As South Africa commemorates 25 years of the Competition Act, there has been much progress in the competition law landscape and the learnings and insights gleaned from this can be used to support further gains and shape the future.

This was highlighted by speakers during law firm Webber Wentzel’s ‘Celebrating 25 years of the Competition Act’ event, held at the firm’s premises in Johannesburg, on June 11.

Supreme Court of Appeal Judge David Unterhalter, in delivering the keynote address, said there was “much to celebrate” in terms of the Act delivering on its objectives.

He added that the 25-year milestone presented an opportunity to also consider the future and what still needed to be done.

“We’ve developed a competition law, not one of technical, procedural quibbles, or cursory opinions without compelling reasons, and a good deal of this is thanks to the years of service of key members of the [Competition] Tribunal,” he averred.

Successes include the country’s lawyers and economists developing a deep understanding and expertise in competition law, and also finding ways to engage and collaborate on these matters.

Unterhalter also lauded the capacity of the Competition Commission to enforce the law, especially when dealing with firms that had considerable resources to defend themselves in competition cases.

He mentioned the diverse background and skill set of people who built the commission as an institution that enables.

This was engendered through three central attributes – an emphasis on independence, attracting people of commitment and talent and developing the capacity to implement its mandate.

Further, Unterhalter said the Competition Appeals Court demonstrated how seriously the competition authorities take economics, with complex issues in this regard being assessed properly.

“South Africa developed a competition law jurisprudence and an institutional culture that was widely praised,” he said.

The competition law space is, however, not without its challenges and constraints. This includes that the tribunal, outside of its permanent members, could not always secure the additional members required to accommodate its workflow, Unterhalter pointed out.

He added that, currently, there were considerable complexities that embody competition law and confront institutions, and which required consideration and resolution.

These includes complexities around the interim relief jurisdiction of the tribunal, which is compounded by imprecision.

Unterhalter also indicated that market inquiries undertaken by the commission did not appear to have made great progress.

He added that there was broader concern about how the wide-ranging outcomes of market inquiries fitted coherently with sector-specific regulatory interventions arising from other legislation.

He also highlighted the importance of properly navigating the use of public interest in merger control, to balance the need for socioeconomic development against realistic conditions that do not impede investment.

Unterhalter also called for consideration of South Africa’s institutional capacity.

While the country’s lawyers and economists have built up considerable expertise in competition law, as alluded to, he averred that the commission had not been able to attract as many talented people as required, and at the level it was able to before.

Unterhalter also emphasised the need to ensure cases were completed, and decisions rendered with reasonable expectations, given that the number of cases coming to the Appeals Court seemed to be diminishing.

Consideration must also be given to the judges that were available to the Appeals Court, he said, to ensure they had the requisite background or expertise in economics or competition law, as had been the case in the past.

Unterhalter also mentioned that there were global factors to be considered.

He said that currently, competition law globally was faced with firms in leading economies of the world that were hugely dominant combined with technology ascendency, and whether the traditional conceptional framework of competition law would suffice for this, was a work in progress.

This is in a world where open markets are less prized, owing to factors including the pandemic and wars causing more inward focused industrial policies.

This, combined with the need to adapt to climate change, suggests that industrial polices are set for ongoing changes, and that competition law would undergo considerable change as well, he noted.