Keep up to date on the most important competition law developments across Africa for the third quarter of 2021.
Podcast: Important competition law developments in Nigeria
Mmadika Moloi and Shawn van Meulen, partners in Webber Wentzel's competition law practice, recently hosted a podcast on important competition law developments in Nigeria. In a two-part podcast series, Shawn and Mmadika discuss key developments with Florence Abebe, Assistant Chief Legal Officer at the Federal Competition and Consumer Protection Commission (FCCPC) and Ayodeji Oyetunde, Partner at Aluko & Oyebode. Part 1 focuses on
merger control, while Part 2 looks at non-merger related competition law developments and trade issues.
Some insights shared during the podcast include:
- Whether public interest is likely to become a key focus area for the FCCPC
- How the FCCPC is finding a balance between encouraging foreign investment and regulating competition
- Whether proactive engagement with the FCCPC is encouraged during the early stages of a transaction
- The impact of the African Continental Free Trade Area on competition law in Africa
- Key competition law compliance considerations for clients doing business in Nigeria.
Agribusiness, food & beverage: updates & developments
- South Africa: The Competition Tribunal (Tribunal) conditionally approved DH Brothers Industries (Pty) Ltd's and Seaboard Corporation's acquisition of RussellStone Protein (Pty) Ltd. The parties have activities in the agricultural sector. Earlier this year, the Competition Commission (Commission) prohibited the merger due to concerns that the merger would create structural links between competitors. The Tribunal approved the merger subject to, among other things, confidentiality and information exchange conditions.
- South Africa: In September 2021, the Commission released its latest
Essential Food Pricing Monitoring Report. These reports focus on tracking the impact of the Covid-19 pandemic and the corresponding economic crisis on food markets. The latest report indicates a decrease in the number of farmers and an increase in concentration across the value chain. The report also considers the implications of the Commission's findings on small-scale farming and participation in South African agricultural markets.
- South Africa: The Commission extended the conditional exemption granted to the South African Sugar Association (SASA) and its members (the Applicants) until 30 June 2023. The exemption covers, among other things, the Applicants sharing competitively-sensitive information and restraining producer price increases of sugar. The Commission found that the exemption may contribute to the economic stability of the sugar industry and can be used as an instrument for transformation.
- South Africa: The Tribunal confirmed a settlement agreement between the Commission, ETG Agro Products (Pty) Ltd and Rand Agri (Pty) Ltd (the Parties). The Parties admitted to entering into a merger transaction without notifying the Commission and have agreed to pay an administrative penalty of ZAR1 million.
- Zimbabwe: The Competition and Tariff Commission (CTC) fined Dairibord Zimbabwe (Private) Ltd (DZL) ZWL$144,192.62 (approximately ZAR6,600) for consummating a merger without the CTC's approval. The merger involved the acquisition of shares in Tavistock Estate by DZL. Dairibord Holdings is a dairy products manufacturing and marketing company, and Tavistock Estates is a dairy producer. (Source:
Betweenity App)
Healthcare: Updates and developments
- Mauritius: The Mauritian Competition Commission (MCC) has determined that two agreements between members of the Association of Private Health Plans and Administrators (APHPA) pertaining to medical insurances and medical schemes are in breach of the Competition Act 2007. The MCC's investigation, among other things, revealed that members of the APHPA had colluded on certain costs. The MCC has imposed financial penalties on certain parties totalling Rs11.3 million (approximately ZAR4 million).
- South Africa: The Tribunal conditionally approved Dis-Chem Pharmacies Ltd's (Dis-Chem) acquisition of Pure Pharmacy Holdings (Pty) Ltd. The merger was approved subject to several conditions. Dis-Chem undertook (for five years from the merger implementation date) to inform the Commission of any “small merger” in terms of which it may acquire control over another entity in the pharmaceutical market. Dis-Chem also committed to maintain and, if possible, improve its current level of local procurement, including from Small, Medium and Micro Enterprises (SMMEs) and Historically Disadvantaged Persons (HDPs), and to provide up to 150 learnership opportunities to qualifying pharmacists’ assistants.
Industrials: Contractors Plant Hire Association referred to the Tribunal
- South Africa: The Commission has referred the Contractors Plant Hire Association (CPHA) together with 22 of its members to the Tribunal. Following an investigation, the Commission found that members of the CPHA agreed to fix the minimum hourly and daily rate charged for the rental of their machinery and plant equipment and/or fixed trading conditions relating to the renting of their machinery and plant equipment.
Oil and gas: Gas suppliers fined for price fixing
Kenya: The Competition Authority of Kenya (CAK) imposed a fine of approximately KS400,000 (approximately ZAR53,000) on market players, acting through the Energy Dealers Association, who colluded to fix the minimum price of liquefied petroleum gas cylinders. The fine was equivalent to 5% of the relevant turnover of the parties involved. It has been reported that, even though there was no evidence that the proposals were implemented, the intention of the parties involved was contrary to the provisions of the Kenyan Competition Act that prohibit price-fixing.
Regulatory: updates & developments
- Angola: The Competition Regulatory Authority has published a gazetted English translation of Competition Law No.5 of 2018. (Source:
Betweenity App)
- COMESA: On 6 September 2021, the COMESA Competition Commission (CCC) issued its first fine for failure to notify a transaction to the CCC within the prescribed time period under Article 24 (1) of the COMESA Competition Regulations of 2004. The fine was imposed in relation to the proposed acquisition by Helios Towers Ltd of the shares of Madagascar Towers S.A. and Malawi Towers Ltd (the Parties). The Committee Responsible for Initial Determinations imposed a fine of 0.05% of the Parties' combined turnover in the Common Market in the 2020 financial year.
