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When faced with legislation that requires parties to take certain steps or prevents them from implementing a particular course of action, the questions often asked include 'what are the consequences and who will be liable to pay?' For a long time been uncertainty about the penalty firms would face if they fail to notify a merger and/or implement a merger without the requisite approval of the competition authorities.
The South African Competition Amendment Act 18 of 2018 (‘the Amendment Act’) which was tabled in Parliament in July 2018, and signed into law by President Ramaphosa last month, has been the subject of much debate and comment, especially insofar as it aims to implement far-reaching changes to the currentCompetition Act 89 of 1998 (‘the Competition Act’).
In the case of Dawn Consolidated Holdings Pty Ltd (Dawn) and others versus the Competition Commission, the Competition Appeal Court (CAC) had to consider whether a non-compete clause in a shareholder’s agreement contravened the Competition Act, and laid down some guidance for determining whether agreements exhibit the character of anti-competitive conduct.
Competition is not something that can be artificially created. Competition is an inherent facet of human – or living – nature, and thrives most when it is left alone. The notion that government can introduce swaths of laws, regulations, and red tape, like the new Competition Amendment Bill, and not have a deleterious effect on competition and economic growth is naïve.
Few market inquiries have captured the attention of South African consumers more than the inquiry into the high costs of data in South Africa. Businesses and consumers will be waiting in anticipation for the outcome of the Commission's inquiry into data costs, which is expected to be finalised in August 2018.
The implementation of the Competition Act in 1999 introduced an important shift in the South African competition law framework. After 16 years, many still find the Act technical and difficult to apply.