This is an important and timely contribution to the rapidly growing field of competition law in South Africa. While the South African competition authorities have established an enviable local and international profile for their work, there is a need for critical evaluation of the developments in this field since the Competition Act came into force in 1999. This book meets this need.
The Development of Competition Law and Economics in South Africa is an important source for students and practitioners of competition law and economics, as well as for those with an interest in the crucial questions of competition enforcement.
List of tables and figures
Introduction: reflecting on the maturing South African competition law regime
Kasturi Moodaliyar and Simon Roberts
Competition law, economics and policy
1 Public interest provisions in the South African Competition Act: a critical review
James Hodge, Shaista Goga, Tshepiso Moahloli
2 A framework for promoting competition in electronic communications: clarifying the role of the competition authorities and the sector regulator
Kasturi Moodaliyar and Keith Weeks
3 Self-supply and indirect constraints within competition analysis
Robbie Lipschitz, Fatima Fiandeiro, Paul Anderson
4 Geographic market definition in retail mergers where a national pricing policy is applied
Andrew Myburgh, Shannon Knight, Fathima Sheik
5 Vertical arithmetic and its application in vertical mergers
James Hodge, Shaista Goga, Jason Aproskie
6 Do vertical mergers facilitate upstream collusion?
Liberty Mncube, Lindiwe Khumalo and Mfundo Ngobese
Abuse of dominance
7 The South African Airways cases: blazing a trail for Europe to follow?
Helen Jenkins, Gunnar Niels and Robin Noble
8 Policy approaches to margin squeeze in the telecommunications sector in the United States and European Union: as applied in South Africa
Ryan Hawthorne and Kate Morris
9 Price discrimination in input markets: analysing competitive effects following Nationwide Poles
Uğur Akgn, Serge Moresi and Robert Stillman
10 South Africa's corporate leniency policy: a five-year review
11 The wrong side of the tracks: what are the empirical differences between collusion, parallelism and competition?
Patrick D. Smith
12 The role of information exchange in facilitating collusion: insights from selected cases
Reena das Nair and Liberty Mncube
Reena das Nair is a Principal Economist in the Policy and Research division at the Competition Commission, South Africa. Ms das Nair holds a Master of Commerce degree in Economics (University of the Witwatersrand, Johannesburg). Ms das Nair has experience in undertaking economic analysis on mergers, abuse of dominance and cartel cases mainly in intermediate industrial product industries, such as the fertiliser, petrochemicals, and forestry industries. She has been involved in research on prioritisation and impact assessments of the Commissions interventions in intermediate industrial product industries. Ms das Nair is an Associate of University of Johannesburg Centre for Competition Economics, where she supervises students and lectures competition economics at an Honours and Masters level. She undertakes regular capacity building at the Competition Commission, South Africa and has provided capacity building at the Competition Commission of Mauritius.
Mfundo Ngobese holds a BA LLB from University of Natal (Durban) and BA Honours (Economics) from University of South Africa. He was admitted as an attorney in 2004 and has over 9 years of experience in competition law and general litigation. He was admitted as an attorney in 2004 and has over 5 years of experience in competition law (mergers and acquisitions and prohibited practices) and general litigation. Mfundo started as Junior Analyst at the Mergers and Acquisitions Division of the Competition Commission in 2006. When he left the Competition Commission in 2012 to join the Nortons Incorporated he was a Principal Analyst. He has authored and co-authored numerous competition law articles and, presented at various competition and economics conferences some of which have been published by various publications.
Keith Weeks has been active in competition law and regulation since 2000 when he joined the Competition Commission of South Africa as an economist. Since then he has held various roles within the Competition Commission, the private sector, and the communications regulator ICASA. Early in 2008 Keith joined ICASA to run a newly established division responsible for markets and competition. Keith was responsible for a number of market studies and projects around the development of pro-competitive remedies meant to address particular market problems in the telecommunications sector. After two years at ICASA Keith rejoined the Competition Commission mid 2009 to take up the role of head of Enforcement, a position he held until April 2012. He is currently working on a research project in Cape Town examining the causes and consequences of inequality in market economies. Keith has a masters degree in economics (cum laude) from the University of Johannesburg.
Chantal Lavoie is a lawyer in Freshfields Bruckhaus Deringers antitrust, competition and trade group, based in the Brussels office. She was previously special adviser to the deputy commissioner's office at the South African Competition Commission. Chantal has wide-ranging experience as a practising EU competition lawyer having worked in private practice and in-house. She has lectured and published several articles on a range of EU and international competition law topics. Chantal qualified with the Paris Bar and the Quebec Bar and is a member of the Brussels Bar. She obtained her law degree from Laval University in Quebec (Canada) and holds LL.M degrees from Harvard Law School (US) and also from the University of Exeter (UK).
