. By providing a legally protected framework for collaboration, the exemption seeks to catalyse systemic reform and reduce South Africa’s long-standing overreliance on inefficient, state-controlled freight logistics.
Competition Analysis: Risk vs Reward
The exemption, while pragmatic, raises legitimate questions from a competition law perspective. One of the key risks is that, under the guise of coordination, dominant firms could entrench their market position and SMMEs and historically disadvantaged persons (“HDPs”). This concern is echoed by academic literature, which warns that crisis-driven exemptions, if not tightly monitored, can facilitate collusion and market foreclosure.
The block exemption also contains an explicit requirement that the collaborative measures must not undermine the participation of new entrants or black-owned logistics firms. In fact, they are encouraged to be integrated into these collective solutions, thereby aligning with the broader objectives of the Act, which focuses on inclusive growth and reducing economic concentration.
Internationally, temporary exemptions have been deployed during times of sectoral distress. During the COVID-19 pandemic, the European Commission issued Temporary Frameworks allowing certain forms of cooperation in sectors such as pharmaceuticals, food distribution, and energy, provided they were transparent, necessary, and time-limited (European Commission, Temporary Framework for State Aid Measures, 2020: 1–9). Similarly, the United Kingdom’s Competition and Markets Authority (CMA) granted exemptions in retail supply chains during 2020, illustrating how temporary coordination can maintain essential operations under stress (UK Competition and Markets Authority, Approach to Business Cooperation in Response to COVID-19, 2020).
Therefore, while there are inherent risks, the reward, a more functional, cost-effective, and inclusive logistics sector which outweighs the downsides if strict oversight is maintained. The exemption represents a calculated, legally bounded exception to orthodox competition principles, in the service of restoring one of the country’s most vital economic sectors.
Conclusion
The 15-year Block Exemption for Ports, Rail and Key Feeder Road Corridors represents a pivotal recalibration of South Africa’s competition law in response to an unprecedented logistics crisis. By permitting targeted, supervised coordination among industry participants, the exemption offers a legal mechanism to address inefficiencies without compromising core competition rules. It reflects a pragmatic shift in recognising that structural reform and economic recovery in the logistics sector require more than individual market forces can deliver.
While the exemption creates opportunities for collaboration and investment, its success will hinge on rigorous oversight by the Competition Commission to prevent anti-competitive abuse and to ensure inclusive participation by SMMEs and historically disadvantaged groups. Ultimately, if implemented with discipline and accountability, the exemption has the potential to catalyse a more efficient, resilient, and equitable logistics ecosystem, one that supports South Africa’s broader goals of economic transformation and global competitiveness.
South Africa risks adopting the essence of the EU’s Digital Markets Act (DMA), if not its exact form, with the aim of reshaping the business models of online intermediation platforms. This marks a significant shift away from the principles of traditional competition regulation.
In 2020, the Competition Commission of South Africa (CCSA) concluded that traditional enforcement tools might be inadequate to tackle structural barriers in digital markets particularly those that prevent new entrants or smaller players from expanding. This realisation led to the launch of the Online Intermediation Platforms Market Inquiry (OIPMI). By borrowing a regulatory blueprint designed for the EU, South Africa could undermine its own digital ecosystem, stifle investment, and entrench local inefficiencies. The country’s growing interest in ex ante competition regulation via the Competition Commission’s market inquiries reflects an accelerating trend of policy mimicry without consideration of domestic realities. While there is broad agreement on the need for digital competition regulation, there is little consensus on how these rules should be structured, and approaches to implementation remain highly varied across jurisdictions.
The OIPMI’s final report identified platforms such as Google, Apple, Takealot, Uber Eats, and Booking.com as dominant players distorting competition. It is claimed that, due to the significant online leads and sales these platforms generate and the high level of dependency business users have on them these scaled platforms can influence competition among businesses on the platform or exploit them through fees, ranking algorithms, or restrictive terms and conditions. However, this conclusion raises concerns about the underlying methodology. A central concern with the market inquiry approach is that it allows certain platforms to be identified as market leaders or sources of competitive distortion without requiring a formal finding of dominance, since such inquiries do not mandate that dominance be established.
