Picture: ISTOCK
Picture: ISTOCK

Related articles

IN 2016 there will be important developments in competition law in South Africa and on the rest of the continent.

In South Africa the partial implementation of the Competition Amendment Act is expected in 2016. Two new amendments of importance are those that involve complex monopolies and the criminalisation of cartel conduct.

Complex monopolies are where at least 75% of goods or services are supplied by five or fewer companies. These companies act in a conscious or co-ordinated manner without agreement and this has the effect of preventing or lessening competition, unless a company shows otherwise.

Economic Development Minister Ebrahim Patel has said his department will explore the possibility of consolidating regulators to balance the specialist expertise of sector regulators with the broader economic and legal capacity that the competition authorities have built up over the years.

He intends to introduce legislation to further strengthen efforts to tackle anticompetitive practices that impose unnecessary costs on consumers, undermine industrial policy objectives and reduce the competitiveness of the economy.

In 2016 there should be further clarity from the Department of Economic Development about the implementation of the Competition Amendment Act (either in whole or in part). It also appears there will be further changes to the Competition Act, through the introduction of a new Competition Amendment Bill.

Two big market inquiries are expected to be finalised next year. The Competition Commission says the inquiry into the liquefied petroleum gas market will be completed by March.

The inquiry into the private healthcare sector will get under way, with the final report expected to be published by the end of the year.

The findings of these inquiries will guide the competition authorities on whether to take further action to encourage competition in these sectors. The information in the findings will also aid businesses in all sectors that are unaware they are breaching competition rules.

The competition authorities have also increased their focus on public interest considerations in merger analysis. While the regulator cannot divorce public interest from competition analysis, it also cannot overreach in its application of public interest. The draft public interest guidelines are yet to be finalised, and it is hoped they will be completed next year.

Many African countries have recognised the value of competition and have already introduced, or are introducing, competition regimes. Competition law is expected to play a critical role on the continent next year. It is anticipated that cases in Africa will become more complex.

Burundi, Comoros, the Democratic Republic of Congo, Djibouti, Egypt, Eritrea, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Sudan, Swaziland, Uganda, Zambia and Zimbabwe now fall under the Common Market for Eastern and Southern Africa (Comesa), whose competition law regime became operative at the beginning of 2013.

The Democratic Republic of Congo, Djibouti, Eritrea, Libya and Uganda have no domestic competition regimes in place. Malawi and Kenya recently updated their competition legislation and more Comesa member countries are expected soon to announce developments in competition law.

This year South Africa’s Competition Commission signed a memorandum of understanding with the Namibian Competition Commission to promote co-operation in competition law enforcement and policy. The heads of competition authorities from the Brics countries — Brazil, Russia, India, China and South Africa — also recently signed a memorandum of understanding to co-operate in the field of competition policy, share best practices and conduct joint studies of the competition law sector.

It will be interesting to see how these relationships unfold in 2016m and what South Africa will learn from shared information with its neighbours and Brics countries.

• Verster is a partner in Bowman Gilfillan Africa Group’s competition practice