The implications of South Africa’s COVID-19 excessive pricing jurisprudence for post-COVID-19 competition law: a comparative perspective

Huang, Jenny
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When COVID-19 broke out in South Africa in 2020, the President declared a state of national disaster which was followed by the enactment of emergency regulations to prevent business from charging excessive prices. Excessive pricing is a form of abuse of dominance prohibited by section 8 of the Competition Act 89 of 1998 (Act). In 2018, section 8 of the Act was amended, but it was only during the course of the COVID-19 pandemic that the new section 8 was first subjected to judicial scrutiny. This resulted in the cases brought before the Competition Tribunal (Tribunal) and Competition Appeal Court (CAC) being dealt with in a manner which differed significantly from decisions reached on excessive pricing prior to the 2018 amendment. Of specific importance is the manner in which markets were constructed. The approach adopted by both the Tribunal and the CAC differed significantly from how both fora typically constructed markets in abuse of dominance cases in the past. In light hereof, the purpose of this research report is broadly twofold: (i) to analyse the amended excessive pricing section of the Act with a view to understanding what, if anything, the COVID-19 jurisprudence may imply for the future of excessive pricing cases in South Africa; and (ii) to examine the South African approach to approaches adopted in other jurisdictions. The report is structured as follows. After the introduction, Part II sets out the legislative regime applicable to excessive pricing. In Part III, the COVID-19 excessive pricing case law is examined, with Part IV examining how similar matters have been dealt with in foreign jurisdictions. Before concluding in Part VI, Part V provides a commentary addressing the analytical questions implied by the two broad purposes stated above, and contemplates possible alternative approaches to disposing of excessive pricing cases.
A research report submitted in partial fulfilment of the requirements for the degree of Master of Laws by Coursework and Research Report to the Faculty of Commerce, Law and Management, School of Law, at the University of the Witwatersrand, Johannesburg, 2022