Category: event

Exclusive AAT interview: Bonakele on antitrust conferences

Posted on by andreasstargard

meet the enforcers

In our latest instalment of our Meet the Enforcers series, we speak with South African Competition Commissioner Tembinkosi Bonakele on the topic of hosting a series of academic & practitioner platforms to discuss cases and developments in competition-law enforcement.

This week, the South African Competition Commission and the Competition Tribunal successfully organised the 9th Annual Conference on Competition Law, Economics & Policy (as part of the 4th BRICS International Competition Conference), taking place in Durban, South Africa.

Commissioner Bonakele, the head of the SACC, discussed hosting the conference with AAT’s contributing author, Njeri Mugure, Esq.  According to his biography, Mr. Bonakele has been with the Commission for the past ten years. He briefly left the Commission in March 2013 and came back in October 2013 as Acting Commissioner. He has been in this position until his appointment as the Commissioner. Bonakele has occupied various positions in the Commission’s core divisions. He was appointed Deputy Commissioner in 2008, and prior to that worked as head of mergers, head of compliance and senior legal counsel respectively.

The AAT-exclusive interview follows:

Tembinkosi-Bonakele-Profile-Pic

AfricanAntitrust.com: South Africa has been participating in the BRICS International Competition Conference (“BRICS ICC”) since 2011, a year after she officially became a member of BRICS. This November the country will host the 4th of this biennial meeting in Durban. What are your goals for this year’s conference?

Tembinkosi Bonakele:

The theme for the BRICS International Competition Conference 2015 is “Competition and Inclusive”. This theme will enable the conference to explore the relationship between competition and growth, competition and employment, competition and inequality and competition and poverty. As with the previous conferences, the aim of the conference is to strengthen cooperation amongst BRICS countries in the area of competition regulation by creating a platform for sharing experiences. We also aim to use the conference to discuss a proposed Memorandum of Understanding between BRICS competition agencies. Finally, the conference is also a platform for both developed and developing countries to discuss competition policy and enforcement issues.

AfricanAntitrust.com: Speaking of Durban, some might have expected for the 9th Annual Competition Law, Economics and Policy Conference (“Annual Competition Conference”) and/or the BRICS ICC to be held in Pretoria, the capital city of South Africa.  Could you tell us why you chose to hold the two conferences in Durban?

Tembinkosi Bonakele:

We wanted a venue that would provide world class facilities for the conference as well as enjoyment for the delegates, and Durban ticks both boxes. The Kwazulu-Natal province, where Durban is situated, is home to rich natural resources, including Africa’s Big Five game and beautiful mountainous landscapes.

Durban itself is a diverse African city providing cultural diversity as well as a natural paradise known for its beautiful coastline beaches and subtropical climate. The City is also host to the largest and busiest harbor in Africa. The Inkosi Albert Luthuli International Convention Centre (Durban ICC), where the two conferences will be held, is the largest indoor conference facility in Africa.

The Commission has previously partnered with the KwaZulu-Natal Provincial Government, eThekwini (Durban) Municipality and the University KwaZulu-Natal on various activities.

AfricanAntitrust.com: In addition to hosting the Annual and the BRICS competition conferences, the South African Competition Commission (“the Commission”) along with Cresse and the University of Kwazulu-Natal will hold a joint workshop exploring areas such as collusions and cartels, unilateral and coordinated effects in mergers, the economics of exclusionary conducts, and use of economic evidence, among others. What do you hope this workshop will achieve?

Tembinkosi Bonakele:

The economic understanding of competition policy is constantly evolving. In the last two decades economists have developed new theories of harm and traditional views have changed significantly. The workshop will bring top quality instruction on the economics of competition to agency officials in South Africa and more broadly Africa, competition practitioners, academics and policy makers. I hope that everyone attending the workshop will walk away having learned something new about the economics of competition.

AfricanAntitrust.com: Speaking of the this year’s events, planning the joint workshop, the Annual Competition Conference and the BRICS ICC was a great undertaking, could you tell us why you decided to have the three events back to back and what audience each event is tailored to suit?

Tembinkosi Bonakele:

With the BRICS conference coming into South Africa was a great opportunity as so many people were interested to come. So many opinion makers, academics and practitioners were going to be in the country, so we organized all these events to take advantage of their presence, and the response was very positive. We also thought logistically it makes sense to have our annual conference organized back to back with BRICS, so we don’t get conference fatigued. In the end, all the events flow into each other.

