Public versus private enforcement of South African competition law

Abstract

This dissertation will discuss the current process and procedure of enforcement of competition law in South Africa. A distinction will be drawn between public enforcement and private enforcement. This distinction will show which is the more predominant enforcement method. For this purpose, a detailed discussion of the provisions in the Competition Act 89 of 1998 will follow. The focus of the dissertation will thereafter shift to whether private enforcement is reasonably possible and pursuable by members of the public in terms of South African legislation. The rational for focusing on private enforcement will become clear through a discussion of Nationwide Airlines (Pty) Ltd (in liquidation) v South African Airways (Pty) Ltd 2016 (6) SA 19 (GJ). By 2016, this case was only the second claim of its kind and the first time a claim for damages based on a finding by the Tribunal had been litigated. The discussion will articulate the process of how the matter reached the High Court and the difficulties encountered in claiming damages. Thereafter, a brief discussion on comparative law will be included. The chosen foreign law is that of the European Union (“EU”). EU law was chosen as its competition law is well established and has been in practice for longer than the South African equivalent. Emphasis will be placed on the EU’s use of private enforcement and any lessons to be learnt in relation thereto. Finally, a conclusion will be reached on whether private enforcement is reasonably possible and pursuable by a member of the public and whether there are any recommendations on how private enforcement could be strengthened in South African law.