Search for:

Sphesihle Nxumalo

Sphesihle Nxumalo is an associate in Baker McKenzie's Antitrust & Competition Practice Group in Johannesburg. He is part of a multi-firm, multi-jurisdictional team that won the Global Competition Review 2020 Award for Merger Control Matter of the Year for Asia-Pacific, Middle East and Africa. Sphesihle's experience spans the entire spectrum of antitrust and competition law across all African jurisdictions. He advises and represents blue chip multinational companies on high value and complex merger transactions, as well as on antitrust litigation relating to abuse of dominance, cartel conduct and vertical restraints. He has a wealth of experience in Industrials, Manufacturing and Transportation (IMT), Healthcare, Technology, Media and Telecommunications (TMT). In particular, he has acted for clients in diverse industries including healthcare and pharmaceuticals, banking, private equity, automotive, petroleum, mining and construction, aviation, consumer goods and telecommunications.

Competition authorities the world over have observably expanded their consideration of transactions from applying a purely competition-focused lens to one that incorporates the broader needs of society. Many African merger control regimes have developed a competition policy approach that balances traditional competition law considerations with public interest concerns, especially in terms of market concentration, access to competitive markets for small and medium enterprises and employment considerations.

The Competition Commission in South Africa recently published a Practice Note on the Promotion of Competition and Inclusion in Supplier Panels of Banks and Insurers. This Note is intended to guide Banks and Insurers on the best practices and pro-competitive principles that can be applied when appointing suppliers to Supplier Panels (including conveyancing and automotive panels). Banks and Insurers should take measures to comply with this guidance, as non-compliance could attract enforcement action.

It has been noted that the price volatility of essential food items in South Africa is under the watchful eye of the competition authority in South Africa. This is after legal interventions intended to guard against price increases during the pandemic were repealed when the National State of Disaster ended in early April 2022. At the same time, businesses that operate in the Consumer Goods and Retail sector are dealing with ongoing supply chain disruption.

The termination of the National State of Disaster in South Africa means that regulations and directions that were made to mitigate the impact of the pandemic in terms of the Disaster Management Act are effectively repealed. Part of the interventions made by the government were Competition Law block exemptions issued by the Minister of Trade, Industry and Competition in South Africa to aid government programs designed to fight COVID-19. As such, any agreements or concerted practices between parties in the affected industries, which may contravene the Competition Act, will no longer be exempted from the Act’s provisions.

The South African Competition Commission recently released its Economic Concentration Report, which highlights patterns of concentration and participation in the South African economy. The Report includes details on the Commission’s power to launch market inquiries into highly concentrated industries, as well as its increased authority to impose structural remedies on businesses in these sectors.

Draft guidelines to the COMESA Competition Regulations, 2004 were published for public comment in October 2021. The guidelines are intended to provide clarity, transparency and certainty on the policies and procedures of the COMESA Competition Commission. Based on international best practice, they address the determination of fines and administrative penalties, as well as settlement and hearing procedures.

Numerous competition authorities in Africa are aware of the effects of unjustified price hikes and excessive pricing on already vulnerable economies. They have responded by establishing specialised investigation teams, refocusing existing resources to COVID-19 specific complaints and introducing new competition regulations – as is the case in South Africa. African…

In brief COVID-19 has brought about unfavorable consequences for companies and many of them will be facing financial hardships in the aftermath of the pandemic. One of the most effective ways in which companies may address financial di756876 stress is through mergers. Lerisha Naidu, Sphesihle Nxumalo, and Thando Thabethe, from…