Category: South Africa

Merger filing thresholds almost double after a decade

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South Africa Merger Control: New Notification Thresholds and Filing Fees in Force

By Nicole Araujo and Kelly Baker 

For the first time since 2017, South Africa’s merger notification thresholds and associated filing fees have been revised.  On 4 May 2026, Parks Tau, the Minister of Trade, Industry and Competition, signed the new Merger Thresholds and Filing Fees into force, with effect from 1 May 2026. This was done by the Minister in consultation with the Competition Commission of South Africa. 

For intermediate mergers, the combined annual turnover or assets of the acquiring and target firms must now equal or exceed R1 billion, up from R600 million, while the annual turnover or asset value of the target firm alone must equal or exceed R200 million, up from R100 million.

For large mergers, the combined threshold has been raised to R9.5 billion from R6.6 billion, and the target firm threshold to R280 million from R190 million.

Intermediate merger filings now attract a fee of R220 000, while large merger filings cost R735 000.

New Notification Thresholds:

Category 

Combined turnover or assets 

Target firms turnover or assets 

Intermediate merger 

R1 billion

R200 million

Larger merger

R9.5 billion 

R280 million

 

New Filing Fees:

Category 

Previous fee 

New fee 

Intermediate merger 

R165 000

R200 000

Large merger 

R550 000

R735 000

 

This significant adjustment means that a number of transactions previously notifiable as intermediate mergers may now fall below the revised thresholds and qualify as small mergers, which are generally exempt from pre-implementation notification (subject to certain exceptions).

The practical upshot for dealmakers is a lighter regulatory footprint, with improved deal certainty and potentially shorter implementation timelines. Overall, the revised thresholds align South Africa’s merger control regime more closely with the current deal landscape and reduce the unnecessary notification burden associated with transactions that pose no real competitive concern.

Parties to transactions with a South African nexus should reassess their filing position against the revised thresholds, as deals previously assessed as notifiable may now fall below the filing thresholds altogether. Where notification remains required, parties should also be mindful of the adjustments to the applicable filing fees.

 

Regulation as a Barrier to Entry: The Competition Commission’s Review of Regulatory Impediments to Competition and SME Participation

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By Jannes van der Merwe and Astra Christodoulou

On 22 April 2026, the South African Competition Commission (“the Commission”) launched a review of regulations that may act as barriers to competition and the entry and expansion of firms with particular focus on small and medium enterprises (“SMEs”) across all Markets in South Africa (the “Review”). The Review forms part of a broader national policy effort to support inclusive economic growth, reduce compliance burdens and modernise the regulatory environment in a manner that promotes competitiveness at all levels in the market. The Review was initiated against the backdrop of President Cyril Ramaphosa’s 2026 State of the Nation Address (“SONA”), in which one of the topics addressed was the need to reduce red tape and improve the ease of doing business.

This announcement follows several prior market inquiries by the Commission, including those in the grocery retail, data services and healthcare sectors, in which the Commission found that regulatory design to be a recurring impediment to competitive market outcomes.  The Review, therefore, demonstrates a meaningful evolution in the Commission’s approach, moving from a reactive, conduct-based enforcement toward a more structural and upstream engagement with the rules that govern market participation.

Legal and Policy Framework

The Commission’s mandate to engage with legislation and public regulations is well established under the Competition Act 89 of 1998 (the “Act”). Section 21(1)(k) of the Act empowers the Commission to “review legislation and public regulations, and report to the Minister concerning any provision that permits uncompetitive behaviour.”This regulatory review function is distinct from, and complementary to, the Commission’s market inquiry powers under Chapter 4A of the Act.

The Competition Amendment Act 18 of 2018 (the “Amendment Act”), which introduced significant reforms to the Act with effect from 12 July 2019, reinforced the Commission’s structural mandate by addressing two persistent constraints on the South African economy: elevated levels of economic concentration and the skewed ownership profile of the economy. The Amendment Act strengthened provisions relating to abuse of dominance, price discrimination, and public interest considerations in mergers, while also enhancing the market inquiry framework to ensure that outcomes result in enforceable action.

The Commission has actively pursued change and reform in favour of SME’s following the Amendment Act. The Commission issued Regulations on Buyer Power on 13 February 2020, which included factors and considerations to combat unfair practices by dominant firms that will impede effective participation by SMEs. The Commission further issued the Block Exemption Regulations for Small, Micro and Medium-Sized Businesses on 23 May 2024, with the purpose of stimulating the growth and participation of SMEs in the economy.

Further, the Commission issued a Guide for SMEs in September 2022 with the aim of assisting and informing SMEs about their rights and the Commission’s functions and processes in protecting and promoting SMEs in the broader South African market.

This Review takes the next logical step by addressing regulatory structures early, before market distortions become entrenched competitive problems. Section 2 of the Act articulates the purposes of competition policy in South Africa, which include ensuring that SMEs have an equitable opportunity to participate in the economy and promoting a greater spread of ownership, in particular to increase the ownership stakes of historically disadvantaged persons (“HDPs”)

Categories of Regulatory Barriers Under Review

The Commission has identified six broad categories of regulatory barriers that fall within the scope of the Review.

Administrative Barriers

Complex, lengthy or uncoordinated authorisation and licensing processes that delay market entry or expansion are identified as a primary category of concern. These barriers weigh most heavily on SMEs, which generally lack the organisational capacity and financial resilience to withstand the prolonged regulatory delays that larger, established operators can absorb with relative ease. Earlier Commission market inquiries, particularly those examining the healthcare and grocery retail sectors, found that licensing and authorisation delays had a measurable constraining effect on competitive entry.

Rules Entrenching Monopoly Supply or Artificial Scarcity

Regulations that create or entrench monopoly supply or an artificially limited number of suppliers, through exclusive rights, long-term contracts or restrictive licensing, are a second category. These mechanisms often reflect the legacy of the pre-democratic regulatory order and persist across sectors ranging from electricity generation to port logistics. Where such frameworks are not the product of a deliberate and demonstrably justified policy choice, they function as state-conferred barriers to competitive entry.

Onerous Licence and Permit Conditions

Licence and permit conditions that unduly limit who may operate in a market, including conditions that are disproportionately costly or time-consuming, or that impose unnecessary caps on licence holders, are the third category that will be considered in the Commission’s Review. This includes regulatory frameworks in sectors such as liquor retail, transportation and financial services, where licensing regimes have historically served to consolidate market access among established players.

Unreasonable Standards and Compliance Requirements

The Commission also identifies unreasonable or unnecessary standards and licensing requirements for operating, registering, constructing or meeting compliance obligations as a source of competitive harm. While minimum standards serve a legitimate function in protecting consumers and ensuring safety, the design and implementation of such standards can effectively foreclose entry where requirements are disproportionate to the relevant risk or are not calibrated to accommodate smaller-scale operators.

Restrictions on Price and Non-Price Competition

Restrictions that limit competition on price or non-price factors, including constraints on pricing, location, quality or marketing, constitute the fifth identified category. Such restrictions, whether explicit or the incidental product of regulatory design, diminish the incentive and ability of market participants to compete on the merits. The Commission also flags requirements that are reasonable in principle but are poorly implemented, resulting in administrative backlogs, inconsistent interpretation and unpredictable outcomes. This final category acknowledges that competitive harm may arise not only from the content of a regulatory rule but from the manner of its administration.

