ASSESSING THE INVESTIGATIVE POWERS OF THE COMPETITION COMMISSION IN MERGER REGULATION AND CHALLENGES POSED BY THE DIGITAL ERA S.O.S Support Public Broadcasting Coalition v South African Broadcasting Corporation (SOC) Limited [2018] ZACC 37

Abstract

The South African Competition Commission (the Commission) is celebrated as the most efficient and effective body in implementing competition law. The Commission is an independent and impartial body whose primary function includes investigating and prosecuting complaints raised against firms for failing to report notifiable mergers. Over the past decade, it has reviewed several mergers and successfully prevented many anti-competitive market structures.
While the Competition Act (89 of 1998) (CA) empowers the Commission to conduct investigations, the scope and extent of these investigative powers has been unclear. This question was the subject of protracted litigation between the parties in S.O.S Support Public Broadcasting Coalition v South African Broadcasting Corporation (SOC) Limited ([2018] ZACC 37). In that case, the Constitutional Court was called upon to decide whether the Commission’s investigative powers included the authority to subpoena witnesses to appear before it. The decision of the court is a welcome addition to competition law jurisprudence insofar as it creates legal certainty concerning the powers of the Commission, especially in light of recent amendments to the Competition Amendment Act (18 of 2018) (CAA), which now broadens the scope of the Commission’s authority and powers. However, in light of some of the arguments that were brought up regarding missing documents, the case also serves as a warning of the challenges that the authorities may face in a more digital economy, especially relating to their exercise of investigative powers in the context of digital security, encryption and offsite storage of information. This note provides a chronological discussion of the facts, evaluates the court’s decision, highlights possible challenges to future investigations and provides concluding remarks.