The designation has been based on characteristics typically associated with globally leading technology firms. Amazon, which currently maintains only a minimal presence in South Africa, was nevertheless singled out as a potential threat to competition. It is claimed that Amazon faces similar complaints in other jurisdictions, and it is argued that fair treatment of marketplace sellers is unlikely to become a competitive differentiator capable of overcoming barriers to seller competition. Moreover, the CCSA has indicated that it would enforce the same provisions against Amazon if it were to enter the market in a way that breaches the proposed remedial measures.
Regulating for hypothetical risks while ignoring tangible consumer benefits risks becoming a self-fulfilling prophecy: global platforms may decide not to enter the market at all, leaving consumers, including small businesses and public services organisations with fewer options and slower innovation.
The OIPMI focuses on structural features that restrict competition both between platforms and among business users, facilitate the exploitation of business users, and hinder the inclusion of small enterprises and historically disadvantaged firms in the digital economy. Despite the absence of formal dominance findings, the OIPMI proposes a range of heavy-handed interventions, including the removal of price parity clauses, the introduction of transparent advertising standards, a ban on platform self-preferencing, and limitations on the use of seller data, many directly inspired by the EU DMA.
In both of CCSA’s 2022 and 2023 findings, Google Search was explicitly accused of preferential placement and distorting platform competition in South Africa. More concerning still are the CCSA’s proposed remedies in its final report- requiring targeted companies to offer free advertising space to rivals, artificially boost local competitors in search rankings, and redesign their platforms to favour smaller firms. The SACC has recommended that Google introduce identifiers, filters, and direct payment options to support local platforms, SMEs, and Black-owned businesses, and contribute ZAR150 million (around EUR 7 million) to offset its competitive advantage. For search results, Google is required to introduce a new platform sites unit (or carousel) that prominently showcases smaller South African platforms relevant to the user’s query such as local travel platforms in travel-related searches entirely free of charge. This goes beyond competition enforcement and crosses into market engineering, compelling global firms not just to compete by government decree, but to subsidise rivals and actively shape market outcomes.
In 2025, South Africa’s Competition Commission also doubled down with its provisional Media and Digital Platforms Market Inquiry (MDPMI), calling for additional remedies targeting online advertising, content distribution, and the visibility of news media. These recommendations are again influenced by EU-style regulations, particularly the EU Copyright Directive, which harms the diversity and sustainability of small news publishers. However, the report downplays South Africa’s unique institutional constraints and specific market dynamics. If adopted, the proposals would compel digital platforms to subsidise select publishers based on arbitrary and hard-to-measure assessments of news content’s value to Google’s business. This could limit access to information, hinder innovation, and monetisation efforts, ultimately narrowing consumer choice and weakening the vibrancy of the content ecosystem.
More broadly, through these market inquiries South Africa risks undermining its evolving digital economy by pursuing an approach that will deter foreign investment due to ambiguous and discretionary enforcement. At the same time, the proposed regulatory burdens could disproportionately affect domestic firms that simply lack the resources to comply. This regulatory uncertainty threatens to stifle innovation and hinder progress toward regional digital integration. In a country where corruption remains a persistent challenge, granting regulators wide discretionary powers over digital market outcomes also raises serious governance concerns. Moreover, by enforcing a narrow and politicised notion of “fairness”, South Africa risks sacrificing consumer choice and strangling the diversity of digital services that a competitive market would otherwise deliver.
Notably, coming back to the EU’s DMA, it was crafted for specific European conditions, particularly in markets where technologically-leading global platforms held relatively high market shares in many EU Member States. Yet even within the EU, the DMA remains hotly disputed – not least because it targets large non-European companies that have long been politically embraced for injecting digitisation into traditional industries and, through competition, helped European businesses and consumers benefit from technology innovation.
EU digital policies, developed from the perspective of wealthy, mature (Western) European markets, should not be assumed to be readily applicable elsewhere. South Africa’s digital markets are still in their infancy, ICT infrastructure remains unevenly developed, and regulatory institutions face significant resource constraints. Emulating the DMA – even informally – risks premature intervention, regulatory overreach, and the distortion of competitive dynamics before they have had a proper chance to emerge and mature.
