Interview highlights
Q1: Looking at the various developmental challenges Africa faces, is there a moral obligation for African markets to be competitive?
The speakers generally agree that there is a moral obligation for African markets to be competitive. The reasons provided include:
Importance of the nexus of competition policy and economic development,
barriers to entry and market concentration on the continent,
increased cross border trade that may facilitate cartel behaviour,
industrial policy effectiveness,
support for sustainable economic growth and poverty alleviation,
and the fact that the continent has persistently low levels of competition in line with World Bank reports that “more than 70% of African countries rank in the bottom half of countries, globally, on the, on the perceived intensity of local competition, and on the experience a fundamental for market-based competition.”
Helen Kean Redpath added that the moral obligation should however be balanced with ensuring that the market environment is business friendly. This can be achieved through the removal of impediments to competitors and competition and counter balancing this with other areas of policy that are needed on the African continent. Competition authorities cannot tackle all developmental challenges faced in South Africa since “there are many other reasons why consumers cannot access markets.”
Q2: What does it mean for competition law to ‘embrace the spirit of the constitution’? How would the landmark decision by the Constitutional Court impact merger regulation and competition enforcement in SA? How has the private sector reacted to this jurisprudence?
Neelofah Ally highlighted key legal interpretations of this judgement as follows:
That competition law is to be interpreted and applied with regard to the Constitution.
That all laws in South Africa, which include the Competition Act, should be interpreted and applied with regard to the Constitution.
Merger filings can no longer be limited to narrow competition issues but must include comprehensive detail on all public interest aspects that may be affected by a proposed merger.
The merger brought to the fore the intersection between competition, and constitutional law, and that the Competition Act must be interpreted to promote the Bill of Rights of South Africa.
Going forward merging parties must question whether a merger may implicate any constitutional right, and that market power may now also be subject to constitutional regulation.
Helen Kean Redpath added that this jurisprudence has met some resistance from the private sector, especially merging parties who want certainty in how this would affect mergers outside healthcare markets.
Q3: Has prioritizing market studies made markets in South Africa more transparent? What has the CCSA learnt from this that can be applied in other African competition authorities?
Mapato Ramogkopa explained the approach South Africa has taken in utilizing market inquiries, how remedies in specialty markets such as healthcare have been impacted, how intelligence from market inquiries can be useful for other sectoral regulators and how other African competition authorities’ Competition Acts can impact their use of market inquiries.
Market inquiries have benefitted the South African economy providing a leeway to not only target specific firm conduct with traditional competition enforcement tools, but providing the ability to understand broader issues in strategic sectors.
The private healthcare market inquiry provided a holistic understanding that healthcare markets don’t function as normal markets. This provided the opportunity for innovative remedies beyond the imposition of administrative penalties based on the recommendations of the inquiry.
Other sectoral regulators or sections of government can rely on market inquiry intelligence to craft policies that are responsive to competition.
For African competition authorities, cooperation from industry and broader stakeholder input is vital. This is dependent on the framing of a country’s Competition Act, that ultimately determines the extent of enforceability of recommendations from the market inquiry.
Helen Kean Redpath noted the effect on private sector participants as follows.
The expense involved for the private sector participating in market inquiries for e.g. getting external lawyers to aid cooperation with the inquiry process.
Certainty in terms of policy and the extent of change private companies should expect from an inquiry is vital.
Q4: The envisaged supranational AfCFTA Competition Authority would oversee AfCFTA’s competition protocol in the region. What are your initial reactions to having a supranational competition authority in Africa? What should be the first point of call for this authority?
Speakers generally support having a supranational competition authority favouring the following:
A phased and incremental approach rather than a ‘big bang’ approach. This phased approach should be cognizant of the various developmental levels of competition authorities in Africa and can be coupled with cooperation agreements and proper transitional periods.
Avoidance of governance level conflicts of interest.
Evidence-based and priority led enforcement work.
Competition enforcement that is tied to the objective of integrated trading in Africa.
Helen Kean Redpath suggested the supranational authority can take on a pilot case or cartel to help test the investigative capacity of AfCFTA’s Competition Authority. This can enable incremental improvements upon which the authority can build.
Q5: On women participation in competition, are there things women should be prepared for when coming into this field. What helps you navigate the competition/antitrust terrain?
Speakers expressed a shared passion and sense of purpose that working in the competition space provides, alongside the intellectually stimulating work environment.
They highlight the following for young women looking to navigate the competition space:
Meticulousness, excellence, passion, being a team player,
Making valuable connections is important for navigating the competition space,
Belonging to women networks and initiatives such as Women@Competition (W@),
A strong understanding of economics and law, however asides law and economics, the South African competition terrain now attracts financial analysts and sectoral experts.
Mapato Ramokgopa highlighted that the field of competition/antitrust in South Africa is still male dominated and that a lot more can be done to attract young women into the field through direct recruitment from academic institutions and discussions/dialogues to improve the visibility of women in the competition space.
*The views shared by participants do not reflect the official position of the organizations they are employed by.
Speakers' profiles
Mapato Ramokgopa is currently the Divisional Manager, Market Conduct Division of the Competition Commission. She has been in the field of Competition/Antitrust for 18 years as an investigator, inquiry director and Manager in the Office of the Commissioner of Competition. She is currently undergoing a PhD in Health economics.
Helen Kean Redpath is the Associate Director, Berkeley Research Group (BRG). She is an Economist working in the competition economics space mainly assisting private clients, both local and international, in competition matters, across sectors with previous work experience in corporate finance. She has served as an expert economic witness before the Competition Tribunal of South Africa
Neelofah Ally is currently a Senior Analyst in the Advocacy Division of the Competition Commission of South Africa. She was a member of the Technical Team of the Private Health Market Inquiry. She is a lawyer, with an LLM from the University of Witwatersrand
Oluwatobi Ogundele's economics experience and interests have been in the areas of competition law and policy, health and migration. She has masters degrees in Economics and in International Public Policy with specialization in International Economic Relations and Global Governance.
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