AAT, dominance, South Africa, Uncategorized

SOUTH AFRICA: COMPETITION APPEAL COURT CONFIRMS TRIBUNAL FINDING IN COMPUTICKET ABUSE OF DOMINANCE CASE

By Charl van der Merwe

The South African Competition Appeal Court (CAC) on 23 October 2019 dismissed an appeal by Computicket (Pty) Ltd. (Computicket), following the decision of the Competition Tribunal (Tribunal) that Computicket had abused its dominance in contravention of the Competition Act.

For further information on the Tribunal decision, see the AAT exclusive here

Computicket appealed to the CAC on the substantive basis that the Tribunal erred in its factual conclusions on exclusion and anti-competitive effects.

It was further alleged by Computicket in its appeal that the economic evidence presented by the Commission was untested and speculative and ought to have been dismissed for a lack of independence. The basis for this allegation was that the economic evidence was presented by the Chief economist of the Commission, which presented a conflict of interests as the witness would be biased in favor of the Commission. The CAC rejected this argument and held that the evidence of experts must be assessed objectively on the basis of the criteria specified by the CAC (see Sasol Chemical Industries Limited v The Competition Commission 2015  – where the CAC held that there is no distinction drawn between an expert employed with the Commission and one appointed by a litigant).

On the substantive competition assessment, both experts were in agreement on the relevant market and Computicket conceded that it was dominant in that market in terms of section 7 of the Competition Act (with consistent market shares in excess of 95%).

The abusive conduct in question was that of exclusionary conduct, which can be assessed either in terms of section 8(c) or 8(d), with the latter being the ‘catch all’ provision. In this regard, the CAC confirmed that in terms of section 8(d)(i), it is sufficient for the Commission to prove only that Computicket’s conduct requires “or induces a customer not to deal with a competitor, without having to prove that the conduct also “impedes or prevents a firm from entering into, participating in or expanding within a market”. Once the Commission succeeds in linking the conduct to an identified theory of harm, the respondent bears the burden of proving that the harm is outweighed based on efficiency or other pro-competitive grounds.

Computicket argued against this ‘form based’ approach which, it believed hampered efficiency and could lead to consumer harm. It argued that one must consider the unique features of each market and, where there are other factors which may have exclusionary effects, the case must be dismissed.

This argument was, to some extent, upheld by the CAC who confirmed that there must be a causal relationship between the conduct and the anti-competitive effect (effects doctrine). The key consideration, however, remains what effect must be proven and the CAC confirmed that ultimately the judgment is made in weighing the net effects (harms and gain). In doing so, the CAC considered both actual and potential effects as well as the materiality of such effects. The CAC held that “plainly, a small adverse effect will readily be outweighed by pro-competitive gains”.

Against this legal framework, the CAC ultimately upheld the factual findings of the Tribunal and dismissed Computicket’s appeal.

In assessing the evidence, the CAC dealt with two fairly novel concepts which have become increasingly prevalent in South African competition enforcement, the assessment of negative effects on innovation and the efficiency of small competitors for purposes of the substantive assessment.

With regard to the latter, the CAC dismissed Computicket’s argument that a competitor lacked the requisite size and efficiency to compete with it. The CAC confirmed that the size and efficiency of the competitor are not determining factors in establishing likely competitive effects.

On the issue of innovation, without dealing with the argument in too much detail, the CAC confirmed the Tribunal’s finding that the exclusionary clause had a negative effect on innovation. This was held with reference to the Tribunal’s finding that Computicket had a “reluctance” to “timeously make use of available advances in technology and innovation”.

The Commission’s theory of harm in this case was that, viewed holistically, a decrease in supply by inventory providers; a reluctance by Computicket to timeously make use of available advances in technology and innovation; and the lack of choices for end consumers all cumulatively established an anti-competitive effect. It is not clear whether the delay (or reluctance) in introducing technology can be found to be an independent theory of harm.

In the Commission’s media release, the Commission indicated that it has referred a further case for prosecution to the Tribunal against Computicket and Shoprite Checkers (Pty) Ltd for exclusive agreements entered into between January 2013 to date (a period not covered by the prior case).

