South Africa has a substantial number of sectoral regulators — in energy, telecommunications, broadcasting, financial services, transport — each with its own statutory mandate and its own analytical framework. The Competition Act sits alongside this regulatory architecture, with the Commission and the Tribunal having jurisdiction over restrictive practices wherever they occur, including in regulated sectors. The two systems are not designed in isolation, but their interaction has been worked out incrementally.
The relevant statutory provisions establish concurrent jurisdiction in respect of competition matters within regulated sectors, with mechanisms intended to coordinate the activities of the Commission and the sectoral regulators. In practice, those mechanisms have been used with varying degrees of formality. Some sectoral regulators have well-developed working relationships with the Commission; others have not. The result is a degree of inconsistency in how concurrent jurisdiction is exercised.
The substantive question is more interesting than the procedural one. Sectoral regulators often have access to information, technical expertise and continuous relationships with regulated entities that the Commission does not. The Commission, in turn, has institutional commitments to competition analysis that sectoral regulators may lack. The right division of labour is not obvious, and it is not the same in every sector.
For practitioners advising in regulated sectors, the practical implication is that competition analysis cannot be conducted in isolation from the sectoral regulatory framework. Conduct that is permitted, or even required, under sector-specific legislation may nonetheless raise competition concerns. Conversely, conduct that appears anti-competitive in the abstract may be necessary to comply with regulatory obligations. The interaction needs to be worked through case by case, with sensitivity to both bodies of law.