Keep up to date on the most important competition law developments across Africa for the second quarter of 2021.
Informa Competition Law Africa Conference
Webber Wentzel recently participated in Informa Connect's Competition Law Africa conference. The conference was the first of its kind and brought together regulators, businesses, practitioners, academics and other stakeholders from across the continent. The conference highlighted the integral role competition law plays in the day-to-day operations of businesses and its growing prominence in Africa. Shawn van Meulen, a partner in our competition law team moderated a session on public interest and other non-traditional competition law considerations.
Agribusiness, food & beverage: updates & developments
- South Africa: The Competition Commission (Commission) recommended to the Competition Tribunal (Tribunal) that DH Brothers Industries (Pty) Ltd (DH Brothers) and Seaboard Corporation's (Seaboard) proposed acquisition of RussellStone Protein (Pty) Ltd (RussellStone), be prohibited. DH Brothers is controlled by Willowton Group (Pty) Ltd (Willowton Group). The Commission concluded that the proposed transaction creates a structural link between Seaboard and the Willowton Group which could potentially be used to exchange competitively-sensitive information about their activities in the soybean markets. The Commission also noted that any increase in the price of soybeans was likely to lead to an increase in the price of chicken feed, which would be passed onto South African consumers through higher chicken prices.
- South Africa: The Tribunal conditionally approved Trade Retail HoldCo and AgriFin HoldCo's acquisition of control over the trade retail, fuel and financial services businesses of BKB Ltd (BKB) and VKB Landbou (Pty) Ltd. The merger parties have committed, among other things, to implement a transformation initiative. This involves a commitment by BKB to restructure BKB Fuel Retail SubCo, so that no less than 25% of its shares are held by one or more historically disadvantaged individuals (HDI) shareholders.
- South Africa: The Constitutional Court (CC) granted the Commission leave to appeal the Competition Appeal Court's decision involving Beefcor (Pty) Ltd. The CC had to decide whether the Commission could reinstate a withdrawn complaint. The CC held that the proper meaning of section 67(2) of the Competition Act is that a withdrawn complaint does not constitute “completed proceedings". The CC interpreted the words “completed proceedings" to mean finalised proceedings, in that the Tribunal has disposed of the issues relating to the merits of the complaint.
Construction: updates & developments
- Kenya: The Competition Authority of Kenya (CAK) and three companies have entered into a settlement agreement, after the CAK's investigations found that the companies engaged in collusive tendering. In terms of the settlement agreement, the companies were fined in the region of ZAR19,000 – ZAR27,000. The tenders related to the procurement of concrete and wooden electricity poles. (Source:
Betweenity App)
- Zambia: The Competition and Consumer Protection Commission (CCPC) fined Lafarge Zambia Plc and Mpande Limestone Ltd 10% of their annual turnover for engaging in price fixing and market division. Dangote Cement Zambia Ltd was granted full leniency for co-operating with the CCPC. The CCPC Board ordered the three companies to revert to pre-cartel prices and to submit monthly average ex-works prices and price adjustments to the CCPC for review. The companies have launched an appeal against the decision to the Competition and Consumer Protection Tribunal.
Healthcare: SA Commission and Council for Medical Schemes conclude MOU
South Africa: The Commission entered into a
Memorandum of Understanding with the Council for Medical Schemes (CMS). The objectives of the MOU, among other things, are to effectively co-ordinate the exercise of concurrent jurisdiction and to provide mutual support on key recommendations of the Health Market Inquiry.
Oil and gas: Sasol / Air Liquide merger approved subject to extensive conditions
South Africa: The Tribunal conditionally approved Air Liquide Large Industries South Africa (Pty) Ltd's (ALLISA) acquisition of 16 air separation units (ASUs) owned and operated by Sasol South Africa Ltd. The conditions relate to B-BBEE, employment, availability of spare liquid oxygen for the healthcare sector, preferential procurement, and supplier development. The merger parties committed, among other things, to reduce the carbon emissions associated with the ASUs within 10 years of the merger implementation, and to establish a programme worth approximately ZAR100 million to support and develop opportunities for SMMEs and HDP firms in ALLISA's value chain.
