The Incorporation of the Public Interest in the Assessment of Prohibited Conduct: A Juggling Act?

The South African Competition Act no 89 of 1998, like many of its counterparts in the BRICS countries and other developing economies, incorporates traditional competition law principles with public interest considerations. It is common cause that the South African competition authorities are required to take into account public interest factors during the assessment of proposed mergers and acquisitions as well as exemption applications. However, it is not clear to what extent (if at all) the competition authorities are obliged to take into account public interest factors during the assessment of prohibited conduct. This chapter seeks to determine whether the South African competition authorities ought to consider public interest factors in the evaluation of prohibited conduct. The chapter briefly evaluates the meaning of the public interest and its interplay with competition law/policy and reviews the political and economic context which resulted in the incorporation of the public interest in the South African Act. The chapter also briefly looks at the incorporation of the public interest in the competition legislation of a number of other jurisdictions like the UK, USA and our African counterparts. The chapter also briefly discusses examples of South African abuse of dominance cases where the public interest was (directly and indirectly) taken into account. The chapter concludes by setting out lessons learnt.