By Eleanor M. Fox (New York University)
In South Africa, the question is not whether to incorporate “equality” into the competition law, but how. In view of the history of heinous exclusion of all black South Africans, South Africa has long recognized inclusiveness as a competition law value. Recent amendments seek to further the equality goal. This essay argues that, within a significant space, the goals of an equitable and efficient competition law overlap. Maximizing this space requires a greater appreciation of exclusionary conduct and its harmful effects. The author next singles out the amendments that contemplate “transformation” obligations on parties to some big mergers and contracts who are seeking clearance or exemption. She highlights the special challenges to transparency, predictability, equal opportunity, and rule of law. She argues that with hard work (which is being done) the system can be administrable, with due process, and likely to engage the creative talents of the left-out majority.