Ryan Hawthorne is an Economist working on regulatory issues and business strategy in the telecommunications sector. Ryan's focus areas include competition / antitrust economics and telecommunications regulation. Prior to his current position at Neotel he was a Senior Economist at the Competition Commission South Africa.
Dr Helen Jenkins has 20 years of professional experience in applying economic principles to issues of strategic importance for businesses, predominantly in the context of litigation and competition investigations. She has broad sectoral experience, including in energy, financial services, retailing, communications, media and pharmaceuticals. Helen has worked with a range of clients on the economic issues that underlie the application of the relevant competition legislation in the UK, Europe, Australia and the Middle East. She is a respected expert, appearing before courts and competition authorities in the USA, UK, Republic of Ireland and other EU Member States, South Africa and Hong Kong. Her recent clients include The Co-operative Group Ltd, Nokia, Thomas Cook, RBS, ITV, EDS and Scottish Power. Helen is a Member of the Steering Committee of the Association of Competition Economics, and teaches on the PG Diploma course in Economics for Competition Law at Kings College London, University of London.
Dr Gunnar Niels leads Oxeras work in competition policy, with 18 years experience in the field covering mergers, agreements, abuse of dominance, damages and state aid. He has advised companies such as Nokia, easyJet, Belgacom, MasterCard and London Stock Exchange, as well as government bodies such as the Portuguese Competition Authority, DG Competition (EU), and OPTA (the Dutch postal and telecoms regulator). Gunnar has acted as expert in court cases across a range of jurisdictions, including the UK, the Netherlands, South Africa and New Zealand. Gunnar is currently a non-governmental adviser (NGA) to the UK for the International Competition Network (ICN) Working Group on Unilateral Conduct. He is on the boards of the Competition Law Journal and Oxford Competition Law, has been guest editor for the Antitrust Bulletin, and has published in many other journals. Before joining Oxera, Gunnar was deputy head of the Economics Directorate at Mexicos Federal Competition Commission. He is listed in The International Whos Who of Competition Lawyers & Economists 2012.
Robin Noble specialises in competition economics and quantifying damages. Recent work in the field has included providing advice on mergers at the European Commission, UK Office of Fair Trading, and the South African Competition Tribunal in sectors such as retailing, wholesaling, water, forestry and mineral extraction. He has also undertaken a wide range of other competition matters, such as advising on the prosecution of South African Airways and British American Tobacco for abuse of dominance, advising Macquarie on market investigations in the ferries markets, and assisting Clover in defending allegations that it engaged in price fixing in the dairy industry. He is listed in The International Whos Who of Competition Lawyers & Economists 2012. He led the Oxera team that worked together with DG Competition to develop a handbook to aid quantification of antitrust damages. He has a wide range of experience in competition law damages matters, working on cases in the UK, the USA, the Netherlands and Germany.
Sha'ista Goga is a Senior Researcher at Section 27 with a focus on policy, competition and regulation within the healthcare sector. She is a Rhodes Scholar with an M.Phil in Economics from the University of Oxford. Prior to joining Section 27 Shaista worked as a competition and regulatory economist at Genesis for over 5 years during which she built up considerable expertise in the field. Shaista has provided regulatory advice to key stakeholders in the healthcare, energy and broadcasting sectors, advised various blue chip clients in merger transactions across a range of industries, and provided analysis and advice on prohibited practices cases appearing before both South African and Indian competition authorities.
Patrick Smith has over ten years' experience in applying economics to competition policy and related fields, prior to which he worked as a chemical engineer. He has advised clients through numerous in-depth merger investigations, including Dow/Rohm & Haas, Thomson/Reuters, Universal/BMG, Inco/Falconbridge, and InBev/Anheuser Busch and has also advised government agencies and third parties in cases including Anglo American/Kumba/Avmin, Pioneer/Pannar and T-Mobile/Orange. Patrick has acted as an expert witness in relation to merger investigations and abuse of dominance inquiries, including excessive pricing, margin squeeze and predation, as well as in the assessment of pricing, profitability and valuation within mediation, dispute resolution, and international arbitration. He often combines his knowledge of chemical processes with economic analyses in sectors such as mining, metals and minerals processing, oil and petrochemicals, and food and beverage processing, although he has advised in fields as diverse as grocery retailing, health care and media.
Liberty Mncube is a Principal Investigator in the Enforcement and Exemptions Division of the Competition Commission South Africa. His responsibilities include conducting and managing investigations related to contraventions of Chapter 2 of the Competition Act and evaluate applications for exemptions from Chapter 2 of the Act. Liberty was previously a Principal Economist in the Policy and Research Division. Prior to joining the Commission, he was a Researcher at the Development Policy Research Unit at the University of Cape Town. Liberty holds an MSc in Economics from the University of York (UK) and has various publications on competition policy in local and international journals including the Journal of Competition Law and Economics and South African Journal of Economic and Management Sciences.
