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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    Condonation of non-compliance under section 67(1) of the competition act 89 of 1998
    (University of the Witwatersrand, Johannesburg, 2023) Humphreys, Russell
    The Competition Commission has long sought to extend its powers to investigate and refer complaints to the Competition Tribunal for prosecution. Prior to the decision of the Constitutional Court in the case of the Competition Commission of South Africa v Pickfords Removals SA (Pty) Limited 2021 (3) SA 1 (CC) (the ‘Pickfords’ case), the power of the Commission to initiate investigations and therefore refer matters to the Competition Tribunal was limited by section 67(1) of the Act. Those accused of breaching the Competition Act 89 of 1998 have, in their defence, relied on the limitations of section 49B of the Competition Act - the procedure for initiating a complaint and section 67(1) which provides for a time limitation on initiating/referring a complaint to the Competition Tribunal. The Constitutional Court in the Pickfords case considered whether in light of section 34 of the Constitution, section 67(1) of the Competition Act should be interpreted as an absolute bar (a prescriptive provision) or procedural time bar (capable of condonation). Section 67(1) was, however, amended in 2018 to limit the referral of a compliant to the Tribunal to no more than three years after the practice ceased. This paper considers the statutory limitations on the Commission to initiate and refer complaints to the Competition Tribunal in terms of sections 49B, 50, 67(1) and section 58(1)(c)(ii) and to examine how these limitations have been by interpreted by our courts