Deloitte Legal – Representing Tomorrow

The Competition Lawyer

In this edition of the Competition Lawyer we will look at various ongoing competition matters both locally and globally. We, at Deloitte Legal, strive to be at the forefront of Competition Law in South Africa by providing up to date and innovative solutions to our clients’ Competition Law issues as well as keeping them abreast of developments as and when they occur.

Key takeaways:

  • South Africa published its public interest guidelines for mergers during 2016, seeking to create a degree of certainty for investors and allow merging parties to consider these issues proactively as opposed to being subject to an unexpected or unnecessary condition being imposed on the merger. In South Africa the most important of the public interest issues is that of employment, with its protection being of utmost importance. Fellow African jurisdictions such as Botswana, Kenya and Tanzania have followed suit by focusing on employment, with other African jurisdictions choosing to focus on local procurement. With this in mind, it is expected that more and more African jurisdictions will publish their own public interest guidelines in the near future.
  • On 19 December 2016 the Competition Appeal Court handed down judgement in a matter involved bicycle wholesalers Omnico and Cool Heat Agencies, confirming its zero-tolerance approach to cartel conduct. The Competition Appeal Court confirmed that there is a duty to speak out and publicly distance oneself from collusive conduct, and that attending a meeting for the purposes of receiving “gossip” will not stand as a valid excuse for such a firm to avoid liability under the Act.
  • On 23 March 2017 the Commission conducted dawn raids on nine fresh produce dealers in Johannesburg and Tshwane (later extended to premises in Cape Town and Durban), due to reports of cartel conduct by the Department of Agriculture, Forestry and Fisheries alleging that such conduct could limit the development of black farmers and raise prices in the food sector. According to the Commission, South Africa’s largest fresh produce market agencies, which serve as intermediaries between farmers and buyers of freshly produced fruits and vegetables in South Africa, were suspected of slashing prices to undercut market entrants, most notably developing black farmers, before raising prices when smaller companies run out of stock and using identity to discriminate on price.

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