Namibian Competition Watchdog Probes Alleged Collusion Between Law Firm and Bank
Namibia’s Competition Commission (the “NaCC”) has begun a Section 33 investigation into the alleged exclusive-dealing arrangement in relation to property conveyancing between Bank Windhoek and the domestic law firm of Dr Weder, Kauta and Hoveka, which has offices in 4 cities and touts itself as being “widely respected and recognised for its professionalism and excellence in service provision.”
The purported deal requires those applying for a loan from Bank Windhoek to use the law firm’s conveyancing services, thereby allegedly excluding other attorneys, according to the NaCC’s formal statement announcing the investigation, which resulted from an apparent private complaint brought to the NaCC: “The agreement and its maintained exclusivity is said to limit competition and forecloses other independent service providers in the relevant market, which is provisionally defined as the provision of conveyancing services to Bank Windhoek-financed property transactions,” in violation of section 23 of the Namibian Competition Act. It is reported that the law firm has denied knowledge of the existence of any such agreement with the banking institution and has sought a copy of the document.
As we previously reported, long-time COMESA Competition Commission executive, Dr. Willard Mwemba, was recently promoted to his new role of permanent CEO of the CCC, after having been appointed Acting Director in February of this year. In this new capacity, he recently gave a thus-far unreported speech on the occasion of “World Competition Day” on December 5th, 2021.
In his short address, Dr. Mwemba lays out the mid-term future he envisions for the antitrust policy under his aegis in the Common Market, as follows.
Highlighting the importance of competition law for efficient and fair markets, with the goal of benefiting businesses (as opposed to being perceived as an impediment to business interests), Mwemba mentions key building blocks of the CCC’s enforcement going forward. These include resale-price maintenance and exclusive-dealing enforcement (around 1-1:30 in the little-known video, which has thus far only garnered two dozen views on the YouTube platform and is not yet published on the CCC’s own web site). He then moves on to merger regulation (2:45 onward), and further discusses the importance of the effectiveness of the actual competition law itself — noting that the CCC plans to amend its Regulations and Guidelines within the next year (3:40). Noting that the CCC cannot undertake this process very well alone, Mwemba highlights the cooperative approach of the Commission, partnering with and relying on other groups and stakeholders (such as the COMESA Women in Business group, OECD, and others).
Mwemba notes that the CCC’s “focus for the year 2022 will be on strict enforcement, especially against blatant anti-competitive conduct and blatant violations of the COMESA Competition Regulations, and in this case I mean cartels. It is said that cartels are the supreme evil of antitrust … because it robs consumers, government, and businesses of huge sums… So in line with this theme, our focus for 2022 shall be on cartels, and we shall make sure that we weed out all possible or potential cartels operating in the Common Market.”
The CCC chief concludes his address by saying that competition authorities “are not there to frustrate businesses, we are not the enemy of business”; instead, he sees the CCC’s role to ensure that markets operate fairly for all — a welcome reminder to the southern and eastern African business community to understand and embrace the precepts of antitrust law as an efficiency-enhancing mechanism for trading in the Common Market.
COMESA’s second restrictive trade practices investigation ends inconclusively
Having now concluded two non-merger cases (the first was an exclusivity issue in football broadcasting and sponsorship agreements, seehere), the COMESA Competition Commission’s (“CCC”) second investigation into restrictive vertical distribution practices engaged in by Coca-Cola and its distributors has culminated in somewhat of an indeterminate ending.
No fines were imposed, and the Coca-Cola parties agreed to eliminate the price-maintenance clause from their distribution contracts, as well as committing to implementing a generic compliance programme.
Says Andreas Stargard, a competition practitioner with Primerio Ltd., in an in-depth analysis of the short Decision (dated 6th December 2018, but only released recently):
I am very disappointed in this missed opportunity. The Decision lacks intellectual rigour and avoids critical detail, to assist practitioners or business going forward in any meaningful way.
This investigation began in earnest well over a year ago, when the CCC opened formal Article 22 proceedings against the parties in January 2018. In its disappointingly short 9-paragraph decision, lacking any degree of detailed reasoning, factual or legal analysis underlying its conclusions, the Commission has now determined the following:
The relevant product market is the sale of non-alcoholic carbonated beverages. I note that the wording of this definition would presumably include sparkling mineral water, which appears to be an outlier from the ‘soft drinks’ category that is actually at issue here (“Coke,” Fanta,” “Sprite,” etc.).
A relevant geographic market was notably not defined at all (!). The absence of this key dimension is unfortunate — it is not in accordance with established competition-law principles, as market power can only be measured in well-defined product and geographic markets. While the decision mentions the countries in which the parties are active, it fails to identify whether each country was viewed as a relevant sub-market, or whether Coca-Cola’s market power (or dominance) was assessed across the entire COMESA region. This appears to be a glaring oversight.
The CCC found relatively low entry barriers, as well as apparently actual “new product” entry (NB: does “new product” imply products by a new or different competitor?).
Yet, despite ‘non-prohibitive’ entry barriers, the Commission somehow views the mere fact that the respondent’s brands “continued to command a majority share of the relevant markets” (NB: where is the plural (‘markets’) coming from here? I thought there was only a single market for ‘non-alcoholic carbonated beverages’?) as leading to a finding of dominance.