Competition lawyer, Michael-James Currie, says that the Commission has had limited success before the Competition Appeal Court in previous abuse of dominance cases with a number of decisions by the Tribunal in favour of the Commission overturned. One of the key concerns raised by the CAC previously is that the Commission failed to present a sufficiently robust economic case based on the available evidence to substantiate the theory of harm. The Commission appears to have, in this case, presented a compelling economic argument.

 

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AAT, buyer power, East Africa, Kenya, Uncategorized

KENYA: COMPETITION AMENDMENT BILL INTRODUCES ONEROUS BUYER POWER PROVISIONS

* By Ruth Mosoti

In July 2019, the Competition Amendment Bill was gazetted and looks on course to be adopted by Parliament.

There are several proposed amendments to the current Competition Act although the focus of the Amendments, most notably, relates to the introduction of buyer power provisions which is a self -standing prohibition and does not require a complainant to first establish a dominance on the part of the buyer.

In regard to buyer power, the majority of the substantive provisions in the current  “Buyer Power Guidelines” previously published by the Competition Authority of Kenya (CAK) have been mirrored in the Act. We summarize below some of the features that the Bill seeks to introduce to the Act in regard to buyer power include:

  1. Introduction of a ‘buyer power code of practice’, developed by the CAK in consultation with stakeholders, relevant government agencies and the Attorney General;
  2. The CAK will have power to impose reporting measures on sectors that experience or are likely to experience abuse of buyer power reporting and prudential requirements, in addition to this, these sectors may be required to develop their own binding code of practice;
  3. The Bill proposes minimum requirements for an agreement between a buyer undertaking and a supplier undertaking. The amendment also provides that this agreement does not have to be in writing;
  4. A new section 29A (which is controversial as it appears to be aimed at the advocates remuneration order) is introduced that targets Professional Associations whose rules offend the provisions of the Competition Act and provides for the persons who will be held responsible for any guidelines that are issued by the association.
  5. It is notable that there are no monetary administrative sanctions introduced by these provisions rather non-compliance attracts criminal sanctions.

The Bill, if passed into law, will positively impact the enforcement of buyer power provisions as the  gap on the substantive provisions on the enforcement of buyer power provisions will be filled.

Michael-James Currie, a pan-Africa competition law practitioner notes that that the Buyer Power principles are similar to those typically found in consumer protection legislation and there are no clear benchmarks (such as a substantial lessening of competition) against which to measure or assess the alleged buyer power. The criteria for determining whether buyer power amounts to an contravention is guided by principles of fairness and reasonableness rather than any economic benchmark. This makes compliance as well as objective decision making all the more difficult. John Oxenham, director at Primerio echoes these sentiments and states that from a traditional competition law perspective, buyer power generally only raises concerns in the event that the buyer concerned is able to exercise a substantial degree of market power.

Currie suggests that absent a clear threshold as to what would trigger an offence in terms of the new buyer power provisions, coupled with the criminal liability (which includes a maximum prison sentence of five years), is particularly onerous on firms seeking to comply with the competition legislation. Currie suggests that it would be preferable to change the liability to an administrative penalty as opposed to a criminal offence so as not to hamper or overly prejudice firms operating in the market.

 

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AAT, East Africa, fines, Kenya, mergers, Uncategorized

Enforcement Update: Kenya Competition Authority imposes administrative penalty for gun-jumping (prior implementation of a merger)

  • update by Michael-James Currie

In September 2019, the Competition Authority of Kenya (CAK) formally penalised two merging parties for having implemented a transaction without having obtaining the requisite prior regulatory approval.

The trigger for mandatory notification in this case was a change from joint control to sole control when Patricia Cheng acquired an additional 50% of the shareholding in Moringa School.

The maximum penalty which may be imposed for prior implementation is 10% of the parties’ combined turnover in Kenya. In this case, the CAK imposed a nominal penalty (approximately USD 5000) in light of the parties having voluntarily notified the CAK of their failure to obtain prior approval, having co-operated with the CAK’s investigatory agency and after having subsequently assessed the transaction, the CAK concluded that the merger was unlikely to have any adverse effects on competition and would have positive public interest benefits.

