Moodaliyar, Kasturi --- "South Africa" [2010] ELECD 775; in Foer, A. Albert; Cuneo, W. Jonathan (eds), "The International Handbook on Private Enforcement of Competition Law" (Edward Elgar Publishing, 2010)

Book Title: The International Handbook on Private Enforcement of Competition Law

Editor(s): Foer, A. Albert; Cuneo, W. Jonathan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448773

Section: Chapter 35

Section Title: South Africa

Author(s): Moodaliyar, Kasturi

Number of pages: 11

Extract:

35 South Africa
Kasturi Moodaliyar1


Introduction
Private enforcement in antitrust cases is a rarity in South Africa. The Competition Act,2
which governs the rules and regulations of competition law in South Africa, allows
for parties to seek reparation for damage in the civil courts only after the competition
authorities (that being the Competition Commission, Competition Tribunal and if there
is an appeal, the Competition Appeal Court) have investigated and made a final deter-
mination as to whether anti-competitive conduct has taken place. Thus parties seeking
damages in antitrust cases have to wait for the outcome of that decision before pursuing
redress. Many additional factors work against the private plaintiff. Claiming damages
can be an expensive exercise due to the time and costs required. The anti-competitive
conduct may have caused the aggrieved party to suffer significant economic loss, thereby
limiting the resources available to a claimant to underwrite litigation. Injured parties can
seek legal assistance on a contingency basis (although there may not be too many willing
litigators).
Since the inception of the Competition Act in 1999, there has in fact been just one
damages case. In this case, which occurred in 2008, Nationwide Airlines (a company
that is currently being liquidated) sued South African Airways (SAA) after the Tribunal
had made a finding that SAA had abused its dominant position.3 Nationwide Airlines
subsequently settled for an undisclosed amount.4 Since this case, there has not been
much development in the area of private enforcement in antitrust ...