But the industrial reorganisation now underway around artificial intelligence is arguably the most consequential structural shift for competition policy since the rise of the digital platform economy in the 2010s. It is also submitted that in some respects it is more challenging, because it is happening faster, across more sectors simultaneously, and with a degree of vertical integration that makes traditional market definition genuinely difficult.

After studying the PitchBook’s December 2025 AI Outlook: The Great Competition Wars Have Begun [1], a research report analysing various sectors, presenting unusually granular evidence of where capital, market share, and M&A activity are concentrating, we deemed it of sufficient insight to pen this article.

Our aim with this thought piece is to equip boards, general counsel, and deal teams with a clear assessment of where the competition law risk actually lies, not where the headlines suggest it does.

The Shape of the Problem: Who Controls What, and Why It Matters

The AI economy is not one market. It is a stack, and competition concerns differ sharply depending on which layer you occupy.

At the base sits the compute and datacentre layer, where the global build-out for AI infrastructure is approaching one trillion dollars annually. That figure alone tells us something important about barriers to entry: this is not a market that a well-funded startup can meaningfully contest from scratch. The capital requirements are enormous, the lead times for power and cooling infrastructure are measured in years, and the physical constraints, grid capacity, permitting, energy supply, are binding in ways that no amount of venture capital can overcome quickly. Clean energy integration, grid management, and distributed energy resource management are becoming necessary complements to datacentre scale, and the players best positioned to secure those inputs are, unsurprisingly, the ones who already have them.

Above compute sit the foundation models. This is the layer that, we submit, presents the most acute competition concerns. PitchBook’s data confirms what practitioners have long suspected: foundation model providers have captured the bulk of AI deal value, capital formation remains “heavily concentrated” around a limited number of large-scale model builders, and these providers are “becoming the default infrastructure for a growing share of enterprise AI workloads“.  Their scale, model performance, and integration depth give them what the report describes as “clearer business durability than most application-layer startups“.

The economic logic is straightforward and familiar from prior platform cycles: as inference becomes a recurring utility service, as workflows increase usage density, and as enterprises lock into multiyear computing platform commitments, switching costs compound and the installed base becomes progressively harder to displace.

For competition lawyers, the language of “default infrastructure” and “multiyear platform commitments” should trigger immediate recognition. These are the structural preconditions for dominance, not necessarily dominance today, but the kind of durable market power that, once established, is exceptionally difficult to unwind through ex post enforcement alone.

Above the model layer are the application, and sector-specific layers, where the dynamics differ but are no less important. Here, the PitchBook analysis reveals a pattern of rapid adoption by sector incumbents who are acquiring AI capabilities to defend entrenched positions, in healthcare, agriculture, cybersecurity, enterprise software, and e-commerce, among others. The competitive risk in these sectors is that AI will entrench the advantages of those who already control distribution, data, and customer relationships.

Barriers to Entry: The New Moats

We have spent years advising clients on what constitutes a durable barrier to entry. The AI cycle introduces some familiar moats in new guises, and at least one that is genuinely novel.

Data. The PitchBook report is emphatic that durable advantage in AI rests on “unique data moats” and deep integration into enterprise workflows. In enterprise SaaS, the marketing and analytics niches are “saturated with undifferentiated tools,” and the startups that lack proprietary data and workflow ownership face rapid commoditisation.  In fintech, the CFO stack exhibits the same pattern: without proprietary data, domain depth, or workflow ownership, products converge on similar automation use cases and pricing pressure erodes margins. In agtech, the major crop science companies, Corteva, Bayer, Syngenta, have built precision platforms (Granular, Climate FieldView, Cropwise) that integrate machine and imagery data at scale, creating what the report calls “the default enterprise solution” while marginalising independents that lack integration into these dominant ecosystems. These are barriers: the more data a platform accumulates over time, the more formidable they become.

Compute and energy. We have already noted the trillion-dollar infrastructure build-out. What deserves emphasis is that access to compute is not simply a function of money. GPU supply is constrained. Energy capacity is constrained. Cooling technology is still maturing. The firms best positioned to secure these inputs are those with existing data centre footprints, long-term energy contracts, and the balance sheets to make speculative capacity commitments years in advance. Building a next-generation database or vector store is described by PitchBook as “a capital-intensive R&D endeavour requiring patient, long-term capital“. Warehouse robotics deployment remains “expensive, limiting the domain to leaders such as Amazon and Walmart“.  We submit that in each instance, the barrier is not merely financial; it is also structural.

Distribution. In code generation, the dominant incumbents, Microsoft’s GitHub Copilot and Cursor, enjoy “unparalleled data and distribution advantages,” a combination that the report expects will lead to “widespread commoditization and value destruction for undifferentiated startups“. In e-commerce, answer engines and platform partnerships are re-routing product discovery in ways that advantage the owners of those channels. Across the stack, AI models are consumed via APIs, making the infrastructure to secure, monitor, and scale those interfaces “a non-negotiable, high-growth layer“.  Whoever controls the API layer controls the terms on which downstream innovation occurs, a distribution chokepoint that competition authorities will need to understand in technical detail.

Vertical Integration and the Risk of Foreclosure

The AI supply chain runs, in simplified terms, from chip manufacturers through cloud and compute providers, through model developers, down to application-layer companies and end users. At each handover point, there is a potential for vertical leverage, and the PitchBook evidence suggests that consolidation incentives are strong at every junction.

Consider the pattern across sectors:

In cybersecurity, AI protection capabilities are being rapidly absorbed by incumbent security platforms through M&A. The PitchBook report notes that the outlook for 2026 and 2027 “remains strong in aggregate, though dominated by incumbent-led acquisitions rather than by standalone startups,” and that the opportunity for independent startups “is narrowing as these features become standard across application and cloud security suites“. Once model-defence features are bundled into broader platform offerings, the incentive to disfavour third-party alternatives through licensing terms, API design, or marketplace placement is well understood in competition law.