Competition policy undoubtedly has a role in promoting competition. But poorly tailored rules may end up punishing the very firms that South Africa needs to scale and empower its own digital economy. Instead of replicating the EU’s Digital Markets Act, South Africa should focus on evidence-based case-by-case enforcement – grounded in its own market realities and institutional capabilities. Otherwise, South Africa risks becoming the casualty of a regulatory experiment designed for a different continent – with consequences its digital economy can ill afford.
*The authors are affiliated with ECIPE, the European Centre for International Political Economy
The African Continental Free Trade Area (“AfCFTA”) agreement, currently entered by 55 African countries, came into operation on 30 May 2019 and thereafter officially lodged in 2021. The purpose of the AfCFTA agreement is to create a single market for the continent, allowing free flow of goods and services across the continent and boost trading position of Africa in the global market[1].
While it is important to take into consideration that any change requires time, the question remains whether the AfCFTA agreement will in fact inject a positive change into Africa’s economy and promote intra-African trade.
The World bank predicts an economic growth for Africa, albeit it substantially low, indicating that the projected growth for Sub-Saharan Africa is 3% in 2024 and by 4% in 2025 to 2026, with East Africa expected to grow by 2.2% in 2024 and West Africa to grow by 3.9% in 2024.[2]
In 2023, the World bank further stated that research shows that the AfCFTA could lift 50 million people in Africa out of extreme poverty by 2035 and expand incomes by USD 571 billion[3].
Africa has been preparing itself for a growth in the Economy and the competition that comes with this in the broader African economy, by increasing regulatory infrastructure to oversee intra-African trade, with the likes of COMESA[4] and the recently functional ECOWAS[5], together with an increase of regulatory provision within African jurisdictions. ‘
However, despite the preparation and readiness for a nuclear increase of intra-African trade, various factors have been hindering the progress. Africa has been riddled with uncertainties, related to political unrest, rising conflict and violence, climate shocks and high debt distress risks[6]. This leaves market leaders cautious to invest in Africa, and African entities to trade over and across these uncertain jurisdictions.
Article 4 of the AfCFTA agreement states that the specific objectives of the agreement is to progressively eliminate tariffs and non-tariff barriers; progressively liberalise trade in services; cooperate on investments, IP and competition policy; cooperate on all trade-related areas; cooperate on customs matters and the implementation of trade facilitation measures; establish a mechanism for the settlement of disputes concerning their rights and obligations; and to establish and maintain an institutional framework for the implementation and administration of AfCFTA.
South Africa has taken a positive step in this direction, as trade under the AfCFTA commenced during January 2024 where South African entities can export on a duty free, or reduced duty, for certain products. The South African Revenue Services has implemented the AfCFTA agreement and reduced the tariffs for these products[7]. However, the responsibility remains on African entities to promote the benefits of AfCFTA by increasing the intra-African trade and making full use of the economic gain that stems from the AfCFTA agreement.
While Africa is hopeful for the positive incorporation of the specific objectives of AfCFTA and the potential economic boost that AfCFTA can incorporate, this will only come with time, cooperation by the various African jurisdictions and proper implementation of the AfCFTA agreement.
Book Launch Monday: CCRED’s latest covers AAT’s bread and butter, namely the rise of regulatory antitrust frameworks across the African continent.
The Centre for Competition, Regulation and Economic Development (“CCRED”) has announced the launch of its latest publication: “Regulating for Rivalry: The Development of Competition Regimes in Africa”. Co-edited by Reena das Nair, Simon Roberts, and Jonathan Klaaren, this book looks to be a comprehensive compilation of cutting-edge research and analyses, bringing together the key papers presented at previous ACER Week (Annual Competition and Economic Regulation) conferences. It also includes contributions from CCRED’s ongoing work, reflecting a rich exchange of ideas aimed at fostering competitive markets and effective regulation across the African continent.