Poorly Implemented but Facially Reasonable Requirements

The sixth category is notable in that it acknowledges a source of competitive harm that is distinct from substantive regulatory design: requirements that are reasonable in principle but poorly implemented, leading to extensive delays, inconsistent interpretation, administrative backlogs or unpredictable outcomes. This category reflects an important analytical refinement. Competitive harm may arise not only from the content of a rule but from the dysfunction of the administrative machinery through which it is applied. For SMEs with limited resources to sustain protracted regulatory engagement, unpredictability and delay in implementation can be as effective a barrier to entry as an explicitly restrictive provision. This category also opens the door for the Commission to recommend administrative and institutional reforms, not merely amendments to the text of regulations, as a remedy.

B-BBEE, Transformation and Competition Policy: An Intersecting Mandate

The Review’s express attention to whether current regulatory frameworks adequately enable meaningful participation by historically disadvantaged persons (“HDPs”) raises a significant question regarding the relationship between B-BBEE regulatory requirements and competition policy. The Amendment Act reinforced the Commission’s obligation to consider the adverse effects of market structures and conduct on firms owned or controlled by HDPs. This represents an area where competition policy and transformation objectives must be carefully reconciled.

Regulatory frameworks that ostensibly promote transformation, through preferential procurement requirements, equity thresholds or ownership conditions, may in some instances operate to elevate compliance costs for new entrant firms to a degree that forecloses rather than facilitates participation. The Review presents an important opportunity to examine whether the architecture of transformation-focused regulation is designed in a manner that advances both its stated equity objectives and the competitive functioning of markets, or whether refinements to its implementation are warranted.

Practical Implications for Legal Practitioners and Businesses

The Commission has invited businesses and other stakeholders to make written submissions by close of business on 5 June 2026, to be directed to regulation@compcom.co.za. Submissions should identify the relevant regulation and specific provision, describe the manner in which it restricts competition or participation (including practical compliance experience), and propose reforms to remove or modify the barrier while maintaining the regulation’s underlying purpose.

For legal practitioners advising clients in regulated sectors, the Review represents a significant and time-sensitive engagement opportunity. A well-constructed submission should situate the identified barrier within the statutory framework of the Act, particularly the section 2 purposes relating to SME participation and HDP ownership and should be grounded in demonstrable commercial experience of the regulatory impediment in question. Submissions that propose targeted, evidence-based reforms, rather than wholesale deregulation, are likely to carry greater persuasive weight with the Commission.

Sectors in which practitioners may wish to consider engagement include, without limitation:

  • construction and property development (certificate of need and development authorisation processes);
  • healthcare (facility licensing and certificate of need requirements);
  • logistics and freight (port access and operator licensing);
  • retail liquor (licence conditions and geographic restrictions); and
  • financial services (entry-level licensing thresholds and FAIS compliance burdens on smaller advisory firms).

Conclusion

The Review represents a significant exercise of the Commission’s regulatory advocacy function and marks a notable shift in the focus of competition policy intervention. By turning its analytical lens toward the rules and regulations in the market rather than exclusively toward the conduct of market participants, the Commission is engaging with the structural determinants of market concentration and exclusion at their source.

The effectiveness of this initiative will, however, depend substantially on two variables:

  1. the quality and breadth of submissions received from market participants with direct experience of the identified barriers and;
  2. the political will within the relevant line departments and regulatory bodies to implement the Commission’s eventual reform recommendations.

The Commission’s regulatory review function under section 21(1)(k) is advisory in nature; its recommendations do not bind regulators or the legislature. The Review’s long-term significance will therefore be measured not only by the rigour of its analysis but by the extent to which its findings translate into durable regulatory reform. The recommendations proffered by the Commission will have to be well structured and presented, to ensure that those who can impose regulatory reform, such as the Minister of Trade, Industry and Competition and other ministers engaged through the review process, are encouraged to impose the required reform.

Stakeholders operating in regulated markets are strongly encouraged to engage with this process. The submission deadline of 5 June 2026 affords sufficient time to prepare substantive, sector-specific contributions that could meaningfully shape the Commission’s findings and, ultimately, the regulatory landscape within which South African businesses operate.

FUEL AT THE BOILING POINT: Competition Commission Issues Price Gouging Warning

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By Megan Armstrong and Matthew Freer

South African consumers have received warning to expect oil price hikes from 1 April 2026, at a time when households are already price-constrained and cost-conscious. Naturally, as oil prices increase, consumers can reasonably expect these hikes to be passed down through corresponding price increases on the respective goods and services. The question to business is how much of an increase is reasonably permitted within the ambit of competition law, and what should the timing of such an increase be?

The Commission’s Warning

In response to the anticipated price volatility, the Competition Commission of South Africa (the “Commission”) has issued a media statement warning of heightened risks of price gouging across several sectors. The Commission stated the following:

“The risk is prevalent for unregulated fuels such as diesel retail prices and jet fuel; oil-based products such as nitrogen-based fertilisers and plastics; fuel-intensive services such as air, land and sea transport and logistics; and all other products and services that rely on these inputs, particularly food products and delivery services.”

Additionally, the Commission set out clear rules for businesses navigating the looming price increase:

  • “Businesses may not increase prices in anticipation of future fuel cost increases; they may only increase prices once they experience actual fuel cost increases.
  • Businesses that experience fuel cost increases may only increase their prices in proportion to the actual fuel cost increases they experience.
  • In effect, these two conditions mean that product or service margins after the surge in fuel prices should be no higher than the margins prior to the fuel price increase.
  • Furthermore, once fuel costs decline, product or service prices should decline immediately.”

What is Price Gouging?

Price gouging is the act of charging customers unreasonably high prices for goods or services typically in response to a crisis, natural disaster or demand shock where consumers have few alternatives and the product is a necessity. This behaviour sits at the intersection between business ethics and consumer protection in considering exploitation of a demand spike to maximise profits.

South Africa’s legal approach to this issue does not use the term “price gouging” directly in its primary statutes, rather the framework is built upon two distinct pillars. The first pillar is found in the Competition Act 89 of 1998. Section 8(1)(a) of the Act prohibits a dominant firm from charging an “excessive price to the detriment of consumers or customers”, a definition refined by the Amendment Act of 2018 to mean “higher than a competitive price” and where such a difference is “unreasonable”, targeting firms with substantial market power which abuse their dominance. The second pillar is enshrined in the Consumer Protection Act 68 of 2008. Sections 40 and 48 of this Act prohibit suppliers from engaging in unconscionable conduct and from supplying goods or services “at a price that is unfair, unreasonable or unjust”. This provision has a broader application, as it does not require a firm to be dominant. It applies to any supplier who takes unfair advantage of a consumer.

Considering the existing legislative framework on price gouging behaviour in South Africa, price gouging is then defined as the practice of increasing prices on essential goods or services during a declared disaster or crisis to a level that:

1.         Does not correspond to increased costs of providing the good or service; or

2.         Exceeds pre-crisis profit margins without justification; and

3.         Takes unfair advantage of those consumers with limited alternatives as a result of the emergency situation.

Lessons from COVID-19

The most significant development in South Africa with regards to price gouging came in response to the COVID-19 pandemic. On 19 March 2020, the Minister of Trade and Industry, Ebrahim Patel, published the Consumer and Customer Protection and National Disaster Management Regulations and Directions (the “Regulations“). They were designed to prevent an escalation of the disaster and to protect consumers from exploitative commercial practices during this period of vulnerability.

