Competition law & policy

Here you'll find some arguments on competition law (antitrust) issues that were prepared either as public lectures or as written submissions when appearing as amicus curiae ('friend of the court') in the Competition Appeal Court of South Africa (the CAC). Some of the reasoning has a bearing on work in progress.


Here too is a link to the report of the 2006-2008 inquiry into competition in retail banking in South Africa carried out under the Competition Act 89 of 1998. I was a member of the four-person panel which conducted the 'Banking Enquiry' assisted by a technical team.  The 588-page Report to the Competition Commissioner by the Enquiry Panel was delivered on 9 June 2008. The link takes you to the Competition Commission’s website page which provides the report as published, with confidential information redacted.


 

A vertical merger case - September 2002

The intended merger between Mondi Limited and Kohler Cores and Tubes (a division of Kohler Packaging Limited) was prohibited by the Competition Tribunal (Case No. 06/LM/Jan02). The merging parties appealed to the CAC. At the request of the Court, a colleague and I appeared as amici curiae. These are the submissions we made. They form part of the public record of the case. The decision of the Tribunal was upheld. The submissions address some issues of continuing importance in regard to the analysis of vertical mergers in less developed countries such as South Africa. The judgment of the CAC (Case No. 20/CAC/Jun02) is reported as Mondi Ltd and Kohler Cores and Tubes (a division of Kohler Packaging Ltd) v Competition Tribunal [2003] 1 CPLR 25 (CAC).

Four lectures on ‘prohibited price discrimination’ - February 2006

Title: ‘Prohibited price discrimination’ after the CAC decision in the Sasol / Nationwide Poles case

These lectures were delivered initially to the staff of the Competition Commission in Pretoria, then at the University of the Witwatersrand in Johannesburg, at the University of Cape Town, and to the Law Society in Cape Town.

The Court later corrected its approach on the critical issue addressed in the fourth lecture, on which the outcome of the Nationwide Poles case had turned. See Medicross Healthcare and another v Competition Commission Case No. 55/CAC/Sep05 [2006] 1 CPLR 1 (CAC) at par 25.

What is an ‘excessive price’? - October 2008

In March 2007 the Competition Tribunal upheld a complaint of ‘excessive pricing’ against Mittal Steel South Africa Ltd (subsequently ArcelorMittal South Africa Ltd) — Case No. 13/CR/Feb04. An administrative penalty of R691.8m was imposed. The matter was taken on appeal to the CAC (Case No. 70/CAC/Apr07), where it was heard on 23 October 2008. Judgment was eventually given on 29 May 2009, overturning the Tribunal’s decision on the complaint and remitting the case for further deliberation. Oddly enough, the CAC’s judgment was not reported. The dispute was ultimately settled between the parties.

Two colleagues and I had been asked by the CAC to make submissions as amici curiae on an aspect of the case — namely, how to interpret and apply section 8(a) of the Competition Act which prohibits a dominant firm from charging an ‘excessive price’, defined as a price for a good or service which is higher than, and bears ‘no reasonable relation’ to, the ‘economic value’ of that good or service. Here are the written submissions that we made. They form part of the public record of the case. In its judgment, the CAC generally adopted the approach outlined.