Jun 01, 2012
SA’s Competition Commission downgraded in global surveyBack
Construction|Africa|Resources|System|Africa|France|Germany|Japan|South Africa|United Kingdom|The Global Competition Review
The survey, which was made public on Friday, tracked the performance of the world’s leading competition authorities.
South Africa’s Competition Commission’s greatest challenges last year came from the checks and balances of the country’s legal system, as a number of re-referrals and a spate of losses at appeal stage raised questions about the quality of its analysis and the scope of its investigative powers.
The commission lost six of seven appeals filed against it during the period. Several of these fell on procedural or technical grounds, as courts blocked the commission’s attempts to amend cases after filing them before the Competition Tribunal.
In the June case involving agri-businesses Senwes, which was accused of anti-competitive conduct, the Supreme Court of Appeal rejected the commission’s attempt to include new allegations of a margin squeeze after the complaint had been filed.
In August, the Competition Appeal Court ruled in favour of fertiliser companies Yara South Africa and Omnia, again refusing the commission’s right to amend the content of its complaint after submission.
The commission was challenging these decisions before the Constitutional Court, fighting for broader interpretation of its investigatory powers. The survey stated that although practitioners sympathised with the commission’s search for clarity, there were fears that a more permissive approach could give the commission excessive powers.
“Some suggest this balance is already beginning to tip in favour of the commission, marked by its increasingly ‘adversarial’ approach to mergers, particularly ones involving foreign entities,” it was said in the document.
Further, the commission was penalised for only blocking two of the 288 mergers filed in 2011. There was, however, a marked increase in the use of remedies, as 28 mergers were cleared with conditions compared to 11 in 2010.
“Although lawyers praise the ‘increased sophistication and complexity’ of merger reviews, they say the authority’s position can sometimes be unpredictable, labelling some of its recent decisions as ‘bizarre’,” the survey stated.
The authority attached extensive employment conditions to both the Walmart/Massmart and Kansai/Freeworld tie-ups, originally requiring Japanese-based Kansai to build a new car paint factory before acquiring Freeworld.
The survey suggested that conditions were becoming increasingly detached from the competition concerns lawyers seek to address, instead fulfilling government objectives linked to job creation and the protection of South African small and medium-sized enterprises.
However, the authority was praised for having 'pockets of excellence’ in its wider staff and general approachability. This was shadowed by leadership gaps in two divisions following the departure of head of mergers Maarten van Hoven and the head of the advocacy division.
The commission still struggled to retain staff, as its average two-year tenure was the shortest in the survey and over two-thirds of its 2011 staff joined that year.
Meanwhile, enforcement activity increased. It levelled a total of almost €50-million in nine cartel cases in key industries.
The survey further stated that there were signs of a “more mature and nuanced” approach to enforcement, with the authority willing to offer significant fine reductions for companies in exchange for compliance with investigations.
The fast-track settlement programme devised to deal with 204 leniency applications relating to a cartel in the construction industry was described as a “pragmatic” response to stretched resources.
The broader leniency programme gained validation in July when a court dismissed a cartelist’s claims that immunity granted to a co-conspirator was unlawful.
But some lawyers argue that leniency success should not distract from the commission’s overall “failure to start cartel investigations from scratch”. There were no dawn raids conducted in 2011, compared to four the previous year.
There remained concerns about the long-term impact of what many perceive to be an increasingly political commission, the survey stated.
Other competition authorities that were downgraded included the UK’s Office of Fair Trading that fell to four stars, following a dismal year for its cartel enforcement programme.
The European Commission’s Directorate General for Competition and the US Department of Justice’s antitrust division retained their five‐star ratings, while Germany’s Federal Cartel Office and France’s Competition Authority joined the elite five‐star competition agencies, motivated by their good performance in all areas of competition enforcement.
Japan’s Fair Trade Commission was also promoted to four‐and‐a‐half stars, in particular for its aggressive and successful cartel enforcement efforts and its good merger control work.
Edited by: Mariaan Webb
Creamer Media Senior Researcher and Deputy Editor Online
To subscribe email firstname.lastname@example.org or click here
To advertise email email@example.com or click here
Recent Research Reports
Automotive 2016: A review of South Africa's automotive sector (PDF Report)
Creamer Media’s Automotive 2016 Report provides an overview of South Africa’s automotive industry over the past 12 months. The report provides insight into local demand and production, vehicle imports and exports, investment and competitiveness in the sector, as well...
Energy Roundup – April 2016 (PDF Report)
The April 2016 roundup covers activities across South Africa for March 2016 and includes details of a North Gauteng High Court Judge’s dismissal of a court application to postpone the 9.4% electricity tariff increase, which the National Energy Regulator of South...
Electricity 2016: A review of South Africa's electricity sector (PDF Report)
Creamer Media’s Electricity 2016 report provides an overview of South Africa’s electricity sector, focusing on State-owned power utility Eskom and independent power producers, electricity planning, transmission, distribution and the theft thereof, besides other issues.
Energy Roundup – March 2016 (PDF Report)
The March 2016 roundup covers activities across South Africa for February 2016 and includes details of the Department of Energy’s plans to announce the preferred bidders for the first tranche of the coal independent power producer procurement programme; the Council...
Steel 2016: A review of South Africa's steel sector (PDF Report)
Creamer Media’s Steel 2016 Report examines South Africa’s steel industry over the past 12 months. The report provides insight into the global steel market and and particularly into South South Africa’s steel sector, including production and consumption, main...
Construction 2016: A review of South Africa's construction industry (PDF Report)
Creamer Media’s Construction 2016 Report examines South Africa’s construction industry over the past 12 months. The report provides insight into the business environment; key participants; local demand; geographic diversification; corporate activity; black economic...
This Week's Magazine
The two spent-fuel pools at Eskom’s 1 800 MW Koeberg nuclear power station, in the Western Cape, will be full by 2018, increasing the urgency on the State-owned utility to begin pursuing alternative storage options. Koeberg has, over the past 32 years, accumulated a...
South Africa lacks the skills necessary to implement the government’s plan to build 9.6 GWe of new nuclear energy capacity, warns nuclear-qualified Quality Strategies International CEO David Crawford. “Apart from the concern about the affordability of the programme,...
Cybersecurity multinational Check Point has released its latest 700-series cybersecurity systems for small businesses, which draw on its international threat intelligence to provide up-to-date cybersecurity, says Check Point South Africa country manager Doros...
Daimler Trucks and Buses Southern Africa (DTBSA) saw a marked slip in new-vehicle sales in 2015 compared with 2014, with sales dropping from 5 897 units to 5 300 units. The decline came as the South African new truck and bus market declined from 31 558 units in 2014...
Group of 20 (G-20) economies threatened to penalise havens that don’t share information on their banking clients after the leak of the Panama Papers provoked a global uproar over tax evasion. The G-20 will consider “defensive measures” against financial centers and...