Crucially, the actual conduct complained-of (the vertical restraints, the alleged RPM, etc.) is barely identified and lacks any significant detail. Paragraph 7 merely provides that there are “clauses which stipulate the profit margins to be enjoyed by the distributors, as well as the commission at different levels of the market. … [and] vertical restraints which constrain the distributors’ conduct in the relevant markets” (note the plural again). This absence of key information — ‘what were these so-called vertical restraints’? how were distributors constrained in their conduct? — in an official ‘Decision’ by the enforcement agency wholly fails to assist businesses seeking antitrust guidance for operating within the legal boundaries in the COMESA region.
Finally, the CCC’s overall conclusion is rather weak: the Decision states that the Commission merely “registered its concern that the stipulation of prices [I thought it was profit margins?] mayhave anti-competitive effects in the market [back to a single market?].” To address these ‘potential’ ‘concerns’, Coca-Cola appears to have voluntarily committed to removing the offending contract language and instituting a (wholly undefined) “compliance program” that exclusively concerns Part III of COMESA’s regulations.
In sum, Coca-Cola seems to have got away easy here: no fine was imposed at all (which could have been as much as 10% of the parties’ COMESA revenues), a limited, voluntary training exercise was agreed, as was the removal of the RPM provision.
The CCC, on the other hand, missed a truly golden opportunity to draft a more well-reasoned decision. Its 9-paragraph reasoning (which notably concludes with a finding of actual dominance nonetheless!) can literally fit on a single page… Remember: resale price maintenance is considered in many jurisdictions to be a “hard-core” offence, and is often deemed per se illegal. In this regard, the Decision likewise fails to make any mention of the relevant legal standard under the COMESA Regulations for evaluating the RPM (and the other unidentified, vertical) conduct.
Andreas Stargard
The flaws outlined above — from the lack of geographic market definition, missing market share data and other highly relevant details, zero explanation of why low entry barriers somehow did not preclude a finding of dominance, use of tautological and circuitous verbiage (“restraints which constrain“?) — preclude this “conduct” case, notably already a rarity in the CCC’s portfolio, to be a lightning rod for the assent of the COMESA Competition Commission to become a respected competition enforcer. This was a chance for the agency to be placed on the radar screen of international businesses, agencies and practitioners, to be seen together on the map with its respected peer antitrust enforcers such as the South African Competition Commission — yet, it was a chance unfortunately missed…
The Competition Authority of Kenya (“CAK”) recently issued a press release on its two decisions to reject exemptions applications under sections 25 and 26 of the Kenyan Competition Act 12 of 2010. The CAK rejected applications by WOW beverages (a leading distributor in the alcoholic beverages industry) and the Institute of Certified Public Secretaries (a professional body, hereafter “ICPS”).
WOW beverages filed an exemption application to the CAK, which would have allowed it to secure contracts with seven international suppliers to import and distribute exclusively 214 premium wine and spirit brands in Kenya. WOW beverages argued that the proposed exclusive contracts were necessary to protect its investment and would protect consumers from defective products, and guarantee accountability in the event that such products enter the Kenyan market. The CAK rejected this argument stating: “The Authority [CAK] is of the opinion that parallel imports, through legal channels, are likely to bring more benefits to Kenyan consumers, including the enhancement of intra-brand competition which often leads to lower prices.”
The CAK’s decision on the application brought by ICPS (which was one of the first professional bodies to attempt to obtain an exemption to set fee guidelines) made it clear that there was no evidence to suggest that fixing prices for auditing services will improve the profession or prevent its decline and, instead, it is likely to eliminate the incentive to offer quality services. Interestingly, the CAK went a step further to state that “price fixing by professional associations extinguish[es] competition with no plausible public benefits” and went on to warn other professions that “the decision to reject the institute’s exemption application sends a strong message to professional bodies that fee guidelines decrease competition, reduce innovation and efficiencies, and limit customer choices”. This likely follows from the recent increase in exemption applications brought by other professional bodies in Kenya such as the Institute of Certified Public Accountants of Kenya and the Law Society of Kenya (which has a remuneration order). The CAK’s decisions on these applications are likely to be published in short order.
With increased awareness of competition law in Kenya, more entities are applying to the CAK for exemptions primarily to ensure that they are not found to be engaging in anticompetitive conduct, where the penalty can be up to 10% of the turnover of the entity.
According to practicing Kenyan antitrust lawyer, Ruth Mosoti, the CAK has powers to allow an entity to engage in what would ordinarily be considered anticompetitive conduct. The Act provides a framework on how such applications are to be determined “but, most importantly, the benefits must outweigh the competition concerns and meet the public-interest requirement. The competition authority also appears to put great emphasis on espousing international best practices. It is therefore important when one is making such an application to ensure that the same is backed by international best practices.”
