Trudi Makhaya, Aug 27, 2012
When South Africa’s modern competition regime came into effect, the country did not have much of a competition culture to speak of. The economy was lumbering under the legacy of highly concentrated markets, international isolation, and the exclusion of the majority of the population from meaningful participation. The passage of the Competition Act and the launch of new competition authorities in 1999 marked a departure from this history.
Though there had been a competition law on the statute books before 1998, legal and business professionals, as well as public officials, had not been trained and groomed in an environment that placed high value on merit-based competition. The public at large also did not think of competition matters in dealings with business. In this context, advocacy and outreach initiatives have played an important role in the development of a competition culture. This is on-going work but much has already been achieved in a short space of time, with the work of the competition authorities taking on the ‘flavour of a social movement’ as described by former Competition Tribunal Chairman David Lewis.
Advocacy is recognized as an important function of the competition authorities in South Africa. According to the Competition Act, the Competition Commission is responsible for raising public awareness of competition law, collaborating with other regulators on competition-related matters to ensure the consistent application of the act, reviewing public regulations and legislation, and alerting the executive of any anti-competitive provisions contained therein. The Competition Commission may also report to the relevant government minister on any matter relating to the application of the Competition Act and to enquire into and report to the minister on any matter concerning the purposes of the Act. However, the execution of these responsibilities is not backed by powers to compel information and to summon witnesses. Thus the co-operation of other entities with the Commission in its advocacy is mostly voluntary.
The Competition Commission’s organizational strategy incorporates advocacy as one of its three over-arching goals. A dedicated division, Advocacy and Stakeholder Relations, leads and co-ordinates the Commission’s outreach activities. This division promotes voluntary compliance with the Competition Act, develops and maintains relationships with international and domestic stakeholders in the public and private spheres, and communicates the decisions and activities of the Commission. Though advocacy is housed in a specialist division, all of the Commission’s work is imbued with advocacy and all staff members play an advocacy role as it relates to their enforcement duties.