There was a time, not so long ago, when the Competition Tribunal was a credible institution. Under the stewardship of former chair David Lewis it was a respected forum of law and reason. A place where serious minds deliberated on the economic consequences of mergers & acquisitions, balancing nuance, evidence and statutory mandate.
That era is over. Today the tribunal is a taxidermic version of its former self. Stuffed, mounted, and posed to look functional, while behind the scenes it is inert, ideological and increasingly inimical to the idea of economic progress.
Somewhere between the dry syntax of public interest law and the wet mess of our 0.1% GDP “growth” reality, SA’s Competition Tribunal has slipped its moorings.
The Vodacom-Maziv debacle is the most visible symptom. But the disease runs deeper. The tribunal is now a place where deals, and the jobs, capital and infrastructure they might bring, go to die. “It has become a significant impediment to deal making in SA,” confides a wandering albatross who is one of the country’s foremost competition lawyers. And this is the problem.
Since Covid-19 the tribunal has quietly abandoned public hearings for most large mergers. Everything is now done “in chambers”, a euphemism for decisions made behind closed doors, often with little more than a nod to the commission’s demands. No adversarial testing. No meaningful reasoning. Just a few pages summarising commitments, usually extorted, to employee trusts, supplier funds or arbitrary localisation quotas.
As my wandering albatross notes with weary precision, “the tribunal’s written decisions have shrunk from 20-plus pages of careful evaluation of evidence and legal principle to just a few, mostly focused on public interest commitments the parties were pressured into by the commission”.
And what about timelines? By law the tribunal is supposed to schedule a hearing or prehearing within 10 days of receiving the commission’s recommendation. In practice? Merging parties now beg for weeks. Hearings are booked out months in advance. And if your matter needs an in-person hearing? Forget 2025. The tribunal’s already full.
“The total number of large mergers heard by the tribunal declined slightly, from 99 in 2022/23 to 89 in 2023/24. Even so, the tribunal is battling to hear and decide mergers within a reasonable time. Then, as happened in the Vodacom case, the tribunal may take months to issue an order and its written reasons is likely to only be released months after that,” the source says.
This is administrative delay metastasised into regulatory decay. One might be tempted to conclude that this problem is only affecting very contentious or complex cases such as the Vodacom merger. Unfortunately, this is not the case.
“Last year, ahead of the Christmas break in December, the tribunal announced that it was no longer accepting any referrals from the commission over the holiday period. As a result, a number of large mergers had to wait until mid-January for clearances.”
Several large transactions were frozen in the system, with no recourse, no clarity, and no urgency. Worse still, the tribunal routinely fails to issue its written reasons, sometimes until well after appeals have been filed. In the Vodacom case it only coughed up its rationale after the parties had already turned to the Competition Appeal Court. “It became clear,” says my wandering albatross, “that the appeal was going to proceed even if the tribunal didn’t issue its reasons.”
So how did we get here? Start with the people. There are now two full-time members of the tribunal, one a lawyer, the other an economist. Four part-time panellists limp along, one acting, the rest mostly absent. The intellectual heft, work ethic and independence that once defined the tribunal’s leadership have been traded for pliant placeholders, appointed on former minister Ebrahim Patel’s watch with one guiding principle: obedience.
“He packed the panel with appointees he regarded as more willing to adopt his approach to extracting commitments,” my wandering albatross says.
The tribunal’s chair, Mondo Mazwai, spends more time at conferences and on overseas junkets than in the courtroom. Case managers have quietly quit. None has been replaced. Yet the tribunal staggers on underfunded, underqualified and unfit for its constitutional purpose.
In the vacuum the commission has stepped forward to view every merger as an opportunity to impose transformation by decree. If you want to do a deal in SA be prepared to hand over 5% of your business. Not because parliament said so. Not because the broad-based BEE Act requires it. But because the commission feels it can make the demand.
This isn’t about empowerment. This is a shadow tax levied without legislation, without oversight, without the slightest regard for the rule of law or the economic consequences. A policy of forced ownership transfers — uncosted, unreviewed and ultimately unenforceable, that exists purely to generate headlines for ministers starved of real success stories.
And who pays? You do. Every South African looking for a job, hoping for a faster broadband connection, a better retail offering, a more efficient supply chain. Every business looking to expand but trapped in merger purgatory, unsure whether its deal will clear this month, this year or ever.
Trade, industry & competition minister Parks Tau has inherited a tribunal and commission that are seriously malfunctioning. My albatross tells me he can secure some early quick wins by simply raising the thresholds for merger notification, especially in low-risk sectors such as property.
Next he must rebuild the tribunal with proper lawyers and economists who believe in adjudication, not extraction. Finally, he must halt the creeping abuse of public interest conditions as a political tool.
It would be a mistake to call what’s happening at the tribunal incompetence. That would suggest accident. This is something else entirely: a deliberate, bureaucratic slow-burn of sabotage dressed up as statecraft. A form of regulatory sadism in which merging parties are subjected to ideological waterboarding, denied clarity, choked on delays and then told, when it’s all over, that it was for their own good.
Until these reforms are implemented the foreign capital needed to get our GDP beyond population growth will seek friendlier climes.
• Avery, a financial journalist and broadcaster, produces BDTV's ‘Business Watch’. Contact him at michael@fmr.co.za.
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