When an allegation is made against a firm that it has engaged in conduct that is detrimental to
consumers and competition as a whole within the particular market, it will first need to be
established whether or not that firm can be said to be dominant in the market. Only a firm that is
dominant within the market can act to an appreciable extent independently of its competitors
and consumers. However, how is dominance established, especially within the American,
European and South African markets?
In order to answer this question, this dissertation will first seek to define the terms of
dominance and market power in the context of the above markets. This enquiry will also
focus on how the concepts of dominance and market power are related to each other. After
these concepts have been defined and expanded, the process of establishing dominance in the
United States, European Union and South Africa will be explored. The means of establishing
market laid down in each market will then be critically compared with one another and the
specific advantages and disadvantages of each will be expanded upon.
South Africa is unique due to the fact that the establishment of dominance has been codified in
the Competition Act and is dependent on the possession of certain prescribed market shares.
The aim of this paper will be to determine whether the establishment of dominance can simply
be linked to the possession and maintenance of large market shares or, does an accurate
inquiry into dominance require taking into account a variety of factors, such as the barriers to
entry or expansion the countervailing power of consumers.
Once the deficiencies of the approach laid down by the Act have been established, and the
specific goals which the Act seeks to achieve have been highlighted, a new alternative
approach for the establishment of dominance will be proposed. This will be a less structured
approach taking into account a variety of factors relevant to the case at hand. In this way the
process of establishing dominance will be done on a case by case basis which will hopefully
lead to more accurate determinations of dominance.
Mini Dissertation (LLM)--University of Pretoria, 2016.