The Joint Workshop is a technical training and knowledge sharing platform, looking at the latest thinking on various aspects of competition enforcement.

The conference is an annual academic platform to discuss cases and developments in competition law enforcement.

AfricanAntitrust.com: Turning to the BRICS International Competition Conference, in what way has this year’s agenda been informed by the previous three conferences? What impact do you think the previous conferences have had on antitrust discourse in BRICS and non-BRICS countries?

Tembinkosi Bonakele:

The previous conferences, hosted by the Federal Antimonopoly Services of Russia in 2009, the State Administration for Industry and Commerce of the People’s Republic of China in 2011 and Competition Commission of India in 2013, created a solid platform on which we can deepen our relations in the fi­eld of competition regulation.

South Africa has focused the conference on the relationship between growth and inclusivity. Furthermore, this year’s conference aims to institutionalize BRICS cooperation on competition matters, and move it beyond conferences. There is a proposed Memorandum and Understanding, as well as a joint research initiative.

AfricanAntitrust.com: There’s been a lot of debate surrounding public interest factors in merger review. What do you hope to achieve by including the topic to this year’s conference agenda?

Tembinkosi Bonakele:

It is important that BRICS countries weigh-in on this important debate. There is a divergence of views amongst many antitrust practitioners on the compatibility of antitrust issues with public interest issues, but everyone accept that there are public interest issues. The conference will deepen and broaden perspectives on the matter.

AfricanAntitrust.com: How do these engagements such as the BRICS conference and competition law enforcement in general benefit the ordinary South African?

Tembinkosi Bonakele:

The South African competition authorities were established as a package of reforms to transform the unequal South African economy to make it economy inclusive and ensuring that those who participate in it are competitive.

Through engagements such as the BRICS conference we’re able to discuss with our BRICS counterparts how to make our economies, which are similar, more efficient, competitive and inclusive.

The Commission has, in the past 16 years investigated and dismantled cartels from different sectors including construction, bread – a staple food for many South Africans, and cement. In the cement cartel, for instance, the Commission conducted a study post the cartel and discovered that we have saved consumers about R6 billion.

AfricanAntitrust.com: Mr. Bonakele, are there other topics you would have liked to address or comments you would like to add?

Tembinkosi Bonakele:

We see BRICS as an important and strategic platform where we advance arguments about the relationships between competition and other policy instruments that are very relevant in our developing countries.

As a collective, BRICS competition authorities are able to provide leadership in the international antitrust community on what it means to create and enforce competition law and policy in developing economies which come with their own particular challenges and opportunities. These perspectives will serve to enrich the global knowledge base in competition enforcement.

AfricanAntitrust.com: Thank you for taking the time to speak with me, Commissioner!

The interview was conducted by Ms. Mugure for AfricanAntitrust.com on 8 November 2015.

south_africa

Insight into COMESA thinking: CCC executives speak

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COMESA old flag color

COMESA officials’ pronouncements: merger enforcement #1, cartel ‘follow-on enforcement’, jurisdictional swamp

As other attendees of the 17 July 2015 regional sensitisation workshop have done, the Zimbabwean daily NewsDay has reported on the Livingstone, Zambia event — a session that has yielded a plethora of rather interesting pronouncements from COMESA Competition Commission (“CCC”) officials, including on non-merger enforcement by the CCC, as we have noted elsewhere.

In light of the additional comments made by CCC officials — in particular George Lipimile, the agency’s CEO, and Willard Mwemba, its head of mergers — we decided to select a few and publish the  “AAT Highlights: COMESA Officials’ Statements” that should be of interest to competition-law practitioners active in the region (in no particular order):