In healthcare, second-tier AI scribe companies are expected to be acquired “at highly discounted valuations” by electronic health records incumbents or larger healthcare IT platforms. The EHR market is oligopolistic, Epic and Oracle Health dominate distribution, and the embedding of native AI scribing functions directly into these platforms creates a classic vertical foreclosure risk for independents that depend on EHR integration to reach clinicians.

In agriculture, Corteva, Bayer, Syngenta, and John Deere have vertically integrated precision agriculture platforms that connect directly to farmers, bypassing traditional retailer agronomists. Seven major retailers control approximately 60 to 90 per cent of crop input sales, and digital advisory is now embedded in the platforms of the crop majors themselves. Independent drone-based monitoring startups face what amounts to a distribution foreclosure problem: without integration into these dominant ecosystems, they cannot reach the customer base at scale.

In e-commerce, the emergence of LLM-native ad networks, the opening of Amazon’s DSP and SSP infrastructure as a service, and the shift to answer engines as the primary discovery layer together represent a rewiring of the commerce stack that incumbents are best placed to shape. Consumer-facing, domain-specific search platforms face “structural headwinds in attribution and monetization as horizontal platforms such as ChatGPT and Perplexity integrate commerce functionalities“.

At the model layer itself, the prospect of enterprises locking into multiyear platform commitments creates the most systemic lock-in risk. Where those commitments bundle compute, safety tooling, agent management, and application accelerators into a single relationship, the switching costs can become prohibitive in practice even if they are not insurmountable in theory. Volume-based discount ladders and committed-spend rebates, familiar from cloud markets, are the mechanism through which this lock-in is likely to deepen.

The self-preferencing risk is real. Where a platform owner operates at both the model layer and the application layer, or controls both the inference utility and the safety/governance stack that wraps around it, the incentive to advantage affiliated products through scheduling priority, API design, or pricing structure is obvious. These are not speculative harms; they are the same theories that have sustained enforcement in digital platform markets, transposed to a new industrial context.

Merger Control: Speed, Serial Acquisition, and the Nascent Competition Problem

We turn now to what is, in our view, the most pressing institutional challenge: whether existing merger control frameworks can keep pace with the tempo of AI-driven consolidation.

The PitchBook evidence paints a vivid picture. The report describes a “platform war” in which incumbents are “driven to acquire” point solutions to “plug immediate GenAI and security gaps,” with acquisition characterised as “the fastest route to market“.  This language matters because it describes a strategic logic, defensive ecosystem consolidation, that is precisely the kind of conduct that merger control exists to scrutinise.

Serial acquisitions are the dominant pattern in several sectors as detailed in the PitchBook report. In agtech, 2025 exits occurred “entirely through M&A” (38 transactions) and buyouts (five transactions), with zero IPOs. The acquirers are Corteva, Bayer, Syngenta, John Deere, consolidating digital and autonomous capabilities.  In cybersecurity, AI protection is undergoing rapid consolidation through acquisition by major security vendors. In healthcare, PE-owned healthcare IT companies are driving AI-capability acquisitions, with R1 RCM’s acquisition of Phare Health cited as a recent example. In enterprise software, incumbents such as GitLab and Atlassian “must acquire these point solutions to plug immediate GenAI and security gaps“.

Each of these transactions, taken individually, may fall below jurisdictional thresholds or appear competitively benign. Taken cumulatively, they can neutralise an entire stratum of nascent competition. This is the serial acquisition problem that competition authorities in the UK, EU, and US have been discussing for years but have yet to address with fit-for-purpose tools. The AI cycle may force the issue.

Kill acquisitions present a related but distinct concern. Where an incumbent acquires a startup not to integrate its technology but to prevent it from becoming a competitive threat, the competitive harm is the loss of future rivalry. The difficulty, as always, is evidentiary: proving that the target would have become a meaningful competitor absent the acquisition requires counterfactual analysis that courts and regulators find inherently speculative. The PitchBook data provides at least a circumstantial basis for concern: the report repeatedly identifies sectors where startups are commercially maturing, gaining traction with enterprise customers, and then being absorbed by the very incumbents whose market positions they threaten.

We do not suggest that every AI acquisition is anticompetitive. Many will be genuinely pro-competitive, accelerating diffusion and enabling product improvement. But the industrial dynamics documented in the PitchBook report, defensive acquisition strategies, ecosystem lock-in, and serial consolidation by a small number of strategic buyers, provide a strong case for authorities to invest in improved monitoring, refined nascent competition tools, and the willingness to deploy interim measures where integration risks creating irreversible structural harm.

Sector-Specific Flashpoints

The competition risks are not uniform across the economy. Some sectors warrant particular attention, either because AI adoption is especially rapid or because the pre-existing market structure amplifies concentration dynamics.

Healthcare. The combination of oligopolistic EHR incumbents, regulatory barriers to entry, high switching costs, and the foundational nature of ambient scribe technology creates a high-risk environment for vertical foreclosure. The anticipated absorption of independent scribe companies into EHR platforms will concentrate the clinical workflow layer around a very small number of providers. In medtech, AI-powered imaging and smart implants are gaining traction, and incumbents are already acquiring remote monitoring platforms, Philips acquiring BioTelemetry, UnitedHealth acquiring Vivify Health, suggesting a pattern of vertical integration that could foreclose independent device and diagnostics innovators.

