Constitutionalising competition law: the advancement of socio-economic rights through competition law
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Date
2024
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University of the Western Cape
Abstract
Competition law is often seen as a specialized field primarily understood and utilized by business lawyers and their clients. This perception may overlook its significance in supporting the socio-economic goals of the new democratic South Africa, as outlined in the Constitution. This research paper explores the potential role of competition authorities in advancing socio-economic rights (SERs) enshrined in Chapter 2 of the Constitution. It questions whether these authorities, with their regulatory powers under the Competition Act, can contribute to promoting access to SERs. The paper examines cases where competition authorities in South Africa have impacted the rights to access healthcare and food. It does not conduct an impact study due to data limitations and focuses on specific cases within these sectors. Using a desktop analysis of relevant cases from the Constitutional Court, Competition Commission, and Competition Tribunal, the paper considers how competition authorities have addressed issues related to healthcare and food access. The findings suggest that competition authorities have addressed cases in prioritised sectors aligned with constitutional rights, aiming to improve and advance access to healthcare and food. Although they are limited in nature, the authorities often leverage public interest considerations (mainly found under the merger control provisions) to achieve these goals. This paper also compares the concept of public interest considerations in South Africa, which are limited in scope, with the more expansive approach taken in Zambia.
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Keywords
Bill of rights, Competition act, Competition authorities, Constitution, Constitutional court