Over the past few months, competition authorities in South Africa and Botswana approved mergers despite serious concerns that they have themselves identified. Rather than prohibiting the merger or imposing remedies, they simply excluded those issues from the scope of their approvals. Is this approach lawful? Does it represent sound merger control practice? See the 2 examples below: 🇿🇦 MERGER 1: In a South African merger, a lease-back agreement contained a non-solicitation clause. The SA Competition Commission (@CompComSA) stated that (i) its approval did not extend to the non-solicitation clause; and (ii) the approval did not endorse the clause, nor (iii) did it prevent the Commission from investigating the clause in future. If the clause raised competition concerns, why did the Commission not require its removal (or suitable modification) as a condition of approval? 🇧🇼MERGER 2: Earlier this year, the Botswana Competition and Consumer Authority (@CCABotswana) was concerned about the “alleged relationship” between the acquirer and a competitor, and the potential for unilateral or coordinated effects in the market. Despite approving the merger, the CCA went on to state that its approval decision “may change” depending on this alleged relationship. This approach is puzzling. Why was the relationship not fully investigated as part of the merger review? If credible concerns existed, why were they not addressed? Furthermore, once a merger has been approved on the facts presented, what legal basis would allow the CCA to later revisit and alter its decision? 💡 The core purpose of merger review is to identify all competition law risks and to resolve them upfront – whether through prohibition or remedies. Approving mergers while carving out problematic elements for later consideration risks weakening the effectiveness of merger control, invite legal challenges, and leave consumers powerless against business (and competition authorities). For more information on the decisions, contact us at [email protected] or [email protected] for a quote. For world-class curated Africa Competition Law News. Since 2020. betweenity.online

🇸🇸🇺🇬🇷🇼🇹🇿🇸🇴🇰🇪🇨🇩🇧🇮 WEBINAR - Join us for a webinar on the imminent commencement of the EACCA merger regime. We will also discuss priorities pursuant to the signing of the MoU with the COMESA Competition Commission (@CCC_COMESA). We are proud to host: ● Stellah Onyancha, Acting Registrar and Deputy Registrar of the EACCA, Monopolies and Cartels; ● Vincent Okoth, Deputy Registrar of the EACCA, Mergers and Acquisitions; and ● Denis I Kabbale, Competition expert at the EACCA. The moderator will be Odie Strydom, Managing Director of Betweenity. ●  Date: Wednesday, 13 August 2025 ●  Time: 14:30 CAT ●  Registration link: lnkd.in/d6rBmPkh The EAC consists of 8 Partner States: Burundi, the DRC, Somalia, Kenya, Rwanda, South Sudan, Uganda, and Tanzania.

🇧🇮🇨🇩🇰🇪🇸🇴🇹🇿🇷🇼🇺🇬🇸🇸 WEBINAR - Join us for a webinar on the imminent commencement of the EACCA merger regime. We will also discuss priorities pursuant to the signing of the MoU with the @CCC_COMESA. We are proud to host: ● Stellah Onyancha, Acting Registrar and Deputy Registrar of the EACCA, Monopolies and Cartels; ● Vincent Okoth, Deputy Registrar of the EACCA, Mergers and Acquisitions; and ● Denis I Kabbale, Competition expert at the EACCA. The moderator will be Odie Strydom, Managing Director of Betweenity. ● Date: Wednesday, 13 August 2025 ● Time: 14:30 CAT ● Registration link: lnkd.in/d6rBmPkh The EAC consists of 8 Partner States: Burundi, DRC, Somalia, Kenya, Rwanda, South Sudan, Uganda, and Tanzania.

A significant event in Africa!

💡 Looking forward to hosting Magatte Wade (@magattew) as a special guest at Betweenity's 3-Day Virtual Conference on Africa Competition Regulation between 18-20 June 2025. At the Conference, Magatte and Odie Strydom, Managing Director of Betweenity (@BetweenityA) will engage on the following question: "What does Africa's approach to merger remedies reveal about our commitment to historically disadvantaged persons?" We are deeply humbled by your presence, Magatte. Conference page: tinyurl.com/yfpzn24y Agenda: tinyurl.com/24zxzpdk Contact us: [email protected]

🌍 Only 2 weeks left to register for our 3-Day Online Virtual Conference on Africa Competition Regulation to be held on 18-20 June 2025! More than 50+ high profile speakers will share insights. Discussion points include: 💡 Who has the power in settlement negotiations? Are there limits to authorities bending backwards? 💡 Does the South African Competition Tribunal bring sufficient oversight to the work of the Commission? 💡 The elements of a “forward-looking” merger analysis – Are current methodologies forward-looking? 💡 Are current SME policies contributing to large industry collapse (e.g. steel)? 💡 Excessive pricing's new confusion – Are firms more exposed under competition laws or consumer protection laws? 💡 Labour market cartels in Africa – Why the perceived regulatory disinterest? 💡 Post-merger asset expropriation – Does the crime fit the punishment? 💡 Asset exit requiring competition approval? 💡 The Tanzanian cement merger – Regulatory “mischief” or valid boundary testing? 💡 Public interest analyses in Africa – Critical Africa cases and concepts 💡 New African competition authorities – Why the slow operationalisation? 💡 The protection of intrabrand competition in Africa – Is this the way to go? 💡 What is the structure and policy of the CEMAC Competition Authority? See the agenda: tinyurl.com/24zxzpdk ✅ Format: Online ✅ Date: 18-20 June 2025 ✅ Time: to CAT / to EST ✅ Language: English ✅ Fee: USD 300 per person 💡 Get tickets on Conference page: tinyurl.com/yfpzn24y @magattew @CCABotswana @CIC_Burundi @concorrencia_cv @com_cemac @CCC_COMESA @ERCA_ARCC_ @Egy_Competition @EswatiniCompCo @official_gccpc @CAK_Kenya @CFTCMalawi @fccpcnigeria @ccptng @FTC_Seychelles @CompComSA @comptrib @FCC_Tanzania @FairFct @UEMOA_Officiel @CompComZambia @CTCZimbabwe