Enterprise software. The displacement of legacy analytics and BI platforms by agentic AI and natural language querying is a genuine paradigm shift, moving from dashboard navigation to conversational, in-workflow insights delivery. The incumbents that own the system of record, the CRMs, ERPs, and data warehouses that enterprises cannot easily replace, are strongly incentivised to acquire emergent AI search, compliance, and automation tools to keep customers captive. Whether that integration is conducted on open, non-discriminatory terms or through proprietary interfaces designed to lock out rivals will determine the competitive outcome.

E-commerce and advertising. The shift to answer engines as the primary product discovery mechanism is already measurable: Adobe Analytics reports a tenfold increase in referral traffic from answer engines, with Google conceding low-value queries.  As OpenAI, Anthropic, and others seek scaled monetisation, LLM-native ad networks will emerge as a logical extension of the platform, with Amazon’s and Walmart’s retail media businesses providing the template. The risk is that a small number of answer engine operators will control the default pathways for commercial traffic in the same way that search engines did in the prior era, with the same attendant risks of self-preferencing, exclusionary conduct, and opaque ranking decisions.

Agriculture. This is a sector where vertical integration is already far advanced. Corteva, Bayer, Syngenta, and John Deere between them control precision agriculture platforms, digital advisory, crop input distribution, and equipment data pipelines.  The PitchBook report states that independent drone-based crop monitoring faces value destruction risk as more than 50 competitors offer commoditised solutions while the major platforms “maintain powerful industry moats by integrating machine and imagery data at scale“.

Cybersecurity. AI protection for models and applications is both a growth market and a consolidation market. The 2025 acquisition wave, by SentinelOne, Palo Alto Networks, and other major vendors—signals sustained appetite for model-defence capabilities, with M&A identified as the most likely exit path for emerging vendors.  The bundling of AI protection into broader platform suites is efficient, but it also risks foreclosing innovative niche solutions if platform APIs or marketplace placement disfavour third-party integrations post-acquisition.

Regulatory Adequacy and Emerging Theories of Harm

We should be candid about the limits of the evidence base. The PitchBook report is an investment and industry analysis, not a regulatory assessment. It does not catalogue specific enforcement actions by the CMA, the European Commission, or the DOJ and FTC, and we have not supplemented it with external enforcement data for the purposes of discussion. Any definitive assessment of agency responsiveness would require a broader evidentiary foundation.

That said, the market dynamics documented in the report have clear implications for the adequacy of existing frameworks.

Abuse of dominance and self-preferencing. The structural features of the foundation model layer, default infrastructure status, API-mediated access, inference-as-utility pricing, and multiyear platform commitments create fertile ground for discriminatory conduct. Where a platform owner controls both the inference utility and adjacent layers (safety tooling, agent orchestration, application accelerators), selective degradation of access for rivals can effectuate a margin squeeze that is invisible in headline pricing but decisive in competitive outcome. The evolution from single-shot inference to autonomous, multistep agent workflows will create new chokepoints around scheduling, memory allocation, and tool access that do not map neatly onto existing precedent. These are novel theories of harm in form, though cognate to established non-discrimination and refusal-to-deal doctrines in substance.

Essential facilities. We raise this with appropriate caution, because the legal threshold for essential facilities claims is high in all jurisdictions. But the PitchBook evidence on compute and energy constraints, trillion-dollar infrastructure, constrained GPU supply, grid capacity limits, suggests that access terms for capacity-constrained inputs will be competitively determinative in some markets. Where a small number of vertically integrated providers control GPUs, data centre space, and on-site generation, the analytical conditions for an essential facilities enquiry may be met.

Practical Implications

For companies at bottleneck layers. If you operate at a chokepoint in the AI stack, foundation models, compute, developer platforms, EHR systems, and precision agriculture platforms, you should expect regulatory scrutiny of your API terms, bundling practices, default settings, and data-access policies. Sensible risk mitigation includes transparent, stable, and non-discriminatory API terms; documented interoperability commitments; and governance structures that separate upstream access decisions from downstream competitive incentives.

For acquirers. Serial acquisition strategies in sectors such as cybersecurity, healthcare IT, and agtech are accumulating competitive significance even where individual transactions fall below notification thresholds. Internal documents, integration planning materials, and board presentations that describe acquisitions in terms of ecosystem defence, competitive neutralisation, or market foreclosure will be discoverable and will inform the analysis. Transaction teams should be briefed accordingly.

For startups and investors. The PitchBook evidence suggests that the exit environment in many AI subsectors is overwhelmingly M&A-driven, with strategic acquirers dominating. Where the acquirer is an incumbent with an existing dominant position, the transaction will attract greater scrutiny. Founders and their advisers should factor merger control risk into exit planning earlier than is conventionally the case, particularly in sectors where the buyer universe is narrow.

Concluding Observations

We do not think the sky is falling. The existing toolkit of competition law, abuse of dominance, vertical agreements, and merger control is conceptually adequate to address the risks we have described. The theories of harm are, in most cases, familiar ones applied to new industrial facts.

What concerns us is timing. The AI cycle is moving faster than prior platform cycles, the capital commitments are larger, and the vertical interdependencies are deeper. The window between the emergence of a competitive threat and its absorption by an incumbent is narrowing, and once multiyear platform commitments, default infrastructure status, and ecosystem lock-in have taken hold, the practical scope for ex post remediation shrinks considerably.

The law is not unsettled in its principles. It is unsettled in its application to the specific industrial facts of the AI stack, inference pricing, API-level discrimination, agent orchestration, and the competitive significance of sovereign capital. These are the areas where novel theories of harm are most likely to emerge, and where early engagement with regulators, careful compliance design, and thoughtful transaction structuring will deliver the greatest returns.

Food for thought.