The Regulations formalised a cost-based test for determining excessive or unfair pricing, that a material price increase of an identified good or service will be considered indicative of excessive pricing if:

  • it “does not correspond to or is not equivalent to the increase in the cost of providing that good or service“; or
  • it “increases the net margin or mark-up on that good or service above the average margin or mark-up for that good or service in the three month period prior to 1 March 2020“.

Furthermore, the Commission’s 2021 Guide for Business Compliance with Price Gouging Regulations, emphasised that during a disaster, price increases must be strictly proportionate to cost increases, and businesses must not exploit temporary demand surges to inflate profit margins.

The Commission’s willingness to act was demonstrated early in the pandemic in the Babelegi case, where a firm was found liable for excessive pricing after increasing mask prices by over 1 000% while its own supply costs remained unchanged.

In essence, South Africa’s legal framework defines price gouging not by the final price itself but by seller behaviour, where an unjustified cost increase representing abuse of a temporary situation in which consumers are a captive market and desperate for essential goods and services. A framework established during COVID-19 now guides current pricing conduct and sheds some light on how the Commission would evaluate seller behaviour in relation to demand shocks arising from emergencies, natural disasters, or market disruptions.

What Businesses Should Do

Business should be mindful of not increasing prices in anticipation of the impact of the oil price increase and engage in corresponding price increases once these price increases have a clear and quantifiable impact on internal pricing mechanisms.

The wider public does have recourse available to contact the Commission, should it appear that a business is engaging in price gouging behaviour, or has responded too erratically to the market disruptions caused by the sudden spike in the oil price. The Commission has stated the following: “Given the heightened risk of price gouging during this period of oil price volatility, the Commission calls on the public and businesses to report instances where they believe price gouging is occurring so that the Commission can investigate.”

Ultimately, the lesson from COVID-19 remains unchanged in that price increases have to be justified by evident supply cost increases and not by opportunity. As the Commission has made clear, anticipation pricing and margin expansion will not be tolerated.

Healthcare Fraud at Tembisa Hospital: R2 Billion Procurement Fraud Exposed

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Courtney Kaplan

A long-running investigation, which is still ongoing, has yielded insights into a massive healthcare fraud at a local South African hospital.

Background

On 23 August 2021, Babita Deokaran, a whistleblower and acting Chief Director of Financial Accounting in the Gauteng Department of Health, was assassinated after exposing around R850 million worth of suspicious procurement payments at Tembisa Hospital. In July 2025, the SIU confirmed that it was finalising the investigation into the assassination.

On 1 September 2023, Proclamation No. 136 of 2023 (the “Proclamation”), was published in the Government Gazette, which gives the Special Investigating Unit (“SIU”) power to investigate accusations of corruption and maladministration regarding Tembisa Hospital and the Gauteng Department of Health. The Proclamation was signed under the Special Investigating Units and Special Tribunals Act 74 of 1996 (“SIU Act”).

In terms of the Proclamation, the SIU is authorised to:

  • Investigate procurement, which is not fair, competitive, transparent, equitable, or cost-effective, or which is prohibited by National Treasury guidelines;
  • Investigate unauthorised, irregular, or fruitless and wasteful expenditure;
  • Institute civil litigation in the High Court or Special Tribunal to recover losses suffered by the State;
  • Pursue pension benefits of resigned or retired officials during investigations;
  • Conduct criminal referrals to the National Prosecuting Authority (“NPA”);
  • Refer conduct to the South African Revenue Service (“SARS”) and National Treasury for blacklisting.

Key Findings

On 29 September 2025, the SIU released an interim report, indicating that approximately R2.043 billion was misappropriated via nine syndicates, including the Maumela, Mazibuko, and X syndicates, manipulating the hospital’s procurement system, which was not used for hospital equiptment. The total amount connected to officials amounted to R122,228,000, with 15 officials being implicated, and 116 disciplinary referrals arranged.

Criminal Charges against Former CFO

On 16 October 2025, criminal charges were laid against the former CFO of the Gauteng Department of Health, Lerato Madyo, who had originally frozen R104 million in questionable payments which had been flagged by Babita, but allowed them to go through and conducted an incomplete related audit report. Lerato resigned in August 2024 before a disciplinary finding was finalised. The charges against Lerato include violations of:

  • Section 34 of the Prevention and Combating of Corrupt Activities Act 12 of 2004 (the “PRECCA”) for failing to report corruption exceeding R100,000;
  • Section 21 of PRECCA for conspiracy;
  • Section 18 of the Criminal Procedure Act 51 of 1977 (conspiracy to commit fraud);
  • Section 38 of The Public Finance Management Act 1 of 1999 (the “PFMA”) for the failure to report irregular expenditure;
  • Section 51 of the PFMA for negligent procurement oversight;
  • Section 81 of the PFMA for financial misconduct; and
  • Theft and fraud.

Asset preservation

On 29 September 2025, the Special Tribunal granted an interim preservation order regarding around R900 million in assets allegedly acquired unlawfully from Tembisa Hospital. On 9 October 2025, an SIU Curator obtained R133,5 million in assets in Gauteng and Mpumalanga. In terms of the preservation order, implicated individuals must declare all assets to the SIU, with failing to do so being considered contempt of court. The SIU is authorised to institute a maximum of 41 civil recovery proceedings within 60 court days.

Arrests and bribery

In April 2025, evidence was given by the SIU to the NPA, Directorate for Priority Crime Investigation (“DPCI”), and Asset Forfeiture Unit (“AFU”) against the Operations Manager of Tembisa Hospital, Zacharia Tshisele, regarding asset recovery and criminal prosecution.

The SIU found that Tshisele obtained unlawful gratification from service providers between 2020 and 2023 and in November 2025, Tshisele paid R13,530,904.27 to the SIU, representing a portion of his proceeds from corrupt conduct.

On 23 November 2025, Papi Tsie, DPCI Sergeant, and Tshisele allegedly gave a R100,000 cash bribe to an investigating officer to attempt to interfere with prosecution. The exchange was a sting operation and led to the arrest of both Tshisele and Tsie, who both pleaded not guilty and were granted R5,000 bail. The case was moved to 27 February 2026 and Lt-Gen Siphosihle Nkosi, Hawks Acting National Head, stated that the investigation would proceed against officials participating in criminal dealings.

Suspensions and estate recovery

On 14 October 2025, Lesiba Arnold Malotana, Gauteng Health Head of Department, was suspended by Gauteng Premier Panyaza Lesufi. On 21 October 2025, an SIU lifestyle audit was released, indicating that Malotana was considered high-risk, and revealed R1,627,300 in ATM deposits which did not coincide with his salary. Malotana challenged his suspension in the Labour Court, which held that the suspension was lawful and rational.

On 4 November 2025, Dr Aaron Motsoaledi, Minister of Health, stated that the government would pursue the estate of the late Tembisa Hospital CEO Dr Ashley Mthunzi for asset recovery as he had allowed irregular purchase orders to go through. As of 8 November 2025, only one of 467 implicated entities had been placed on the National Treasury’s Restricted Supplier Register, prompting an ActionSA complaint to the Public Protector.

Implications

The investigation is still ongoing, with the SIU’s final report not having been released yet. This case illustrates systemic failures in anti-fraud controls in South Africa. Acting Police Minister Firoz Cachalia confirmed to Parliament on 5 November 2025 that criminal cartels have corrupted South Africa’s healthcare procurement at a systemic level beyond Tembisa. The SIU has indicated that Tembisa may represent only the tip of the iceberg across Gauteng’s public health system.

