PROFILE: Competition Tribunal chair Mondo Mazwai
The first black woman chair may face an even tougher environment than her predecessors, now that business has gone on the defensive
You might have thought that after 20 years the "new" competition authorities would have settled into something of a groove, with each new day bringing challenges not too different from the previous day’s. You might also have thought the recently appointed Competition Tribunal chair, Mondo Mazwai, would have a reasonably comfortable slot to fit into.
As it happens, just as with almost every other aspect of SA life, there’s no sign of a comfortable groove at the competition authorities. By some accounts it’s possible Mazwai is facing an even tougher environment than her two predecessors. (Did we mention she is the first black woman chair?)
Business, the tribunal’s primary customer base, as it were, has abandoned the tentative, slightly deferential approach it used in the early days. It is now full-on defensive.
Consider the recent swipe by Naspers chair Koos Bekker, who told shareholders at the group’s AGM that the SA authorities’ increasing competition scrutiny was not sensible in the context of global giants on the lookout for deals. Bekker, one of the most powerful businessmen in SA, made no specific mention of Naspers-controlled MIH eCommerce’s problematic bid to acquire online car retailer WeBuyCars — but most knew that was what prompted his outburst.
Mazwai is surprisingly phlegmatic about Bekker’s public remarks, confirming not only that corporate executives are entitled to comment but are almost obliged to express concerns they may have.
However, she refuses to be drawn on the specifics of a case that might be coming before her.
Regulating competition in online commerce, where dramatic growth rates are changing the landscape of many industries, will be just one of the new challenges facing the authorities.
But without doubt the most pressing new challenge for Mazwai is overseeing implementation of amendments that were signed into law early this year. They broaden and deepen regulators’ power and are primarily aimed at dealing with companies that dominate the economy. Pushback from those powerful entities is inevitable.
"The act has been in place for 20 years, but we still have high levels of concentration," says Mazwai, who believes the presence of monopolies and cartels is indicative of a lack of innovation and allows for slow economic growth.
Essentially, powerful companies choose not to compete.
"Of course competition law is not the panacea for the problems we have, but we can take a look, see where we can be innovative and how we can encourage inclusivity."
Market inquiries, regulation of mergers & acquisitions (M&A), abuse of dominance and "fair pricing" are at the centre of the new powers, which the commission and tribunal are now required to enforce with a keen eye on how small and medium-sized or black-owned businesses are affected by big business.
The amendments do read as though trade & industry minister Ebrahim Patel has also decided to take off the gloves. He’s even scrapping the warning for first-time contraventions on the reasonable grounds that, after 20 years, companies should know the legislation.
As the new chair, Mazwai will essentially be right in the middle of this tougher new landscape. And whether or not Patel’s amendments land any blows might largely depend on how deftly she handles the opposing sides.
It will help that Mazwai has sat on both sides. After serving the early years of her law career at Cheadle Thompson & Haysom, in 1999 she joined the newly established Competition Commission, first in the M&A division and then in the enforcement section where she dealt with cartels and abuse of dominance. In 2003 Mazwai was appointed deputy commissioner but two years later was tempted over to the private sector by Cliffe Dekker, where she headed the competition law practice.
Seven years in the cut-throat world of law firms, the first two as the only woman head of practice, gave Mazwai an excellent chance to see competition regulation from the perspective of business. "Some understand there has to be regulation, but many see it just as interference."
In 2013 she rejoined the regulators, this time as a full-time member of the tribunal; she was appointed chair in August. "We want to encourage investment but we want to ensure small business participates in the market," she says.
"Our job is finding the balance."