[1] 2026-artificial-intelligence-outlook-the-great-competition-wars-have-begun.pdf (accessed 10 April 2026)

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The debate about whether South Africa should regulate digital platforms is over. The Competition Commission has moved decisively from theory to operational enforcement, and the implications for any platform of scale doing business in the country are both immediate and far-reaching. Two landmark instruments, published within three months of one another, now define the compliance landscape: the Media and Digital Platforms Market Inquiry Final Report (the “MDPMI Report“), released on 13 November 2025, and the Online Intermediation Platforms Guidance Note (the “OIP Guidance Note“), gazetted on 6 February 2026 as a final guideline under the Competition Act.

Together, they represent a coherent, systems-based approach to platform regulation, built entirely within the existing architecture of South African competition law.

The practical consequence for leading or largest platforms is straightforward but significant: the compliance bar is no longer about reactive, case-by-case defence. It now demands proactive, evidence-backed governance across pricing parity, interoperability, self-preferencing, data use, and fairness, particularly where small and medium enterprises (“SMEs“) and historically disadvantaged persons (“HDPs“) are affected.

Two documents, one direction: enforcement as a system

It would be a mistake to treat these instruments in isolation. Read together, they reveal a regulator that is building an integrated enforcement framework.

The MDPMI Report demonstrates that a market inquiry is not, and was never intended to be, a soft policy exercise. Under the Competition Act’s market inquiry framework, the Commission is empowered to determine whether features of a market produce an adverse effect on competition, and to take remedial action accordingly, including recommending orders from the Competition Tribunal and initiating complaints based on inquiry findings. Crucially, the statutory test is whether a market feature has an adverse effect on competition, including impacts on SMEs and HDPs, rather than the more familiar threshold of a “substantial prevention or lessening of competition” applied in other enforcement contexts. That is a lower, more structural standard, one well suited to digital ecosystems where competitive harm tends to be cumulative and embedded in platform design rather than traceable to a single discrete act.

The OIP Guidance Note complements this by setting out the Commission’s view on specific categories of conduct that are likely to attract scrutiny. It is issued as a guideline and, as such, is not formally binding. However, the Commission has made clear that it will have “cognisance of this Guidance Note in assessing cases dealing with online intermediation platforms”. Anyone who has spent time in enforcement proceedings will recognise how this kind of instrument, notionally voluntary, practically determinative, shapes the course of investigations, settlement negotiations, and remedial design.

The MDPMI Report: what it signals about the Commission’s ambitions

Scope that mirrors the reality of platform power

The MDPMI was formally initiated on 17 October 2023, with Terms of Reference published in September 2023, and it spans the full breadth of how platforms interact with news media and audiences: search, social media, the adtech value chain, and the impact of generative AI. This matters because it aligns the Commission’s analytical lens with how platforms actually exert influence – not through a single product, but through interlocking layers of traffic capture, ranking, data aggregation, monetisation tools, and increasingly, AI-driven interfaces. The Commission found that major global platforms, Google, Meta, Microsoft, TikTok, X, and AI companies such as OpenAI, dominate the key gateways through which South Africans access information.

Product design and “zero-click” behaviour as competitive facts

One of the more striking aspects of the MDPMI Report is the Commission’s treatment of “zero-click” outcomes, instances where users obtain information or consume content within the platform interface rather than clicking through to a publisher’s site. The Commission treats these design choices not as neutral product improvements, but as market features capable of diverting traffic and value from downstream firms. The compliance implication is clear: the Commission is now scrutinising product design, algorithmic defaults, and interface architecture as potential sources of competitive harm, particularly when they degrade publishers, SMEs, and advertisers’ ability to monetise their content or reach audiences.

Concrete remedies, including financial interventions

The MDPMI Report does not confine itself to diagnosis. It sets out a substantial package of remedial actions, including a Media Support Package agreed with Google and YouTube valued at R688 million, which will fund national, community, and vernacular media through content licensing, innovation grants, and capacity-building initiatives. Whether one agrees with the design of these remedies or not, the lesson for platforms is instructive: market inquiry outcomes in South Africa can translate into specific, monitorable, and financially significant obligations.

Collective bargaining and the rebalancing of platform dependency

The MDPMI Report recommends that the Department of Trade, Industry and Competition issue a block exemption to enable collective bargaining by South African media over platform monetisation terms, AI content licensing, ad-tech pricing, and joint ad-sales for community media. This reinforces a broader theme running through the Commission’s recent work: in digital markets, the focus is not confined to conventional price effects. The Commission is equally concerned with structural dependency and the absence of countervailing power, particularly where fragmented suppliers face a concentrated platform gatekeeper.

The OIP Guidance Note: a conduct map for platform compliance

The OIP Guidance Note effectively consolidates six categories of conduct into a compliance baseline that leading platforms should treat as their minimum standard of internal review.

First, price parity clauses, both narrow and wide, which restrict business users from offering lower prices on their own channels or on competing platforms. Second, interoperability restrictions that limit the ability of business users to port data or integrate with competing platforms. Third, self-preferencing, including the ranking, indexing, or fee advantages a platform may accord to its own offerings over those of business users. Fourth, the use of competitively sensitive business-user data by a vertically integrated platform to advantage its own commercial operations. Fifth, differentiated trading terms across business users, including preferential visibility or sponsored listing arrangements. Sixth, unfair treatment or unfair trading terms, linked to imbalances in bargaining power and, in the South African context, to buyer power concepts.

Two aspects of the Guidance Note warrant particular attention from general counsel and compliance teams –

·         Efficiency claims must be substantiated, not merely asserted

The Commission anticipates that platforms will seek to justify contested practices on grounds of sustainability or efficiency. The Guidance Note makes clear, however, that the Commission may require financial and economic evidence to support such claims, not merely theoretical arguments. Moreover, the Commission may examine whether a platform could operate sustainably absent the practice in question, whether in South Africa or in other markets. In other words, pointing to global industry norms will not be sufficient if those norms are not demonstrably necessary in the South African context.