Scrap Under Scrutiny: SACC Raids Scrap Metal Firms over Alleged Price-Fixing

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By Tyla Lee Coertzen and Courtney Kaplan

On 13 February 2026, the South African Competition Commission (“SACC”) released a Media Statement (the “Statement”) indicating that it had carried out several search and seizure operations at four scrap metal purchasing companies in Germiston, Nigel, Vanderbijlpark, and Hammanskraal.

The SACC initiated the dawn raid investigations upon grounds of reasonable suspicion that the four companies – namely, Scaw South Africa (Pty) Ltd (“Scaw”), Cape Gate (Pty) Ltd (“Cape Gate”), Shaurya Steel (Pty) Ltd t/a Force Steels (“Force Steels”), and Unica Iron and Steel (Pty) Ltd (“Unica”) – were involved in fixing purchasing prices of shredded or processed scrap metal, used in the manufacturing of steel products, which may amount to a contravention of section 4(1)(b)(i) of the Competition Act 89 of 1998 (the “Act”).

Section 4(1)(b)(i) of the Act prohibits agreements made between competitors, or concerted practices by competitors, including directly or indirectly fixing purchase prices or trading conditions. Firms who are found to be in contravention of section 4(1)(b)(i) may be liable to pay penalties of up to 10% of their annual turnover.

In terms of the Statement, the companies are suspected of having announced their price adjustments of the same prices, to be executed around the same time. The SACC alleges that this conduct amounts to a contravention of section 4(1)(b)(i) of the Act, which prohibits hardcore cartel conduct. The SACC’s investigation is said to have been brought about by a complaint submitted by a third-party in 2023, as well as a complaint initiated by the SACC in February 2026.

Section 48 of the Act empowers the SACC to conduct search and seizure operations and collect documents which concern an ongoing investigation. In respect of the scrap metal dawn raids that took place on 13 February, SACC provided that it received a search warrant from the North Gauteng (Pretoria) High Court authorising it to carry out these operations. The SACC further indicated that documents and electronic data will be seized and analysed with other relevant information to establish whether the companies are engaged in conduct which contravenes the Act.

Search and seizure operations are also known as “dawn raids” and are often initiated at the start of an investigation, usually before the respondents are aware they are under investigation, to enable the SACC to obtain the information before it might be destroyed. These inspections often come as a surprise to parties and are done in an effort to obtain evidence of potential infringements of the Act. The SACC, often accompanied by the South African Police Service, is provided wide powers for search and seizure through dawn raids, and would be entitled through a warrant to inspect company records, employee records, and both company and personal electronic devices.

Cape Gate responded to the allegations stating that it believes the search warrant is unlawful and that it plans on instituting legal proceedings to have the warrant set aside. The warrant was granted ex parte, meaning it was granted in the absence of the affected parties, and thus Cape Gate believes it has the right to institute proceedings against it. Cape Gate alleges that the SACC did not disclose all the necessary information to the Court when it applied for the warrant. Dorothea Ziegenhagen, the CEO of Cape Gate, stated that the company denies any wrongdoing and asserts that its operations fully adhere to competition law.

Interestingly, in 2025, the Competition Tribunal found Cape Gate guilty of being involved in the fixing of prices in the scrap metal market. Cape Gate denied this and has stated that the calculation was decided on in terms of transparent negotiations between buyers and merchants and has maintained that the SACC and Department of Trade and Industry knew of the negotiations and failed to acknowledge such. Cape Gate lodged an appeal with the Competition Appeal Court which is expected to be heard by the end of March 2026.

Commissioner of the SACC, Doris Tshepe, had indicated in a statement that the scrap metal market forms part of industrial intermediary products, one of the priority sectors monitored by the SACC, and thus false coordination of purchase prices may materially interfere with pricing in the downstream steel value chain. Commissioner Doris Tshepe further provided that dismantling any alleged price-fixing cartel in the scrap metal market would significantly assist in getting rid of artificial barriers to entry and foster a favourable environment for all firms, especially small firms and businesses owned by historically disadvantaged persons to contribute to the market.

The dawn raid comes as a surprise, particularly given that while dawn raids are certainly an effective investigative tool that may be utilised by the SACC as part of its enforcement efforts, the use of dawn raids has been significantly limited in recent years, with the last dawn raid conducted in 2022 on a number of insurance firms. The dawn raids, however, indicate the SACC’s continued commitment to enforcement in the metal sector.

African Antitrust — the Big Picture: 2025 in Review & Outlook for ’26

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Competition-law specialists at Primerio have compiled the following snapshot of 2025.

Competition law enforcement across Africa continued its market trajectory of expansion throughout 2025, with early signals in 2026 enforcing a continent-wide shift towards more assertive, coordinated and policy-driven antitrust regulation. At both a national and regional level, authorities have increasingly moved beyond traditional enforcement and investigative tools.

A defining feature of 2025 has been the growing institutional confidence of African regulators. From the introduction and strengthening of regional regimes to the imposition of significant sanctions against multinational digital market players, African Antitrust enforcement bodies have demonstrated both technical capacity and willingness to ensure compliance with regional and national legislation. At the same time, legislative reform and increases in guidance notes and clarificatory tools signal an increasingly sophisticated regulatory environment, however, one which is more complex for multi-jurisdictional transactional and conduct risk.

This Snapshot spans the key developments we have previously reported on across Southern Africa, the Common Market for Eastern and Southern Africa (“COMESA”), the Economic Community of West African States (“ECOWAS”) and the East African Community (“EAC”), highlighting recent enforcement trends, institutional milestones and new policy innovations that shaped 2025 and which we anticipate will define the African Antitrust landscape as we move further into 2026.

Southern Africa

In South Africa, 2025 and early 2026 have been characterised by increasing interventions in mergers as well as continued use of exemptions and industrial policy.

Digital platform regulation was a defining theme in 2025. The South African Competition Tribunal’s (“SACT”) interim relief order in the Lottoland / Google Ads case signalled a willingness to ensure enforcement over exclusionary conduct in online advertising. This assertiveness was echoed in the GovChat v Meta ruling, where the SACT’s approach to platform access and data inoperability signalled the intention to rest the outer bounds of abuse of dominance enforcement against global big-tech firms.

In parallel, South Africa saw emerging scrutiny from the consumer protection angle, with the South African National Consumer Commission probing e-commerce platforms’ data practices and compliance frameworks, highlighting the convergence between competition and consumer protection enforcement in digital markets.

The South African Competition Commission’s (“SACC”) media and digital platforms market inquiry outcomes, as well as the Google’s agreement to pay ZAR 688 million to South African media, have further illustrated how negotiated remedies and sectoral interventions are being deployed to rebalance digital value chains.

Exemptions and block exemptions have remained a central tool available to parties in South Africa. The granting of Transnet’s 15-year exemption raised significant debate about the appropriate balance between enabling infrastructure coordination and preserving competitive neutrality. Subsequent developments in exemptions, including the block exemption in respect of Phase 2 of the Sugar Master Plan and corridor-based logistic exemptions, confirm that exemptions are being embedded as a long-term sector restructuring tool rather than temporary measures to allow coordination as well as a means to attain specific public interest and industrial policy goals.

Procedural and evidentiary developments have also shaped the landscape. The SACT’s decision granting absolution in the X-Moor tender cartel case clarified the evidentiary burden in collusive tendering prosecutions, reinforcing the need for robust inferential and documentary proof.

