Browsing by Author "Pillay, Ian"

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    The legal position of excessive pricing in south africa pre, during and post the Covid-19 pandemic
    (University of the Witwatersrand, Johannesburg, 2023-02) Pillay, Ian
    The Competition Amendment Act 18 of 2018 (the Amendment Act) and the COVID-19 pandemic each had a significant impact on the legal position of excessive pricing in South Africa. Prior to the Amendment Act excessive pricing was prohibited in terms of the Competition Act 89 of 1998. However, the Amendment Act introduced a reverse onus requiring a dominant firm to refute the prima facie case against it by showing that prices charged are reasonable. It also introduced a broader and more discretionary benchmark in determining whether prices are excessive. The disruption of the competition conditions caused by the COVID-19 pandemic resulted in a different assessment in establishing market power in excessive pricing cases. Coincidentally, the first excessive pricing cases to be adjudicated under the Amendment Act occurred during the COVID-19 pandemic. The overlapping of these two events resulted in an important distinction between excessive pricing cases under conditions of normal and effective competition, versus excessive pricing cases under conditions of the COVID-19 pandemic. Therefore, it became clear that context is relevant when interpreting the excessive pricing provisions of the Amendment Act. The aim of this research report is two-fold. First it aims to identify the legal position of excessive pricing in South Africa pre, during and post the COVID-19 pandemic. By doing so the report explains how the legal position of excessive pricing has changed. The report also highlights the difference between excessive pricing under normal and effective competition conditions, verses excessive pricing under conditions of the COVID-19 pandemic. Secondly it aims to determine whether the Amendment Act, particularly sections 8(2) and (3), adequately address the shortfalls in excessive pricing. Section 8(2) requires a prima facie case to be proved and introduces a reverse onus, and section 8(3) introduces a broader benchmark in determining whether prices are excessive.