Andreas Stargard, Ms. Mosoti’s colleague at Primerio Ltd., echoes her sentiments. He notes that the CAK follows in the well-tread footsteps of other international competition enforcers, which have dealt with antitrust exemption applications for decades: “Similar to the European Commission in its past rulings on meritless Article 101(3) exemption requests, the CAK has diligently applied common-sense competition principles in these two recent cases.” Stargard advises that other companies or trade groups wishing to seek reprieve from the Kenyan Act should consider certain key factors first before approaching the CAK:
First, ask yourself whether the proposed conduct for which you seek an exemption contributes to improving something other than your own bottom line (such as innovation that benefits others, or efficiency or a reduction in emissions, etc.), and consider whether consumers at large receive share of the resulting benefits.
In addition, just as with traditional joint-venture analysis, be prepared to articulate how the proposed agreement or restriction is absolutely indispensable to obtaining these benefits and accomplishing the stated economic goal.
Finally, seek competent legal advice from experts, who will be able to provide a professional evaluation whether or not the agreement you seek to exempt is likely to qualify under the criteria of sections 25 and 26 of the Act — or whether the CAK will rule against it, finding that an exclusivity clause or or restriction you seek will more likely than not eliminate competition.
On 13 February 2018, the South African Competition Tribunal ruled against Massmart Holdings, a subsidiary of Wal-Mart in relation to a complaint filed by Massmart against three of South Africa’s largest grocery retailers (as well as the South African Property Owners Association – who did not actively participate in the hearing).
The history of the complaint dates back to 2014, when Massmart submitted a complaint to the Competition Commission alleging that the exclusive lease agreements which the respondents had concluded with the relevant landlords in respect of shopping malls were exclusionary and contravened the South African Competition Act. The Competition Commission elected not to refer the matter to the Competition Tribunal and dismissed Massmart’s complaint based on a lack of evidence demonstrating any anti-competitive effects.
Massmart proceeded to refer the complaint itself to the Competition Tribunal in 2015 (which is permissible only if the Competition Commission elects not to refer the matter to the Tribunal) on the basis that the respondents had contravened Section 5(1) of the Competition Act — which prohibits any vertical arrangement which has anti-competitive effects and which cannot be outweighed by pro-competitive efficiency enhancing justifications.
Massmart’s case against the respondents was essentially that the respondent retailers had entered into long term lease agreements with landlords of various shopping centres which contained exclusivity provisions effectively precluding (or limiting) competing retailers from entering that same shopping centre. In other words, the crux of Massmart’s complaint was that Massmart could not enter into a number of shopping centres in a manner which would enable Massmart to compete with the incumbent retailers.
Although the respondents raised a number of exceptions to the Massmart complaint (including the “non-citation” of the relevant landlords who are parties to the respective lease agreements), the Tribunal did not need to rule on these exceptions. The Tribunal dismissed the complaint on the basis that Massmart did not prove that the exclusivity provisions contained in the lease agreements resulted in anti-competitive effects in the relevant market.
In conducting its assessment, the Tribunal considered whether the “exclusive leases” are likely to either:
have an adverse impact on consumer welfare; or
lead to the foreclosure of a rival in the market.
Central to the Tribunal’s assessment was the appropriate definition of the “relevant market”. In this regard, the Tribunal found that Massmart had not properly demonstrated that each shopping mall constituted a separate geographic market.
Assuming that the relevant geographic market is the boundaries of a shopping mall, the Tribunal went on to state that Massmart’s complaint was not supported by sufficient evidence to demonstrate that there would be a “substantial lessening of competition” in that market. In this regard, the Tribunal confirmed that the mere exclusion of a rival does not equate to a “substantial lessening of competition” – particularly if there is at least one other competitor in the relevant market – which based on the evidence appeared to be the case in a number of circumstances.
In relation to an alternative proposition put forward by Massmart, the Tribunal considered whether the “exclusive leases” would lead to anti-competitive effects in the “national market”. Again, the Tribunal found that there was insufficient evidence pleaded to demonstrate that there was a substantial lessening of competition on the national market. Importantly, however, the Tribunal indicated that the respondent retailers appear to impose a competitive constraint on each other in the national market – assuming that there is in fact a competition dimension at a ‘national level’.
The Tribunal’s decision does not therefore go as far as confirming that ‘exclusive leases’ between retailers and shopping malls are inherently pro-competitive, but rather that parties seeking to demonstrate the anti-competitive effects of the ‘exclusivity arrangements’ must do so with credible theories of harm which is supported with the necessary evidence.
The Tribunal’s decision comes at an interesting juncture in light of the current market inquiry being conducted by the Competition Commission in the grocery retail sector. One of the key objectives of the market inquiry is to assess the anti-competitive effects of “exclusive leases”. The Competition Commission is scheduled to finalise its market inquiry in 2018 following which the SACC will make recommendations to Parliament to remedy any potential anti-competitive features of South Africa’s grocery retail sector.
In relation to international precedent, the UK’s competition agency adopted a view that “exclusive leases” are not anti-competitive per se but rather that the duration of the exclusivity provisions contained in lease agreements should be curtailed. Accordingly, exclusivity provisions in the UK are limited to five years. The Australian agency (the ACCC), after conducting a public inquiry into various features of the grocery retail sector, concluded that exclusive lease provisions may be justified in ‘developing areas’ but are unlikely to be justified in ‘metropolitan areas’.