In relation to developments in merger control proceedings in South Africa, intervention dynamics were tested in Lewis Stores application to intervene in the merger between Pepkor Holdings Limited and Shoprite Holdings Limited. The South African Constitutional Court permitting Lewis’ intervention have raised much debate as to whether intervention by third parties frustrates and unduly delays the finalisation of merger hearings in South Africa.

The SACC had introduced a number of guidelines in relation to treatment of confidential information, as well as gatekeeper conduct with respect to pre-merger filing consultation processes, online intermediate platforms, notifications of internal restructures meeting the definition of mergers, and price-cost margin calculations. More recently, there have been proposed revisions to the SACC’s merger thresholds and filing fees, signalling a move towards greater ease in deal negotiation.

COMESA

2025 was a landmark year for both regulatory and enforcement developments in the COMESA region.

Most significantly, 2025 saw the introduction of the newly renamed ‘COMESA Competition and Consumer Commission” (“CCCC”) and the publication of the much anticipated COMESA Competition and Consumer Protection Regulations (2025). Early 2026 has also brought subsequent clarifications released by the CCCC with regard to its new suspensory merger regime in order to provide further insight into the CCCC’s approach in regulating mergers now brought to its attention.

The COMESA Court of Justice’s decision regarding the legality of safeguard measures imposed by Mauritius on edible oil imports from COMESA Member States demonstrated continued willingness of regional bodies policing activities of individual Member States.

Regional integration has been further reinforced through a number of cooperation initiatives, including formalised engagement between COMESA and the EAC on competition and consumer protection enforcement.

At Member State level, national competition regimes continue to interact dynamically with the regional system – this has been demonstrated by merger control retrospectives in Malawi, and regulatory developments in Zimbabwe. The Egyptian Competition Authority has, through recent guidance, also sought to provide further clarity with respect to its merger control regime and align with international best practice.

When considered alongside reflections on enforcement trajectory more broadly throughout the COMESA Common Market, the CCCC appears to be consolidating a far more assertive and procedurally sophisticated authority.

EAC

The operational launch of merger control marked a structural milestone for the East African Community Competition Authority (“EACCA”). The EACCA’s confirmation that it would begin receiving merger notifications from November 2025 introduced yet another operational regional authority on the African continent.

National enforcement has remained active alongside this regionalisation. Tanzania’s merger control developments and enforcement strategy signal a regulator seeking sharper investigative tools and clearer procedural pathways. Institutional cooperation is also deepening, as evidenced by alignment initiatives between the Tanzania Fair Competition Commission and the Zanzibar Fair Competition Commission, aimed at reducing jurisdictional fragmentation.

Kenya has also provided some of the region’s most visible enforcement signals. The upholding of cartel sanctions in the steel sector confirms judicial backing for robust cartel penalties. Leadership transitions at the Competition Authority of Kenya may also influence enforcement measures leading into the new year. More recently, the fine imposed in the Directline decision underscores the reputational and financial stakes attached to non-compliance with Kenya’s competition regime.

ECOWAS

Nigeria has been at the forefront of digital enforcement measures in Africa. The Nigerian Competition and Consumer Protection Tribunal’s landmark decision upholding the Federal Competition and Consumer Protection Commission’s $220 million fine on WhatsApp and Meta for discriminatory practices signals both the scale of sanctions now at play.

Regionally, the Economic Community of West African States Regional Competition Authority (“ECRA”) merger control regime gained operational depth in 2025, having been launched in late 2024. Early analysis framed the regime as a foundational shift towards increased regional review, while subsequent approval decisions demonstrated increasing practical application and institutional learning.

Legislative reform also remains underway at Member State level. The Gambia’s draft competition bill reflects a move towards more proactive market inquiry and enforcement powers, suggesting that more novel African national regimes are evolving in tandem with regional frameworks.

Conclusion and Outlook for 2026

Across the African continent, several cross-cutting themes have emerged. First, in line with global antitrust enforcement, digital market investigations and enforcement remains a focus point. From South Africa’s media and digital platform market inquiries and exclusionary investigations to Nigeria’s abuse of dominance sanctions and COMESA’s recent investigation into Meta, it is apparent that African competition authorities are increasingly asserting jurisdiction over digital platforms. Second, exemptions and public interest tools, particularly in South Africa, are being normalised as structural industrial policy instruments.

Regionalisation is also accelerating. COMESA’s long-awaited regulatory overhaul, the introduction and operationalisation of the EACCA’s merger regime and ECOWAS’ expanding enforcement collectively point towards a multi-layered African merger control framework requiring often complex, parallel and overlapping multi-jurisdictional navigation. Institutional cooperation agreements and memorandums of understanding further reinforce this trajectory, suggesting more coordinated enforcement and increased risk of detection.

Looking ahead, we note three developments which merit close attention. First, the practical implementation of new regional regulations, specifically those of the CCCC in COMESA, will test capacity, compliance as well as appropriateness of new regulatory hurdles in the global M&A space. Hand in hand with these, overlapping regional bodies will likely lead to jurisdictional disputes.  Second, Digital market remedies are likely to evolve. Finally, in line with recent developments elsewhere, the continued blending of competition, consumer protection, and industrial policy objectives suggest that African antitrust enforcement will remain uniquely pluralistic.

Update on exemptions and block exemptions – Part 2 of the Sugar Master Plan and Ports, Rail and Key Feeder Road Corridors

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By Michael-James Currie, Tyla Lee Coertzen and Astra Christodoulou

The South African Competition Commission (“the Commission”) had a busy year with regard to exemptions and block exemptions. The South African Competition Act 89 of 1998 (as amended) (the “Act”) permits for exemptions to be granted by the Commission in terms of section 10 upon application by a firm. The Commission’s exemption procedure is applicable only to prohibited practices contained in Chapter 2 of the Act in order to permit certain practices that would otherwise be prohibited (such as certain agreements and concerted practices or categories of agreements and practices and rules of trade associations) if it is required to achieve certain identified socio-economic gains.

The Act allows for two ways in which an exemption may be obtained:

  1. Under section 10(3) of the Act, the Commission may exempt an agreement or category of agreements, from Chapter 2 of the Act if the agreement is required for gains in terms of maintaining or promoting exports, the promotion of a small business or firms controlled by historically disadvantaged persons, changing the productive capacity in order to stop a decline in a specific industry, maintaining economic stability in a specific industry and efficiencies that would promote employment or expansion in an industry.
  2. Under section 10(10) of the Act, the Minister of the Department of Trade, Industry and Competition (“DTIC“) (the “Minister”) may, after consultation with the Commission, issue regulations exempting a specific category of agreements or practices, upon issuance of regulations.

Block exemptions regulated by section 10(10) are increasingly being used by firms as a means of effectively responding to economic and industrial challenges on the one hand while ensuring compliance with what is permitted by the Act on the other.

Block exemptions commonly utilise an ‘in scope confirmation’ measure which ensures that any conduct sought to be engaged in with reference to the block exemption is specifically confirmed by the Commission to fall within the bounds of the exemption, in order to ensure legal certainty as well as to ensure that the conduct will not have a negative effect on consumer welfare and the object of the Act.

Two recent notable block exemptions are elaborated on below.

Ports, Rail and Key Feeder Road Corridors

The Ports, Rail and Key Feeder Road Corridors block exemption came into effect by publication in the Government Gazette on 8 May 2025. The focus of this exemption was to allow key players in the logistics sector to collaborate in a manner that is prohibited by the Act. The exemption was set to allow conduct ordinarily prohibited by section 4(1)(a), 4(1)(b)(i) and (ii) as well as 5(1) of the Act.