M&A: CCC claims approval of 72 deals since 2014

Willard Mwemba is quoted as saying: “The commission has updated more than 72 mergers and the transaction represented more than $20 million. This money has been invested in the common market through mergers and acquisition.”
We do not know what it means to “update” a merger in this context.  We presume it implies “cleared.”
This figure does not conform to the published statistics on the CCC’s web site, which show the following numbers, based on our latest internal tally, amounting to a total of 30 published notifications since 2013 versus a claimed 72 approved deals since only 2014:
COMESA merger statistics July 2015
Number of merger notifications based on CCC-published notices
This discrepancy opens up the topic of transparency and proper documentation on the part of the CCC on its web site.  The (undated, as we have observed) PDF notices of merger filings simply do not reflect this claimed number of actual merger approvals made by Mr. Mwemba.  We hope that the CCC will enhance and better organise its online documentation of M&A activity.  (Even the very first link to the “Explanatory Note” of mergers remains broken after months, as noted previously, simply leading to a blank page comically headlined “What is Merger?”).
We also wonder about the reference in Mr. Mwemba’s statement to “the transaction” valued at “more than $20m.”  It may be unclear reporting on the part of NewsDay, or perhaps Mr. Mwemba was referring to a specific but unnamed transaction, presumptively in the mining industry.  In any case, Mwemba highlighted the following sectors as key for COMESA M&A transactions: mining, pharmaceuticals, agriculture and energy.
Finally, the claimed CCC’s reduction of the the merger filing fees from half a million dollars “to $200,000” is a topic we shall discuss in a separate post.

Non-Merger Enforcement by COMESA

As we noted in yesterday’s post, the CCC’s head, executive director George Lipimile, foreshadowed non-merger enforcement by the agency, including an inquiry into the “shopping mall sector,” as well as cartel enforcement.  On the latter topic, Mr. Lipimile highlighted cartels in the fertiliser, bread and construction industries as potential targets for the CCC — all of which, of course, would constitute a type of “follow-on enforcement” by the CCC, versus an actual uncovering by the agency itself of novel, collusive conduct within its jurisdictional borders, as John Oxenham, a director at Africa consultancy Pr1merio, notes.
“Here, in particular, the three examples given by Mr. Lipimile merely constitute existing cartel investigations that we know well from the South African experience — indeed, the SA Competition Commission has already launched, and in large part completed, its prosecutions of the three alleged cartels,” says Oxenham.
As AAT has reported since the 2013 inception of the CCC, antitrust practitioners have been of two minds when it comes to the CCC: on the one hand, they have criticised the COMESA merger notification regime, its unclear thresholds and exorbitant fees, in the past.  On the other hand, while perhaps belittling the CCC’s merger experience, the competition community has been anxious to see what non-merger enforcement within COMESA would look like, as this (especially cartel investigations and concomitant fines under the COMESA Regulations) has a potentially significantly larger impact on doing business within the 19-member COMESA jurisdiction than merely making a mandatory, but simple, filing with an otherwise “paper tiger” agency.  Says Andreas Stargard, also with Pr1merio:
“If the CCC steps up its enforcement game in the non-transactional arena, it could become a true force to reckon with in the West.  I can envision a scenario where the CCC becomes capable of launching its own cartel matters and oversees a full-on leniency regime, not having to rely on the ‘follow-on enforcement’ experience from other agencies abroad.  The CCC has great potential, but it must ensure that it fulfills it by showing principled deliberation and full transparency in all of its actions — otherwise it risks continued doubt from outsiders.”

COMESA Judge Proposes Judicial Enhancements

Justice Samuel Rugege, the former principal judge of the COMESA Court of Justice, is quoted as arguing against the COMESA Treaty’s requirement for exhaustion of local remedies prior to bringing a matter before the Court of Justice:
“I think that the rule ought to be removed and members should have access to the courts like the Ecowas Court of Justice. The matter has been raised by the president of the Court and the matter needs to be pursued. It is an obstacle to those who want to come and cannot especially on matters that are likely to be matters of trade and commercial interest. Commercial matters must be resolved in the shortest possible time as economies depend on trade,” Rugege said.
Justice Rugege also highlighted the potential for jurisdictional infighting in the COMESA region (see our prior reporting on this topic here), observing that said COMESA currently lacks any framework for coordinating matters involving countries that are part of both SADC and the COMESA bloc.

AfricanAntitrust remembers Nelson Mandela

Posted on by andreasstargard

nelson-mandela-day

Without fanfare, the editors at AAT wish to remind our readers of the legacy of Nelson Mandela on the occasion of what would have been his birthday, a day which has become a day of service in the Republic of South Africa (see and on Twitter).

Without the graciousness and leadership of Mr. Mandela, the rule of law governing the country and the open discussions engendered on AAT & AAF would not be possible today.