Accordingly, it remains to be seen whether the Competition Commission will propose that any remedial action be taken to address exclusive leases agreements in the context of the South African grocery retail sector (following the conclusion of the market inquiry) or whether Massmart (and/or other complainants) will look to reformulate a complaint to the Tribunal and focus on specific shopping malls as opposed to an overarching complaint against the existence of exclusivity provisions.
Importantly, however, in light of the Tribunal’s finding that Massmart was not able to sufficiently plead and support an argument that the exclusive leases were likely to lead to anti-competitive effect in any defined market, it was unnecessary to consider whether there are any pro-competitive arguments or economic justifications which would outweigh any anti-competitive effects.
[Michael-James Currie is an admitted attorney of the High Court of South Africa and advises clients on competition law matters across sub-Saharan Africa]
The COMESA Competition Commission (CCC) recently announced that it will be investigating allegations of exclusionary conduct in relation to the Confederate of African Football’s (CAF) decision to extend an exclusive marketing of broadcasting rights and sponsorship agreement with Lagardère Sports in relation CAF tournaments.
It is not yet clear whether the CCC is investigating this matter as an ‘abuse of dominance’ case or rather, in terms of Article 16 of the CCC’s Rules, general restrictive practices.
COMESA Article 16 essentially precludes firms from implementing an agreement in the Common Market which has as its object or effect the distortion or prevention of competition in the Common Market, to the extent that it may restrict trade between member states.
The Registrar of the CCC, Meti Demissie Disasa, is quoted as saying: “The aim of the Commission’s investigation is to ensure that competition in the commercialisation and award of media and marketing rights for African Football tournaments is not undermined as a result of anti-competitive practices from market operators and that football fans can benefit from better and more coverage of the games and affordable viewing options.”
“Any agreement which contravenes Article 16 is automatically void. In light of the fact that the CAF agreement in question here is valuable and moreover only set to expire in 2028, a voiding of the contract by the CCC would likely be contested by the parties,” says competition practitioner Andreas Stargard.
The CCC, which has to date largely focused on merger control, has certainly made clear strides to moving towards a greater enforcement role, as AAT first reported here. While there is still some ways to go, the current investigation follows the CCC’s announcement that it intends to conduct a market inquiry into the grocery retail sector and has also issued an announcement calling on all firms who may have exclusive agreements being implemented in the Common Market to disclose these agreements to the CCC in an effort to obtain authorisation (i.e., an exemption) from the CCC. In 2016, Eveready applied to the CCC to have a number of distribution agreements “authorised” by the CCC.
The ECA and the CCC signed a Memorandum of Understanding in August 2016 which envisages increased cooperation between the two agencies including information exchanges.
In relation to the CAF complaint, the CCC received the complaint by the Egyptian Competition Authority (ECA) who is in turn also investigating this matter. This raises an interesting question as to whether or not the CCC has exclusive jurisdiction over this matter which, in terms of the CCC’s Rules, the CCC should have but other COMESA member-state competition authorities have challenged in the past.
UPDATE: the official CCC statement seeking stakeholder input includes the following passage regarding the agreements at issue:
It is alleged that on 12th June 2015, CAF entered into an agreement with Lagardère Sports S.A.S. for the exclusive commercialization of marketing and media rights of main regional football competitions in Africa, including the Africa Cup of Nations, African Nations Championship and African Champions League, for the period 2017 to 2028. CAF and Lagardère Sports S.A.S. are alleged to have previously entered into a similar commercialization agreement for marketing and media rights of CAF tournaments for the period 2009 to 2016. Consecutively and cumulatively, the length of the alleged exclusive agreement is twenty years. It should be noted that the commencement of investigations neither presupposes that the conduct being investigated is anti-competitive nor that any of the parties to the agreement has violated the Regulations. The Commission will, in accordance with the provisions of Part 3 of the Regulations, conduct an inquiry into the agreements concluded between CAF and Lagardère Sports S.A.S. to determine whether the alleged conduct has as its object or effect the prevention, restriction or distortion of competition in the Common Market or in a substantial part of it. In view of the foregoing, the Commission hereby gives notice to all interested stakeholders and the general public to submit their representations to the Commission … no later than 21st April 2017.
Discarding any objectivity and international best practice, the Minister of Economic Development, Mr. Ebrahim Patel, has once again expressed his desire to use the South African Competition Commission (“SACC”) as an agency to actively promote the government’s industrial policies.
Speaking at a media briefing, Patel told journalists that the focus of the Economic Development Department would be to grow “black ownership of new industry in South Africa and using state funding to grow the work of black entrepreneurs”.[1]
Minister Patel
Patel said the intention of using the SACC to launch a market inquiry into the retail sector was to “ensure that we’ve got a competitive sector, but also an inclusive sector”. This statement and the decision to institute a market inquiry into the retail sector is, at least at this stage, problematic for two reasons. Firstly, the retail sector is arguably one of the most competitive sectors in South Africa, and any barrier to entry into the sector is a natural consequence of a highly competitive market. Furthermore, Patel identified exclusivity clauses (which are popular provisions inserted into lease contracts between mall anchor tenants and the developers) will be one of the issues that the inquiry will look into. Patel, unfortunately, overlooked the fact that there has already been an investigation relating to these clauses. At the conclusion of the investigation, the SACC found that there is not sufficient evidence of anti-competitive impact, resulting from these clauses, and thus the SACC refrained from referring the matter to the South African Competition Tribunal (“SACT”).[2] This thus begs the question, whether it is necessary to institute a market inquiry with regard to the issue of exclusivity clauses and expose the industry to intensive and unnecessary costs?
