Electronic Theses and Dissertations (Masters)
Permanent URI for this collectionhttps://hdl.handle.net/10539/37939
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Item Evaluation of competition concerns regarding franchise agreements where franchisors determine prices for franchisees(University of the Witwatersrand, Johannesburg, 2023) Brown, Avigael ChanaThe franchise agreement refers to an agreement between a franchisee and franchisor, where franchisee establishes outlets that operates under the franchisor’s successful name and trademark, for a fee paid to the franchisor. This places the franchisor and franchisee in a vertical relationship. The franchisor exercises a degree of control ov er the franchisee’s business, which may cause competition concerns, particularly if regard is had to section 5 of the Competition Act 89 of 1998 (hereafter ‘Competition Act’). Section 5 prohibits certain vertical practices, which limit or prevent competition between firms. This research report discusses the prohibited vertical practice of resale price maintenance in the franchise context, which occurs if a franchisor imposes prescribed prices or limits discounts to which franchisees must a dhere. There are several reasons why franchisors would want to engage in such conduct. However, the practice is often anti- competitive as it bars franchisees from competing with each other in terms of price. Franchisors may, however, recommend prices to their franchisees, in line with section 5(3) of the Competition Act, and many franchisees may choose to comply with thes e recommendations. Mon itoring franchisors for engaging in resale price maintenance can be difficult, owing to significant pressure faced by many franchisees to comply with recommended prices, resulting in much of the same price throughout a franchise network. If, after in vestigation, the Competition Commission is of the view that a franchisor has breached section 5 of the Competition Act, it may refer the matter to the Competition Tribunal. Among others, this report demonstrates that many resale price maintenance cases within the franchise context have resulted in settlements, rather than proceeding to a hearing before the Tribunal. This often results in the franchisor paying a reduced administrative penalty, leading to dearth of legal precedentItem Is there tension between the enforcement of patent rights and promotion of competition policy in South Africa?(University of the Witwatersrand, Johannesburg, 2023) Sham-Guild, Julia; Marumoagae, ClementThis research report examines the intersection between competition law and patent law. In particular, it examines the abuse of patent rights by dominant players that hinder access to life- changing products. It evaluates the potential tension between protecting patent rights and promoting competition, which raises concerns about equitable access to lifesaving products. Vertical and horizontal prohibited practices, including patent pools, cross-licensing agreements, and pay-for-delay settlements are also discussed, in terms of both encouraging co- operative opportunities benefitting society while also posing the risk of creating platforms for collusion that could lead to price fixing and market allocation for competing patented products. The focus for the South African competition authorities has been on addressing abuse of dominance by patent holders, particularly regarding excessive pricing and equitable access to patented life-saving medicines and vaccines. This research report examines the case law onexcessive pricing and dominant firms' refusal to license patents patented medications, resulting in Competition Commission investigations. This report also addresses equitable access to life- saving medicine, particularly during the COVID-19 pandemic, including South Africa's request to the World Trade Organisation for a TRIPS waiver for patented COVID-19 vaccines. The research report concludes that while there is tension between these areas of law, competition plays a vital role in promoting fair pricing of, and equitable access to, life-saving patents