Competition Law Opinion South Africa

Should anticompetitive conduct be treated as a human rights infringement?

It is not surprising that the South African Competition Act expressly requires that its interpretation must be undertaken in a manner that is consistent with the Constitution. Even if the Competition Act had been silent on this point, the Constitution itself requires that legislative interpretation must yield a construction that promotes the objects of the Bill of Rights. There is no statute that is immune from a constitutional approach to interpretation - this we are all likely to agree upon.
Image source: © Denis Ismagilov –
Image source: © Denis Ismagilov –

The more glaring question in recent times is whether the Competition Commission, entrusted to investigate and prosecute violations of competition law, can simultaneously allege that conduct that violates competition law automatically violates the Constitution. Such was the case a few weeks ago, in a matter involving a multinational healthcare company that was referred to the Competition Commission. The Commission, seeking to prosecute the alleged excessive pricing of breast cancer treatment medicine, simultaneously alleged that the conduct violated constitutionally entrenched human rights.

There is no doubt that the advancement of social and economic welfare constitutes one of the objectives of South African competition law. Having said that, of what consequence is it to allege an infringement of both competition law and human rights infringements? Is the Tribunal empowered to consider these issues when embarking upon the highly technical and economic assessments associated with dominance, in the first instance, and excessive pricing in the second. It may be more plausible that all competition law issues can be shoehorned into the four corners of the Constitution, but is it necessarily the case that all allegations of anticompetitive conduct should be framed as human rights infringements too?

It is perhaps a precarious move to automatically conflate allegations of antitrust and constitutional law violations. The Competition Authority itself has been loath to enter the realm of price regulation, openly acknowledging the economically dense assessments associated with findings of antitrust violations and acknowledging the free market principles associated with the prevailing economic system.

There is no doubt that the authority has a broader purpose than to simply investigate pure competition issues. In a country ravaged by high levels of concentration and economic disadvantage, pure competition assessments alone are not a feature of the South African antitrust regime. The purpose of the Competition Act is not just to advance the social and economic welfare of South Africans but to also promote the development of the economy. To include constitutional law allegations into the mix, burdens the already complex assessments that the specialist authority is called to pronounce upon, balancing a number of important overarching policy objectives that should have equal focus.

About Lerisha Naidu and Sphesihle Nxumalo

Lerisha Naidu, Partner and Head of the Competition & Antitrust Practice, and Sphesihle Nxumalo, Associate, Baker McKenzie, Johannesburg

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