Jason Aproskie is currently an economist in the Competition and Regulatory Economics practice of Genesis Analytics. He joined Genesis in 2007 from Kaiser Associates Economic Development Practice, a consultancy focusing on economic development. He holds a Masters in Economics from the University of Cape Town. Since joining Genesis, Jason has been involved in enquiries into anti-competitive behaviour as well as merger transactions. In particular, he has advised some of the largest firms in South Africa and been involved in a number of key prohibited practice cases. Furthermore, Jason has played a key role in landmark abuse cases in India, where new competition legislation has recently been introduced. His experience in the competition and regulations fields covers a number of sectors including agriculture, telecommunications, broadcasting, energy and fast moving consumer goods.
Kate Morris is Chief of Staff at the African Leadership Academy in San Francisco, USA. Born and raised in Durban, Kate studied Economics and Sociology at the University of Cape Town, where she went on to complete an Economics Masters degree. Kate joined the Policy and Research division of the Competition Commission, working on mergers and enforcement cases, with a focus on the Health, Telecommunications and Chemicals sectors, as well as undertaking market research and contributing to the Commissions array of internal policy briefs and external publications. Kate completed a Masters in Public Administration at Columbia University in New York City, before joining the African leadership Foundation, where she provides high-level support on human capital management, organizational system and structure development, and donor cultivation and maintenance.
Fatima Fiandeiro is an accomplished Competition Economist with experience across sectors as diverse as financial services, industrial products, agriculture, broadcasting and consumer goods. Fatima has a deep expertise in the technically complex financial sector with clients such as the Johannesburg Stock Exchange and Zurich Insurance. Her technical skills in economic modeling have found application in such diverse areas as airline liberalisation, digital migration of broadcasting and damages claims.
Paul Anderson is a senior manager at Genesis Analytics and holds a Masters degree in Economics from the University of Cape Town. His expertise spans most sectors of the economy and he has advised clients on the full spectrum of prohibited practices and merger concerns in competition law. On the regulatory front, Paul has played a pivotal role in landmark healthcare regulation cases, advised the President's office regarding a regulatory framework for South Africa and advised one of South Africa's largest financial institutions in the banking market enquiry. Paul has also taken the lead in providing compliance advice and analysis to leading SA industrial companies in evaluating risks associated with possible exclusionary practices and joint processing/production activities. Paul has also provided economic analysis for numerous commercial litigation matters appearing before the Gambling Board as well as the High Court.
Andrew Myburgh is an economist with extensive experience in competition economics, private sector development and infrastructure investment. He is currently a manager at a boutique consulting firm in Washington D.C, Castalia, where he works on a range of international development projects. Prior to this, Andrew worked in the Competition and Regulatory Economics practice at Genesis Analytics in South Africa. Andrew holds a Masters degree in Public Administration in International Development from Harvard's Kennedy School and a Masters degree in economics from the University of Cape Town.
Fathima Sheik is a Senior Associate in the Competition and Regulatory Economics Practice of Genesis-Analytics. As an economist in the practice, she has worked on a number of competition and regulatory matters in South Africa and has developed a broad range of experience in providing economic analysis and advice in this context. In the competition arena, she has focused on abuse of dominance and merger cases. A few of her key cases include economic advice to the Competition Commission in respect of SAVAs 2004 complaints against Telkom, economic advice to Standard Bank related to the banking enquiry and the successful acquisition of Verizon by MTN. On the regulatory side, Fathima has also contributed technical economic input into various regulatory analyses in the telecommunications, broadcasting, healthcare and air transport industries. In particular, she played a key role in designing a regulatory framework for economic regulation of industries in South Africa for the Office of the Presidency.
Shannon Knight holds a Masters in Economics from the University of Cape Town and was a senior associate in the Competition and Regulatory Economics practice of Genesis-Analytics (Pty.) Ltd until October 2011. During her time at Genesis, she acquired a wide range of experience across industries and encompassing diverse aspects of the Competition Act and the regulatory and damages fields. She has been involved in a number of merger and prohibited practices cases, as well as competition compliance work, a damages claim in the mobile telephony services industry and regulatory work in the healthcare sector. Prior to joining Genesis in 2007, she was at FNB where she was a senior strategy analyst in the Segment Growth Strategies division. She was also previously employed by the Competition Commission in their Policy and Research Division. She is now focussed on being a full time mother to her two sons Owen and Sean.
