Sophie Smart (2025)
Competition Law (CML4602S) notes and case summaries
The purpose of this course is, primarily through the key provisions of the
Competition Act 89 of 1998, to examine the major mischiefs which require
legal intervention being:
1) Horizontal prohibited practices (cartels)
2) Vertical prohibited practices
3) Abuse of dominance
4) Mergers
Prescribed Readings
General:
• Competition Act 89 of 1998
• Kelly et al ‘Principles of Competition Law in South Africa’ (2016)
1. Intro:
• Background Handout for materials on economics and purpose of
competition law.
• History of the Competition Act David Lewis Thieves at the Dinner Table
(2012)
2. The jurisdictional question:
• Scope of national competition law Competition Commission v Bank of
America and others 2020 (CAC), and also see the USA cases cited
therein.
• What is meant by section 3(1) ANSAC v Competition Commission 2003
(CAC)
3. Horizontal practices (cartels):
• Section 4 of Competition Act
• Netstar (Pty) Ltd and others v Competition Commission of South Africa
2011 (CAC)
• Videx Products (Pty) Ltd v Competition Commission 2014 (CAC)
4. Vertical Practices:
• Section 5 of Competition Act
• Competition Commission v SA Breweries Limited 2015 (CAC)
5. Abuse of dominance:
• Sections 7, 8 and 9 of Competition Act
• Section 8(a) (excessive pricing) Mittal Steel SA Ltd v Harmony Gold
2009 (CAC)
• Sections 8(c) and (d) South African Airways (Pty) Ltd v Comair &
another 2012 (CAC); Computicket (Pty) v Competition Commission of
South Africa 2019 (CAC)
• Section 9 (and amendment to s 9) Sasol Oil (Pty) Ltd v Nationwide
Poles 2005 (CAC)
6. Mergers:
• Sections 12 and 12A of Competition Act
• Minister of Economic Development v Walmart 2012 (CC)
1
, Sophie Smart (2025)
Competition Law (CML4602S) notes and case summaries
• Competition Commission of South Africa v Mediclinic 2022 (CC)
• Coca Cola v Competition Commission 2024 (CC)
7. Competition law and the digital economy
INTRODUCTION / OVERVIEW
COMPETITION LAW IN GENERAL
Competition law is premised on the acceptance of the underlying economic
theory that, in free market economies, competition between firms yields
efficiencies & improves consumer welfare. However, markets fail when pure
self-interest prevails to the extent that economic power is subverted to the
advantage of the few and at the expense of the many. A classic example is
Microsoft v Commission of the European Communities (2007), where
Microsoft abused its dominant position in the PC operating system market by
refusing to provide interoperability information to competitors and by bunding
its Windows Media Player with its Windows operating system, thereby
preventing potential competitors from entering the market. Therefore,
although the market is the optimum mechanism for allocating & distributing
resources, competition laws are necessary to prevent monopolies from
distorting supply & demand and ensure that no single firm can set prices
independently of the market.
The need for legal intervention arises when markets fail (due to monopolies,
externalities or under-supply of essentials), or social objectives (such as
equality or affordability) outweigh pure efficiency. Competition policy refers
to the manner in which governments & competition authorities adopt measures
to promote & protect competition. Competition law is an expression of
competition policy choices – it is the legislature’s efforts best to effect
competition policy by prohibiting certain conduct that is deemed to be harmful
to competition, and equipping competition authorities with the necessary
jurisdiction & powers to enforce competition policy through the law.
The Competition Act 89 of 1998 (‘the Act’) prohibited various practices,
such as restrictive horizontal practices (s 4), restrictive vertical practices (s 5),
and abuses of a dominant position (ss 6-9). Ito the Act, these prohibited
practices were to be investigated by the newly established Competition
Commission (s 19), an independent & impartial (s 20(1)) body which has the
responsibility to, inter alia, investigate & evaluate alleged prohibited practices
(s 21) and refer matters to & appear before the Competition Tribunal (s 36), a
2
, Sophie Smart (2025)
Competition Law (CML4602S) notes and case summaries
tribunal of record with jurisdiction throughout the RSA. It is submitted that the
nature of the legislation is distinctly socio-economic. As such, the remedies at
the disposal of the competition authorities should be viewed in the same light,
and accordingly be seen to be used to provide equitable relief rather than to
punish transgressors of the Act.