In an article written by Mfundo Ngobese in the official newsletter of the SACC, Ngobese responds to an article written by John Oxenham and Patrick Smith, presented at the Eighth Annual Conference on Competition Law, Economics and Policy titled “What is Competition Really Good For?”. The main focus of Ngobese’s article is evaluating the merits of an argument put forward by Oxenham and Smith: that the Competition Authorities should engage in a balancing exercise between the short term impact on public interest issues (such as employment) versus the long term benefits that are associated with effective competition (such as increased economic growth which leads to more jobs created).
Public Interest Test
This brings us back to Patel’s decision to use public interest as the main ground on which a market inquiry into the retail sector should be instituted. The decision to launch a market inquiry based on the anti-competitiveness of exclusivity clauses is simply untenable in light of the SACC’s findings in respect of a previous investigation into the issue, as well as the fact that the retail industry is highly competitive.[4] Using any ‘anti-competitive’ argument as justification for launching this particular market inquiry, would amount to nothing more than a ‘fishing expedition’ by Patel and the Authorities.
The broad public interest grounds which are increasingly becoming prevalent as Patel transcends into the competition arena, coupled with the ill-defined rationale, guidelines and justifications behind the use of public interest grounds in competition review, is contributing significantly to uncertainty in the South African economy.
This ‘uncertainty’, that surrounds doing business in South Africa was recognised by African National Congress (ANC) stalwart Mathews Phosa. The former ANC Treasurer and Mpumalanga premier identified corruption, inconsistent government policies, and other factors as root causes of investors’ growing reluctance to invest in South Africa:
Policy stability leads to political, social and economic uncertainty. Policy stability in contrast created an “investment friendly culture where every investor feels protected and free to do business”.
While businesses in the retail industry (and indeed businesses across the board) in South Africa, are desperately seeking certainty, Patel is seeking a ‘second bite of the cherry’.
The second issue with Patel’s reason for instituting the market inquiry relates to him wanting to achieve an “inclusive retail sector” and how to bring more “black South Africans into the sector”. While transformation in the economy is certainly an important issue that needs to be addressed in South Africa, it is the manner and form in which such transformation takes place, which is concerning. In this regard, the SACC is patently not the appropriate institution to ensure that there are sufficient black-owned businesses in the retail sector.
Confused Motives
Patel seems to have, unfortunately, conflated the objectives and role of his own department, with the objectives and purpose of the SACC. This comes at a time when other political meddling has led to the resignation of the National Director of Public Prosecutions, Mxolisi Nxasana, who quit his post on Sunday, after almost a year of politically-motivated wrangling and formal investigations being initiated and ultimately dropped by President Jacob Zuma.
Former NPA head Mxolisi Nxasana, forced to resign due to political pressure.
The influence that Minister Patel has had on the SACC’s policy is undoubtedly evident when one evaluates the increased reliance of the South African Competition Authorities to impose stringent conditions in approving mergers.[5]
In justifying the use of public interest grounds in competition law, the Competition Authorities may point out that South Africa’s Competition Act, 89 of 1998 (the “Act”) permits and requires public considerations to be taken into account. However, the use of public interest grounds should not, as seems to be the case, be seen as independent issues unrelated to competition which is to be considered in isolation of the purpose of the Act.[6] The Competition Authorities’ purpose, as set out in Section 2 of the Act is to “promote and maintain competition in the Republic…”. It is likely that Patel views the following two subsections which state that competition must be maintained or promoted to:
“promote employment and advance the social and economic welfare of South Africans” (Section 2(c)); and
“promote a greater spread of ownership, in particular to increase the ownership stakes of historically disadvantaged persons” (Section 2(f))[7]
as the basis for his increased reliance on pushing his Department’s policy objectives through the channels of the SACC. However, placing an overly zealous reliance on these two subsections, fundamentally misconstrues the purpose and function of competition law.
Subsections (c) and (f) quoted above are not self-standing provisions; they are qualified by the general purpose of the Act. Furthermore, by viewing or placing greater reliance on these provisions as self-standing provisions, one would run into an inconceivable difficulty when considering section 2(a), which states as a further objective of the Act (and the purpose of the promoting competition) is to promote the “efficiency, adaptability and development of the economy”. At least from a Section 2 perspective, public interest considerations, at best, have to be reconciled with competition issues.
Market inquiries have often been used very successfully as an investigative tool by a number of competition agencies, especially in Europe. However, a market inquiry requires significant resource expenditure by both the SACC and the market participants and often casts a bad shadow over the relevant industry to the detriment of companies who have not engaged in any anti-competitive conduct. Market inquiries should thus be used sparingly and only when there is significant concern that a particular market is not functioning in a competitive manner. A market inquiry should certainly not be used as a means to affect change in the industry in order simply to suit the objectives of the Government.
