South African Competition Commission’s Fresh Produce Market Inquiry & its Final Terms of Reference
By Gina Lodolo
Pursuant to the South African Competition Commission’s (“Commission”), draft terms of reference into an inquiry into the Fresh Produce Market, on 14 February 2023, the final terms of reference into the Fresh Produce Market Inquiry (“FPMI”) were published in the Government Gazette, marking 20 business days before the start of the FPMI.
Market Inquiries are instituted by Section 43B(1)(a) of the Competition Act 89 of 1998, as amended (“the Act”), which provides that “the Competition Commission […] may conduct a market inquiry at any time […] if it has reason to believe that any feature or combination of features of a market for any goods or services impedes, distorts or restricts competition within that market; or (ii) to achieve the purposes of this Act”.
The terms of reference to the FPMI indicate a focus on the entire fresh produce value chain (fruits and vegetables). In particular, the main fruits on the Commissions radar are apples, bananas, oranges / citrus, stone fruit, pears, avocados, grapes and nuts, while the main vegetables are potatoes, onions, tomatoes, sweetcorn, carrots and cabbage (fresh and processed).
Of importance is that the terms of reference do not only find application to the fresh produce itself, rather the scope of the inquiry relates to the entire value chain, including considerable inputs, such as fertiliser, equipment, water and agrochemicals. The terms of reference show that every stage of the value chain will be assessed and broken down as follows: inputs, production, wholesalers and intermediaries (agents), national fresh produce markets (where wholesale of fresh produce between producers and buyers occur), distribution, marketing and retailers.
Particular focus will be placed on value chain efficiency, the market dynamic surrounding significant inputs and any barriers to entry, expansion and participation.
Market Inquiries initiated by the Commission are significant because the Competition Amendment Act introduced broader remedial powers to the Commission who, after the conclusion of a market inquiry, can remedy structural features identified as having an adverse effect on competition in a market by utilising, inter alia, a recommendation of a divestiture order to the Competition Tribunal under section 60(2)(c) of the Act.
Broadly, the terms of reference highlights that the Commission, not only views the food and agro-processing sector as a priority sector but will be utilizing this sector “as a driver of inclusive growth in the South African economy”. This is of importance as the Commission is increasingly imposing public interest conditions – and in particular the promotion of Historically Disadvantaged Persons ownership – in competitively benign mergers that are also neutral into terms of public interest concerns. As fresh produce has been earmarked as a priority sector by the Commission, it will not come as a surprise if this market inquiry further emboldens the Commissions current trajectory to increasingly impose public interest conditions on merging parties.
Unless an extension is granted by the Minister of Trade, Industry and Competition, the Commission is statutorily obligated to conclude the market inquiry within 18 months.
Primerio Ltd Partner, John Oxenham commented that “the final terms of reference confirm the Commission’s intent on utilising the robust market inquiry mechanism to further not only pure competition initiatives, but more importantly, socio-economic redress mechanisms. The FPMI will result in likely structural changes to the fresh produce market and all entities involved should seek robust counsel prior to commencement of the inquiry.”
To access the FPMI terms of reference click here.