Jurisdictional and policy issues in South Africa, including a focus on digital markets

Abstract

The modern South African merger regime has been in operation since 1999. The Competition Act 89 of 1998 (Competition Act) established three agencies to administer the Competition Act namely the Competition Commission of South Africa (CCSA), the Competition Tribunal of South Africa (CTSA) and the Competition Appeal Court (CAC). The CCSA receives small, intermediate and large merger applications and assesses these transactions in terms of the Competition Act. The CCSA is authorised, by the Competition Act, to decide the outcome of small and intermediate mergers while it is required to recommend the outcome of large mergers to the CTSA. The CTSA serves as a court of first instance in respect of large mergers while the CAC serves as an appeal body. Substantively the CCSA’s assessment of mergers and acquisitions follows international trends. However South Africa’s merger regulation regime differs from most jurisdictions in that the Competition Act requires the CCSA and CTSA to consider the impact of mergers and acquisitions on the public interest. This is a stand-alone assessment which applies regardless of the competition issues presented by the merger. The CCSA is increasing its focus on digital markets, having assessed a number of transactions in the digital economy.