There is a further institutional concern which must be noted, and that is that the SACC has, like all institutions, limited resources. In order to function as an efficient and formidable competition law agency, the SACC should ensure that what limited resources are available, is best utilised to achieve a competitive market environment in South Africa.
Before even engaging in policy discussions, as those that Patel is pushing for, it would firstly be necessary to ensure that the SACC has the requisite expertise to deal with policy agenda’s which are far broader than pure competition law. There are already institutions, as Patel has recognised, whose responsibility it is to promote economic growth and to address transformation within the economy.[8] It is not the responsibility of the Competition Authorities to address these issues as directly as has been the case in recent years.[9]
The need for transformation and the promotion of black industrialists is an issue to be addressed by the Government, however, it seems that there is a general lack of regard to competition concerns when Government departments form their policies. A good illustration of this is the significant criticism levelled at the new agreement struck between South African Airways (“SAA”) and the Department of Trade and Industry (“DTI”), which will see SAA redirect R10 billion rand of procurement spending to “black industrialists” (“SAA Agreement”).[10]
While this may appear to be a noble policy, the question remains whether new “black industrialists” are coming into existence, or whether existing “black industrialists” are simply going to make substantial profits at the expense of true development.
The SAA Agreement, which requires, without anything more, that a certain amount of supplies (fuel) be purchased from specific suppliers (‘black suppliers’) strikes at the heart of competition. Effectively certain existing competitors are being excluded in order to favour other competitors. In no way does this promote ‘transformation’ within the industry as the existing barriers to entry remain.
From a competition point of view, the benefit of having healthy competition in the commercial aviation market seems to have been overlooked by the DTI. Apart from the direct benefit that flows from actual cheaper air tickets, the knock-on benefits of stimulating the leisure tourism seems to have been overlooked.
While acknowledging that the SAA decision taken by the DTI is not directly linked to competition law, the disregard that the DTI appears to have to competition in the aviation industry is in stark contracts to the to the Competition Authorities in Botswana who have launched a market inquiry into the aviation sector (although notably with the focus being on unscheduled flights), due to having recognised the importance that the price of flight tickets may have on the tourism industry and the benefits that would flow from boosting the tourism industry.
Considering that SAA is battling financially, and is highly dependent on State bailouts, it is baffling that the State’s primary objective is not to ensure that SAA operates viably and competitively, before risking such competitiveness in favour of a policy which is quite frankly, difficult to justify as there is no evidence that such policies actually achieve genuine transformation or promote economic growth.[11]
One can’t help but notice the irony when it comes to the Government’s social and transformation policies. The Government, and Patel in particular, consistently ignore well established economic principles and the benefits that flow from healthy competition in the economy, in favour of promoting short-sighted top-down “transformative industrial policies”, rather than spending the scarce resources on promoting and developing South Africa from a bottom-up approach.
For instance, poor service delivery in South Africa has a significant detrimental economic and social impact on South Africa. Why improving service delivery does not appear to be high on the radar of the Department of Economic Development or the DTI, is surprising if the objectives of these departments are to promote ‘black businesses’, as the areas which are most severely affected by poor service delivery are generally areas where there is a high percentage of black persons living, who form part of the lower income brackets. In other words, areas where the promotion of small businesses and healthy competition would be most valuable to any social development objectives.
Unfortunately, however, a recent report issued by the Institute of Race Relations stated that the highest incidence of recent public protests in relation to poor service delivery, took place in areas were the most “fruitless and wasteful government expenditure” took place.[12]
Recent statistics show that South Africa’s unemployment rate is increasing, bringing into question whether the policy intervention that Patel has been championing over the past 6 years, is indeed yielding the positive results envisioned by the Government. While the purpose of this article is not to evaluate and criticise all policy interventions, the point to be made is that the effectiveness of policy intervention to advance socio-economic interests in the South Africa is in no way proving effective. While there may be a number of reasons for failing policies, it appears worrying that politicians such as Patel are prepared to risk the independence, efficient functioning and objectives of the Competition Authorities, which are ultimately to promote competition in the market, in order to promote industrial policies when there is so much uncertainty whether such policies will truly ensure long term benefits for the Country as a whole.
Two recently issued reports, namely, the Boston Consulting Group (BCG) Report and the IMD World Development Report, succinctly confirm the concerns and issues which are addressed in this article.
The BCG Report evaluates the reasons for South Africa’s stagnant economic growth. The report acknowledges that it is a necessity to improve education and healthcare and reduce unemployment to advance growth; however, the report importantly states that:
“There is no hiding from the fact that short-term self-interested behaviour has been prevalent; that the emphasis in South Africa has been on cutting the pie rather than growing it.”[13]
This statement could not be truer if one considers Patel’s disregard of well established benefits that flow from a competitive environment, in favour of promoting industrial policies. The following statement by Adam Ikdal on the poor leadership in South Africa, corroborates this papers view:
“a concerted program of execution is essential. In many instances this may mean putting the greater good ahead of the individual or institutional interests.”[14]
The IMD World Competitiveness Report (IMD Report) not only complements the BCG Report, but essentially confirms the views of this paper, with empirical evidence. The IMD Report indicates that South Africa has dropped from a ranking of 37 in 2012 to 53 in 2015 on a list of the world’s most competitive countries. The IMD Report not surprisingly, identified South Africa’s infrastructure shortfall, poor service delivery and lack of education and skills as some of the major contributors to South Africa’s slip down the rankings.