ORIGINS OF SOUTH AFRICAN COMPETITION LAW
• Antitrust laws are the broad group of state & federal laws that are
designed to make sure businesses are competing fairly.
- Canada was the first country to introduce competition law legislation.
- America was second introduced ‘Antitrust legislation’ to ensure that
SMME had a fair chance (Antitrust competition laws try to democratize
the economy).
• Competition law emerged in SA in response to the policy question of how to
redistribute wealth that was almost entirely held in by the minority white
population.
In the advent of the democratic era, the concentration of ownership of
private wealth represented a ripple effect of the dispossession, inequality
and ‘unfairness’ that characterised apartheid.
In terms of its central policy document, the Freedom Charter (1955), the
ANC’s economic policy was to nationalize key industries However, this
would fail as a solution, because it was a global economy and SA was
bankrupt from the international sanctions (if they nationalized key
industries, they would lose foreign investment).
• Thus, in order to address the concentration of wealth held by the minority
white population due to an inherently racist history, the 1998 Act was
adopted.
o It is apparent from the Preamble and section 2 (the purpose clause) that
it had a democratic objective. In addition, section 12A (mergers)
requires the Commission or Tribunal to consider various public interest
concerns set out therein.
INTERPRETING THE COMPETITION ACT 89 OF 1998
In the new democratic era, the concentration of ownership of private wealth
represented of the dispossession, inequality and ‘unfairness’ that characterised
apartheid. Competition law emerged in SA in response to this. Section 2 (the
purposes clause) read together with the Preamble makes it apparent that the
Act had a democratic objective. This is further reinforced by section 12A,
which requires the competition authorities to consider certain public interest
concerns in reviewing a proposed merger. It is submitted that the nature of
the legislation is distinctly socio-economic. As such, the remedies at the
disposal of the competition authorities should be viewed in the same light, and
3
, Sophie Smart (2025)
Competition Law (CML4602S) notes and case summaries
accordingly be seen to be used to provide equitable relief rather than to punish
transgressors of the Act.
Preamble – The enactment of the Competition Act was premised on the goal
of curbing excessive economic power concentrated in the hands of the minority
white population.
Section 2 (purposes clause) – The Act is not only concerned with judicial
competition matters but also concerned about questions of dealing with small
firms subjected to economic powers of large firms.
Section 1(2) – Dictates that the Act must be interpreted in a manner that is
consistent with the Constitution and gives effect to the purposes set out in
section 2, and in compliance with the international law obligations of the
Republic.
Minister of Economic Development v Walmart 2012 (CAC)
» This case highlighted the South African competition authorities’ focus on
public interest issues – particularly employment & the empowerment of local
businesses – in merger reviews. The conditions set by the CAC were
designed to protect jobs & stimulate local economic transformation in line
with the objectives of the Act.
Competition Commission v Mediclinic 2022 (CC)
» In accordance with section 1(2) of the Act, this case emphasised that
competition law must be interpreted & applied with regard to the
Constitution and in a manner that gives effect to the purposes of the Act.
» This case involved a proposed merger in the healthcare sector, with the
central question being whether it would increase healthcare prices. The
landmark decision of the CC held that, inter alia, the CAC had failed to give
proper effect to the purpose of s 2(b) of the Act and promote the S, P + O of
s 27 (the right to access to healthcare) of the Constitution.
Coca Cola v Competition Commission 2024 (CC)
» This case determined the correct approach for reviewing a proposed merger
transaction with regard to the public interest considerations and the test for
causation.
» The decision brings into focus the debate around the correct interpretation
to be applied to the public interest provisions of the Act, and whether the
approach of the Commission has the beneficial outcomes it claims in all
circumstances.
