The role of public interest in merger evaluation in South Africa

Abstract

The South African Competition Act, 89 of 1998 (as amended) is written in a way that explicitly acknowledges the importance of public interest and therefore provides a role for the consideration of factors that go beyond the boundaries of competition. This is initially stated in the preamble and purposes of the Act and then stipulated as a specific consideration in the assessment both of exemptions and mergers. This paper looks at the development of South Africa’s Competition policy, where major focus falls on the public interest objectives explicitly included in the Act and decisions in merger review, where public interest issues have materially impacted decisions by competition authorities. The intention of this paper is to study the role of public interest in merger evaluations and to note how traditional competition goals are reconciled with public interest considerations. The content, purpose and potential effect of the draft Guidelines on the assessment of public interest provisions in merger regulation under the Competition Act No 89 of 1998 (as amended) will be deliberated. In addition, this paper will seek to analyse comparative jurisprudence with reference to two other developing countries in relation to their merger evaluation processes. Lastly, this paper will show the importance of the public interest objectives included in the South African Competition Act to South Africa.