NOTABLE DEVELOPMENTS IN SOUTH AFRICAN AND AFRICAN COMPETITION LAW IN 2020

This brief addresses notable developments in competition law in South Africa and across the rest of Africa during the course of 2020. It includes the measures introduced by various competition law regulators in light of the COVID-19 pandemic and related cases and prosecutions.

Please click here for the detailed report.


For more information, please contact Jean Meijer, Nick Altini, Leana Engelbrecht, Sandhya Foster, Lesetja Morapi and Stewart Payne or your usual Herbert Smith Freehills contact:

Jean Meijer

Jean Meijer
Partner, Johannesburg
+27 10 500 2642

Nick Altini

Nick Altini
Partner, Johannesburg
+27 10 500 2679

Leana Engelbrecht

Leana Engelbrecht
Associate, Johannesburg
+27 10 500 2674

Sandhya Foster

Sandhya Foster
Associate, Johannesburg
+27 10 500 2643

Lesetja Morapi

Lesetja Morapi
Associate, Johannesburg
+27 10 500 2677

Stewart Payne

Stewart Payne
Associate, Johannesburg
+27 10 500 2649

CONSTITUTIONAL COURT WEAKENS THE STATUTE OF LIMITATION AGAINST THE PROSECTUTION OF A PROHIBITED PRACTICE MORE THAN THREE YEARS AFTER IT HAS CEASED

Author: Lesetja Morapi

  1. On 24 June 2020, the Constitutional Court (“Court”) issued its decision in the Competition Commission’s appeal from the Competition Appeal Court (“CAC”) in Competition Commission v Pickfords Removals SA (Pty) Ltd (CCT123/19) [2020] ZACC 14. The judgment dealt with:

1.1 the effective date of complaint initiation into a prohibited practice in circumstances where a firm was only expressly identified as a party to the prohibited practice by an amendment to an original complaint initiation which did not expressly name that firm;

1.2 whether s67(1) of the Competition Act, 1998 provides an absolute time-bar against the initiation of a complaint in respect of prohibited conduct by the Commission more than 3 years after the cessation of the prohibited practice, or if it is merely a procedural time-bar capable of condonation; and

1.3 if s67(1) only provides a procedural time-bar, whether s58(1)(c) of the Competition Act provides the Competition Tribunal (“Tribunal”) with the statutory power to condone non-compliance with s67(1). Continue reading

WHERE A COMPLAINT INITIATION IS AMENDED TO INCLUDE ADDITIONAL FIRMS, DOES THE THREE YEAR LIMITATION APPLY FROM THE DATE OF FIRST INITIATION OR FROM THE DATE OF THE AMENDMENT? COMPETITION COMMISSION V PICKFORDS REMOVALS SA (PTY) LTD (167/CAC/JUL18)

Authors: Lesetja Morapi

1. In Competition Commission v Pickfords Removals SA (Pty) Ltd,1 the Competition Appeal Court (CAC) dealt with a number of issues including, relevant to this note, the effect of an amendment to a complaint initiation on the application of the statute of limitation prescribed by s67(1) of the Act.

2. The CAC had to determine the effective date of complaint initiation in circumstances where a firm was only expressly identified as a party to a prohibited practice by an amendment to an original complaint initiation which did not expressly name that firm. In particular, the CAC had to decide whether the three year period prescribed by s67(1) should be calculated from the date of cessation of the prohibited practice to the date:

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COVID-19: PRESSURE POINTS: NAVIGATING THE COVID-19 REGULATIONS AND THE ROLE OF COMPETITION LAW IN COMBATTING THE IMPACT OF THE PANDEMIC (SOUTH AFRICA)

Authors: Stewart Payne and Natasha Rachwal, with supervision by Nick Altini and Leana Engelbrecht

Following the declaration of a national state of disaster in terms of the Disaster Management Act No. 57 of 2002 (as amended), the concerning escalation in the number of confirmed COVID-19 infections in South Africa prompted the National Coronavirus Command Council to enforce a nationwide lockdown for 21 days which came into effect from midnight on Thursday, 26 March 2020.

These developments have been accompanied by the expedited publication of numerous regulations aimed at combatting the outbreak of COVID-19 and mitigating its anticipated impact on the already strained economy. In particular, emphasis has been placed on enabling both the public and private sectors to act swiftly in responding to the healthcare crisis.

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WITH GREATER POWER OVER COMPETITION COMES GREATER RESPONSIBILITY

Author: Stewart Payne

In future market inquiries the Competition Commission will be able to impose remedies across a whole sector. 

The Competition Commission is soon expected to release a draft report from its public passenger transport inquiry, the last of four separate market inquiries it will have concluded over the past year (into data and the health-care and grocery retail sectors). Once the transport inquiry is finalised, the commission will have cleared its slate of all pending market inquiries initiated under the Competition Act before its amendment past year.

Though the commission has sought to achieve significant and sometimes wide-reaching reform through the recommendations it has made in its recent inquiry reports, a key feature has been that its recommendations are simply that — recommendations. They are non-binding and do not in and of themselves impose any obligations on firms to comply.

The commission could in these market inquiry reports advise firms to alter or cease behaviour under threat of prosecution if they fail to do so. This is a tactic it employed against MTN and Vodacom in the data market inquiry, where it believes it has gathered sufficient evidence to make a case that specific aspects of the firms’ conduct contravene a provision of the act.

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