The exemption is aimed at assisting the logistics industry through the following envisaged outcomes:

  • reduce the costs associated with infrastructural development and improving services for the benefit of consumers;
  • minimise operational losses and increase infrastructural capacity
  • prevent and mitigate the bottleneck effect that is currently faced in the supply chain, caused by inefficiencies in the sector; and
  • support the security of the movement of goods through South Africa.

Importantly, however, while the block exemption allows for collaboration in terms of section 4(1)(b) of the Act (which places per se prohibitions on price fixing, market division and collusive tendering). The regulations expressly prohibits any arrangements between industry players that would result in price fixing, market division and collusive tendering in respect of selling prices of goods and services to customers and consumers. The block exemption also excludes any discussion which would result in the foreclosure of third-party new entrants, small and medium enterprises and firms owned by historically disadvantaged persons, agreements or practices that are in conflict with sectoral legislation or policy, any conduct that would result in resale price maintenance and any merger transaction.

The exemption has been set to operate for the next 15 years (until year 2040). This period can only be extended by the Minister by way of notice in the Government Gazette.

As is prevalent in many block exemptions, prior to engaging in any such arrangement, any relevant firm must first apply to the Commission in writing, confirming that the specific conduct or agreement is covered by the exemption. Following the Commission’s ‘in scope confirmation’ the firm will be in the clear to engage in the agreement or practice.

Sugar Master Plan

On 13 August 2025, Phase 2 of the Sugar Master Plan (the “Plan”) was finalised and published in the Government Gazette by the Minister, which follows from the implementation of Phase 1 of the Plan on [available here], which laid the foundations for stability and growth in the sugar sector.

The creation of the Plan had stemmed from a number of challenges faced in the sugar industry in South Africa. Specifically, the Sugar Master Plan was developed to promote employment in the South African sugar industry, restructure and balance industry capacity and reduce industrial inefficiencies, enhance transformation of the industry by promotion of broad-based participation in the value chain for workers, and historically disadvantaged persons and prevent further players from exiting the market. The Plan had come into fruition through an exemption granted to the South African Sugar Association by the Commission to enable its members to collaborate. Through this exemption, the Plan was born.

The Plan was scheduled to operate on a phased approach, with Phase 1 being focussed on restructuring and establishing a foundation for diversification. Phase 1 commenced in 2020 concluded in March 2023.

Following the conclusion of Phase 1, industry players subsequently approached the Minister to request a block exemption in terms of section 10(10) of the Act to engage in agreements and practices essential for implementing Phase 2.

The block exemption allows for sugar cane farmers and millers to negotiate, within defined parameters, with commercial food and beverage producers, resulting in prioritising local procurement of sugar over imports. It further allows local farmers and millers to negotiate amongst themselves in order to promote growth through diversified products. Similar to the example mentioned above, the block exemption specifically excludes the fixing of selling prices, market allocation, and collusive tendering in respect of goods and services sold to end consumers (prohibited per se by section 4(1)(b) of the Act) as well as resale price maintenance of goods and services sold to end consumers (prohibited by section 5(2) of the Act).

The block exemption, which will operate for a period of 5 years, also includes a mechanism for in scope confirmation by the Commission, ensuring that all arrangements being entered into by industry players is effectively scrutinised by the Commission and confirmed to fall within the parameters of the block exemption.

The block exemption will allow for joint planning, inclusive decision-making, and stability in the sector, protecting thousands of local jobs in KwaZulu-Natal and Mpumalanga. The exemption will help combat imported sugar flooding the market and ease the strain caused by the Health Promotion Levy (“sugar tax”) on the farmers. The Master Plan aims to reduce the total annual losses caused to the industry of roughly R2 billion.

Conclusion

The use of block exemptions granted by the Minister and monitored by the Commission is becoming increasingly prevalent in South Africa and underscores South Africa’s competition law objectives being applied in a manner which allows flexibility to support industrial policy, economic growth and South Africa’s transformation objectives, while ensuring that no practices fall foul of the Act and well-established competition policy.

Michael-James Currie, director at Primerio says, “Block exemptions are likely to remain an important regulatory tool in South Africa and where exemptions are properly utilised, they provide industry players a pragmatic mechanism and legal certainty with regards to engagements with competitors in the pursuance of broader socio-economic objectives.”

To intervene or not to intervene: a twisted tale in Pepkor’s proposed acquisition of Shoprite’s furniture business

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By Michael-James Currie and Joshua Eveleigh

Participation by third parties in merger control proceedings has long been a fundamental aspect of South Africa’s merger control regime. In this regard, section 53(c)(v) of the Competition Act, 89 of 1998 (“Act”) broadly permits that that any person whom the Tribunal has recognized as a “participant” in a merger hearing, may “participate” in that hearing.

The scope of section 53(c)(v), however, has recently been ventilated before the Tribunal, Competition Appeal Court (“CAC”) and the Constitutional Court (i.e., South Africa’s top court) in respect of Lewis Stores (Pty) Ltd’s (“Lewis”) application to intervene in the proposed merger between Pepkor Holdings Limited (“Pepkor”) and Shoprite Holdings Limited (“Shoprite”) (collectively, the “Merging Parties”)(“Proposed Transaction”).

Background

In brief, the Proposed Transaction relates to Pepkor’s acquisition of the furniture business of Shoprite, consisting of OK Furniture and House & Home retail brands, which will subsequently be incorporated into Pepkor’s existing furniture, bedding and plugged goods retail business.

As part of its investigations, the South African Competition Commission (“SACC”) found that the Proposed Transaction would give rise to horizontal overlaps in the supply of:

  • Furniture products; and
  • Bed sets and mattresses.

The SACC also received concerns about the potential effects of the Proposed Transaction from different market participants, including Lewis. Nevertheless, the SACC found that there would continue to be several alternatives within the product markets which would serve as a competitive constraint against the merged entity post-implementation. It was on this basis that the SACC concluded that the Proposed Transaction would not give rise to a substantial lessening or prevention of competition (“SLC”) and recommended that the Proposed Transaction be approved, subject to public interest commitments.

Lewis’s basis for intervening

During the Tribunal’s consideration of the Proposed Transaction, Lewis brought its application to intervene in the Proposed Transaction on the basis that:

  • Shoprite will be removed as a key competitive constraint on Pepkor and, therefore, resulting in a 3-to-2 merger at the national level in relation to the retail of household furniture; and
  • that the Proposed Transaction will likely result in increased provided for low-to-middle-income consumers.

Lewis also submitted that the SACC did not properly consider the effects that the Proposed Transaction would have on different local geographic markets and, concomitantly, whether any SLC would arise within those specific catchment areas.

Accordingly, Lewis argued that in its capacity as the only national furniture retail chain that competes with both Pepkor and Shoprite on a national basis, it has important knowledge and insights into the furniture retail industry which would assist the Tribunal in assessing the Proposed Transaction.

Tribunal’s reasons for permitting Lewis’s intervention

Lewis’s application to intervene was brought in terms of section 53(c)(v) of the Act, read with rule 46 of the Rules for the Conduct of Proceedings in the Competition Tribunal (“Tribunal Rules”).

Tribunal Rule 46(1) provides that any person who has a “material interest” in the relevant matter may apply to intervene in the Tribunal proceedings.

Importantly, the Tribunal nevertheless stated that an intervening party is not entitled to rights that would “displace or supplant” the role of the SACC. Rather, the Tribunal must assess whether the intervening party would be able to assist it in understanding whether the Proposed Transaction gives rise to an SLC or adverse public interest effects.