The public interest benefits included the fact that the school would offer coding technology to over 1000 students and employees over 100 staff members.

In light of the mitigating factors, the CAK found that the penalty was balanced taking into account principles of deterrence and proportionality of the infringement.

The case is noteworthy not only because it signals a clear message from the CAK that the prior implementation of mergers will attract penalties (which are likely to increase substantially as firms ought to have greater awareness of the merger control regime in Kenya) but also confirms that a move from sole to joint control of an entity or, as in this case, a move from joint to sole control, requires mandatory notification to the CAK.

The CAK has one of the most effective merger control regimes in Africa and is increasingly becoming a more robust competition agency from an enforcement perspective.

[Michael-James Currie is a competition lawyer practising across the majority of sub-Saharan African jurisdictions]

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AAT, AAT exclusive, Access to Information, COMESA, commissioners, dominance, EAC, East Africa, exemptions, Kenya, market study

COMESA Competition Commission: 2019 Regional Sensitization Workshop

On 9-10 September 2019, the Comesa Competition Commission (CCC) hosted its 6th  “Regional Sensitization Workshop for Business Reporters on Competition Law and Trade Developments within the Common Market” workshop in Nairobi, Kenya as part of its advocacy initiative to promote competition law and enforcement activities across the COMESA region.

AfricanAntitrust, having attended last year’s event, was again invited to attend the event and senior contributor and competition lawyer, Michael-James Currie, attended the event on behalf of AAT and participated in a serious of panel discussions and informal interactive sessions with members of the CCC and Competition Authority of Kenya.

Attendees

The workshop was well attended with a year on year increase in attendees reflecting the importance and popularity of this initiative. The CCC should be congratulated on a well organized and structured workshop.

Patrick Okilangole, Board Chairperson of the CCC, opened the event by highlighting the importance of competitive domestic markets to  “realize the benefits of trade; multilateral and bilateral trade agreements recognize the need to guarantee that restrictive business practices do not hinder the positive effects of free trade”.

Protectionist policies was identified by Okilangole as one of the key impediments to effective regional growth and trade. More specifically, Okilangole highlighted the following consequences of protectionist policies:

“(i)     Ineffective competition policy frameworks. Over the past few years, competition law has been enacted in several Member States of the Common Market. However, in some countries, competition frameworks have included:

(ii)      unjustified and discretionary exemptions, for example, utilities managed by the state in key economic sectors,

(iii)     lack of sufficient investigative powers and tools in the current national and regional legislation to deter anticompetitive behaviour,

(iv)    lack of independency in decision making since competition agencies report to and their decisions may be vetoed by a ministry, and

(v)     significant government intervention in markets such as price controls in potentially competitive markets, controlling essential products, margins, and geographic areas.”

Okilangole reaffirmed the true hallmark of an effective competition law regime, namely that competition law should be focused on protecting the competitive process and not a particular competitor. “The rules are not meant to punish large companies on account of their size or commercial success. The key feature of the competition rules is to create a level playing field for all business players in the market.”

Okilangole’s remarks were echoed by the Chief Executive Officer of the CCC, George Lipimile who emphasised the need to move away from protectionist policies in order to realise the benefits that flow from increased regional trade.

Restrictive business practices, particularly abuse of dominance practices and collusion were identified by Lipimile as being particularly prevalent within COMESA and that increased enforcement activities are required, both by the CCC and regional agencies, to detect and prosecute anti-competitive behaviour.

The workshop was also used as an opportunity to present and engage on the CCC’s Guidelines on Restrictive Business Practices (which were approved in April 2019). The objective of the Guidelines is to provide greater clarity, predictability and transparency in relation to the analytical framework which will be used to evaluate alleged anti-competitive conduct. The Guidelines also provide greater guidance on the process and circumstances in which the CCC may grant exemptions.

The CCC was well represented (so to was the CAK) and senior investigators, analysts and members from the executive team provided useful insights into the enforcement activities of the CCC as well as what lay ahead in the pipeline. Attendees were invited to engage, debate and where appropriate raise concerns regarding the efficacy of competition law enforcement in COMESA. It is this willingness to be open and engage proactively with constructive criticism which is perhaps the hallmark of this CCC initiative and certainly welcomed by the attendees.