One of the notable contributions in the book is a paper written by Primerio’s John Oxenham, Michael-James Currie, and Joshua Eveleigh, titled “Buyer Power in Emerging Markets: Assessing the Effectiveness of Regulatory Enforcement Developments in South Africa and Kenya”. This paper delves into the complex dynamics of buyer power, particularly in emerging markets, and evaluates the impact of recent regulatory enforcement efforts in South Africa and Kenya. Their research provides critical insights into the challenges and successes of regulatory buyer power within these key African economies, offering valuable lessons for policymakers and regulators across the continent.
“Regulating for Rivalry” will be available in both digital and print formats towards the end of 2024. The book is expected to be an essential resource for academics, regulators, legal practitioners, and policymakers engaged in the development and enforcement of competition law in Africa. It showcases the growing maturity and innovation of competition regimes across the continent, highlighting the critical role of effective regulation in promoting economic development and inclusive growth.
Senior diplomats from the COMESA region gathered in Livingstone, Zambia, for the fourth in a series of diplomatic antitrust-focused conferences that began in 2016 but were halted due to the coronavirus pandemic in 2019.
At today’s formal resumption of the recurring event, Dr. Willard Mwemba, CEO of the COMESA Competition Commission, introduced the conference session by calling out the importance of the agricultural sector to the people residing in the region, especially the very poorest of citizens.
He stated in unmistakable terms that his agency would prioritize this and related markets for heightened antitrust enforcement, to ensure the sector operates efficiently and competitively. “Accessibility (and affordability) of food is one of the most fundamental human rights. $2 per day are spent by the poorest people on average, and the majority of those two dollars is spent on food,” noted Mwemba.
Says Andreas Stargard, who attended the session, “it is clear that the view of the Commission is that agricultural markets in COMESA are not functioning as they should, based on studies the agency has undertaken with outside assistance. The massive foodstuffs price inflation levels COMESA residents have suffered in recent years are not merely natural consequences of irreversible climate change but rather represent mostly economic profit to the manufacturers and traders, to the detriment of consumers, based on what Dr. Mwemba presented today.”
COMESA Secretary General, Chileshe Mpundu Kapwepwe, summarized the stark importance of the AG sector to the region, its people, and the economic zone in sobering statistical terms: “The agriculture sector is one of the key sectors for most Member States as it contributes more than 32% to the Gross Domestic Product of COMESA, provides a livelihood to about 80% of the region’s labour force, accounts for about 65% of foreign exchange earnings and contributes more than 50% of raw materials to the industrial sector.”
In light of this crucial importance of the agricultural and food markets, food security is high on the list of action items that COMESA must address practically and effectively, she concluded. COMESA evaluates supply and demand levels across all 21 member states to assist with market assessment and planning.
The Diplomatic Conference’s guest of honour, Zambian Minister of Commerce, Trade and Industry, Hon. Chipoka Mulenga, noted in prepared remarks delivered by his deputy and permanent secretary to COMESA that, while “food production must be profitable for farmers, it must not be exploitative.”
In this regard, the famous Adam Smith quote referenced by Dr. Mwemba at a prior antitrust session comes to mind: “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own self-interest. We address ourselves not to their humanity but to their self-love, and never talk to them of our own necessities, but of their advantages.”
Beyond the immutable wisdom of the Wealth of Nations from two and a half centuries ago, the (1) CCC’s increased competition law enforcement in the agricultural and food sectors, as well as (2) national member states are assisting the effort of ensuring wide and secure availability to all COMESA residents by creating and strengthening cross-border value chains in the food sectors with overlaps across member state borders, the Zambian minister observed.
Meet the “CCCC”: the 4th Estate Covers the 4th “C” of the COMESA Competition Commission During its Second Press Conference, and More
The second annual COMESA Competition Commission press conference, taking place in Livingstone, Zambia, revealed not only news, but also the extensive improvements to the agency being made, and information about ongoing market studies and case investigations. It was an opportunity to allow business journalists obtain a glimpse, if not indeed a full deep-dive overview, into the future of the triple-C – which is soon to be the “Quad-C”, in fact, as Dr. Mwemba, the head of the Commission, announced at today’s event. That is, the CCC will add a fourth “C” to its name, so as to include expressly the concept of Consumer protection. AAT notes that this is similar to several other national competition authorities, for example the Nigerian FCCPC or even the U.S. FTC, both of which also have an existing mandate covering consumer-protection issues, besides their jurisdiction over pure competition-law matters.
