Proposed changes to the Competition Act place the independence of competition authorities at risk, and some of the proposed provisions may even be susceptible to constitutional challenges. A Moneyweb report notes lawyers and economists, including the former Competition Tribunal head David Lewis, have expressed concerns about the legal and commercial implications of the expanded powers given to the Competition Commission and the Minister of Economic Development in the Competition Amendment Bill.

The Bill was published in December and the time for public comments in the first round ended on 31 January, despite requests for an extension in the light of sweeping changes.

Major concerns relate to expanded merger control provisions, public interest provisions to address ownership and control, additional powers in market inquiries and new ways to establish pricing abuses.

Competition law expert Jerome Wilson SC said the ‘public interest ambitions’ of Minister of Economic Development, Ebrahim Patel, and the commission have increased dramatically over the years. The pressure to get a merger approved by the commission requires a significant amount of compromise to reach an agreement, he said at a seminar hosted by law firm Webber Wentzel. Many of the conditions imposed on the merging parties may have nothing at all to do with the competitive and true public interest consequences of the merger. ‘It is rather a desire to improve the lot of other players in the market and to use the excuse of a merger to try and cut deals which would otherwise not have been available in the market.’ Competition lawyer Phumlani Ngcongo said the Minister’s participation in market inquiries may be open for constitutional scrutiny. In terms of the Bill the Minister will have the power to require instead of merely requesting the institution of a market inquiry by the commission.

Full Moneyweb report

Draft Competition Amendment Bill (X-2017), plus call for comments