As to enforcement updates, the CCC put together comprehensive presentations both in relation to merger control and restrictive business practices more generally. We highlight some of the more noteworthy developments below.

Merger Control

Willard Mwemba, manager of mergers and acquisitions at the CCC, confirmed that over 230 transactions have been notified to the CCC between 2013 and July 2019. Of these, 17 were approved subject to conditions.

From a merger trend perspective, the CCC witnessed an increased shift in merger notifications in traditional sectors, such as agriculture and construction, to emerging sectors such as energy, banking and financial services with the most active member states including Kenya, Zambia, Mauritius, Zimbabwe and Uganda.

As to merger activity in COMESA, Mwemba confirmed that there has been a decrease in merger activity in the first half of 2019, largely as a result of a decrease in global activity and that the value of transactions that occurred within the first half of 2019 dropped from USD 527 billion to USD 319 billion for the same period in 2018. This is also consistent with the 19% decrease in the number of notifiable transactions globally.

The combined total turnover value of all mergers assessed by the CCC to date amounts to over USD 110 billion. Although 2019 figures were not presented, the CCC highlighted that total Foreign Direct Investment in COMESA grew in 2016 from USD 18.6 billion to USD 19.3 billion in 2017 representing nearly half of Africa’s total FDI inflows. Again, highlighting the significance of the COMESA market in the global space.

Enforcement Activities

Although the CCC has had an active merger control regime in place for many years, a number of commentators have raised the lack of robustly investigated and prosecuted abuse of dominance or cartel cases as a key hindrance to effective competition law enforcement in COMESA. While the CCC acknowledges that more should be done in this regard, below is a list of non-merger matters which the CCC has concluded in past three years:

Exemptions

Matter Sector Affected Member States
Assessment of the supply agreement between Eveready East Africa Limited and Supreme Imports Limited Lighting bulbs Burundi, DRC, Ethiopia, Kenya, Malawi, Rwanda, Sudan, Uganda, Zambia
Assessment of the supply agreement between Eveready East Africa Limited and Sayyed Engineers Limited Writing implements East Africa
Assessment of the supply agreement between Eveready East Africa Limited and Chloride Egypt SAE Automotive Batteries Burundi, DRC, Ethiopia, Kenya, Rwanda, Uganda
Assessment of the Distribution Agreement between John Deere (Proprietary) Limited and AFGRI Zimbabwe Private Limited Agriculture Equipment Zimbabwe
Assessment of the Distribution Agreement between the Wirtgen Group and the Motor Engineering Company of Ethiopia Agriculture and Construction Equipment Ethiopia
Assessment of the Distribution Agreement between the Wirtgen Group and UMCL Limited Agriculture and Construction Equipment Comoros, Mauritius, Seychelles
Assessment of the Distribution Agreement between the Wirtgen Group and Sodirex SA, Madagascar Road Construction Machinery Madagascar
Application for the Joint Venture Agreement between Kenya Airways PLC, Koninklijke Luchvaart Maatscahppij NV (KLM) and Societe Air France SA Aviation Kenya
Assessment of the distribution agreements between Unilever Market Development (Pty) Limited and Distributors in the Common Market  FMCGs DRC, Madagascar, Mauritius,

Determination of Anti-Competitive Conduct: Procedure of Commission on its own volition

Matter Sector Affected Member States
Investigation into the Distribution Agreements entered into between Eveready East Africa Limited and Clorox Sub Saharan Africa Bleaching agents East Africa
Investigation into the Distribution Agreements entered into between Parmalat SA (Pty) Limited and its Distributors Milk and dairy products Eswatini, Malawi, Zambia and Zimbabwe
Investigation into the Distribution Agreements between Coca-Cola Beverages Africa and Distributors in the Common Market Non-alcoholic beverages Comoros, Ethiopia, Uganda

False or Misleading Representation 

Matter Sector Affected Member States
Misleading Advertising by Fastjet Airlines Limited Aviation Kenya, Uganda, Zambia, Zimbabwe

The CCC also confirmed that they are currently conducting a number of market screening initiatives across priority sectors. Following the conclusion of these screening exercises, the CCC will decide whether to prosecute any firms engaged in restrictive business practices.