Lindiwe Khumalo is a Principal Analyst in the Mergers & Acquisitions division at the Competition Commission of South Africa. She holds a Masters Degree in Economic Policy from Stellenbosch University. She has attended courses on Competition Law from the International Competition Network (ICN), Cambridge University and Wits School of Law on merger regulation and prohibited practises. Previously lectured undergraduates in Micro and Macro Economics at Unisa and Rhodes University
Tshepiso Moahloli is a Deputy Director: Foreign Debt Management in Asset and Liability Management Division within the National Treasury. Previously she was an analyst in the Competition and Regulatory practice at Genesis Analytics. She holds a Master of Economic Science (with Distinction) and a Bachelor of Economic Science with Honours from the University of the Witwatersrand.
James Hodge is the managing partner of the Competition and Regulatory Economics Practice at Genesis Analytics. He has a Masters degree in economics from the University of Cape Town and held a senior lecturer position in the School of Economics at the University of Cape Town before joining Genesis in 2005. During his tenure at the University, he conducted extensive research in the competition and regulation fields and was convenor of postgraduate economic studies. Since joining Genesis, James has earned a reputation as one of the most respected economists in the competition law field in South Africa. Under his guidance, Genesis has become the most experienced group of competition economists in South Africa, being involved in more cases than any other economics firm. James has provided expert testimony before the Competition Tribunal in many of the landmark cases for South African precedent, including both mergers and prohibited practices complaints. He has assisted numerous companies when engaging with the Competition Commission, and through providing advice on the design of compliant business practices which address business objectives. James clients include blue-chip South African and international firms as well as the Competition Commission itself, and his experience covers most sectors including communications, mining, consumer goods, healthcare, agriculture, financial services and industrial goods. James is widely published in refereed journals and is the author of several chapters in books, many conference papers (international and local) and a variety of articles in other publications. He has been the guest editor and an external reviewer for the Africa edition of the Telecommunications Policy journal, and is an external examiner at the University of the Witwatersrand.
Dr Bob Stillman specialises in the analysis of competition issues and in the quantification of damages in commercial litigation. Based in London and Brussels, Bob has worked on some of the European Commission's leading Article 102 cases (Microsoft and Qualcomm) as well as various mergers and cartel investigations. He has supervised the economic analysis for clients involved in market investigations before the U.K. Competition Commission. He also works regularly in South Africa, where he has participated in numerous merger proceedings and other matters involving the South African Competition Commission and Tribunal.
Robert Lipschitz is an competition and regulation economist that works in association with Genesis Analytics. His experience spans a wide range of industries and is one of the countrys foremost experts in the telecommunications industry and its regulation. Robert has advised regulators, including the Competition Commission and the Independent Communications Authority of South Africa, as well as companies in key competition cases including MTN, SAB and Sasol. His competition work has also involved advising clients on complex prohibited practice issues in South Africa, including vertical competition concerns. Robert has also lectured in regulatory economics at the Link Centre at Wits. He holds masters degree in economics from the University of London, a honours degree in economics and a bachelors degree in philosophy and economics from the University of Cape Town.
Dr Simon Roberts joined the Competition Commission of South Africa in November 2006 as Chief Economist and Manager of the Policy & Research Division, and also acted as Manager of the Enforcement & Exemptions Division from 1 November 2008 to 30 April 2009. Prior to this he was Associate Professor in Economics at the University of the Witwatersrand, where he established and directed the Corporate Strategy and Industrial Development research programme examining firm decision-making and economic outcomes. In addition, Simon has consulted widely on competition matters over the past 15 years and has
been an expert witness in a number of major cases. Simon holds a PhD from University of London (Birkbeck College), MA from University of East Anglia, and BA(Hons) from Oxford University. He has published widely including in the Journal of Competition Law and Economics, Industrial and Corporate Change, Journal of African Economies, Development and Change, Journal of International Development, and the South African Journal of Economics.
Kasturi Moodaliyar holds the position of the Senior Lecturer in Competition Law at the University of Witwatersrand School of Law. Prior to her joining the Law School in February 2005 she worked as an enforcement and exemptions investigator and there after a merger analyst at the Competition Commission in Pretoria. Kasturi graduated from the University of Natal with B.Proc.LLB and LLM degrees. She was admitted as an Attorney of the High Court of South Africa in 2000. Kasturi was awarded the Nelson Mandela Magdalene scholarship to read for her M.Phil degree in criminological research at Cambridge University in 2001. In 2004 she completed the Programme in Economics and Public Finance at Unisa. She is currently reading for her PhD in Competition Law. She is also the coordinating editor for the Butterworths Competition Law Reports and has been a guest editor on the South African Journal of Economics and Management Sciences. She has published both nationally and internationally in the field of competition law. Kasturi joined the Film and Publication Board as an Appeal Tribunal Member late 2011. She is also an adjudicating member of ICASA's Complaints and Compliance Commission.