Electronic Theses and Dissertations (Masters)

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    Competition, Systemic Risk and Financial Inclusion: Assessing the Adequacy of South Africa’s Merger Control Framework for Navigating Policy Frictions Arising in the FinTech Industry
    (University of the Witwatersrand, Johannesburg, 2023) Stathoulis, Maria Olga
    An adequacy assessment is conducted through outlining a proposed FinTech competition policy that serves as a yardstick in relation to which the merger control framework is evaluated. The adequacy assessment is informed by whether the merger control framework, in theory, facilitates the implementation of the proposed policy principles that are calculated to aid competition authorities to balance competition, systemic risk, and data protection concerns in a manner that optimises financial inclusion. This research report proposes that the balancing exercise built into the merger control framework, the substantial public-interest grounds that factor in industry-specific policies, and the socio-economic framework within which the public-interest provisions should be considered, will enable the competition authorities to navigate policy frictions arising in the FinTech industry. However, the Minister of Finance’s power to exclude bank mergers from the purview of the merger control framework and the Prudential Authority’s stability-orientated primary objectives, have the potential to undermine competition in the banking sector. Competence and resource constraints aside, regulatory authorities can only be as effective as their mandate is appropriate. To create an appropriate regulatory architecture and optimal jurisdiction allocation, reform permutations that redefine the relationship between the Banks Act 94 of 1990 and the Competition Act 89 of 1998 are suggested. Merger control is as much of a transaction-specific analysis as it is context specific. Therefore, a FinTech-traditional financial market inquiry is recommended to enable the competition authorities and, more broadly, the Intergovernmental Fintech Working Group members, to understand the current state, and trajectory, of the FinTech industry
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    Algorithmic pricing and its implications on competition law and policy in South Africa
    (University of the Witwatersrand, Johannesburg, 2023) Fowler, Ashly
    The upsurge in the use of technology has proliferated the use of pricing algorithms which have become essential to e-commerce. Although South Africa had been privy to this shift prior to 2020, the onslaught of the Covid-19 pandemic exacerbated this shift. While the use of pricing algorithms in Competition law is accompanied by many pro-competitive benefits, it is also accompanied by various anti-competitive effects which include algorithmic-based collusion. Despite the fact that this topic has been addressed within the context of competition law in other jurisdictions, it has yet to be addressed from the viewpoint of the South African Competition Act 58 of 1998. Accordingly, the aim of this paper is to establish whether the Competition Act and South African competition policy at large, is robust enough to withstand the effects of digitalisation, particularly from the perspective of section 4 of the Competition Act which regulates relationships between competitors. In carrying out this analysis, this paper defines pricing algorithms and outlines their pro-competitive and anti-competitive effects.Thereafter, through the prism of four scenarios where pricing algorithms facilitate collusion, as posited by Ezrachi and Stucke in their seminal work on Virtual Competition, this paper establishes the robustness of the Competition Act by applying the scenarios to the Acts. Ultimately, this paper concludes that the current Competition Act (as amended) is in fact robust enough to tackle situations where algorithmic-based collusion arises. Where it is not, this paper argues that it is, at present, unnecessary for the relevant authorities to amend the current law or introduce any new laws
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    Enhancing access to pharmaceuticals by regulating the anticompetitive effects of patents in South Africa
    (University of the Witwatersrand, Johannesburg, 2022-12) Yako, Loyiso Tandwefika Aduma
    The South African regulatory framework does not adequately address the interface between intellectual property (IP) and competition law thus rendering patents vulnerable to anti-competitive abuse and missing a critical opportunity to facilitate greater access to pharmaceuticals. This paper dissects policy and regulatory inadequacies from three perspectives. Firstly, by highlighting the slow pace in addressing necessary reform. Particularly in the context of global convergence in IP regulation and policy for nations that are party to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Secondly, the disuse of existing regulatory tools and policy instruments. Thirdly, the paper considers the fragmentation and disconnect between the broad set of IP regulators. There is scope to develop fields of work and guiding principles related to the interaction between competition law and intellectual property laws in South Africa to facilitate greater access to pharmaceuticals. To give true meaning to South Africa’s intention to move towards universal healthcare, a collaborative working model between all healthcare, competition and IP regulators to ensure regulatory reform that is fit for purpose and quality universal access to healthcare is required