Name Change
Dr. Mwemba clarified that the now-express inclusion of this “4th C“ in the Commission’s name going forward is to highlight the fact that the Commission will enhance its focus on consumer-protection issues, and to ensure that the average consumer (as opposed to competition experts) in the COMESA region can better understand their rights and recourse to the CCC(C).
Public-Interest Factors
This renewed consumer-protection emphasis also goes hand-in-hand, AAT believes, with the increased importance of so-called “public-interest“ factors in the CCC’s merger analysis. Dr. Mwemba highlighted, by way of example, environmental factors and job creation numbers, as potential considerations to be taken into account by the Commission under the amended regulations, which will likely come into effect by December 2024.
New Competition Regulations
These newly amended COMESA Competition Regulations, which have been in the making since the May 2021 inception of the Commission’s efforts to revise the regional competition law, will culminate in the imminent clearance by the COMESA Legal Drafting committee, and ultimately (by the end of the year, we anticipate), its adoption by the regional committees of the COMEAS Attorneys General, of the Justice Ministers, and eventually the Council of Ministers of all 21 COMESA member states. Of course, as AAT has discussed before, these Regulation Amendments carry with them extensive revisions to antitrust law (e.g., the creation of a leniency programme for cartel offenders; the change-over to a suspensory merger notification regime; adding ‘transaction value’ to the concept of deal-notification thresholds, amending their definition from being purely asset- and revenue-based; and the creation of certain market-power presumptions based on share thresholds, just to name a few here).
Dr. Mwemba clarified in vivid terms that neither life nor law must be stagnant. Hence the import of the revision of the Regulations, which (in their current form) are by now two decades old. “The original 2004 COMESA law simply was no longer up to the task of helping the Commission to regulate modern markets as they stand in 2024 and beyond,” according to the CCC. Examples given by the senior staff present included the rapid rise of artificial intelligence, environmental changes to the economy, and digital platform evolution – all of which have proceeded faster than virtually all existing antitrust laws globally. The view of the executive of the Commission is that it is well-positioned to be at the forefront of adapting to these challenges of imminent change.
The former CEO Dr. George Lipimile and AAT Editor Andreas StargardWith the CEO of the Commission, Dr. MwembaDr. Mwemba being interviewed by KBC
Merger Regulation
As both the past Director (Dr. George Lipimile) and the current CEO (Dr. Willard Mwemba) highlighted: the Commission does not exist to prohibit mergers. Instead, its purpose, from a merger-control perspective, is to ensure that any deals that may distort competitive markets is structured in such a way that the distortion ceases to exist or risk to the functioning of effective markets.
Answering one of the questions posed by africanantitrust.com, Dr. Mwemba confirmed that the Commission is continually engaged in ex post analysis and reviews of past mergers that were approved, sometimes with conditions, by the then-triple-C. In the ATC/Eaton Towers case, for example, it observed that the parties were found not to be complying with the obligations imposed by the contingent approval decision, therefore resulting in fines imposed by the CCC post-closing of the approved deal.
Beyond Mergers: Anti-Competitive Practices
The Commission has moved on from being a pure merger regulator long ago, however. This was a key theme throughout the multi-day conference. “We have moved on from just doing mergers, and have now been covering the terrible, always-hidden, and always-nefarious, anti-competitive practices found across the region for years,” says Dr. Mwemba about the more than 45 ACP matters the agency has handled so far. Case examples he gave in this respect include the CAF licensing of football rights (a veritable trilogy of matters at all levels of the intellectual property distribution chain regarding an important pastime in Africa, soccer).
Other instances of the CCC pursuing anti-competitive practices within the region include multiple investigations into the beer and alcoholic beverage markets, and a now concluded case against Uber (resulting in significant changes to the ride-sharing company’s contract terms in the COMESA region, namely removing a denial of vicarious liability clause, changing the choice of law provision from the Netherlands to local jurisdictions in COMESA, as well as changing the pricing and termination of services provisions of the contract of adhesion that Uber utilizes in its app.). Finally, the agency is deeply engaged in ongoing agricultural and food price studies, which will likely yield further enforcement actions going forward, in the words of the CCC.