As one journalist observed in 2013 upon the former President’s and civil-rights icon’s death:

Few world leaders can claim among their devotees a cast as diverse as the English monarch, the president of the Palestinian Authority, and Chinese human rights activists. In Beijing and Tel Aviv, Lagos and Havana, London and Washington, DC, many around the world awoke Friday morning with their leaders momentarily united by the loss of one of the 20th century’s most revered statesmen.

Mauritian Competition Commission launches antitrust workshops for local authorities

Posted on by Editor

 

mauritius

Mauritian Competition Commission launches advocacy program for local authorities

In an effort to foster local government awareness of competition law and “culture,” the CCM announced on June 9, 2014, that it would renew its existing antitrust advocacy program.  Its press release states:

The CCM remains devoted to its goal of enhancing a competition culture aimed at achieving a better regulatory policy in all administrative spheres. By providing the participants with an understanding of the interface between competition law and the responsibilities entrusted to Local Authorities, the upcoming advocacy programme aims to complement the Ministry of Local Government and Outer Islands’ vision towards fostering a vibrant local democracy; promoting effective, transparent and proactive delivery of services by Local Authorities.

As AAT previously reported, the CCM has also recently announced plans to introduce a formal corporate leniency policy to improve their cartel enforcement, as well as a market-division investigation in the beverage sector.

Gambian competition enforcer discusses tourism market inquiry

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Gambia in the antitrust headlines twice in past week

7 days ago, it made news because of its changed name and dawn of a broader enforcement agenda, now including consumer protection matters.  Today, we are covering meeting by Gambia Competition and Consumer Protection Commission (GCCPC) with tourism industry stakeholders, as reported by AllAfrica.

Abdou Kolley, Minister of Trade and Employment, gave a Tuesday speech addressing his competition agency’s tourism market study, undertaken according to section 15(k) of the Competition Act, attempting to garner support for the benefits of free-market competition.  “Competition does not emerge on its own”, noting that the GCCPC’s enforcement and oversight activities were necessary to lower entry barriers and assure the absence of illegal price-fixing and other illicit conduct.

“The GCCPC is mandated by the competition Act 2007 to pursue any evidence of cartels, abuses of dominance and other illegal anti-competitive activities in any sector of the economy and I am confident that they will continue to do so.”

Minister Kolley

The Director General of the Gambia Tourism Board, Benjamin Robert, was quoted as agreeing with the minister, saying that the GCCPC’s report was “timely” and noted that the domestic tourism industry possessed certain characteristics of dominance in some sectors, with over 50% market share by some market players.

Criminalisation of antitrust offences: not on short-term horizon

Posted on by andreasstargard

south_africa

Competition Commission not ready to pursue antitrust cases criminally – plus: AAT‘s recommendations

The newly (permanently) appointed Competition Commissioner, Tembinkosi Bonakele, has referred to a “phased” implementation of the 2009 Competition Amendment Act.  The legislation technically criminalised hard-core antitrust offences such as bid-rigging or price-fixing cartels.  However, it has not yet been implemented or effectively signed into law.

According to a MoneyWeb/ZA report, both he and his boss, Economic Development Minister Ebrahim Patel, had discussions on how and when to implement “to ensure that the necessary institutional capacity is available to apply the amendments.”  The initially effective provisions (relating to the SACC’s market-inquiry powers) went into effect last year, while the criminalisation provisions remain unimplemented.

In a somewhat remarkable and prudent self-assessment, the minister and SACC have now admitted that the Commission currently lacks “the institutional capacity needed to comply with the higher burden of proof in criminal cases,” according to the report.

One notable aspect of potential discord lies in not only in the different standard of proof in civil vs. criminal matters (“more probable than not” vs. “beyond a reasonable doubt”), but perhaps more importantly can be found on the procedural side, preventing rapid implementation of the law: There has been historic friction between various elements of the RSA’s police forces and (special) prosecutorial services, and the power to prosecute crimes notably remains within the hands of the National Prosecuting Authority, supported in its investigations by the South African Police Service.

Historical and Legislative Background – and a bit of Advice

Starting in the spring and summer of 2008, the rumoured legislative clamp-down on corrupt & anti-competitive business practices by the government made the RSA business papers’ headlines.

