The role and nature of the public interest in SA competition law

• Jurisdiction: South Africa
• Author: Du Plessis, Q.
• DOI: https://doi.org/10.47348/SAMLJ/v32/i2a3
• Citation: (2020) 32 SA Merc LJ 234
• Date: 08 April 2021
• Published date: 08 April 2021
• Pages: 234-252

(2020) 32 SA Merc LJ 234

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generally assumed to be incommensurable with traditional competition

considerations.

5

Joseph F Brodley argues, however, that ‘the purely economic goals of

antitrust, properly def‌ined, embrace most of what a progressive antitrust

policy requires’.

6

In this article, I defend two primary claims. In the f‌irst

instance, the Competition Act

7

makes economic eff‌iciency, or total

welfare (in contradistinction to consumer welfare) its primary goal.

8

Secondly, if economic eff‌iciency is the primary goal of competition law,

then the claim that traditional competition considerations and the

public interest are incommensurable,

9

is false.

Specif‌ically, I argue that ‘public interest’ as it is used in the Act is

concerned primarily with undoing the inequitable distribution of

resources that resulted from the apartheid regime. I then proceed to a

literature review which supports the contention that inequality is bad for

economic eff‌iciency.

10

If this is the case, then the purported incommen-

surability with regards to public interest objectives and economic

eff‌iciency is a mirage and these can actually be measured on the same

scale. And, if this is so, it follows that public interest objectives are

cognisable in competition terms.

The article is divided into f‌ive parts. After the current Part I, Part II

begins with an explication of the Act and what it tells us about the goals

of competition policy in South Africa. I then proceed to argue that

‘public interest’ as used in the Act primarily refers to the twin phenom-

ena of economic inequality and racialised inequality. Finally, I argue that

the underlying rationale of South African competition law is the

furthering of economic eff‌iciency. In Part III, I argue that economic

inequality hurts economic eff‌iciency, with a view to showing that this

purpose is not unconnected to traditional competition considerations.

I then consider whether racialised inequality hurts economic eff‌iciency.

I do this by considering its correlative: whether Broad-Based Black

Economic Empowerment furthers economic eff‌iciency. I argue that it

5

Ibid.See also Davis, (2014) 131(3) SALJ 712; Lewis, Enforcing Competition Rules in South

Africa (Edward Elgar 2013) 111 (public interest criteria are ‘non-competition’ issues).

6

Brodley, ‘The Economic Goals of Antitrust: Eff‌iciency, Consumer Welfare and Techno-

logical Progress’ (1987) 62(5) New York University LR 1020 at 1021.

7

Act 89 of 1998 (‘the Act’).

8

In this article I use ‘economic eff‌iciency’ and ‘total welfare’ interchangeably, as also

‘allocative eff‌iciency’ and ‘consumer welfare’.

9

In this article, I take any claim that public interest considerations are not ‘cognisable’ in

competition terms as equivalent to the claim that public interest considerations are

incommensurable with competition considerations. Two values are incommensurate if it is

false that either is better than the other, and false that they are of equal value (see Raz,

The Morality of Freedom (Clarendon Press 1986) 324).

10

In this article I use economic growth as proxy for economic eff‌iciency.

https://doi.org/10.47348/SAMLJ/v32/i2a3

THE ROLE AND NATURE OF THE PUBLIC INTEREST IN SA COMPETITION LAW 235

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