Podcast: Important Competition Developments in South Africa - Forecasts for 2022 - with Judge Dennis Davis

​​Daryl Dingley, head of Webber Wentzel's Competition team, hosted the Honourable Judge Dennis Davis to discuss recent competition law developments in South Africa for the latest podcast in the Webber Wentzel Legal Insights series. Judge Davis is uniquely placed to speak to these developments as the former Judge President of the Competition Appeal Court (CAC) and given his involvement in drafting the Constitution and the Competition Act.

The recent Burger King and Mediclinic merger decisions of the Competition Tribunal (the Tribunal) and the Constitutional Court indicate an evolution in South African merger control. A greater emphasis is placed on (i) promoting a greater spread of ownership amongst historically disadvantaged persons (HDPs) and workers; and (ii) the role of the Constitution in merger control (and competition law more generally).

The Burger King decision was discussed during the podcast. In this instance, the Competition Commission (the Commission) decided to prohibit an American private equity fund from acquiring Burger King South Africa RF Pty Ltd and Grand Foods Meat Play Pty Ltd from Grand Parade Investments Ltd (GPI). The Commission's reason for the prohibition was that the shareholding of HDPs in GPI would fall from over 68% to 0%. This was the first time that a merger was prohibited on public interest grounds alone in South Africa, even though the acquiring party's strategy was one of expansion resulting in employment growth.

Daryl and Judge Davis discussed how the Burger King decision indicates that industrial policy has become embedded in competition law policy, vexing the previously essential requirement that merger control be merger specific. This has led to merger conditions becoming increasingly onerous, limiting the level of certainty that practitioners can provide to their clients.

More recently, the Constitutional Court handed down judgment in an appeal against an order of the CAC which conditionally approved a merger between Mediclinic Southern Africa (Pty) Ltd and Matlosana Medical Health Services (Pty) Ltd, following a decision by the Tribunal to prohibit the merger. This decision was also discussed in further detail during the podcast.

While Judge Davis agrees that an interpretation of the Competition Act should promote the spirit, purport, and objects of the Bill of Rights, he stressed that "the Constitution can't just be invoked as a vibe" and that a merger specific inquiry should be applied. Judge Davis was also concerned that the Mediclinic judgment eviscerates the supervisory role of the CAC, which is designed as an expert court, and that the Constitutional Court judgment appears to hold that the CAC can only alter a decision of the Tribunal if the Tribunal has made an egregious mistake or misdirection and, in doing so, has essentially rendered the role of the CAC to a review court.

The Mediclinic judgment is a seminal moment in South African competition law and Daryl and Judge Davis anticipate that we can expect to see an emboldened Commission that may begin finding their cause of action in the Constitution.

Our experts in this podcast series are

  • Daryl Dingley, Partner, Webber Wentzel; and
  • Judge Dennis Davis, Former Judge President of the Competition Appeal Court​​

Executive Producer: Elisha Bhugwandeen


Webber Wentzel Legal Insights on Apple Podcast
Webber Wentzel Legal Insights on Google Podcast Webber Wentzel Legal Insights Podcast on Spotify
​​​ ​



These materials are provided for general information purposes only and do not constitute legal or other professional advice. While every effort is made to update the information regularly and to offer the most current, correct and accurate information, we accept no liability or responsibility whatsoever if any information is, for whatever reason, incorrect, inaccurate or dated. We accept no responsibility for any loss or damage, whether direct, indirect or consequential, which may arise from access to or reliance on the information contained herein.

© Copyright Webber Wentzel. All Rights reserved.

Webber Wentzel > News > Podcast: Important Competition Developments in South Africa - Forecasts for 2022 - with Judge Dennis Davis
Johannesburg +27 (0) 11 530 5000
Cape Town +27 (0) 21 431 7000
Validating email against database, please wait...
Validating email: please wait...
Email verified: Please click the confirmation link sent to your mailbox, also check junk/spam folder. If you no longer have access to this email address or haven't received the verification email then email communications@webberwentzel.info
Email verified: You are being redirected to manage your subscription
Email could not be verified: Please wait while you are redirected to the Subscription Form
Unanticipated error: Saving your CRM information Subscription Form