COMPETITION THEORY
4
Competition Law (CML4602S) notes and case summaries
The purpose of this course is, primarily through the key provisions of the
Competition Act 89 of 1998, to examine the major mischiefs which require
legal intervention being:
1) Horizontal prohibited practices (cartels)
2) Vertical prohibited practices
3) Abuse of dominance
4) Mergers
Prescribed Readings
General:
• Competition Act 89 of 1998
• Kelly et al ‘Principles of Competition Law in South Africa’ (2016)
1. Intro:
• Background Handout for materials on economics and purpose of
competition law.
• History of the Competition Act David Lewis Thieves at the Dinner Table
(2012)
2. The jurisdictional question:
• Scope of national competition law Competition Commission v Bank of
America and others 2020 (CAC), and also see the USA cases cited
therein.
• What is meant by section 3(1) ANSAC v Competition Commission 2003
(CAC)
3. Horizontal practices (cartels):
• Section 4 of Competition Act
• Netstar (Pty) Ltd and others v Competition Commission of South Africa
2011 (CAC)
• Videx Products (Pty) Ltd v Competition Commission 2014 (CAC)
4. Vertical Practices:
• Section 5 of Competition Act
• Competition Commission v SA Breweries Limited 2015 (CAC)
5. Abuse of dominance:
• Sections 7, 8 and 9 of Competition Act
• Section 8(a) (excessive pricing) Mittal Steel SA Ltd v Harmony Gold
2009 (CAC)
• Sections 8(c) and (d) South African Airways (Pty) Ltd v Comair &
another 2012 (CAC); Computicket (Pty) v Competition Commission of
South Africa 2019 (CAC)
• Section 9 (and amendment to s 9) Sasol Oil (Pty) Ltd v Nationwide
Poles 2005 (CAC)
6. Mergers:
• Sections 12 and 12A of Competition Act
• Minister of Economic Development v Walmart 2012 (CC)
1
, Sophie Smart (2025)
Competition Law (CML4602S) notes and case summaries
• Competition Commission of South Africa v Mediclinic 2022 (CC)
• Coca Cola v Competition Commission 2024 (CC)
7. Competition law and the digital economy
INTRODUCTION / OVERVIEW
COMPETITION LAW IN GENERAL
Competition law is premised on the acceptance of the underlying economic
theory that, in free market economies, competition between firms yields
efficiencies & improves consumer welfare. However, markets fail when pure
self-interest prevails to the extent that economic power is subverted to the
advantage of the few and at the expense of the many. A classic example is
Microsoft v Commission of the European Communities (2007), where
Microsoft abused its dominant position in the PC operating system market by
refusing to provide interoperability information to competitors and by bunding
its Windows Media Player with its Windows operating system, thereby
preventing potential competitors from entering the market. Therefore,
although the market is the optimum mechanism for allocating & distributing
resources, competition laws are necessary to prevent monopolies from
distorting supply & demand and ensure that no single firm can set prices
independently of the market.
The need for legal intervention arises when markets fail (due to monopolies,
externalities or under-supply of essentials), or social objectives (such as
equality or affordability) outweigh pure efficiency. Competition policy refers
to the manner in which governments & competition authorities adopt measures
to promote & protect competition. Competition law is an expression of
competition policy choices – it is the legislature’s efforts best to effect
competition policy by prohibiting certain conduct that is deemed to be harmful
to competition, and equipping competition authorities with the necessary
jurisdiction & powers to enforce competition policy through the law.
The Competition Act 89 of 1998 (‘the Act’) prohibited various practices,
such as restrictive horizontal practices (s 4), restrictive vertical practices (s 5),
and abuses of a dominant position (ss 6-9). Ito the Act, these prohibited
practices were to be investigated by the newly established Competition
Commission (s 19), an independent & impartial (s 20(1)) body which has the
responsibility to, inter alia, investigate & evaluate alleged prohibited practices
(s 21) and refer matters to & appear before the Competition Tribunal (s 36), a
2
, Sophie Smart (2025)
Competition Law (CML4602S) notes and case summaries
tribunal of record with jurisdiction throughout the RSA. It is submitted that the
nature of the legislation is distinctly socio-economic. As such, the remedies at
the disposal of the competition authorities should be viewed in the same light,
and accordingly be seen to be used to provide equitable relief rather than to
punish transgressors of the Act.