During a presentation I gave at a Johannesburg conference in September that year (“Criminalising Competition Law: A New Era of ‘Antitrust with Teeth’ in South Africa? Lessons Learned from the U.S. Perspective“), I quoted a few highlights among them, asking somewhat rhetorically whether these were the words of fearmongers or oracles?

  • “Competition Bill to Pave Way for Criminal Liability”
  • “Tough on directors”
  • “Criminalisation of directors by far most controversial”
  • “Bosses Must Pay Fines Themselves”
  • “New leniency regime to turn up heat on cartels”
  • “New era in the application of competition policy in SA”
  • “Likely to give rise to constitutional challenges”
  • “New Bill On Cartels is a Step Too Far”
  • “Fork out huge sums or face jail time if found guilty”
  • “Disqualification from directorships … very career limiting”

I also quoted international precedent-setting institutions and enforcers’ recommendations, all of which tended towards the positive effect of criminal antitrust penalties:

OECD, 3rd Hard-Core Cartel Report (2005):

  • Recommends that governments consider the introduction and imposition of criminal antitrust sanctions against individuals to enhance deterrence and incentives to cooperate through leniency programmes.

U.S. Department of Justice, Tom Barnett (2008):

  • “Jail time creates the most effective, necessary deterrent.”
  • “[N]othing in our enforcement arsenal has as great a deterrent as the threat of substantial jail time in a United States prison, either as a result of a criminal trial or a guilty plea.”

While the presentation contained a lot more detail, the key recommendations that I summarised would seem to continue to hold true today, and may serve as guide-posts for Commissioner Bonakele and the EDD ministry:

Cornerstones of a successful criminal antitrust regime
  • Crystal-clear demarcation of criminal vs. civil conduct
  • Highly effective leniency policy also applies to individuals
  • Standard of proof must be met beyond a reasonable doubt
  • No blanket liability for negligent directors – only actors liable
  • Plea bargaining to be used as an effective tool to reduce sentence
  • Clear pronouncements by enforcement agency to help counsel predict outcomes
Demarcation of criminal vs civil antitrust conduct in U.S.
Demarcation of criminal vs civil antitrust conduct in U.S.

Financial Times: Africa “most exciting”; FT hosts inaugural investment summit

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First-ever FT African Investment Summit to be held in London

In October, the Financial Times will be hosting a timely “FT-Live” London symposium on investment in Africa.  The Oct. 6th FT Africa Summit (agenda) is expected to draw a global audience from various industry sectors, limited to 150 attendees.

Whether or not the conference will spark a wave of M&A activity (and hence antitrust scrutiny) on the continent remains to be seen.  For now, the paper’s event PR proclaims optimistically:

The continent’s economic growth is the second fastest in the world, underpinned by a virtuous cycle of improved governance, Chinese-led investments in infrastructure, high commodities prices, and the growth of a nascent, even if fragile, middle class. Yet, risks abound, from rising inequality to the potential of setbacks in governance.

The inaugural FT Africa Summit will provide a global platform to hear and discuss the views of finance ministers, investors and businesses leaders from around the region. Altogether the first Summit and the special report will be a unique opportunity to gain insights into one of the world’s most exciting markets.

Today’s edition also reports, fittingly, that large-scale investors (such as Atlas Mara’s head and  former Barclays CEO Bob Diamond) are looking increasingly to the African continent for high-growth financial investment opportunities.  Diamond is reported to have raised $1/3 billion for his “African war chest” of Atlas Mara to invest in African bank acquisitions, and is said to plan another $400m round of fund-raising later this year.

Bob Diamond

As the FT points out, the growth potential for financial services in sub-Saharan Africa is theoretically immense, as the majority of the region’s 1-billion-plus population does not yet have bank accounts.  However — and the FT omits this crucial fact — as we reported elsewhere, the dearth of access to brick-and-mortar banks in Africa has led to the pioneering use of GSM mobile technology, such as M-Pesa, for retail financial transactions at a record-setting adoption rate in Africa; see our M-Pesa reporting and other stories.

International Competition Network meets in Morocco

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The International Competition Network‘s 13th annual conference — being hosted by Morocco’s King Mohammed VI at the “Palmeraie Golf Palace” — concludes today.  It is the second ICN event in recent memory to take place on African soil since the October 2013 ICN Cartel Workshop in Cape Town, South Africa.

