Abstract

One of the distinctive characteristics of South Africa’s merger control regime is the public interest test applied in every merger. The Walmart/Massmart merger of 2012 was the first high-profile test of the public interest standard, and the Competition Appeal Court set out certain parameters for the application of the public interest standard that largely influenced the assessment of the public interest standard in the 2010s. With the Competition Amendment Act of 2019, the public interest test has entered a second phase of development, as competition authorities have been more assertive in their application of the public interest standard. This has led to certain decisions, such as the Burger King merger being the first case in which the Competition Commission has prohibited a merger solely because of the public interest grounds, and the Mediclinic merger, which incorporated the Competition Act’s objectives and the Constitution in interpreting the public interest test. This has culminated in the Competition Commission’s Revised Public Interest Guidelines of 2024 confirming the prominence of the public interest test, the broadening of considerations and the positive obligation for mergers to promote one of the public interest grounds. The implications of this second phase for market participants are investigated in this article.