Regulatory: updates & developments
- East African Community - It has been reported that the East African Community Competition (Amendment) Bill 2020 has been passed by the East African Legislative Assembly.
- Malawi: The Commission De La Concurrence of the Democratic Republic of Congo (COMCO), DRC's Competition Commission, visited the Competition and Fair Trading Commission (CFTC) in April 2021. The purpose of the visit was for the COMCO to understand how competition law is enforced in Malawi and to create a relationship between the institutions.
- Seychelles: The cabinet of ministers has approved the consolidated Fair Trading Bill (Bill). The Bill is intended to consolidate the law on fair trading, competition, and consumer protection. It will also create a new tribunal to adjudicate all consumer and competition matters. The Bill will be presented to the National Assembly for approval.
- South Africa: The Tribunal published its updated handbook on case law. The
Tribunal Case Law Handbook 2021 is an update of the first edition, which was published in July 2020, and covers new topics such as cases dealing with Covid-19 and the Tribunal's jurisdiction over foreign entities.
- South Africa: The Commission issued a Call for Papers for its 15th Annual Competition, Law, Economics and Policy Conference (taking place in October 2021) on the topic
"Economic Recovery and Reconstruction – the Role of Competition Policy". The deadline for submission of full papers is 3 September 2021.
- South Africa: In May 2021, the Department of Trade, Industry and Competition (DTIC) released a
competition policy for jobs and industrial development (Competition Policy). The Competition Policy forms part of efforts by the DTIC to speed up South Africa's economic recovery and sets out how this can be achieved through competition regulation.
Retail: updates & developments
- Eswatini: The Eswatini Competition Commission launched an investigation into the price increase imposed by Dups Funeral Home and Cremation (Pty) Ltd (DUPS), known as a "Covid-19" fee, after DUPS advertised that it would be charging an additional fee for all Covid-19 related deaths.
- Kenya: The CAK published a
Retail Code of Practice (Code). The purpose of the Code is to streamline the commercial relationship between suppliers and retailers in the retail industry and includes provisions relating to payments and marketing costs. The Code is binding on all buyers and suppliers in the retail industry.
- South Africa: The Tribunal confirmed a consent agreement between Pick n Pay Retailers (Pty) Ltd (Pick n Pay) and the Commission, in terms of which supermarkets that are privately owned and controlled by HDPs can immediately access letting space in all shopping centres where a Pick n Pay store has exclusivity provisions in its lease agreement.
- South Africa: The Tribunal confirmed a settlement agreement between Shashe Trading (Pty) Ltd (Shashe) and Devenco 44 (Pty) Ltd (Devenco) and the Commission. Shashe and Devenco admitted to implementing a merger transaction in respect of the Mopani SuperSpar supermarket business without notifying the Commission. The parties have agreed to pay an administrative penalty of ZAR350,000.
Transport: updates & developments
- Botswana – The Competition and Consumer Authority (CCA) entered into a settlement agreement with Gaborone Container Terminal (Pty) Ltd (GABCON). The CCA had alleged that GABCON abused its dominance through a refusal to deal and excessive pricing behaviour. While the matter was before the Competition and Consumer Authority Tribunal for adjudication, the settlement agreement was concluded in terms of which GABCON admitted to abusing its dominance and made several commitments to address its conduct.
- South Africa: The Tribunal conditionally approved NMI Durban South Motors (Pty) Ltd's (NMI) acquisition of the Barloworld Motor Retail Business, as conducted by Barloworld South Africa (Pty) Ltd (Barloworld SA) and other members of the Barloworld Group (the target firm). The merger was approved subject to several public interest conditions, including a commitment that the merged entity must develop its own supplier development programme which will replace the target firm's participation in Barloworld's Supplier Development Programme.
- South Africa: The Guidelines for Competition in the South African Automotive Aftermarket came into effect on 1 July 2021. The purpose of the Guidelines is to provide practical guidance for the automotive aftermarkets industry to promote inclusion and encourage competition through greater participation of small businesses, as well as historically disadvantaged groups.
Insights
