An Overview of the Extent of the Powers of South African Competition Authorities in the Regulation of Price Discrimination under the Competition Act 89 of 1998 in the Context of Digital Transformation

Authors

DOI:

https://doi.org/10.17159/1727-3781/2024/v27i0a17154

Keywords:

Competition authorities, price discrimination, algorithmic pricing, consumer protection, digital transformation

Abstract

The purpose of the Competition Act 89 of 1998 as amended (the Competition Act) is, among others, to promote the efficiency, adaptability and development of the economy as well as to provide consumers with competitive prices and product choices. In line with this purpose, the Competition Act provides that a dominant firm is prohibited from engaging in price discrimination if such conduct will likely substantially prevent or lessen competition, which would be to the detriment of consumers. Notably the Competition Act has established various bodies to regulate competition and act against any conduct prohibited by this Act in South Africa. These bodies include the Competition Commission, the Competition Tribunal, and the Competition Appeal Court. Notwithstanding the prohibition of price discrimination, the Competition Act does not expressly provide adequate enforcement tools for competition authorities to combat uncompetitive practices in the digital era. Moreover, the Competition Act does not expressly grant these statutory bodies clear roles and mandates on providing consumers with adequate and suitable redress when they have been victims of algorithmic price discrimination. With recent technological developments, electronic commerce (e-commerce), and digital transformation, consumers have become vulnerable to various challenges such as excessive pricing, data breaches and algorithmic pricing. The online and digital markets are characterised by complex transactions, innovative technologies and business practices which expose all consumers, including vulnerable consumers, to different risks. As such, the role of the competition authorities needs to be recalibrated to enhance consumer protection on the pricing of goods and services. To this end this paper seeks to investigate the role and ambit of the powers of these competition authorities in the regulation of price discrimination in the context of digital transformation and the digital economy. This is done to assess whether the competition authorities have the necessary tools of enforcement to ensure that markets are competitive and to combat uncompetitive conduct in the digital economy and online markets.

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Author Biography

Phemelo Magau, University of Pretoria

Phemelo Magau. LLB LLM LLD (NWU). Senior Lecturer, Department of Mercantile Law, Faculty of Law, University of Pretoria, South Africa.

References

Bibliography

Literature

Besbes O and Lobel I "Intertemporal Price Discrimination: Structure and Computation of Optimal Policies" 2015 Management Science 92-110

Brassey M et al Competition Law (Juta Cape Town 2002)

Brobeck S, Mayer RN and Hermann RO Encyclopedia of the Consumer Movement (ABC-CLIO Inc Santa Barbara 1997)

Chitimira H and Animashaun O "The Adequacy of Nigeria, South Africa and Other Sub-Saharan Countries' Response to the COVID-19 Pandemic and Unemployment" 2021 Acta Universitatis Danubius Juridica 36-55

Chitimira H and Magau P "The Role of Selected Regulatory Bodies in the Promotion of Financial Education in South Africa" 2023 Acta Universitatis Danubius Juridica 28-47

Chitimira H and Ncube M "Legislative and Other Selected Challenges Affecting Financial Inclusion for the Poor and Low-Income Earners in South Africa" 2020 JAL 337-355

Cseres KJ Competition Law and Consumer Protection (Kluwer Law International The Hague 2005)

Dandara C, Dzobo K and Chirikure S "COVID-19 Pandemic and Africa: From the Situation in Zimbabwe to a Case for Precision Herbal Medicine" 2020 OMICS: A Journal of Integrative Biology 1-5

Fitzgerald B et al Internet and E-Commerce Law: Technology, Law and Policy (Thomson Reuters Lawbooks Pyrmont 2007)

Gregoire Y and Fisher RJ "Customer Betrayal and Retaliation: When your Best Customers Become your Worst Enemies" 2008 J Acad Market Sci 247-261

Grennan M "Price Discrimination and Bargaining: Empirical Evidence from Medical Devices" 2013 Am Econ Rev 145-177

Gwartney JD et al Macroeconomics Private and Public Choice 17th ed (Cengage Learning Boston 2020)

Kelly L et al Principles of Competition Law in South Africa (Oxford University Press Cape Town 2016)

Lewis D Enforcing Competition Rules in South Africa: Thieves at the Dinner Table (Edward Elgar Cheltenham 2013)

Magau P "The Regulatory Nexus between the Promotion of Financial Education and Financial Inclusion in Enhancing Consumer Protection in South Africa" 2023 De Jure 220-240

Motta M Competition Policy: Theory and Practice (Cambridge University Press Cambridge 2004)

Mukumbang FC, Ambe AN and Adebiyi BO "Unspoken Inequality: How COVID-19 has Exacerbated Existing Vulnerabilities of Asylum-Seekers, Refugees and Undocumented Migrants in South Africa" 2020 International Journal for Equity in Health 1-7

Neethling J and Rutherford BR "Competition" in Joubert WA (founding ed) The Laws of South Africa (LexisNexis Durban 2003) vol 2 part 2

Papadopoulos S and Snail S Cyberlaw@SA IV: The Law of Internet in South Africa (Van Schaik Hatfield 2022)