ORIGINS OF SOUTH AFRICAN COMPETITION LAW
• Antitrust laws are the broad group of state & federal laws that are
designed to make sure businesses are competing fairly.
- Canada was the first country to introduce competition law legislation.
- America was second introduced ‘Antitrust legislation’ to ensure that
SMME had a fair chance (Antitrust competition laws try to democratize
the economy).
• Competition law emerged in SA in response to the policy question of how to
redistribute wealth that was almost entirely held in by the minority white
population.
In the advent of the democratic era, the concentration of ownership of
private wealth represented a ripple effect of the dispossession, inequality
and ‘unfairness’ that characterised apartheid.
In terms of its central policy document, the Freedom Charter (1955), the
ANC’s economic policy was to nationalize key industries However, this
would fail as a solution, because it was a global economy and SA was
bankrupt from the international sanctions (if they nationalized key
industries, they would lose foreign investment).
• Thus, in order to address the concentration of wealth held by the minority
white population due to an inherently racist history, the 1998 Act was
adopted.
o It is apparent from the Preamble and section 2 (the purpose clause) that
it had a democratic objective. In addition, section 12A (mergers)
requires the Commission or Tribunal to consider various public interest
concerns set out therein.
INTERPRETING THE COMPETITION ACT 89 OF 1998
In the new democratic era, the concentration of ownership of private wealth
represented of the dispossession, inequality and ‘unfairness’ that characterised
apartheid. Competition law emerged in SA in response to this. Section 2 (the
purposes clause) read together with the Preamble makes it apparent that the
Act had a democratic objective. This is further reinforced by section 12A,
which requires the competition authorities to consider certain public interest
concerns in reviewing a proposed merger. It is submitted that the nature of
the legislation is distinctly socio-economic. As such, the remedies at the
disposal of the competition authorities should be viewed in the same light, and
3
, Sophie Smart (2025)
Competition Law (CML4602S) notes and case summaries
accordingly be seen to be used to provide equitable relief rather than to punish
transgressors of the Act.
Preamble – The enactment of the Competition Act was premised on the goal
of curbing excessive economic power concentrated in the hands of the minority
white population.
Section 2 (purposes clause) – The Act is not only concerned with judicial
competition matters but also concerned about questions of dealing with small
firms subjected to economic powers of large firms.
Section 1(2) – Dictates that the Act must be interpreted in a manner that is
consistent with the Constitution and gives effect to the purposes set out in
section 2, and in compliance with the international law obligations of the
Republic.
Minister of Economic Development v Walmart 2012 (CAC)
» This case highlighted the South African competition authorities’ focus on
public interest issues – particularly employment & the empowerment of local
businesses – in merger reviews. The conditions set by the CAC were
designed to protect jobs & stimulate local economic transformation in line
with the objectives of the Act.
Competition Commission v Mediclinic 2022 (CC)
» In accordance with section 1(2) of the Act, this case emphasised that
competition law must be interpreted & applied with regard to the
Constitution and in a manner that gives effect to the purposes of the Act.
» This case involved a proposed merger in the healthcare sector, with the
central question being whether it would increase healthcare prices. The
landmark decision of the CC held that, inter alia, the CAC had failed to give
proper effect to the purpose of s 2(b) of the Act and promote the S, P + O of
s 27 (the right to access to healthcare) of the Constitution.
Coca Cola v Competition Commission 2024 (CC)
» This case determined the correct approach for reviewing a proposed merger
transaction with regard to the public interest considerations and the test for
causation.
» The decision brings into focus the debate around the correct interpretation
to be applied to the public interest provisions of the Act, and whether the
approach of the Commission has the beneficial outcomes it claims in all
circumstances.
COMPETITION THEORY
4
