A balancing act or dangerous imbalance? Discussing the Evolution and Import of the Public Interest Assessment in the Competition Act

The public interest assessment element of merger control has undergone significant transformation since the Competition Act's inception.While nobody would debate the urgent need for socio-economic change and transformation in South Africa, the extent to which the Competition Authorities, as gatekeepers for merger control, ought to be placing onerous policy obligations on an increasingly beleaguered M&A space remains a subject of debate. Do the ends justify the means, or is the policy extracting rents from merging parties? In this podcast, legal experts Chris Charter and Duran Naidoo delve into the evolution of the public interest paradigm, analysing how it has shaped merger assessments and its broader implications for South Africa. The conversation reflects on the public interest assessment pre and post-legislative amendments to the Competition Act. They discuss how the amendments have expanded the scope of public interest considerations, compelling merging parties to address not just traditional competition concerns in merger filings, but also a range of public interest factors. They also discuss strategies for navigating the complexities of the regulator’s expectations, emphasising the importance of merging parties being proactive and creative when dealing with the public interest assessment.