The conference web site’s headline points out, somewhat vaguely, that the event is “more than a meeting, it’s our future“, perhaps implying that competition law is essential to this African nation’s future economic growth — a fact that bodes well for the enforcement activities of the thus-far largely dormant Moroccan Conseil de la Concurrence, an agency that has notably seen its budget slashed by over a quarter to a mere $1.74m in 2012 (last available year of its annual reporting).

Moroccan ICN conference site

Substantively, one of the key topics discussed at the event is the question how antitrust enforcers should deal with state-owned enterprises (SOEs).  Especially in emerging ICN member countries (including many African nations with relatively young competition-law authorities), this topic is hotly debated, as their economies are transitioning from a largely SOE-dominated environment to a more open and competitive one.  The Moroccan Conseil has therefore created a “Special Project” on the issue, including a survey to be distributed to members, outlined as follows:

The Moroccan Conseil de la Concurrence (MCC) wishes to address the issue of competition enforcement in relation to State Owned Enterprises (SOEs) as the Special Project for the 2014 ICN Annual Conference. The MCC wishes to address this issue not only because it is a hot-topic in developing economies, but also because of the liberalization of markets, this may lead to the revocation of exemptions for certain SOEs and subsequent investigation of competition infringements as an issue of interest for all ICN members.

One of the biggest economic dilemmas is how far a government should supply goods and services. In many developing economies, government intervention and the creation of public enterprises is a common way to cope with the need for economic and social development in key sectors. However, once a sector has reached sufficient maturity, the need for a SOE often decreases.

Many jurisdictions face the legacy of SOEs, some of which are entirely exempted from the ambit of competition enforcement. Once the economy is ripe for private sector entrants, it can be difficult to dislodge SOE supported monopolies. It is noted  that this situation has created shortcomings in performance, competitiveness and operating systems in some sectors.

Looking at Morocco as an example, the country adopted in 1989, a law pertaining to the privatization of SOEs and started to implement a liberalization process of an important part of its economy. In 2000, this whole process culminated in the adoption of a law on freedom of prices and competition, thus marking the end of a long period of price control and restriction of competition.

All these elements lead Morocco naturally to question the position of SOEs relating to competition rules, especially in the current context of the reform of Moroccan competition law.

So what do we mean by SOEs in the context of this project? In our opinion, SOEs are those publicly owned enterprises created to ensure that a public need for a product and/or service is fulfilled and universally accessible.

Generally, a SOE must provide coverage to all consumers, irrespective of geographical location at regulated prices. As the Moroccan government has deemed that the service which the SOE provides is necessary for the well-functioning of the state, a SOE must be in a position to guarantee consistent supply, which includes a requirement to have reserve/standby capacity available at all times for possible peaks.

There are also SOEs that may have purely commercial activities without any goal of general interest satisfaction.

Although most jurisdictions assess SOEs under competition law, there are often a few exemptions for certain sectors or businesses. These SOEs are then exempted from falling under competition law and potentially other national laws (sovereign immunity). When the exemption is created, the purpose is generally to ensure that a nascent industry has enough financial (and political) backing to survive.

SOEs are generally put in place where the provision of essential goods or services may be at risk. In some sectors, the market may fail to provide essential goods or services as a result of a private enterprises’ inherent desire to minimize risks, for example, risk selection which might otherwise occur in the health care or education sectors and in other markets, based on infrastructure networks, the incentive (or means) to carry out the initial investment may be lacking or may lead to natural monopolies (telecom, post, rail, gas, electricity)

One of the issues this Special Project wishes to address is whether (and to what extent) an exemption which excludes a SOE from the purview of competition enforcement is appropriate in view of the public interest objective. SOEs that do not face free competition may lack an incentive to be innovative or to be efficient, for example to search for the cheapest – yet most effective materials or means of production to provide a certain good. This is linked to the question of how (or to what extent) governments and competition authorities can (re)introduce a certain sector, or business, to the forces of competition. A related issue is the question of whether competition authorities can have a role to play in encouraging a sector, or a SOE within that sector, to evolve in such a way as to ensure the eventual maturity of the market so that a SOE or an exemption for a SOE from competition law is no longer necessary to provide the state with the needed services/products.

A further issue this Special Project wishes to address is the potential difficulty in ensuring that competition enforcement involving SOEs is effective. For example, how do members deal with political and social pressure; and what can members do to ensure that sanctions serve a deterrent purpose.