🌍🎧 REGISTRATION OPEN! Join us for our Flagship Online Conference on Africa Competition Regulation! 💡 It is a virtual Conference – we bring Africa to you! 💡 Registration page: tinyurl.com/yfpzn24y 💡 Early bird discounts of 20% are available until 30 April 2025. 💡Group discounts of a further 20% and 40% are available. 💡 We use a well-known conference platform that is web and app-based. 💡 Nearly 40 distinguished speakers share their insights on critical, unventilated topics. 💡 Topics have been identified based on deep, daily scanning of Africa competition law and policy developments over many years in 11 languages. 💡 Live interpretation services in Arabic, French and Portuguese are available. 💡 Registered attendees have access to recordings. 💡 No flights, no accommodation, no transport, no inconvenience. 💡 Sponsorship opportunities are available – feel free to reach out at [email protected]. Any questions? Contact us at [email protected]. We look forward to seeing you there!

Wonderful event, thank you Primerio!

🇿🇦 Thank you, @CompComSA! Has the Commission received any applications for advisory opinions since the publication of the Advisory Opinion Regulations (link: shorturl.at/faeCL) on 6 December 2024?

🇿🇦 I am not entirely convinced by the authorities’ approach to the matter involving Global Roofing Solutions (GRS), a supplier of roofing products. The Competition Commission South Africa established (and the Competition Tribunal of South Africa confirmed) that GRS is not a dominant firm, and had not contravened the Competition Act, 1998. Despite this, a non-exclusivity remedy was imposed. Before the remedy was imposed, GRS customers had to use GRS clamps for their roofing products (solar panels) because the competitors' clamps did not meet GRS's quality standards, and using them would void the warranty. Despite GRS’ non-dominance and adherence to the Act, the Commission imposed (and the Tribunal confirmed) the following remedies: ● for GRS to provide a warranty on roofing products even if 3rd party solar clamps had been used; and ● for GRS to retain the right to deny warranty claims if any deterioration or failure of products supplied by GRS had been caused by 3rd party clamps that do not meet its technical and material standards or installation methods. Comment: ● The authorities appear to both acknowledge and disregard the importance of quality products in the market by (i) finding GRS innocent but (ii) imposing remedies aiming to promote the use of low quality products. ● The use of quality clamps is a critical competitive factor in the market due to the high price of solar panels, which are paid for by end consumers. ● Moreover, a quality-based regime is critical in the residential built environment where structural failures could be fatal. We have seen this in George in the Western Cape 6 months ago. ● The complainant, Metal Roof Innovations (MRI) does not require GRS as a “route to market” because GRS is not dominant. Moreover, MRI is a USA subsidiary which is presumed to be well-resourced (in any event, sufficiently so as to improve clamp quality). ● As in Sekunjalo, the authorities are again insisting that “high risk” players be entertained by other players in the market in the name of “competition” with no regard to the extent (or the bearers) of the actual risk. ● One of the goals of an exclusivity warranty is to “prevent rather than cure”. The authorities' remedy encourages structural failure over prevention. Worse still, it leaves the consumer without recourse, because the warranty now excludes the very failure that it contributes to. ● Who are GRS' competitors, and must they also entertain low quality clamps as part of their warranty programs? If not, GRS will be worse off. ● Why not simply requiring the use of a SABS approved clamp?

The SA Competition Tribunal’s granting of interim relief to GovChat shows how far the competition authorities in South Africa will go to question the internal rules of large digital companies if they affect competitive conduct in the country. This is according to Jerome Wilson SC during the ‘Antitrust Across Africa’ Conference presented by the American Bar Association Antitrust Law Section in Cape Town in September 2024. WhatsApp threatened to offboard GovChat because GovChat tried to list different government departments under its own business account, which was not allowed in terms of WhatsApp’s internal rules. “The Tribunal decided that the offboarding attempt was prima facie anti-competitive because GovChat provided a very important service in South Africa during the Covid-19 pandemic. “The We Buy Cars prohibition years ago was based on conglomerate effects, and the impact of data on the entrenchment of these effects. “At that time, it came as quite a surprise that the authorities were so aggressive to protect competition in these kind of markets – historically, the authorities were hesitant to involve themselves in these cases unless there was a very good basis for it. “Today however, the bar to intervention in digital markets reduced significantly. The competition authorities are watching this space very carefully and one can't move as freely as perhaps one could historically.” Regarding the value of a separate law for the digital space, Jerome says that the debate ought to be had as to whether an ex ante instrument may be useful in South Africa. “The Digital Markets Act (and the Digital Markets, Competition and Consumers Act of the UK) set consistent standards and obligations for digital markets players. This is great for consistency and transparency. The dilemma with South Africa’s approach to market studies is that the Competition Commission assumes the role of both investigator and adjudicator. “The division of powers is largely done away with.” Photo: Betweenity