Edited by Albert A. Foer and Jonathan W. Cuneo
Chapter 35: South Africa
Kasturi Moodaliyar1 Introduction Private enforcement in antitrust cases is a rarity in South Africa. The Competition Act,2 which governs the rules and regulations of competition law in South Africa, allows for parties to seek reparation for damage in the civil courts only after the competition authorities (that being the Competition Commission, Competition Tribunal and if there is an appeal, the Competition Appeal Court) have investigated and made a final determination as to whether anti-competitive conduct has taken place. Thus parties seeking damages in antitrust cases have to wait for the outcome of that decision before pursuing redress. Many additional factors work against the private plaintiff. Claiming damages can be an expensive exercise due to the time and costs required. The anti-competitive conduct may have caused the aggrieved party to suffer significant economic loss, thereby limiting the resources available to a claimant to underwrite litigation. Injured parties can seek legal assistance on a contingency basis (although there may not be too many willing litigators). Since the inception of the Competition Act in 1999, there has in fact been just one damages case. In this case, which occurred in 2008, Nationwide Airlines (a company that is currently being liquidated) sued South African Airways (SAA) after the Tribunal had made a finding that SAA had abused its dominant position.3 Nationwide Airlines subsequently settled for an undisclosed amount.4 Since this case, there has not been much development in the area of private enforcement in antitrust cases in South Africa. Instead there have simply...
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