Harmonization Of Competition Law In Southern Africa: The Correct Approach

ABSTRACT

In the light of globalization, the establishment of the World Trade Organization (WTO) in 1995, and the establishment of the Southern African Development Community (SADC) in 1992 and the Southern African Customs Union of 1969 (SACU), this research examines the approach (both internationally and regionally) towards one of the important disciplines, namely, competition policy. While the WTO-GATT Agreement of 1995, does not contain a chapter on competition law, Article 25 of the SADC Protocol on Trade, which came into force in 2000, only calls on Member States to implement measures within the Community that prohibit unfair business practices and promote competition. Similarly, Article 40 of the Final SACU Agreement requires all its members to have competition policies and to cooperate with each other with regard to the enforcement of competition laws and regulations. Noting these obligations of member states, the research studies the viability of harmonization of competition law in the Southern Africa region, considering the fact that all SACU members (Namibia, South Africa, Botswana and Swaziland) are members of SADC too and both institutions (SADC and SACU) have more or less the same objectives (although there are notable differences, such as while SACU is a “customs union” SADC is a “development community”), which can be captured to be ‘the free movement of goods between member states and economic development of the region.’ There are no guidelines at SADC and SACU levels on what amounts to unfair business practices (although one may assume that these practices are similar to those recognized in developed countries, see Article 85(81) of the EC Treaty compared to the approach taken by South Africa and Namibia) or on the nature and content of the measures to be undertaken. Should such measures be the same in all Member States, or should whatever measures adopted have the object of prohibition of unfair business practices and the promotion of competition? How should state trading enterprises be handled and to what extent, if at all, should social and political considerations play a role in the nature of competition policy in Southern Africa? Lastly, is there room for the establishment of a SADC Competition Commission to oversee the proper