EDITORIAL: Did the tribunal put its thumb on the scales?

A Dis-Chem pharmacy in Rosebank, Johannesburg. Dis-Chem is likely to lose the case of excessive pricing brought against it. Picture: FINANCIAL MAIL

The first chair of the tribunal, David Lewis, has previously noted that excessive pricing in competition law “is fraught with complexity and controversy”. The Competition Act states only a dominant company with market power can be guilty of excessive pricing. Both cases went all the way to the Competition Appeal Court, which overturned the guilty verdicts. Put another way, not a single case of excessive pricing in SA’s democracy has been upheld by the Competition Appeal Court.First, the commission, which brings a case before the tribunal, had to prove this family-run company was a dominant player with market power to set excessive prices unconstrained by competition.

This, say lawyers, is problematic. The law has many tests to prove a company is dominant, including considering competitors’ prices at home and in other markets, the length of time this happened and barriers to entry. But the commission didn’t examine these issues. But Babelegi sold these masks in February, before SA had been gripped by the pandemic and imposed its national lockdown, which came towards the end of March.

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