In this regard, the Tribunal summarized the three-fold test required for a successful intervention application. In this regard, the Tribunal must consider whether the information to be provided by the proposed intervenor:

  • relates to matters within the Tribunal’s jurisdiction;
  • is not already available to the Tribunal; and
  • whether the potential benefits of such assistance outweigh any adverse effects the intervention might have on the speed and resolution of the proceedings.

The Tribunal must also inquire as to whether the intervenor will provide the Tribunal with meaningful assistance for its purposes of assessing the competition and public interest effects of the particular transaction.

In assessing Lewis’s application, the Tribunal found that there are significant and material disputes of fact that have to be ventilated for the Tribunal to understand the relevant market dynamics and that Lewis could assist the Tribunal in this regard.

Accordingly, the Tribunal permitted Lewis as an intervening party on the basis that it demonstrated its ability to provide “significant and material evidence” on the:

  • nature of competition in the market(s);
  • closeness of competition, and
  • characterisation of regional or localised markets.

The Tribunal did, however, limit the scope of Lewis’s intervention rights on the relevant market definitions and whether the Proposed Transaction is likely to lead to an SLC. Lewis was also admitted to assist the Tribunal in respect of potential remedies and/or the imposition of any conditions that might be imposed.

The CAC’s assessment of merger intervention rights

While there were several aspects of the Merging Parties appeal to the CAC, one of the substantive concerns raised was the Tribunal’s supposed outsourcing of the SACC’s functions in merger hearings to Lewis, as an intervenor. This is particularly because the Tribunal granted Lewis with broad powers including: rights to participate in all prehearing conferences; full discovery rights; the right to require the Tribunal to summon people and documents; full participation rights in any and all interlocutory proceedings; the right to adduce evidence and present argument and the right to cross examine any witnesses; the right for Lewis’s legal and economic advisors to access the merger record and all documents filed.

Considering the extensive rights afforded to Lewis, the CAC stated that the scope of rights afforded to Lewis would “retard an expeditious hearing”. The CAC also went on to state that:

“In the light thereof and in the required balancing exercise, this Court must surely take account of these factors together with the possible vested interest of a competitor in the merger proceedings to slow matters down in order to subvert the merger. It must then be satisfied that the contribution which a respondent can bring to the proceedings meets the test laid down by this Court. In particular, that the respondent has shown that it has unique knowledge of the market and can provide evidence in relation to the overall enquiry as to whether a merger should be permitted in order to justify admission.” (own emphasis)

On the latter inquiry, and after a review of Lewis’s affidavits, the CAC found that Lewis had not demonstrated that it was in possession of evidence which would not otherwise be available to the Tribunal after requiring further assistance from the SACC and would assist the Tribunal in understanding the effects of the Proposed Transaction. 

Accordingly, the CAC found that the Tribunal’s reasons for admitting Lewis as an intervenor:

  • did not properly consider to what extent Lewis was likely to assist the Tribunal in circumstances where the information and evidence it was intending to provide could not have been obtained elsewhere; and
  • failed to find a balance between an order which did not undermine the objective of an expeditious resolution of the matter, the interests of the Merging Parties to an expeditious hearing as compared to the value of Lewis’s contribution to the Tribunal.

Importantly, the CAC also confirmed that orders by the Tribunal which relate to applications for intervention are ‘final’ in nature and are subject to appeal.

In sum, the CAC set aside the Tribunal’s order and dismissed Lewis’s application to intervene, stating that:

“It must be emphasised that the approach adopted in this judgment does not represent the end of the road for the respondent. The Tribunal possesses inquisitorial powers. It is more than entitled to summon the respondent to appear before it to provide it with any information and argument relevant to this proposed merger. It also has the power in terms of its inquisitorial powers to require the [SACC] to gather and present additional evidence in relation to the topics which it identified; being market shares, the effects of the merger on specified identified local markets and the role of online sales and economic surveys, demand side analyses of consumer preference. These are matters which clearly represent the kind of investigations that should be undertaken by the [SACC]. It has been alerted to the type of investigations which the Tribunal requires in the reasons provided by the Tribunal. To the extent that the [SACC] or the Tribunal considers that the respondent could be of assistance in this regard it could require the respondent to provide it with further evidence which would be of assistance.”

Further and final appeal to the Constitutional Court

Following the CAC’s order, Lewis approached the Constitutional Court on an urgent basis.

The central tenet of Lewis’s appeal to the Constitutional Court is that the CAC had effectively imposed a new and burdensome threshold for intervention applications for purposes of section 53 of the Act. In brief, Lewis submits that the CAC required that the potential intervenor’s material interest and ability to assist the Tribunal in a proposed transaction was insufficient and that the intervenor must rather demonstrate that its submissions would be “unique” and “could not be obtained elsewhere”. 

Lewis also raised the following key arguments in its appeal to the Constitutional Court:

  • that the CAC’s judgment violated meaningful procedural fairness and constitutional rights; and
  • that the CAC improperly overrode the Tribunal’s specialist discretion, breaching institutional deference.

The Constitutional Court upheld Lewis’s appeal, permitting Lewis to intervene in the Tribunal proceedings, however, its reasons for doing so have not been published at the time of publishing of this article.

Conclusions and Insights

The protracted saga in Lewis’s application to intervene in the Proposed Transaction has raised much debate as to whether intervention by third parties unduly frustrates the finalization of merger hearings in South Africa. It would make little sense, however, for market participants, with direct and substantial knowledge of the potential effects of a particular transaction, from being precluded from participating in merger hearings before the Tribunal. In this regard, ‘rubber stamping’ a contested merger without affording interested parties to ventilate potential competition and/or public interest concerns before the Tribunal may have the consequence of increasing prices, lowering output and quality, foreclosing competitors – all of which the SACC would be hard placed to remediate post-implementation of the merger.

Rather, it should be incumbent on the Tribunal to find a balance between allowing third parties to provide limited assistance to it, on specific disputes of fact, while ensuring that merger hearings do not become extensively protracted.

Draft Amendments to South Africa’s Merger Thresholds and Filing Fees Published for Public Comment

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By Matthew Freer

Introduction

On 27 January 2026, the Minister of Trade, Industry and Competition, Mr Mpho Parks Tau, published a series of draft notices in the Government Gazette proposing significant updates to South Africa’s merger control regime. These include draft amendments to the merger thresholds under section 11 of the Competition Act, 89 of 1998 (the “Act”), as well as a separate draft amendment to the merger filing fees payable to the Competition Commission.

Together, the proposed changes reflect the first inflationary adjustment to South Africa’s merger notification framework in several years and are intended to align regulatory thresholds and fees with prevailing economic conditions.

Draft amendment to merger thresholds

In Government Notice No. 7029, published in Government Gazette No. 54020, the Minister, acting in consultation with the Competition Commission, invited public comment on proposed amendments to the Determination of Merger Thresholds set out in Part A of General Notice 1003 of 2017 (published in Government Notice No. 41124 of 15 September 2017).

The notice is issued in terms of section 11 of the Act and confirms the Minister’s intention to:

  • amend the existing merger thresholds; and
  • make a new determination of merger thresholds as set out in the Schedule to the notice.

Method of calculation remains unchanged

Importantly, the Minister has expressly confirmed that the Method of Calculation remains unchanged. The method set out in Part B of General Notice 1254 of 2017 (published under Government Notice No. 41245 of 10 November 2017) will continue to apply. Turnover and asset values must therefore still be calculated in accordance with International Financial Reporting Standards (“IFRS”), applying the same methods and principles currently used by the Competition Commission.