·         Market power assessment is qualitative and dependency-driven

The Guidance Note signals that the Commission’s approach to market power in digital and intermediation markets will look beyond traditional market definition and market share calculations. Factors such as the platform’s significance to its business users, the degree of business-user dependence, network effects, vertical integration, and the platform’s ability to harm rivals may all be considered. This is a deliberate departure from the kind of formalistic market-definition debates that, in some jurisdictions, have allowed platforms to avoid scrutiny by arguing for implausibly broad relevant markets.

The real question for platforms: not “are we dominant?” but “are we gatekeeping?”

A recurring thread across both instruments is the Commission’s focus on three structural features of platform ecosystems: dependency, where business users have no realistic alternative route to consumers; conflicts of interest, where the platform competes directly with the businesses that rely on it; and design plus rules, encompassing the contract terms, access conditions, ranking algorithms, interoperability restrictions, and data practices that collectively define the competitive environment on the platform.

The practical implication for compliance is a shift in the relevant question. The traditional inquiry – “can we win a market definition argument?” – is giving way to something more searching: what are the rules of our ecosystem, whom do they advantage, and can we defend them with hard evidence and less-restrictive alternatives?

Looking ahead: why this is not the final chapter

The architecture of the Competition Act is designed for iteration. A market inquiry can produce remedial action, which may in turn be appealed, lead to recommendations for legislative or policy change, and generate subsequent complaint proceedings. The MDPMI has already recommended inter-ministerial coordination, with the Minister of Trade, Industry and Competition committing to table the report in Parliament and take it to Cabinet. In parallel, the Commission continues to monitor compliance with the OIPMI remedies issued in 2023 across eCommerce, online travel, food delivery, app stores, and classifieds.

For platforms operating at scale in South Africa, the message is clear. Digital markets regulation is not a theoretical prospect to be monitored from a distance. It is here, it is being operationalised through competition law tools that carry real enforcement consequences, and the compliance standard it demands is one of proactive, documented, and evidence-based governance.

The businesses that recognise this early and build the necessary internal systems, across legal, commercial, product, and data teams, will be those best positioned to engage constructively with a regulator that has plainly signaled the direction of travel.

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One often observes in the marketplace that prices of products advertised or sold by two competitors are the same or similar. Commentators (especially on social media) are then quick to condemn this as unlawful price fixing. But is it necessarily so? A recent decision of the South African Competition Tribunal (“Tribunal”) shed some light on this issue.

On 25 June 2025, the Tribunal issued its reasons in the case of Competition Commission v Casalinga Investments CC t/a Waste Rite and X-Moor Transport t/a Crossmoor Transport. The case concerned a complaint referral brought before the Tribunal by the Competition Commission (“Commission”), alleging that Waste Rite and Crossmoor (“Respondents“) contravened sections 4(1)(b)(i) and (iii) of the Competition Act 89 of 1998 (“the Competition Act“) by entering into an agreement to fix prices and tender collusively when bidding for a tender to Pikitup for operation of various landfill sites. Notably, the Tribunal’s reasons included a finding on whether similar or parallel pricing necessarily constitutes prohibited price fixing. Particularly, whether undisputed similar pricing constitutes collusion in breach of section 4(1)(b) of the Competition Act.

The Commission’s Case

The Commission alleged that the Respondents entered into an agreement to tender collusively by discussing or agreeing on the prices of certain items used in landfill management (i.e. landfill compactors, bulldozers, excavators). The Commission further alleged that this discussion or agreement resulted in the Respondents submitting a price schedule to Pikitup that contained similar variable and fixed cost prices as well as identical hourly rates. This conduct, it alleged, is prohibited in terms of sections 4(1)(b)(i) (price fixing) and (iii) (collusive tendering) of the Competition Act.

Waste Rite admitted liability and reached a settlement with the Commission. Crossmoor also engaged in settlement discussions but failed to reach an agreement and denied the Commission’s allegations.

At the hearing before the Tribunal, the Commission supported its case with evidence from Ms Christa Venter, the COO of Pikitup. Ms Venter’s evidence indicated that the Respondents’ tender submissions raised suspicions because:

• both Respondents collected the tender documents on the same day;
• their bid submissions appeared to have been printed by the same company;
• their fixed price quotations were identical to the cent for the entire three-year period (with the only difference being fuel costs); and
• there appeared to be a similar pattern in the completion and signing of the tender submissions.

Ms Venter submitted that it was highly improbable that both Crossmoor and Waste Rite would have identical pricing, unless they shared exactly the same variables, castings and an identical markup, right down to the last cent.

Using Ms Venter’s testimony, the Commission based its case entirely on an inference of collusion drawn from the above mentioned similarities. The Commission did not provide any direct evidence that the Respondents had entered into a collusive agreement.

The Tribunal Hearing

Upon hearing submissions from the parties, the Tribunal decided to rely on the witness statement of a witness who did not testify, Mr De Lange, who had been involved in the matter on behalf of Waste Rite. Mr De Lange’s witness statement indicated that he was involved in the preparation of Waste Rite’s tender documents and that he and Mr Perumal, an employee of Crossmoor, had been present at the same time at the premises of Jetline (a printing company) to make copies of their respective tenders. Mr De Lange confessed that, while Mr Perumal had gone to buy lunch, he illicitly copied Crossmoor’s quoted prices. He did this unilaterally, without the knowledge of Mr Perumal or Crossmoor.