This brings us to the final issue the MCC wishes to address within the ambit of this Special Project, namely, advocacy and guidance efforts. How can a competition authority best explain to the government why the inclusion of SOEs within the jurisdiction of competition rules will lead to better conditions for consumers?

The MCC wishes to gather information on this topic for the purposes of an information sharing experience among ICN members on the more practical aspects of investigating SOEs. It is thought that the discussions which spring from this Special Project will help all ICN members in understanding regulated sectors and their advocacy efforts.

The three core issues identified above are vital to the daily work of many newer competition authorities and of mature competition authorities in emerging economies. Although many excellent papers have been written by the ICN Unilateral Conduct Working Group, the Organisation for Economic Co-operation and Development and the World Trade Organization, as well as several academics, very few of these articles touch upon the above mentioned practical implementation issues.

Emerging markets & anti-corruption / anti-fraud issues

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ICC FraudNet Spring 2014 conference

AAT editor John Oxenham of Nortons Inc. is an invited speaker on current trends in African anti-corruption and anti-fraud enforcement.  See more details on the conference and FraudNet here.

The emerging overlap of antitrust and anti-corruption issues – including significant efficiencies from combining preemptive internal audits as well as corporate compliance programmes in these two respects – presents a natural synergy for legal departments, allowing them to economise outside-counsel spend whilst at the same time enhance the rigour and comprehensiveness of their compliance and audit programmes.

Please contact the authors for more information on the services we can provide in Africa, the U.S., in Europe and Asia.

John Oxenham, editor

Ph.D. student elevated to Chief Economist position

Posted on by andreasstargard

south_africa

High-level appointments made by acting Competition Commissioner

According to statements made by the interim South African Competition Commissioner, Tembinkosi Bonakele, and based on several news reports (here and here, for instance), the SACC has filled several of its recently (or not-so-recently) emptied ranks:

  1. Chief Economist and Manager of the Policy and Research division: Liberty Mncube
  2. Divisional Manager of Enforcement and Exemptions: Junior Khumalo
  3. Chief Financial Officer: Thomas Kgokolo

The appointments were made effective as of the first of the year.  The SACC had been criticised for lack of stability in its leadership and overall staff, given a fairly high turnover rate among its employees and officers.  Perhaps to counter this impression, Mr. Bonakele said in the official SACC statement that the “new appointees will provide the necessary leadership to their very important divisions. It is important that we have a very strong and stable senior management team and I have full confidence that this team will take the Commission to higher levels. We are privileged as an institution that we are able to find most candidates internally and thereby ensure continuity.”  (Emphasis added).

Focusing on the first new appointment to the Chief Economist role – a position that has sat empty for over a year, according to our recollection – it not only provides for a catchy title but is indeed a noteworthy fact that Mr. Mncube is a graduate student at the moment.  We do not know of any other competition enforcement agency that has filled the job of chief economist with someone who is currently pursuing a degree in economics.  This comment is not to diminish Mr. Mncube’s accomplishments, nor to take away from his potential to fill the role adequately.  It simply states a fact.  His past professional biography includes the following, according to a 2011 ICN The Hague conference web site:

[Note: information as of 2011] “Liberty Mncube is a Senior Analyst in the Policy and Research Division of the Competition Commission of South Africa. At the Commission, his responsibilities include managing and coordinating research and policy development; managing and coordinating case analysis; contributing in building capacity for research and knowledge of competition policy; and undertaking analysis related to competition matters with regard to policy and regulation. Prior to joining the Commission, he was a Researcher at the Development Policy Research Unit at the University of Cape Town. Liberty holds an MSc in Economics from the University of York.”

Mr. Mncube’s own LinkedIn profile is updated to reflect his current position:

I am the Chief Economist at the Competition Commission South Africa. I hold a MSc in Economics from the University of York and am currently completing a PhD in Economics at the University of KwaZulu-Natal. I have been a visiting PhD graduate student at the Barcelona Graduate School of Economics.

For the economists among our readership, here are a few selected publications by Mr. Mncube (note that his LinkedIn profile lists several additional articles and book chapters): “On merger simulation and its potential role in South African merger control“; “Strategic Entry Deterrence: Pioneer Foods And The Bread Cartel“; and “Designing Appropriate Remedies For Competition Law Enforcement: The Pioneer Foods Settlement Agreement“