Crucially the director of the IMD World Competitiveness Centre, Arturo Bris, identified what sets the top performing countries apart from the others. This is what Bris had to say, which is essentially, the basis upon which the criticism identified in this paper is levelled at Patel’s policy objectives:
“Productivity and efficiency are in the driver’s seat of a competitiveness wagon. Simply put, business efficiency requires greater productivity and the competitiveness of countries is greatly linked to the ability of enterprises to remain profitable over time”.[15]
In conclusion, we note that both transformation and fostering economic growth is an objective of the South African Government. This is, however, no justification for abandoning the tried and tested benefits that flow from a competitive market, in favour of promoting short-term industrial policies such as Patel is doing. Should the SACC adopt Patel’s industrial policies as part of their policy objectives, the SACC ultimately risks its independence and may effectively become an ‘umbrella institution’ under which any industrial policy agendas are driven. This would be an undesirable and intolerable outcome, and one which the South African Competition Authorities need to carefully guard against.
[5] We have dealt with this aspect of merger control in more depth in previous articles, please see the following link.
[6] To illustrate the extent that public interest considerations are used by the Competition Authorities, the last intermediate merger that was approved unconditionally was in 2008. Since then, there have been 14 mergers that have been approved subject to conditions. As to large mergers, approximately 10 of the most recent 40 mergers that have come before the Competition Tribunal, 5 have been approved subject to conditions. It should be noted that it is the SACC that reviews intermediate mergers, while large mergers are reviewed bu the Competition Tribunal.
[7] Sections 2(c) and (f) of the Competition Act, 89 of 1998.
[8] For example the Industrial Development Corporation.
[9] See the AfriGroup Holdings (Pty) Ltd and Afgri Ltd merger where the South African Competition Tribunal (“SACT”) Acknowledged that the merger poses no horizontal or vertical competition law concerns. Despite reaching such a conclusion, the SACT, approved the merger on condition that an agreement reached by the parties in terms of which Afgri would contribute R90 million over four years, to a development fund for small farmers via the provision of loans, training and grain storage discounts. Similar burdensome conditions are becoming all the more prevalent in merger control, and are often self-imposed by the SACT and are not agreed upon by the parties as was the case in Afgri.
On 06 May 2015, the Competition Commission of Mauritius (“CCM”) identified the potential restrictive business practice which may exist between The Western Union Company (“Western Union”) and MoneyGram International Inc (“MoneyGram”) as a result of exclusive agreements (“Agreements”) put in place between the two companies.
The Agreements are purportedly entered into separately between the two companies and certain agents, which in turn, potentially prohibit the Agents from supplying competing services to their clients (the Agreements are not entered into between the two firms themselves, and thus do not constitute horizontal agreements) . These Agreements could have the further anti-competitive effect of creating a barrier to entry and possible foreclosure effects.
The CCM has indicated that they have not reached a conclusion yet as to whether these Agreements are in fact anti-competitive. It will also have to be seen whether there are any efficiency arguments would could possible justify such an exclusionary act (if the conduct does in fact breach any provision of the Competition Act, 2007 (the “Act”)).
As far as potential remedies are concerned, the conduct mentioned above could potentially fall under one of two main categories. The CCM could either view the Agreements as constituting “Other restrictive agreements” and/or “Monopoly situations” in terms of Section 45 or 46 of the Act, respectively.
A monopoly will be deemed to exist, in terms of the Act, if one enterprise provides at least 30% of the goods or services on the relevant market or, 70% of the goods or services on the relevant market are provided by 3 or fewer enterprises.
A monopoly situation may be subject to review if the CCM has reasonable grounds to believe that the enterprise(s) are engaging in conduct which: “Has the object or effect of preventing, restricting or distorting competition; or In any other way constitutes exploitation of the monopoly situation.”
As far for the possible penalties and/or remedies that may be imposed for breaching either Section 45 or 46, no financial penalties may be imposed by the CCM for violations of these two sections. Thus, in terms of the Act, the only type of vertical conduct which could lead to a financial penalty being imposed, is what is commonly known as ‘minimum price resale maintenance’. Thus, unlike many other African countries such as South Africa, a company who abuses its dominant position will not be exposed to financial liability, despite such conduct having substantial anti-competitive effects (provided such a company does not engage in horizontal agreements, bid-rigging or collusion or minimum resale agreements).
An infringement relating to Section 45 or 46 could only result in the CCM issuing directives, which have as their purpose, the objective of restoring competition in the market, and are not to be seen as being punitive in nature.
Airtel Malawi Limited, a company incorporated under the Companies Act, engaged in the provisions of mobile phone and telecommunication services in Malawi has lost its appeal against the decision of the Competition and Fair Trading Commission regarding its application for authorisation of an exclusive distribution arrangement.
