The Competition Act (‘Act’) is first and foremost national in its focus. This is clear from its objects set out in the Act’s Preamble and Purpose. Although the Act makes reference to international law obligations, participation in world markets and the role of foreign competition in the Republic, to look at the role of South Africa in competition law’s global village, the key is not to be found in that language, but rather in the continuing development and application of South Africa’s competition policy.
Now in its 19th year, the South African authorities (that includes the Competition Commission, Tribunal and Appeal Court) have enjoyed a leading status amongst developing competition law jurisdictions. The authorities have been recognized by peers in other jurisdictions, global bodies and practitioners for their pioneering role in development of a comprehensive body of competition law and policy, often punching above their weight category, particularly in relation to the role of competition law in socio- and development economics. Some have taken fright at the suggestions advanced which appear to promote the well-being of local businesses and the public interest above consumer welfare as the true-north of anti-trust.
This development of law and policy as well as the well-earned status does not come about simply by practicing in one’s back garden. Far from that, South Africa has gone out in the international arena participating and joining allegiance with others, perhaps sometimes as a more junior partner and in other cases as a more experienced adopter of the competition global wave. There are MOU’s enshrining cooperation with the EC, Brazil, Russia, India, China, Mauritius, Kenya and Namibia. In addition, South Africa has membership of the SADC, African Competition and BRICS fora. The authorities have also benefitted greatly from their active participation in ICN and UNCTAD networks and their staff continue to receive extensive training from leading world authorities and experts. The authorities learn from others and take an active lead in passing on their experience and challenging orthodox views.
While that may sound laudable, one might well ask what are the benefits and likely future implications within South Africa of the global participation? One aspect which stands out, is the acknowledgment by government in South Africa of the role of competition law as a critical policy tool, alongside other trade and industrial policies, in developing an inclusive economy poised for long term development and regional growth. International influence and participation can trickle down or pass through via competition policy.
Competition policy is as much about deciding when and how to intervene as when not to intervene and rather adopt a ‘hands off’ approach. Over-regulation is a tempting playpen in developing economies and it is questionable how much competition law should be used in regulation. Examples may be found in recent evaluation of pricing policies the steel industry, where it could be argued that cyclical markets and international competitive pressures can be more effectively guided by trade policies than by competition law interventions.
Improved skills and shared experience gained from co-operation with and training from other agencies should lead to better judgments and decisions in relation to such policy decisions.
Notably and in recognition of the influence of others on policy, the Commission has indicated in its most recent Annual Report that it may find greater affinity with newer agencies in emerging and developing economies which share similar challenges of high levels of concentration of ownership of capital and control over intellectual property in economies with persistent low economic growth, low levels of employment and poverty.
There are no doubt obvious benefits of certainty and consistency in the harmonization of the approach between international agencies to the analysis and complexities of global mergers and enforcement of anti-trust compliance. Finding common ground in approach to competition law economics may be one benefit, but there is also clear and possibly greater profit and utility in our authorities’ interactions at multi-national and regional levels in challenging the role of competition law and its potential as agents for change in a developing economy. This evaluation of policy and outcomes is the arena of policy students and researchers both within and outside the authorities who can carry out impact studies and make proposals for change.
Proposed changes from these studies and interactions have found their way into the draft Competition Amendment Bill in South Africa (‘Amendment Bill’). The amendments propose to redress two main features in the economy: excessive concentrations of ownership and control and the need to open up ownership and opportunity for a greater number of South Africans, but at the same time recognizing that economies of scale in some markets are necessarily efficient and thus certain interventions are unlikely to be beneficial there.
The proposals include enhancing the ability of the authority to investigate the impact of mergers upon small business and historically disadvantaged persons. Perhaps most significant are the proposals to expand and strengthen the provisions of the Commission relating to market inquiries to effectively investigate and address anti-competitive market features and conduct which prevents, restricts or distorts competition within that market. In making its decision to investigate, the Commission must have regard to the impact of any adverse effect on competition on small businesses, or firms controlled or owned by historically disadvantaged persons. Its powers following investigation are proposed to be significant.
Responses to and criticism of the proposals in the Amendment Bill have been received from a wide range of quarters, both local and international and will be evaluated by government. One aspect which is clear to any observer of the consultative process being followed by the lawmakers is that there will be change to the existing regime to deal with the identified objectives.
Aside from the likely new focus in the Amendment Bill on concentration of ownership in a developing national economy, South Africa has been at the forefront of elevating the evaluation of the socio-economic aspects of competition law, the so-called public interest factors, including the evaluation of the impact of transactions on employment in merger investigation and approvals for nearly two decades. Unlike the position in most other jurisdictions, a merger which does not substantially lessen or prevent competition may nonetheless be blocked in South Africa if the transaction leads to a substantial net-negative impact upon the public interest factors.
A difference in approach between authorities to the role of the public interest in merger review is not at the expense of other forms of co-operation and common approach to multi-national transactions by the Commission. These may involve a common view on market definition and newer concerns such as the impact of innovation in competitive markets. The Commission keeps close contact and exchanges views with the principal jurisdictions where global mergers are investigated. There are several recent examples where the Commission has stayed close to the approvals and conditions imposed in other jurisdictions, while seeking to add a distinctive national flavour as the facts, and especially the public interest, may require. These include the Bayer Monsanto, Dow DuPont and AB Inbev matters.
Likely implications for any significant global transaction requiring South African merger approval are firstly that parties will have to take into account not only the global timetable for clearance, apart from the local timetable. In addition, there is more likely than not to be an adoption of a co-ordinated approach to merger approval and any conditions or remedies which may apply, subject to any adaptation for national factors, including the public interest as may be enhanced under the Amendment Act.
We should also recognise the global co-operation and participation by the South African agency with other agencies may enable enforcement against anti-competitive conduct in global cartels. Witness here the investigations carried out in the freight shipping, foreign exchange and motor car parts matters as more recent examples. This is an obvious benefit to the national agency, saving capacity and time in identification of risk, investigation and prosecution of offenders. But to end on a cautionary note, local authorities should beware of the seemingly attractive option of transplanting the views and findings of other authorities into the South African context. Peculiar facts specific to South African firms, markets and regulations, as well as differences in the casting and application of relevant law create a danger of wasted resources through attempts to trying to apply another country’s evidence and findings in South Africa.