As part of the CCC’s efforts in detecting and investigating anti-competitive behavior, the CCC has increased its collaborative efforts with domestic member agencies and has established the “Restrictive Business Practices Network” to increase the efficacy of cross-border cases.

Currie Panel Discussion

[Michael-James Currie speaking on a panel discussion on “How to improve the quality of reporting on regional integration and competition law related matters” facilitated by Mr Mwangi Gakunga from the Competition Authority of Kenya]

Conclusion

In light of the tripartite negotiations between SADC-EAC-COMESA as well as the negotiation of competition policy in terms of the African Continental Free Trade Agreement, it is imperative that the CCC develops an effective competition enforcement regime which assists and incentivizes free trade across the relevant markets. To do so, the CCC must be equipped with the necessary resources to ensure that it has the capacity to effectively execute its policies.

Despite the significant challenges faced by the CCC, it is encouraging to note that the CCC is taking a more robust approach to detecting and prosecuting anti-competitive practices in the COMESA market and are endeavoring to do so in accordance with international best practices.

If the CCC is able to deliver on the objectives and action items which were discussed in detail at the workshop, then there is every reasons to look forward to a more active CCC in the months to come with interesting cases likely to be brought to the fore.

 

 

 

 

 

 

 

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AAT, AAT exclusive, East Africa, fraud/corruption, jurisdiction, Kenya, mergers, mobile, public-interest, Telecoms, Uncategorized

Kenyan Competition Watchdog suspends Telkom Kenya / Airtel deal

Multiple regulatory agencies, competitor complaints and public interest concerns has posed a significant impediment to the proposed merger between Telkom Kenya and Airtel.

The Competition Authority of Kenya (CAK) recently announced that the Kenyan Ethics and Anti-Corruption Commission (EACC) is investigating Telkom Kenya amidst allegations of corruption in relation to historic transactions which gave rise to the current shareholding in Telkom Kenya.

The CAK’s decision to suspend the assessment of the merger was announced approximately a week after the Communications Authority of Kenya also suspended its assessment of the transaction pending the outcome of the EACC’s investigation.

The Communications Authority’s investigation will likely include an assessment of a complaint filed with the agency by Safaricom, a competitor to the merging parties.

Furthermore, the deal was also opposed by certain Telkom employees, ostensibly on the basis that their jobs were at risk should the deal go ahead.

Accordingly, the parties appear to have a long road ahead of them before clearance to implement the deal is granted.

The proposed transaction has no doubt attracted an additional degree of scrutiny as the telecom sector in Kenya is a significant market and there have been a number of disputes regarding the CAK’s jurisdiction to assess anti-competitive conduct, particularly abuse of dominance conduct, in this sector. A study into the telecom sector prepared by the Communications Authority was presented to Parliament in 2018. The CAK objected to the findings and remedial actions contained in the report which the CAK argued would amount to “price regulating” by the Communications Authority. Instead, the CAK urged the Communications Authority to focus rather on features of the market which raise barriers to entry or preclude effective competition between competitors.

While Parliament has, as far back as 2015, urged the Communications Authority to consult the CAK before making any determination regarding a telecom service providers’ “dominance”, subsequent litigation led to a High Court ruling in 2017 which confirmed that the Communications Authority’s powers vis-à-vis competition related matters remain vested exclusively with the Communications Authority.

The concurrent jurisdiction between the CAK and the Communication’s Authority has created somewhat of an enforcement discord – at least in so far as assessing abuse of dominance cases are concerned.

The fact that both the CAK and the Communications Authority have decided to suspend their assessments of the proposed merger following the outcome of the EACC’s investigation suggests that the outcome of the EACC’s investigation is relevant to both the CAK and Communication Authority analysis of the proposed transaction. This in turn, seemingly appears that there is at least an overlap in relation to the key issues under assessment by the respective agencies. Assuming there is indeed an overlap between the CAK and the Communication Authority’s assessment of the proposed transaction that naturally raises the risk of having two agencies come to different conclusions based on the same facts.

