Chapter 3: Pigeon-holed by precedent: form versus substance in the application of South African competition law
South Africa’s competition law regime was launched in 1998, with the passing of the Competition Act, No. 89 of 1998. The Competition Act established three institutions, each independent of the executive and of one another: the Competition Commission, which investigates and prosecutes anti-competitive conduct; the Competition Tribunal, an administrative decision-making body, composed of lay persons with expertise in the field; and the Competition Appeal Court, a special division of the High Court dedicated to hearing appeals from the Tribunal. From the very first, South Africa’s competition authorities have enjoyed consider- able political backing, as the ANC-led government recognised com- petition law and policy as instruments for remedying the oppressive distortions of the apartheid economy. Competition law and policy were introduced not simply to pursue the traditional functions of promoting market efficiency and consumer welfare. In addition, they were viewed as a means of remedying the excessive concentration of economic power in the hands of the state and a whites-only elite; promoting the participation in the economy of small and medium-sized enterprises, especially if owned by historically-disadvantaged persons; promoting employment; and dissolving state-owned monopolies and market oligopolies. The government reaffirmed its commitment to using competition law and policy to advance public interest objectives, with the release of its new macro-economic strategy framework, The New Growth Path, in November 2010. The strategy framework places the creation of decent and sustainable employment, and the promotion of a more inclusive economy, at the front and centre of the country’s economic agenda.
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