Abstract

The emergence of new markets, especially in the digital sector where business models are complex and innovation is constantly changing the competition landscape, has brought about new regulatory challenges for competition agencies across the world. These challenges may require a departure from the traditional tools of enforcement and the development of a somewhat new regulatory approach. In middle-income countries, the need for the adjustment of enforcement tools is further necessitated by persistent and stubbornly high levels of concentration in key sectors that have a potential to contribute to the realisation of an inclusive and growing economy. For example, in South Africa, the Competition Commission of South Africa (CCSA) has recorded unquestionable successes in cartel enforcement in the past two decades, with hefty fines imposed against those found to have participated in cartel conduct. However, the application of traditional tools of enforcement in abuse of dominance cases has borne little success and, as a result, key industries such as steel and agriculture remain highly concentrated. This has prompted government, through the Department of Trade, Industry and Competition, to strengthen the powers of the CCSA by, among other things, adding to its toolbox the power to conduct market inquiries. This article examines whether market inquiries are best suited, and a more effective enforcement tool used to address market concentration challenges in South Africa. The article draws from market inquiries conducted by the CCSA in banking, data, and digital sectors. It also critiques the CCSA’s powers to conduct market inquiries.