Telkom Kenya, however, remain confident that the merger will ultimately be cleared by all regulators.

Telkom Kenya have indicated that the merger will have significant pro-competitive and pro-public interest benefits which will have a positive impact on employees (and the market more generally). Whether the CAK conducts a comprehensive assessment between the short term negative impact on employment versus long term positive impact remains to be seen.

Assuming the proposed deal does not raise any traditional competition issues, it cannot therefore be ruled out that the transaction will be approved subject to public interest related conditions regarding retrenchments and/or re-employment obligations.

Whatever decision is ultimately reached, one hopes that the authorities will publish detailed reasons based on a robust assessment of the evidence in order to provide greater objectivity and transparency as to the analysis which is undertaken by the CAK when analyzing a merger – both from a competition and public interest perspective.

The CAK has in the past number of years have made significant positive strides forward in this regard and is deserved of the recognition it receives as one of the most active and robust competition authorities in Africa.

[Michael-James Currie is senior contributor to AAT and a practicing competition lawyer who has assisted clients with competition law related matters in multiple jurisdictions across Africa]

 

 

 

 

 

 

 

 

 

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AAT, dominance, financial institutions, Mauritius, Uncategorized

Mauritius: Competition Commission orders VISA and MasterCard to lower interchange fees

[By Michael-James Currie]

On 13 August 2019, the Competition Commission of Mauritius (CCM) has, following a lengthy investigation, ordered VISA and MasterCard (Respondents) to reduce their banking interchange fees from 1% to 0,5%.

The CCM found that the Respondents set an interchange fee of 1% which in turn led to higher merchant fees. As a consequence, the interchange fee were found to have hampered the incentive for banks to issue credit/debit cards and to provide card facilities to merchants. This led to either some merchants electing not to have card accepting facilities or to increase the final price to consumers.

The high interchange fees were found by the CCM to impede competition between banks and in particular, the ability of smaller “acquirer” banks to compete with more established banks.

In determining the 0,5% “fee cap”, the CCM noted that the respondents offered a 0,5% interchange fee for payments at petrol stations and that the lower interchange fee applicable to petrol station payments has had positive effects.

The executive director of the CCM, Mr Deshmuk Kowlessur, stated that:

“The decision of the Commission requiring VISA and MasterCard to limit the interchange fees to a maximum of 0.5% is likely to reshape the competition landscape in the local payment card market. The reduction of the interchange fees will open-up the market for existing and  potential banking and other financial institutions to offer acquiring services to merchants.  At the same time, the two dominant banks will have to compete more rigorously. A  new dynamism  in  the local payment  card  market  is  likely  to encourage  existing  competitors  and  new  entrants  to  offer innovative  services.  The resulting lower merchant service commission will encourage card-acceptance by merchants and thus offer card users the convenience, security and lower costs of settling their transactions.  It can also be expected that consumers can benefit from lower prices of goods and services, as merchants’ cost of transaction will be reduced with lower merchant service commission. At the end, the  reduction  in  the  interchange  fee  will  bring  more competition  in  the  payment  card  market and positively impact  on trade,  commerce  and  economic development.”

The decision by the CCM is noteworthy for a number of reasons. The CCM’s findings is based on an abuse of dominance case by “setting a high interchange fee”. The CMM’s reasons (at those which are publicly available) do not, however, provide any indication of the benchmark used for finding that the prices were “high”. Unlike traditional excessive pricing cases (which are notoriously difficult to prosecute), the CMM does not set out the requisite test which should be used for purposes of determining whether a price is “high” (or excessive). The media release published by the CCM appears to suggest that the conduct amounted to a “collective dominance” / tacit collusion type of case without expressly stating as much.

John Oxenham, director at Primerio, says that the CCM’s remedy is noteworthy as “the CCM is for all practical purposes acting as a price regulator which is traditionally not the role of competition authorities“.

VISA and MasterCard have, however, indicated that they will appeal the CCM’s findings before the Supreme Court.

