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number of businesses make up the majority or bulk sales in a particular market
sector and which then tends to create and maintain barriers to entry for new
and emerging businesses.

The draft Bill aims to critically consider the root causes giving rise to concentration
in a given market, considering the conduct of businesses as well as the
ownership profiles and structural framework of the market. The daft Bill also aims
to grant competition law authorities increased power to launch market inquiries
into ‘concentrated’ sectors.
Although, the Act already contains provisions relating to the abuse of dominance
or collusion and which may be employed to address anti-competitive conduct, Commercial
the structural components and features that gave rise to such dominance are
not adequately addressed under the existing provisions of the Act. Accordingly,
the draft Bill now requires that competition authorities consider both the
ownership profile, as well as structural impediments to market entry when
assessing mergers or complaints of anti-competitive conduct (including high
levels of concentration and hampered economic transformation).

The proposed amendments further empower the competition authorities
to impose tailored structural remedies in concentrated sectors and address
features which prevent or restrict competition in a given market. Moreover,
proposed amendments determine that the Competition Commission’s findings
(including remedial actions) following a market enquiry will be binding
unless they are challenged in the Competition Tribunal, a material departure
from the current situation, where the Competition Commission merely makes
recommendations.

Whilst tackling economic concentration, the draft Bill seeks to question and
alter the racially-skewed spread of ownership in the South African economy in
relation to historically disadvantaged groups and/or individuals.

The above-mentioned primary objections of the draft Bill are accompanied by
the following five priority areas:

1. Strengthening provisions of the Act relating to merger regulation and
prohibited practices, particularly relating to abuse of dominance and
price discrimination.
2. Requiring that special attention to be given to the impact of
anti-competitive conduct on small businesses and firms owned by
historically disadvantaged persons.
3. Strengthening the provisions relating to market inquiries in order to ensure
that their remedial actions effectively address market features and conduct
that will or may prevent, restrict or distort competition in relevant markets.
4. Promoting the alignment of competition-related processes and decisions
with other public policies, programmes and interests.
5. Enhancing the administrative efficacy of the competition regulatory
authorities and their processes.

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