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In 1998 South Africa adopted a comprehensive new competition statute, the Competition Act. However, prior thereto, other statutes had existed which were all effectively repealed on the basis of either material deficiencies or not being in sync with the changing socio-economic and political environment. The 1998 Competition Act aims at establishing an effective competition regulatory system that address the country’s socio-economic needs. The Act’s stated objectives goes beyond the traditional goal of promoting and maintaining competition through the regulation of anti-competitive market behaviour to encompass broader policy considerations in the form of so-called non-competition factors. This feature mirrors the country’s social and economic historical development and is an acknowledgement of the notion that the law derive its credibility from the environment in which it operates hence must not ignore the practical realities existing in such an environment. It must be noted that this characteristic is not alien to South Africa as it is common in many developing countries’ competition statutes which statutes have been adopted as part of broader economic reform programmes. However, what sets the South African system apart from these other jurisdictions is its demonstrated effectiveness in the application of these public interest considerations in competition matters, especially in merger regulation.

The Implications of Public Interest Considerations on the Interpretation and Application of the Failing Firm Doctrine in South African Merger Analysis