LIAT DAVIS: Competition body is increasingly unable to keep pace with challenges

Four months have passed since the Competition Tribunal prohibited the merger of Vodacom and Remgro’s fibre operations, yet the public is still waiting for an explanation. This delay is not just perplexing — it is unacceptable. The tribunal is entrusted with making crucial decisions that shape the country’s economic landscape, and such prolonged silence undermines confidence in its processes.

While it is common practice to issue a ruling before releasing the full reasoning, one would assume that the body had already engaged in the necessary analysis before issuing its decision. Given this, it is only reasonable to expect that its reasoning would be made available shortly after the release of its ruling. What, then, justifies this delay? The absence of timely reasons raises concerns about transparency, competence, efficiency and the credibility of SA’s competition authorities.

In November 2021, Vodacom announced its plan to acquire a 30% interest in Maziv, the entity designated to consolidate all fibre assets owned by Community Investment Venture Holdings (CIVH). Remgro, in turn, holds an effective 57% stake in the business. As part of the deal Vodacom committed to injecting R6bn and selling its fibre network to CIVH.

What followed was an arduous negotiation process spanning nearly two years. After extensive deliberations the merging parties proposed a detailed set of conditions aimed at addressing competition and public interest concerns. These commitments included investing at least R10bn over a five-year period, primarily in low-income areas; expanding fibre access to at least 1-million new homes in lower-income areas over a five-year period; creating up to 10,000 new jobs; establishing a R300m development fund to prioritise SMME development; and providing high-speed internet at no cost to over 600 nearby schools and police stations. Moreover, Vodacom pledged to invest up to R14bn into the SA economy through the transaction.

Despite these significant undertakings, on August 8 2023 the Competition Commission recommended that the merger be prohibited. The commission concluded that the proposed transaction was “likely to substantially prevent or lessen competition in several markets” and that the conditions offered were insufficient to mitigate the resultant harm to competition. In addition, it held that the public interest commitments put forward by the merging parties did not outweigh these competition concerns.

More than a year after the commission’s recommendation — and nearly three years after the transaction was initially proposed — the tribunal issued a ruling, prohibiting the merger. Yet it did so without providing any reasons. The tribunal’s dithering only compounds the protracted nature of these proceedings. By failing to timeously issue its reasoning it has not only left the public and industry stakeholders in the dark but is actively denying the merging parties a swift appeal. The question must be asked: how can such a crucial decision, with far-reaching economic implications, be delivered without immediate justification? 

A pattern of delay and dysfunction

It is not the purpose of this piece to assess whether the tribunal was right or wrong in prohibiting the merger — such an evaluation is impossible without access to its reasoning. Without knowing the precise basis for the decision any commentary on its merits would be speculative at best. However, what is indisputably worthy of scrutiny is the tribunal’s unjustified delay in issuing its reasons.

When pressed about the delay the tribunal reportedly responded that the case was highly complex and that it was not practical to issue reasons within the 20-business-day period prescribed by the rules governing the tribunal and the Competition Appeal Court. Yet we are now long past that deadline, with no explanation in sight. This excuse is difficult to reconcile with the fact that the tribunal was confident enough to prohibit the merger in the first place. As already argued, surely to arrive at a ruling one must have undertaken the necessary analysis of the evidence and reasoning. Why, then, has it taken months to articulate what should have been an integral part of the decision-making process?

The delay is particularly egregious given the significant public interest at stake. The proposed transaction directly affects lower-income areas, which are in urgent need of digital infrastructure and affordable connectivity. By stalling the release of its decision, the tribunal is not only obstructing legal recourse for the merging parties but potentially delaying much-needed economic and technological benefits for some of the country’s most vulnerable citizens. Such complacency raises serious questions about the efficiency and accountability of SA’s competition authorities.

This kind of inefficiency demonstrates the dysfunctionality of the country’s competition authorities. Unfortunately, it is not an isolated incident. The commission took two years to conclude its investigation into this transaction, and more recently missed its own deadline when releasing its report of its data market inquiry. These delays are not mere administrative inconveniences — they undermine the very purpose of competition regulation. 

Competition law is a dynamic and fast-moving field, and if the bodies tasked with regulating and adjudicating it cannot operate efficiently and with urgency, the entire system risks collapsing under its own inertia. This is particularly concerning in an era dominated by the rapid expansion of big-tech and digital markets, where swift regulatory action is crucial to maintaining fair competition.

Yet SA’s authorities seem increasingly ill-equipped to keep pace with these evolving challenges. If they cannot adapt and act decisively they risk rendering themselves obsolete in a landscape that demands agility, precision and timely intervention. 

SA’s competition law should be a tool for economic transformation, not a casualty of bureaucratic inefficiency. Delays like these do more than undermine the credibility of competition authorities — they actively harm economic growth and democratisation, and deter foreign investment. If those in charge cannot execute their duties with the competence and urgency required, then it’s in the interests of justice and the economy that more capable hands take their place. The country cannot afford regulators who stall when the stakes are this high. 

• Davis is a postdoctoral fellow at George Washington University Competition Law Centre.