At the close of the Commission’s case, Crossmoor applied for absolution from the instance, submitting that the Commission had not made out a prima facie case that the Respondents had entered into a collusive agreement in contravention of sections 4(1)(b)(i) and (iii). In deciding this application, the Tribunal considered (a) whether an agreement had been concluded between the Respondents and (b) whether the undisputed similarities in pricing constituted collusion.

Was There an Agreement?

In deciding whether an agreement had been reached between the Respondents, the Tribunal cited two cases from the Competition Appeal Court (“CAC“)[1] and took into account Mr De Lange’s witness statement.

In Netstar v Competition Commission of South Africa (“Netstar“), the CAC explained that an “agreement arises from the actions of and discussions among parties directed at arriving at an arrangement that will bind them either contractually or by virtue of moral suasion or commercial interest. It may be a contract, which is legally binding, or an arrangement or understanding that is not, but which the parties regard as binding upon them. The parties have reached consensus“. In light of this, the Tribunal found that there was no evidence demonstrating that the Respondents had reached an agreement to tender collusively. The Tribunal held that one possible explanation for the similar tenders was that one of the parties (Waste Rite) had obtained access to and had unilaterally copied the other party’s tender.

Does Similar Pricing Constitute Collusion?

In considering whether the undisputed similarity in pricing constituted collusive tendering, the Tribunal accepted the Commission’s acknowledgment that parallel pricing in itself is not inherently unlawful. However, the Commission argued that additional evidence, also known as “plus factors”, could demonstrate a contravention of the Competition Act. It submitted that an inference of collusion could be made from the circumstantial evidence in this case, which, it said, suggested a pre-existing arrangement to submit similar prices.

The Commission relied on an article by William E. Kovacic, an American antitrust scholar and former Commissioner of the Federal Trade Commission, which stated that in “antitrust cases, courts permit the effect of an agreement to be established by circumstantial evidence, but they required that economic circumstantial evidence go beyond parallel movement in price to reach a finding that the conduct of firms potentially violates Section 1 of the Sherman Act“[2].

The Commission also quoted a journal article by antitrust lawyer Michael K Vaska, that the “plus factor most often considered by courts in determining whether parallel behaviour is the result of an agreement, is the business justifications test. Under this test a price fixing agreement may be inferred from parallel conduct if firms cannot show legitimate independent business reasons for engaging in such practices. Once conscious parallelism, sufficient to establish an agreement has been found, the practices are deemed illegal per se, without an inquiry into whether the practices are equally anticompetitive“[3].

In Crossmoor’s submissions, it acknowledged the identical nature of the prices contained in its own tender and that of Waste Rite. However, Crossmoor submitted that the Commission presented no evidence showing that the circumstantial indicators between the parties and the subsequent submission of identical prices manifested an agreement to collude. Relying on Netstar, Crossmoor further submitted that the mere fact that competitors may have agreed to adopt certain standards does not, itself, infer the existence of a collusive agreement. In any event, Crossmoor submitted, the identical pricing in this matter goes well beyond what was contemplated in Netstar.

The Tribunal echoed Crossmoor’s submissions and indicated that it was not convinced that conscious parallelism was reached on the part of Crossmoor as there was no evidence presented which showed this. Conscious parallelism was reached only on the side of Waste Rite, as clearly depicted by Mr De Lange’s witness statement. This means that the similar pricing contained in the tender documents, on the evidence presented, does not constitute collusion.

Furthermore, the Tribunal was not persuaded that the Commission had established an effective answer to Crossmoor’s application for absolution, so much so that if Crossmoor had closed its case after the Commission presented its evidence, the Tribunal would have ruled in favour of Crossmoor.

Conclusion

This case illustrates that parallel pricing alone does not automatically mean that an agreement to collude was reached between the parties. Parallel pricing can exist for various reasons and is capable of many explanations, which might or might not be collusion.

[1]       Netstar v Competition Commission of South Africa 2011 (3) SA 171 (CAC) at para 25 and Competition Commission of South Africa v Stuttafords Van Lines Gauteng Hub (Pty) Ltd and Others [2020] 2 CPLR 548 (CAC) at para 28-29.

[2]       Willam E Kovocic (2011) “Plus Factors and Agreement in Antitrust Law” 110 MICH. L. REV 393.

[3]       Michael K Vaska (1985) “Conscious Parallelism and Price Fixing: Defining the Boundary” University of Chicago Law Review: Vol. 52 Iss. 2, Article 10.

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On 5 January 2026, the Information Regulator (“IR“) issued an enforcement notice against the Johannesburg Stock Exchange (“JSE“), setting aside the JSE’s refusal to grant Inhlanhla Venture Proprietary Limited (the “complainant“) access to trading records under the Promotion of Access to Information Act 2 of 2000 (“PAIA“). The complainant sought these records to investigate suspected market manipulation. This decision marks a significant development in how the IR interprets PAIA, particularly in the context of financial markets. This article discusses the decision and the key takeaways for private and public organisations.

The complainant invested in enX Group Limited shares through a broker. Following a sharp decline in the share price, the complainant sold its shares to the broker. Shortly thereafter, the share price recovered substantially, with the broker realising a significant profit.

The complainant submitted a PAIA request to the JSE requesting all trading and settlement records relating to enX shares for the period 3 to 19 May 2020. The request included the identities of all parties and the value of the transactions. The JSE refused access, citing mandatory exemptions under PAIA and alleging that it was not a public body for purposes of the Act.

Public Versus Private Functions

 The IR first considered whether the JSE was a private body, as it alleged. This classification was significant because if the JSE were a private body, the complainant would need to demonstrate that the records were required for the exercise or protection of a right. Additionally, the complainant’s procedural approach would have been defective as it followed the public body process.

