The characterisation principle in South African competition law from a German law perspective

• Citation: (2022) 34 SA Merc LJ 153
• DOI: https://doi.org/10.47348/SAMLJ/v34/i2a1
• Published date: 01 February 2023
• Pages: 153-180
• Author: Schmidt, D.
• Date: 01 February 2023

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Articles

THE CHARACTERISATION PRINCIPLE IN

SOUTH AFRICAN COMPETITION LAW

FROM A GERMAN LAW PERSPECTIVE

DAMIAN SCHMIDT*

Attorney at law in Stuttgart (Germany)

Abstract

The characterisation principle — or the concept of characterisation —

is a modern achievement of the South African competition law, with its

roots in United States jurisdiction from which it was originally

transferred into the South African legal system. Several far-reaching

South African court decisions refer to the characterisation principle

and make it an essential part. However, the positioning of the

characterisation principle in South African competition law is

complex. This is shown by the fact that, for example, the concept of

characterisation obviously conflicts with the rationale of the per se

prohibitions implemented in the South African Competition Act 89 of

1998. This article attempts to analyse the characterisation principle

from a German law perspective in order to define its relevance, impact

and limitation more precisely in the South African legal system.

Keywords: characterisation principle, concept of characterisation, competi-

tion law, statutory interpretation, comparative law, methodology,

Auslegung, Methodenlehre

I INTRODUCTION AND OBJECTIVE

The characterisation principle — or the concept of characterisation — is

a modern achievement of the South African competition law, with its

roots in United States jurisdiction,

1

from which it was originally

* LLD (Heidelberg) LLM (UCT)

1

See Broadcast Music, Inc. v. CBS, Inc., 441 U.S. 1 (1979).

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153 https://doi.org/10.47348/SAMLJ/v34/i2a1

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transferred into the South African legal system.

2

In the meantime,

there are several important South African court decisions, such as

ANSAC v Competition Commission (ANSAC) or Competition Commis-

sion v South African Breweries (South African Breweries), in which the

characterisation principle was applied.

3

The characterisation doctrine,

however, is not (fully) implemented in the South African Competition

Act 89 of 1998.

4

Rather, the concept of characterisation is the result of

the development of competition law through case law. Although the

characterisation principle has been successfully implemented in South

African jurisprudence, its relevance, impact, and limitation have not yet

been precisely defined. In the relevant legal literature, the difficult

question came up as to what extent this concept conflicts with the

rationale of per se prohibitions (s 4(1)(b) of the Act).

5

At first glance, the

concept of characterisation seems to contradict the value contained in a

per se rule because a per se prohibition is based on a typifying assumption

of anti-competitive conduct to facilitate law enforcement.

6

This article attempts to analyse the characterisation principle as it is

applied in South African competition law from a German law perspec-

tive to more precisely define its relevance, impact and limitation in the

South African legal system.

II THE CHARACTERISATION PRINCIPLE IN SOUTH

AFRICAN COMPETITION CASE LAW

The concept of characterisation is used in South African case law with

varying intensity. The following analysis of the relevant South African

court decisions will show how multi-layered the characterisation

principle is.

2

See the reference in American Natural Soda Ash Corporation and Another v Competition

Commission of South Africa 2005 (3) All SA 1 (SCA) para 44; Competition Commission v South

African Breweries Limited and Others 2015 (3) SA 329 (CAC) para 28; Moodaliyar & Weeks,

‘Characterising price fixing: a journey through the looking glass with ANSAC’ (2008)11

SAJEMS NS 337 at 347.

3

American Natural Soda Ash Corporation;South African Breweries Limited;Dawn

Consolidated Holdings (Pty) Ltd and Others v Competition Commission 2018 ZACAC 2;

A’Africa Pest Prevention CC and Another v Competition Commission of South Africa 2019

ZACAC 2.

4

Hereinafter the Act.

5

Moodaliyar & Weeks, (2008)11 SAJEMS NS337 at 338.

6

See Moodaliyar & Weeks, (2008) SAJEMS NS 11 337 at 340–342 with further references.

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https://doi.org/10.47348/SAMLJ/v34/i2a1

(2022) 34 SA MERC LJ

154

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