[Primerio specializes in providing competition law advice to clients across Africa including Mauritius]

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AAT, meddling, mergers, new regime, Patel, public-interest, South Africa, Uncategorized

Minister Ebrahim Patel will no longer be a Member of Parliament: What does this mean for Competition Policy in South Africa?

According to recent reports, Minister of the Department of Economic Development, Ebrahim Patel, will not be sworn in as a member of Parliament despite initially being listed on the African National Congress’ (ANC) Members of Parliament list.

[see https://www.businesslive.co.za/bd/politics/2019-05-15-ebrahim-patel-and-senzeni-zokwana-fail-to-make-it-back-to-parliament/%5D

Since Cyril Ramaphosa was voted as the ANC’s President, and hence South Africa’s President, there had been increasing speculation regarding where Minister Patel would complement Ramaphosa’s economic policies. With many political commentators initially expected Ramaphosa to relieve Patel of his position as the Minister of Economic Development soon after taking over the presidency reins, it appeared that Patel had convinced Ramaphosa that he was an integral part of the team. Patel even accompanied Ramaphosa as part of the “special economic envoy” on a series of international road shows promoting and encouraging foreign investment in South Africa.

At this stage it is not clear what the reasons are for Patel not forming part of the ANC’s list of Members of Parliament (a prerequisite to serving as a Cabinet Minister unless Patel serves as one of the two non-MP’s allowed to serve in Cabinet) ). Following the national elections on 8 May 2019, however, Ramaphosa has indicated that he is intent on reducing the size of the Cabinet which would necessarily require various government departments and portfolios to be consolidated. It may be that the Department of Economic Development (EDD) is consolidated with the Department of Trade and Industry (DTI). If this were the case, the South African competition authorities would then also fall under the auspices of the DTI and no longer under the EDD. Many of our readers may recall that the competition authorities previously fell under the policy stewardship of the DTI.

While it may be too early to speculate what the ramifications of Patel’s departure could mean for competition policy and enforcement in South Africa, John Oxenham, director at Primerio, says that “Minister Patel was one of the key proponents behind elevating the role of public interest considerations in merger control. The minister’s intervention in numerous transactions, particularly international deals has resulted in public interest conditions, the scope and nature of which, pushed the outer most limits of what is appropriate in competition policy when assessed against international standards”.

Minister Patel’s reputation for engaging in robust opposition to mergers prompted Ab-Inbev directors to engage directly with Patel rather than the Competition Commission in order to secure public interest related conditions which would placate the Minister – all in the hope of ensuring that the transaction sales through the merger control process unchallenged. Which it largely did.

Fellow competition lawyer, Michael-James Currie, says that another key element of Patel’s departure relates to the Competition Amendment Act which was signed into law by President Ramaphosa in February 2019. Currie says that “although the Act has been signed into law, the enforcement of a number of the provisions of the Amendment Act remains unclear. For example, there are draft guidelines published in relation to the “price discrimination” and “buyer power” provisions of the Amendment Act which completely do away with any standard of “adverse effect on competition” and even the “consumer welfare” standard is of no relevance when small, medium or historically disadvantaged persons may be affected. Currie says Patel’s departure may spark a fresh round of debate and submissions in relation to the draft regulations. Submissions which previously appeared to largely be ignored by Patel.”

Oxenham echoes Currie’s sentiments and is of the view that the Amendment Act, which was largely driven by Patel, may ultimately be interpreted and enforced by the competition agencies in a manner which is more consistent with international best practice. Of course, this would depend on who replaces Patel and whether there is a different policy view as to the role of competition law in South Africa by Patel’s successor.

A key concern raised by numerous commentators is that the subjectivity of public interest assessments together with the increasing intervention by the executive to extract non-merger specific public interest related conditions, particularly in foreign transactions, does little to boost South Africa’s image as being open to foreign investment.

While the on-going debate of the role of public interest considerations in merger control will continue well beyond Patel’s tenure as Minister of the EDD, the entire South African competition community will be watching closely Ramaphosa’s final Cabinet announcement as this would likely be the clearest indication of whether we could expect a material policy direction change fin South Africa insofar as competition law enforcement is concerned.

 

 

 

 

 

 

 

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