The IR acknowledged that the JSE can perform both public and private functions. However, in this case, the JSE had presented itself as a public body by identifying its Information Officer with reference the definition in PAIA for a public body and by aligning its PAIA manual with PAIA’s provisions relating to public bodies. The JSE relied on the grounds of exclusion for public bodies when responding to the request. Furthermore, the records were housed on the JSE’s Broker Deal Accounting System, which relates to the JSE’s public regulatory and monitoring functions under the Financial Markets Act 19 of 2012 (“FMA“). The IR considered this to be a public function.

Protection of Personal Information (section 34(1))

 PAIA requires an Information Officer to refuse a request for access if disclosure would involve the unreasonable disclosure of personal information about another person. The JSE argued that the request should be refused on this ground because its system included personal information of buyers, sellers, and others, including identity numbers, tax numbers, and contact details.

The IR found that the disclosure was not unreasonable: Information about securities trading in a public market infrastructure is not inherently private and does not attract the same privacy protection as more sensitive personal information (like medical or religious information). Accordingly, there could not be a reasonable expectation of privacy.

Protection of Commercial Information of Third Parties (section 36(1)(b))

 PAIA mandates refusal where records contain financial, commercial or technical information of a third party, the disclosure of which would be likely to cause harm to that party’s commercial or financial interests. The JSE contended that disclosure would harm the commercial interests of third-party market participants (buyers, sellers, nominees, brokers etc).

The IR found this reasoning inadequate. To rely on this ground of refusal, the JSE was required to specify the possible harm and provide supporting evidence of a causal link between disclosure and that harm. The JSE’s references to trading strategies were deemed speculative and unsupported by any facts (i.e. there was no evidence that this harm would occur if disclosure took place).

Protection of Confidential Information (section 37(1)(a))

 A PAIA request must be refused where disclosure would constitute an action for breach of a duty of confidence owed to a third party under an agreement. The JSE argued that its contractual relationships with issuers and authorised users, regulated by the listing requirements, created such a duty. It further alleged that the FMA prohibited disclosure based on confidentiality.

The IR found no causal link between the disclosure of the records and any breach of confidentiality. Importantly, the IR held that parties cannot circumvent PAIA by resorting to a confidentiality clause, and that a duty of confidence cannot be created by agreement when the underlying information is not genuinely confidential. The FMA permits disclosure where required or permitted in terms of a law, and the IR found that PAIA was such a law.

Third party notification

 The IR criticised the JSE for failing to comply with section 47 of PAIA, which requires third parties whose records may be affected by a disclosure request to be notified. This procedural requirement is mandatory and must be completed before an Information Officer can make decide to grant or refuse a request where one of the aforementioned grounds of refusal apply.

The Order

 The IR granted the complainant’s request for access, subject to affected third parties being notified and given the opportunity to lodge representations with the IR’s Enforcement Committee.

Key Takeaways for Public and Private Bodies

 This decision reinforces several important principles that organisations should bear in mind:

Understand your organisation’s classification. Organisations should be mindful of how they present themselves, including in their PAIA manuals, and how they respond to PAIA requests. Inconsistent conduct may result in being classified as a public body or vice versa.

Substantiate exemption claims with evidence. Vague references and general assertions will not suffice when refusing PAIA requests. Organisations must identify the anticipated harm and provide supporting evidence thereof.

Comply with third-party notification requirements. When refusing a PAIA request based on the unreasonable disclosure of personal or commercially sensitive information, or information that is subject to obligations of confidentiality, notifying affected third parties is mandatory.

Contractual confidentiality has limits. Organisations cannot create contractual duties of confidence simply to shield information from legitimate PAIA requests. The constitutional right of access to information may override privately agreed confidentiality provisions.

Transparency obligations are heightened in regulated markets. Securities trading occurs in a public arena, and related information may well be disclosable in response to a legitimate PAIA request.

Enforcement notices carry serious consequences. Non-compliance with an enforcement notice is an offence and can result in a fine of up to R10 million or imprisonment, or both.

Conclusion

 This decision underscores the IR’s willingness to hold significant market institutions accountable and reinforces the importance of transparency in South Africa’s financial markets. Private and public bodies alike should take note of this decision to avoid facing regulatory enforcement action.

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‘Instagram’ is great if you want to share photos, but you’re not that technical. Or, if you’re not interested in sharing publicly, ‘Instagram’ becomes a place where you can not only consume photos and videos from musicians, or whoever, but send them directly to your friends.

Kevin Systrom[1]

Publicly available does not mean unprotected. Under South Africa’s Protection of Personal Information Act, 2013 (“POPIA“), most personal information remains protected even when it is visible on the internet, appears in a public register or is published in the media.

POPIA sets conditions that continue to apply to those who collect and use such information, with limited carve‑outs for specific situations such as information in a public record, information deliberately made public by the person concerned, journalism, and truly personal or household activity.

What “publicly available information” means in everyday life

Publicly available information is best understood as personal information that members of the public can actually access. This includes information that government makes accessible as part of its functions, information printed in newspapers, information posted on open social media profiles, and information published on websites that are not access‑controlled. POPIA uses a particular term, public record, to describe a record that is accessible in the public domain and is in the possession or under the control of a public body, whether or not that public body created it. Typical examples are entries in the deeds registry, notices in the Government Gazette, or certain court records.

Information can also become public because the person concerned has deliberately made it public. That covers, for example, a person who posts their contact details on an open professional profile or who publishes a blog in their own name. The word deliberately matters. Accidental leaks and unauthorised disclosures do not count as deliberate publication and remain protected.