Closing Thoughts: Due Process, Procedural Rights, and Deepening Collaboration with NCAs
Even though one of the identified CAF cases remains pending on appeal, Dr. Mwemba said that the Commission welcomes the parties’ exercise of their due process rights, noting that the CID review and appellate process provide valuable insights and that everyone stands to gain by the recognition and exercise of such due process under the rules and the law. Indeed, appeals have increased from just 1 in 2023 to 3 in 2024. The Commission also provided statistics on the collaboration it engages in with national competition authorities, including capacity building in Mauritius, the Democratic Republic of Congo, Uganda, and other member states. Finally, the statistics provided for the past 11 years show the transformation of the early period (which AAT had initially covered graphically for several years with its informal merger-stats analysis, now long-abandoned due to the CCC’s improved transparency and web presence): The CCC has handled over 430 merger reviews and more than 45 anti-competitive practice investigations.
Honoring ongoing excellence and recognizing past accomplishments
A Primerio-sponsored webinar recently put the spotlight on Nigeria’s burgeoning FCCPC
On 10 July 2024, advisors from pan-African law firm Primerio continued their “African Antitrust Agencies – in Conversation with Primerio” series with the Nigerian Federal Competition and Consumer Protection Commission (“FCCPC”) in the first of two sessions aimed at a quick snapshot of the most noteworthy enforcement, legislative, and policy developments.
This first session focused on merger control.
Primerio’s Michael-James Currie, Competition Law Partner at Primerio (Johannesburg) was joined by Hugh Hollman, Competition Law Partner at A&O Shearman (Washington & Brussels) and had the pleasure of speaking with Christiana Umanah, the Head of the FCCPC’s Merger Control Department.
This recent webinar featured insights from Hugh Hollman, an experienced international antitrust partner at A&O Shearman, and Christiana Umanah, head of FCCPC’s merger division. Christiana Umanah elaborated on the rapid development of the FCCPC since the Federal Competition and Consumer Protection Act (“FCCPA”) was enacted in 2018. She outlined the structure and growth of the FCCPC, noting its establishment in 2019 with an active team of eight in the mergers department, along with offices in all 36 states of Nigeria, and 6 regional offices. Christiana emphasized the regular training received by FCCPC staff both locally and internationally, with recent sessions in Mauritius and Barcelona. The FCCPC maintains collaborative relationships with international agencies such as the FTC, and the DOJ, especially for capacity building and training. She detailed the timelines for merger reviews in Nigeria, which usually take 60 business days, extendable to 120 business days for complex antitrust cases, while harmonizing multi-jurisdictional reviews and offering a fast-track option to reduce the timeline by 40 business days.
Addressing foreign-to-foreign mergers, Christiana explained that the FCCPC assesses these based on local turnover, focusing on the specific business presence in Nigeria. She also discussed the penalties for gun-jumping, which are commonly based on 2% turnover for the last financial year, considering factors like knowledge, cooperation, and company size. The FCCPC is open to pre-merger consultations on a no-name basis, ensuring confidentiality while guiding parties through the process. Christiana shared examples of conditions imposed on transactions, such as divestments and board member exit to prevent market concentration. Public interest considerations are also a key focus for the FCCPC, particularly regarding employment and market impact, as demonstrated in a case involving a failing firm where job preservation was prioritized. Looking ahead, the FCCPC is developing regulations for digital transactions and e-market platforms to address emerging issues in the digital market. The webinar concluded with a note on the importance of ongoing dialogues and the FCCPC’s willingness to assist with information and support.
The transcript for this session is available here, and the recording of this session is available on Primerio’s YouTube page, accessible here.
Our next session of Primerio‘s “in conversation with…” series remains focused on Nigeria, as we will discuss recent enforcement activity and legislative & policy developments. Join Hugh Hollman, the FCCPC’s senior officer, Florence Abebe and Primerio partners for another concise but very useful session as Nigeria’s FCCPC Nigeria gains prominence across the Continent.
African Antitrust & Competition Law 