The Schedule further retains the existing definitional framework, including the definition of a “transferred firm” aligned with section 12 of the Act.

Revised lower (intermediate) merger thresholds

A merger will meet the lower threshold if both of the following requirements are satisfied:

  • The combined annual turnover in, into or from South Africa, or the combined asset value in South Africa, of the acquiring and transferred firms is R1 billion or more (up from R600 million); and
  • The annual turnover or asset value in South Africa of the transferred firm is R175 million or more (up from R100 million).

Revised higher (large) merger thresholds

A merger will meet the higher threshold if both of the following requirements are satisfied:

  • The combined annual turnover in, into or from South Africa, or the combined asset value in South Africa, of the acquiring and transferred firms is R9.5 billion or more (up from R6.6 billion); and
  • The annual turnover or asset value in South Africa of the transferred firm is R280 million or more (up from R190 million).

Merger classification unchanged

The proposed amendments do not alter the categorisation of mergers under the Act:

  • Small mergers fall below either value of the lower threshold;
  • Intermediate mergers meet the lower threshold but fall below the higher threshold; and
  • Large mergers meet or exceed the higher threshold.

Draft amendment to merger filing fees

Published simultaneously, Government Notice No. 7030 in Government Gazette No. 54021 proposes amendments to Rule 10(5) of the Rules for the Conduct of Proceedings in the Competition Commission and inflationary adjustment to the merger filing fees gazetted in General Notice 1336 of 2018 (published in Government Notice No. 42082 of 4 December 2018), dealing specifically with merger filing fees.

This notice is issued in terms of section 21(4) of the Act, in consultation with the Commissioner, and invites public comment on a draft amendment aimed at effecting an inflationary adjustment to merger filing fees. The fees were last updated in 2018 and have remained unchanged since.

Proposed revised merger filing fees

Under the draft amendment to Rule 10(5), the filing fees for merger notifications will increase as follows:

  • Intermediate mergers: from R165,000 to R220,000;
  • Large mergers: from R550,000 to R735,000.

No changes are proposed to the structure or timing of fee payments, only the quantum payable upon filing.

Public participation and next steps

Stakeholders and interested parties are invited to submit written comments on both draft notices within 30 business days of publication. Submissions must be addressed to the Minister of Trade, Industry and Competition, for the attention of Dr Ivan Galodikwe, either by email or by hand delivery to the Department’s offices in Sunnyside, Pretoria.

If finalised, the combined effect of the proposed amendments will be to:

  • reduce the number of transactions requiring mandatory notification; while
  • increasing the cost of filing notifiable intermediate and large mergers.

Together, these measures signal a recalibration of South Africa’s merger control regime to reflect inflation and economic growth, without altering the underlying legal framework or analytical methodology applied by the competition authorities.

Conclusion

John Oxenham, director at Primerio, notes that “the step taken by the DTIC to increase the financial thresholds for purposes of merger regulation in South Africa demonstrates a move towards greater ease in deal negotiation and has been welcomed by the economy. Parties must still, however, note that while the thresholds may indicate fewer notifications being required be submitted with the South African competition authorities, the Commission may require mandatory notification of small mergers (i.e., mergers which do not meet the intermediate thresholds).”

What’s Changing? An overview of the South African Competition Commission’s recent Draft Guidelines

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by Michael-James Currie and Kelly Baker

Pre-merger filing consultation process

The Competition Commission of South Africa (“Commission”) is fundamentally reshaping how it conducts market oversight through a series of new draft guidelines designed to enhance clarity and a more speedy regulatory processes. One of the most significant changes involves introducing a voluntary, informal, and confidential pre-merger consultation. This process aims to simplify the evaluation of complex Phase II and Phase III mergers, enabling parties to address competition concerns or major public interest issues, including HDP ownership or large-scale retrenchments before they are formally filed. By encouraging merging parties or business rescue practitioners to tender appropriate remedies or competitive assessments upfront, the Commission seeks to reduce regulatory costs and accelerate review timelines.

The draft guidelines on the Pre-Merger Consultation Process can be accessed here.

Online intermediation platforms

For the digital economy, the Commission issued a guidance note for online intermediation platforms, shifting its focus from static market shares to “gatekeeper” characteristics. These platforms often benefit from extreme scale economies and powerful network effects, creating a “virtuous cycle” where a high volume of users makes the platform invaluable to businesses, but also creates significant dependency. The Commission identifies several practices that are likely to harm competition, starting with price parity clauses. Wide price parity prevents businesses from offering lower prices on any other platform, while narrow price parity restricts them from pricing lower on their own websites. As a result, both can entrench a leading platform’s position and discourage price competition. Additionally, a lack of interoperability (the ability for different systems to exchange information and work together) can reinforce a platform’s market power by preventing users from mixing services from different providers. Self-preferencing is another red flag, where vertically integrated platforms favour their own products in rankings or charge lower fees to their own affiliates compared to third-party competitors.

Furthermore, the Commission warns against the misuse of non-public, competitively sensitive data belonging to business users to benefit the platform’s own competing offerings. To protect the participation of SMEs and HDP-owned firms, the Commission scrutinises differentiated trading terms, such as charging higher service fees or providing fewer marketing benefits to smaller businesses compared to global corporate entities. Finally, unfair treatment, such as imposing one-sided contracts, transferring disproportionate risks to sellers (like immediate customer reimbursements at the seller’s expense), or lacking clear dispute resolution mechanisms, is identified as conduct that exploits the dependency of smaller business users.

The draft Guidance Note for Online Intermediation Platforms can be accessed here.

Internal restructuring

The Commission’s final Guidelines on Internal Restructuring clarify that transactions occurring within a group of firms generally do not require notification if they are “purely internal”. A transaction is considered purely internal when it has no implications for the control rights of external shareholders – typically minority stakeholders who are not part of the primary group. A formal merger notification may still be required, however, if the restructuring results in a change, loss, or gain of negative control by these external parties. This includes any alteration to veto rights over strategic commercial decisions such as budgets, business plans, or the appointment of senior management. The Commission distinguishes these from ordinary minority investment protections, such as decisions regarding security listings or alterations to share capital, which do not typically confer control.

Ultimately, the Commission assesses these transactions on a case-by-case basis to determine if an alteration in the market structure has occurred.

The Guidelines on Internal Restructuring are accessible here.

Price-cost margin calculation

Lastly, the Commission has standardised the technical assessment of excessive pricing under Section 8(1)(a) through its price-cost margin calculation guidelines. To determine the actual price charged, the Commission adopts International Financial Reporting Standards (“IFRS 15”) revenue recognition principles, accounting for discounts, rebates, and business cycles. Operational costs are accurately classified as fixed, variable, or semi-variable, with a strong preference for actual costs used internally over those contrived for an investigation. The Commission will also scrutinise internal transfer pricing within groups of companies; if an input cost appears artificially inflated, they will prioritise the actual production cost of the entity producing that input. For calculating capital employed, the Commission prefers market values or depreciated replacement costs for tangible assets over simple book values. A “reasonable rate of return” is determined using the Weighted Average Cost of Capital (”WACC”), calculated via the Capital Asset Pricing Model (“CAPM”) to reflect the risk of the specific industry. This rigorous approach ensures that pricing assessments reflect economic reality rather than inflated accounting figures.

The Guidelines on Price-Cost Margin Calculations are accessible here.