Reyburn L Competition Law of South Africa (Butterworths Durban 2004)

Siegert C and Ulbricht R "Dynamic Oligopoly Pricing: Evidence from the Airline Industry" 2020 Int J Ind Organ 1026-1039

Sutherland P and Kemp K Competition Law of South Africa (LexisNexis Durban 2013)

Townley C, Morrison E and Yeung K "Big Data and Personalised Price Discrimination in EU Competition Law" 2017 YEL 683-748

Van Eeden E and Barnard J Consumer Protection Law in South Africa 2nd ed (LexisNexis Durban 2017)

Van Heerden C and Barnard J "Redress for Consumers in terms of the Consumer Protection Act 68 of 2008: A Comparative Discussion" 2011 JICLT 131-144

Van Heerden HJO and Neethling J Unlawful Competition 2nd ed (LexisNexis Durban 2008)

Woker T "Consumer Protection and Alternative Dispute Resolution" 2016 SA Merc LJ 21-48

Woker T "Evaluating the Role of the National Consumer Commission in Ensuring that Consumers have Access to Redress" 2017 SA Merc LJ 1-16

Woker T "Consumer Protection: An Overview Since 1994" 2019 Stell LR 97-115

Wu Z et al "The Impact of Algorithmic Price Discrimination on Consumers' Perceived Betrayal" 2022 Frontiers in Psychology 1-12

Case law

Agri Wire (Pty) Ltd v Commissioner of the Competition Commission 2013 5 SA 484 (SCA)

Albutt v Centre for the Study of Violence and Reconciliation 2010 3 SA 293 (CC)

Babelegi Workwear and Industrial Supplies CC v Competition Commission of South Africa 2021 6 SA 446 (CAC)

Competition Commission v Dis-Chem Pharmacies Limited (Competition Tribunal) case number CR008Apr20 of 7 July 2020

Competition Commission v Babelegi Workwear and Industrial Supplies CC (Competition Tribunal) case number CR003Apr20 of 1 June 2020

Competition Commission v Yara (South Africa) (Pty) Ltd 2013 6 SA 404 (SCA)

Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 1 SA 374 (CC)

Harmony Gold Mining Company Ltd v Mittal Steel South Africa Ltd 2007 1 CPLR 37 (CT)

Harmony Gold Mining Company Ltd v Mittal Steel South Africa Ltd 2007 2 CPLR 271 (CT)

National Consumer Commission v Belegi Workwear and Industrial Supplies (Pty) Ltd (National Consumer Tribunal) case number NCT/160912/2020/73(2) of 12 June 2020

National Credit Regulator v Capitec Bank Ltd (A440/2014) [2016] ZAGPPHC 125 (23 March 2016)

Nationwide Poles v Sasol (Oil) (Pty) Ltd (72/CR/Dec03) [2005] ZACT 17 (31 March 2005)

Old Mutual Properties (Pty) Ltd v Avalon Group (Pty) Limited 2003 1 CPLR 46 (CAC)

Old Mutual Properties (Pty) Ltd v Competition Tribunal 2003 1 CPLR 46 (CAC)

Orion Cellular (Pty) Ltd v Telkom South Africa Ltd 2004 1 CPLR 198 (CT)

Premier Foods (Pty) Ltd v Manoim 2016 1 SA 445 (SCA)

Sasol Oil (Pty) Ltd v Nationwide Poles CC 2006 1 CPLR 37 (CAC)

Seagram Africa (Pty) Ltd v Stellenbosch Farmers' Winery Group Ltd 2001 2 SA 1129 (C)

Simelane v Seven-Eleven Corporation South Africa (Pty) Ltd 2003 1 All SA 82 (SCA)

Legislation

Competition Act 89 of 1998

Competition Amendment Act 18 of 2018

Constitution of the Republic of South Africa, 1996

Consumer Protection Act 68 of 2008

International instruments

Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 Concerning Unfair Business-to-Consumer Commercial Practices in the Internal Market and Amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council OJ L 149/22 (2005)

Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on Contestable and Fair Markets in the Digital Sector and Amending Directives (EU) 2019/1937 and (EU) 2020/1828 OJ L 265/1 (2022)

Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and Amending Directive 2000/31/EC OJ L 277/1 (2022)

Treaty on the Functioning of the European Union (1957)

Internet sources

Competition Commission 2023 Online Intermediation Platforms Market Inquiry: Final Report and Decision https://www.compcom.co.za/wp-content/uploads/2023/07/CC_OIPMI-Final-Report.pdf accessed 3 August 2023

Organisation for Economic Co-operation and Development 2023 Consumer Vulnerability in the Digital Age https://www.oecd-ilibrary.org/docserver/

d013cc5-en.pdf accessed 28 September 2023

Published

10-07-2024

How to Cite

Magau, P. (2024). An Overview of the Extent of the Powers of South African Competition Authorities in the Regulation of Price Discrimination under the Competition Act 89 of 1998 in the Context of Digital Transformation. Potchefstroom Electronic Law Journal, 27, (Published on 10 July 2024) pp 1–21. https://doi.org/10.17159/1727-3781/2024/v27i0a17154

Issue

Section

Special Edition: Banking, Competition & Corporate Law

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