South Africa: Effectiveness vs procedural fairness in competition law enforcement: Are procedural safeguards responsible for delayed justice?

The safeguard of procedural fairness is an essential component of any competition law system. Fairness builds trust into the system by ensuring parties subject to competition proceedings are provided the right to be heard and to judicial review. However, safeguards put into place to guarantee fairness have spillover effects in relation to other equally important principles for successful competition law enforcement, including that of effectiveness. In South Africa, there have been concerns that the legal framework is biased towards the protection of parties’ rights, which enables their legal representatives to abuse the system with superfluous interventions and appeals on procedural matters. Procedural fairness guarantees should not come at the expense of tardy or subdued enforcement impact. In the words of William E. Gladstone, former British statesman and prime minister, “Justice delayed is justice denied.” This article critically reviews whether the procedural fairness guarantees under the South African system may have unintended consequences on the system’s effectiveness and improvements that can be made to strike a healthier balance between fairness and effectiveness.

I. Introduction 1. It has been acknowledged that the safeguard of procedural fairness is an essential component of the competition law system. Fairness builds trust into the system by ensuring parties subject to competition proceedings are provided the right to be heard and to judicial review. Fairness can lead to better-informed decisions and focused investigations by exposing the reasoning and evidence relied upon during the investigation to the affected parties, which can result in the dismissal of far-fetched theories of harm. However, procedural fairness should not be discussed in isolation. The safeguards put into place to guarantee fairness have spillover effects in relation to other equally important principles for successful competition law enforcement, including that of

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Sandya Booluck, South Africa: Effectiveness vs procedural fairness in competition law enforcement: Are procedural safeguards responsible for delayed justice?, November 2022, Concurrences N° 4-2022, Art. N° 109099, pp. 180-191

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