**The Competition Commission: Key to Fairness in Markets**
Competition policy aims to ensure that markets are competitive, open and free from excessive corporate power. This is a topic that has generated much controversy and debate, and rightly so.
A recent article in the Sunday Times, however, goes well beyond fair public comment and presents an unbalanced and unfair view of the Competition Commission and Commissioner Doris Tshepe, based on anonymous sources.
Due to limited space, we will attempt to set the record straight.
The Commission is accused of failing to fulfil its mandate, with the implication of neglect and underperformance.
This allegation is surprising, given the Commission’s strong record, including over the last two years. Three examples illustrate this.
In 2023, the Commission initiated a complaint against Johnson & Johnson over its monopoly drug for the treatment of multidrug-resistant tuberculosis, a disease prevalent in South Africa. J&J extended its patent in South Africa and globally, and raised the price with the Department of Health. Following this investigation, J&J announced that it would not enforce its secondary patent in South Africa and 133 other low- and middle-income countries, opening the market to generic entry. J&J also agreed to a price reduction of approximately 40% in South Africa, resulting in significant savings for the tax authorities.
In July 2023, the Commission conducted its first investigation into digital platforms under the amendments to the Competition Act. Small township distributors provided evidence of their exclusion from markets. The inquiry put in place measures to promote inclusion and participation in the digital economy by new players and historically disadvantaged individuals. Google agreed to modify its search page to promote South African platforms. Booking.Com agreed to end broad and narrow price parity for South African properties, a step forward achieved only in Germany and France. The value of these measures to consumers and small businesses is estimated at R1.1 billion, providing a significant lifeline to many businesses that were constrained by unfair trading practices.
Since September 2022, the commission has finalised more than 560 mergers, including several complex mergers. The commission recommended prohibiting three mergers, all of which were accepted by the Competition Tribunal. The terms of the mergers provided R2.2 billion in support for businesses owned by historically disadvantaged individuals. Assets worth R37 billion have been allocated to workers, through employee-shareholder commitments made by companies, in accordance with the law. Approximately 11 000 jobs have been saved.
The Commission has referred more than six cases concerning abuse of dominance to the tribunal in key sectors of the economy. The Commission’s performance has been consistent, regularly exceeding 80% of its targets. It closed the 2023-24 financial year at 93% of its target and is at 87% for the first two quarters of the 2024-25 financial year.
These successes are the result of a professional, highly motivated and skilled staff, who deal with some of the most complex parts of our legislation, and often in disputes where opponents of the Commission’s decisions have substantial resources at their disposal. The characterisation of low staff morale is clearly at odds with the facts. The achievements are achieved under tight fiscal conditions where the Commission is constantly considering where to allocate its resources, generating debate, as one would expect in an organisation.
The article repeats allegations already raised some 10 months ago concerning internal personnel matters, which the Commission fully responded to at the time.
As in any large institution, there can be a diversity of opinion and the Commissioner encourages debate and the expression of views as this enhances the quality of the final decisions taken by the body. This is very different from the picture that has been painted, and in fact the Commission prides itself on the space it provides for deep thought and lively discussion.
In an attempt to substantiate its claims, the article states that it is relying on a copy of a letter addressed to the former Minister for Trade, Industry and Competition by unidentified Commission employees concerning the Commissioner’s behaviour. This includes issues relating to international travel.
These allegations were dealt with at the time to the satisfaction of the former Minister, Ebrahim Patel.
It is worth noting, however, that the Commission deals with an area of work with significant international dimensions. First, many aspects of the Commission’s work concern the conduct of companies or the transactions of global firms (such as mergers and cartel investigations) and have cross-border implications. Competition authorities around the world share information on how to deal with such conduct in markets. Second, competition policy is influenced by global developments and thinking.. One example is the focus on digital markets, where authorities are comparing practices to regulate this ever-changing sector.
In conclusion, it is essential to recognise the crucial role played by the Competition Commission in preserving fair competition in markets, as well as its notable achievements in promoting equal economic opportunities and consumer protection. The challenges faced by the Commission should not overshadow its successes and relevance in a constantly changing global economic environment.