Merging the Unmergeable: The Distortion of Competition Law Principles By Constitutional Rights in the Constitutional Court [Discussion of Competition Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd 2022 4 SA 323 (CC)]

• Citation: (2024) 35 Stell LR 61
• DOI: https://doi.org/10.47348/SLR/2024/i1a4
• Published date: 06 February 2025
• Pages: 61-77
• Author: Loxton, L.
• Date: 06 February 2025

https://doi.org/10.47348/SLR/2024/i1a4

61

MERGING THE UNMERGEABLE: THE

DISTORTION OF COMPETITION LAW

PRINCIPLES BY CONSTITUTIONAL RIGHTS IN

THE CONSTITUTIONAL COURT [DISCUSSION

OF COMPETITION COMMISSION OF SOUTH

AFRICA v MEDICLINIC SOUTHERN AFRICA

(PTY) LTD 2022 4 SA 323 (CC)]

Lauren Loxton

BCom PPE LLB, BCL

Researcher, South African Institute for Advanced Constitutional, Public, Human Rights

and International Law (SAIFAC), University of Johannesburg*

Abstract

The aspirations of the Constitution of the Republic of South Africa, 1996 are

expressly recognised in competition legislation. Competition authorities and

courts must, accordingly, adjudicate competition matters in a manner that

gives effect to the Constitution. This has resulted in the Constitutional Court

assuming jurisdiction over appeals from the Competition Appeal Court,

thereby raising questions about the Constitutional Court’s competence to

adjudicate specialised competition matters that cannot be understood solely

through the lens of constitutional interpretation. The Constitutional Court’s

decision in Competition Commission of South Africa v Mediclinic Southern

Africa (Pty) Ltd 2022 4 SA 323 (CC) is a cautionary tale that exposes the

dangers that arise when the Court enters this specialised realm of the law and

imposes constitutional interpretation without engaging with the principles of

competition law.

The case concerned a dispute about whether a merger in the

healthcare sector would lead to an increase in the price of healthcare.

The Constitutional Court’s judgment emphasises the constitutional imperative

to quell the harmful effects of the inequalities that loom over South Africa’s

post-apartheid economy, but it is not legally sound in all respects. This

note explores the weaknesses in the judgment under the following themes:

the approach to jurisdiction that contradicts jurisprudence and untenably

* I would like to thank the South African Institute for Advanced Constitutional, Public, Human Rights

and International Law for the support and opportunity to conduct this research. I am especially

grateful to Professor David Bilchitz for his constructive feedback and guidance throughout the

process and to Joshua Davis for our many thought-provoking and helpful conversations.

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62 STELLENBOSCH LAW REVIEW 2024 1

https://doi.org/10.47348/SLR/2024/i1a4

extends the Constitutional Court’s jurisdiction; the problematic assertion

that precedent severely constrains the appellate powers of the Competition

Appeal Court; and the Constitutional Court’s inconsistent appreciation

of the specialised nature of competition law and its consequent failure to

engage with the evidence.

This analysis concludes that this attempt to import constitutional

rights into competition law, without adequately engaging with competition

law itself, reveals an urgent need to re-examine the true scope of the

Constitutional Court’s jurisdiction and its powers to adjudicate complex and

highly specialised areas of the law.

Keywords: Constitutional law; Constitutional Court; competition law;

healthcare sector merger; access to healthcare

1 Introduction

There is considerable overlap between the aspirational goals of the

Constitution of the Republic of South Africa, 1996 (“the Constitution”)

and the objectives of the Competition Act 89 of 1998. The competition law

of South Africa is infused with constitutional imperatives – for instance,

the need to consider how previous patterns of disadvantage may continue

to affect certain market participants and the impact of business decisions

on constitutional rights. Thus, at rst glance, it appears unsurprising that

the Constitutional Court, as the ultimate guardian of these rights, will

intervene when an issue arising in the realm of competition law threatens

constitutional rights.

However, competition law is centred around complex legal and economic

principles. Thus, when the Court grapples with competition law issues,

constitutional expertise alone may not sufce. Certain matters demand a

specialised understanding of competition law, the absence of which could

lead to decisions that set damaging precedent in an attempt to uphold the

Constitution.

This precise scenario played out in Competition Commission of South

Africa v Mediclinic Southern Africa (Pty) Ltd1 (“Mediclinic”). In this note

I examine the shortcomings of the Court’s judgment in that matter, which I

ultimately conclude has the consequence of setting an untenable precedent

and undermining the appellate powers conferred on the Competition Appeal

Court (CAC) by the Act.

1 2022 4 SA 323 (CC).

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