Case Notes: Dawn of a New Era: Claims for Damages in South African Competition Law—Nationwide Airlines (Pty) Ltd (in liquidation) v South African Airways (Pty) Ltd and Comair Limited v South African Airways (Pty) Ltd

• Jurisdiction: South Africa
• Citation: (2017) 29 SA Merc LJ 569
• Author: Phumudzo S Munyai
• Pages: 569-579
• Published date: 20 August 2019
• Date: 20 August 2019

DAWN OF A NEW ERA: CLAIMS FOR

DAMAGES IN SOUTH AFRICAN

COMPETITION LAW — NATIONWIDE

AIRLINES (PTY) LTD (IN LIQUIDATION) V

SOUTH AFRICAN AIRWAYS (PTY) LTD AND

COMAIR LIMITED V SOUTH AFRICAN

AIRWAYS (PTY) LTD

PHUMUDZO S MUNYAI

Senior Lecturer, Department of Mercantile Law, University of South

Africa

I INTRODUCTION

Since the coming into force of the Competition Act 89 of 1998, most

observers have expressed doubts whether competition damages will ever

see the light of day in South Africa. This scepticism was based on a

number of concerns, most of which were valid.

Among the main issues were questions and concerns about the

jurisdiction and technical competence of the civil courts in competition

matters. This is because while the day-to-day administration and

enforcement of the Competition Act is entrusted to the specialist

competition authorities (see s 65(2) of the Competition Act), somehow

the assessment and award of competition damages under the Competi-

tion Act are matters for the civil courts (see s 65(6) of the Competition

Act). Except in limited circumstances, specif‌ically under section 49D of

the Competition Act, competition authorities do not have the authority

to award competition damages. In terms of section 65(6)(a) of the

Competition Act only civil courts may assess and award competition

damages to a plaintiff in relation to conduct found to constitute a

prohibited practice by competition authorities (see Brassey et al, Compe-

tition Law (Juta 2002) 327 and Sutherland & Kemp, Competition Law of

South Africa (LexisNexis Online: last updated November 2016) para

12.3.7). Commenting on the role of the civil courts in competition

damages, some observers remarked that ‘it must be questioned whether

the civil courts are the appropriate bodies to assess and award damages

for competition law claims’ (Brassey et al (Juta 2002) 328). While such

courts are experienced in determining delictual claims generally, they

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(2017) 29 SA Merc LJ 569

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