- COMESA: The CCC recently held meetings with various stakeholders from several of its Member States, including the Prime Minister and Minister for Economy in the Democratic Republic of Congo, the Ministry of Trade (to discuss the operationalisation of competition law) in Djibouti, the Minister of Trade, Transport, Industry and Tourism in Burundi, officials from the Ministries of Economy and Justice and Federation of Comoros Consumers in Comoros, and the Egyptian Competition Commission. The CCC also held a National Awareness Workshop on Consumer Protection Law and Enforcement in Burundi. (Source:
Betweenity App)
- COMESA: The CCC has elected Commissioner Ellen Ruparanganda as its Chairperson and Commissioner and Brian Lingela as its Vice Chairperson. Commissioner Ruparanganda is currently the Director of the CTC in Zimbabwe, and Commissioner Brian Lingela is currently the Director responsible for Restrictive Business Practices at the Competition and Consumer Protection Commission of Zambia.
- Mozambique: Ministerial Decree No. 77/2021, dated 16 August 2021 (the Decree), amends the merger filing fees applicable in Mozambique. Until this amendment, widespread concern was expressed about the exorbitantly high filing fee of 5% of the merger parties' turnover. The Decree now provides that the applicable filing fee is 0.11% of the turnover in the year before filing, with a maximum limit of 2.25 million meticals (approximately ZAR 527,000).
- Nigeria: The FCCPC has launched its merger portal (accessible
here). Mergers can be submitted directly via this portal and merger parties are able to calculate the applicable merger fees in advance and request a pre-notification consultation. During a virtual launch, the FCCPC confirmed that no other aspects of the merger notification process or forms had changed, and that the platform is protected with encryption software.
- Nigeria: On 2 August 2021, Merger Review (Amended) Regulations 2021 (the new Filing Fee Regulations) were published. The applicable fees for the merger filing will be a sum of either (i) the relevant percentages relating to the transaction consideration or (ii) the relevant percentages in respect of the parties' prior-year Nigerian turnover, whichever is higher. The new fees are set out in the table below.
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Fees (consideration of transaction)
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Fees (last combined annual turnover)
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- First N500 million (approximately ZAR18 million)
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- South Africa: The Commission's 15th Annual Competition, Law, Economics and Policy Conference is taking place between 20 and 22 October 2021. The theme for this year's conference is
"Economic Recovery and Reconstruction – the Role of Competition Policy". The registration link is available
here.
- UNCTAD: During a recent training programme on the African Continental Free Trade Areas (AfCFTA), the United Nations Conference on Trade and Development (UNCTAD) indicated that it will continue to support AfCFTA negotiations on Competition Protocol. It was highlighted during the training that the AfCFTA's Competition Protocol will support trade and other policies by eliminating private restrictions to intra-African trade.
Retail: updates & developments
- Kenya: The CAK issued an advisory note cautioning professional associations not to set minimum prices. The CAK noted that various professional associations have been seeking to set minimum chargeable prices/fees for their members.
- South Africa: The Commission conditionally approved Clicks Retailers (Pty) Ltd's (Clicks) acquisition of 25 retail pharmacies from Pick n Pay Retailers (Pty) Ltd (the Target Business). The merger was approved subject to several conditions, including that the Clicks Group notify the Commission of all future acquisitions of retail pharmacies (including those not requiring mandatory notification), and that in the Pick n Pay stores where the Clicks Group will operate the Target Business, Clicks Group is not restricted from competing with Pick n Pay in the sale of over the counter products.
Telecommunications, media and technology: Updates & developments
- South Africa: The Commission published its schedule for the online intermediation platform market inquiry (OIPMI) public hearings. The focus of the OIPMI is on whether there are any digital platform market features which may impede, distort or restrict competition amongst the platforms themselves, and which undermine the purposes of the Competition Act. The hearings will take place from 2 – 19 November and will run from 10:00 – 13:00 and 14:00 – 17:00 daily. There are also two evening sessions which will run from 17:30 to 20:30. Participants are able to link to the Inquiry Panel via MS Teams and the feed will be broadcast on the Commission's YouTube channel and Facebook. The schedule is available
here.
- South Africa: The Commission conditionally approved Volaris Group Inc's (Volaris) acquisition of Adapt IT Holdings Ltd (Adapt IT). Volaris and its affiliates provide, among other things, vertical market software services and Adapt IT provides specialised software and digital solutions. The Commission found that there would be a dilution in ownership by HDPs at Adapt IT and imposed certain conditions to address this concern. The merger parties agreed to maintain a certain level of HDP ownership post-merger as well as establish a Trust to hold shares in Adapt IT on behalf of workers.
Transport: Tourvest fined ZAR9 million for collusive tendering
South Africa: The Tribunal imposed a fine of approximately ZAR9 million on Tourvest Holdings (Pty) Ltd (Tourvest). The Tribunal found that Tourvest and Siyazisiza Trust (the Trust) had engaged in collusive tendering in relation to an Airports Company South Africa tender for arts, crafts and curio retail leasing opportunities at OR Tambo International Airport in Johannesburg. The Tribunal decided not to impose any administrative penalty on the Trust.
Insights