In a letter dated 28 May 2013, Airtel applied to the commission for the authorisation of an exclusive dealership agreement with its distributors in respect of the sale of its recharge vouchers and other products. This application is in line with section 44 of the Competition and Fair Trading Act Cap 48:09 of the Laws of Malawi.
Due to the fact that Airtel’s exclusive dealership agreement with its distributors contained a clause to ensure that the Distribution Sales Accountants are employed exclusively to undertake Airtel’s sales activities, the Commission refused its approval. The Commission provided its reasoning in a letter to Airtel dated 1st August 2013, specifically stating that the clause “would negatively affect competition in the distribution of mobile products particularly in rural areas.”
Airtel filed an appeal at the High Court Commercial Division against the Commssion’s order that required the company to remove or amend the clause in issue. Airtel submits that the Commission cannot reasonably expect it to appoint Distributor Sales Accountants who will be engaged in accounting for the sales of Airtel’s competitiors in the market.
Delivering his ruling on the 10th of February 2013, Justice Mtambo upheld the decision of the commission and found the justification for the rejection of Airtel’s application for the approval of distributorship agreement to be reasonable. Justice Mtambo went further and stated that, “it is after all the Appellant who is attempting to regulate the business affairs and conduct of its distributors who are independent businesspersons just because the Appellant has dominance on the market.”
The court also ruled that it was within the mandate of the Competition and Fair Trading Commission to require companies that use exclusive distribution arrangements in the distribution of their products or services to amend their standard agreements.
CAK settles with Safaricom, requires non-exclusivity of outlets and forces Central Bank oversight of payment operator
The mobile payments sphere, particularly growing in African countries as we reported previously, is abuzz with news that a competition regulator has now expressly subjected Safaricom (a prominent Kenyan operator) to oversight by the country’s Central Banking authority. It also cements the (already preemptively and unilaterally undertaken) commitment by M-Pesa to remove the exclusivity provision that previously requred its 85 thousand network members to operate exclusively on the Safaricom mobile-payment network.
The official Kenyan Gazette notice 6856 contains the full, if short, language of the agreement:
IT IS notified for public information that in exercise of the powers conferred by section 38 of the Competition Act, the Competition Authority of Kenya, after an investigation into an alleged infringement of Part III of the prohibitions set out in the Act by Safaricom Limited and its Mobile Money transfer agents, entered into a settlement with Safaricom Limited on the following terms-
(a) that all restrictive clauses in the agreements between Safaricom Limited and its Mobile Money Transfer Agents be expunged immediately, but in any event not later than 18th July, 2014;
(b) that the Mobile Money Agents be at liberty to transact the Mobile Money Transfer Businesses of any other mobile money transfer service providers;
(c) that oversight by Safaricom Limited be thereafter limited to its business with the Agentsl and
(d) that each Mobile Money Service Provider be responsible for ensuring compliance with Central Bank of Kenya Regulations. Dated the 22nd September, 2014. WANG’OMBE KARIUKI. Director-General.
MobileWorld Live has reported the following on the settlement between the recently rather active CAK and Safaricom:
A settlement between the Competition Authority of Kenya and Safaricom leaves M-Pesa agents free to work with rival mobile money providers.
An announcement, made in the Kenya Gazette, follows a CAK investigation into an alleged infringement by the operator under the country’s Competition Act.
Back in July, the watchdog said all restrictive clauses in agreements between Safaricom and its agents must be expunged no later than 18 July (actually the operator pre-emptively removed exclusivity ahead of the CAK’s decision).
Safaricom offers a product named “M-Pesa” to its customers in Kenya and Tanzania. M-Pesa is a mobile-phone based money transfer and micro-financing service, launched in 2007 for Safaricom and Vodacom, the two largest mobile network operators in Kenya and Tanzania. The service enables its users to deposit and withdraw money, transfer money to other users and non-users, pay bills, purchase airtime and transfer money between the service and, in Kenya, a bank account. Users of M-Pesa are charged a service fee for sending and withdrawing money.
By 2010, M-Pesa became the most successful mobile-phone-based financial service in the developing world.
In light of the imminent launch of the Airtel product, Airtel has lodged a complaint with the Competition Authority of Kenya on the basis that Safaricom currently holds 78% of the voice market in Kenya, 96% of the short message service market and 74% of the mobile data market. In addition, Airtel is of the view that these market shares make it impossible for Kenyan consumers to have a choice in operators. By 2012, 17 million M-Pesa accounts were registered in Kenya alone, which has a population of over 40 million.
There are a total of approximately 31 million mobile-phone subscriptions in Kenya in 2013, of which Safaricom accounted for 68%, Airtel 17%, Essar Group’s “yuMobile” 9% and Telkom Kenya Limited 7%.
With increased awareness of competition law in Kenya, more entities are applying to the CAK for exemptions primarily to ensure that they are not found to be engaging in anticompetitive conduct, where the penalty can be up to 10% of the turnover of the entity.
The 
The CCC, which has to date largely focused on merger control, has certainly made clear strides to moving towards a greater enforcement role, 
African Antitrust & Competition Law 