It is important to distinguish between information that is easy to find and information that is exempt from privacy rules. Visibility does not strip away legal protections. A telephone number on a public listing, a profile picture on a social network or a name in a court roll is still personal information. Unless a specific exclusion or exemption applies, the people or organisations who process it must meet POPIA’s conditions for lawful processing.

POPIA: the core protections that still apply to public information

POPIA applies to the processing of personal information by public and private bodies in South Africa, and to some processing outside South Africa that uses means in the Republic. Processing covers almost any operation on personal information, such as collecting, storing, using, sharing, combining, or deleting data. Personal information includes obvious identifiers such as names and contact details, as well as opinions, online identifiers, images, and many other categories.[2]

POPIA requires anyone who processes personal information to comply with eight conditions for lawful processing. In plain terms, processing must be lawful and reasonable; the information collected must be minimal and relevant; the purpose must be specific; any further use must be compatible with the original purpose; information quality must be maintained; openness and transparency are required; security safeguards must be in place; and individuals must be able to access and correct their information.

POPIA contains two important accommodations that often come up with public information. First, the rule that information should be collected directly from the person has several exceptions. It is not necessary to collect directly if the information is contained in or derived from a public record, or if the person has deliberately made the information public. Secondly, the rule that you must tell people when you collect their information can be relaxed in defined circumstances, including where the data come from a public record or where the information will not be used in an identifiable form. Neither accommodation removes the need for a lawful basis, purpose limitation, security safeguards, or respect for people’s rights.

The Act also sets special guardrails for sensitive categories, called special personal information, such as health, biometric data, political persuasion and others, and for information about children. Even where a person has deliberately made such information public, further processing is controlled by strict authorisations in the statute. Prior authorisation from the Information Regulator is required for certain high‑risk activities, such as using unique identifiers for a new purpose with the aim of linking with other datasets, or transferring special personal information or children’s information to countries that lack adequate protection.

When privacy laws do not apply at all

POPIA sets out exclusions where the Act simply does not apply.

Purely personal or household activity is outside scope, which covers, for example, a person creating a family WhatsApp group or keeping a personal address book. Data that have been de‑identified so that the person cannot be re‑identified fall outside scope, although trying to re‑identify such data is itself regulated. Certain public functions are excluded, such as national security and law enforcement where adequate safeguards exist in legislation, the Cabinet and provincial Executive Councils, and the judicial functions of the courts.

The Act also contains a specific exclusion for journalistic, literary or artistic expression. Where personal information is processed solely for those purposes, POPIA does not apply to the extent necessary to reconcile privacy with freedom of expression in the public interest.

How the rules play out: practical scenarios

Consider a company compiling a database of directors’ names and addresses from the Companies and Intellectual Property Commission and the Government Gazette. Those sources are public records. POPIA allows collection from them without contacting each director and does not require a notice to each director at the point of collection, yet the database creator must still have a lawful basis to process the information, must define and adhere to a specific purpose, must apply security safeguards, and must respond to access and correction requests. Using the database to send unsolicited emails to those directors would trigger POPIA’s direct marketing rules, which require opt‑in consent unless a narrow existing‑customer exception applies.

Now take a recruiter who scrapes names, job titles and work emails from open professional profiles to build a prospecting list. A person who has deliberately made those details public may make it unnecessary to collect them directly. That does not convert the list into a free‑for‑all. The recruiter must still establish a lawful basis for processing the data, must ensure any further use is compatible with the original collection purpose, and must comply with POPIA’s marketing rules for any electronic messages. Consent will often be required for outreach by email or SMS, and at a minimum each communication must clearly identify the sender and provide an easy, cost‑free way to opt out.

Suppose a community group publishes a PDF with names and mobile numbers of residents on a publicly accessible website to coordinate neighbourhood watch activities. The processing is unlikely to be purely personal or household once the list is open to the wider public, so POPIA applies. The group would need a lawful basis to publish the numbers, must keep the list accurate, must secure it appropriately, and should consider whether publication in that form is necessary and proportionate to its purpose. If local businesses lift the numbers from that PDF for cold‑calling campaigns, they are processing for their own purposes and must comply with POPIA They cannot rely on the group’s publication as a blanket permission.

What you can do to understand and protect your privacy

A clear understanding of what you share is your first line of defence. Think carefully before posting information that identifies you or your family, especially photographs, location details, identification numbers, and financial or health information. Check the privacy settings on social platforms, and remember that a public post can be copied far beyond your immediate audience. If you do make information public, do so deliberately and with the expectation it may be reused within the boundaries of the law.

Exercise your POPIA rights. You have the right to ask any organisation whether it holds your personal information and to request access to it. You can ask for correction of information that is inaccurate, out‑of‑date, excessive, or unlawfully obtained, and you can request deletion of information that the organisation is no longer authorised to retain.

Use directory and marketing preferences. If you are a subscriber to a public directory, you should be informed before inclusion and given the opportunity to object. For broader marketing, register your preferences on reputable industry opt‑out services while the official CPA registry is being implemented, and always use the opt‑out mechanisms that should be present in any legitimate communication.  Demand that callers or senders identify themselves clearly and keep a record of requests to stop.

If you suspect misuse, take action. Start by writing to the organisation, identify the processing you object to, and set out the remedy you seek.  If the issue is not resolved, you may complain to the Information Regulator, which can investigate, attempt conciliation, or take enforcement steps.

Finally, be realistic about official public records. You generally cannot remove lawfully published information from registries maintained by public bodies, but you can insist that it is accurate and current, and you can challenge unlawful disclosure or misuse by third parties.

Common myths and careful truths

There is a persistent myth that if something is on the internet, it is free for anyone to use. POPIA rejects that. Public visibility does not erase privacy protections. Another misconception is that consent is never needed if information is public. In reality, a lawful basis is still required, purpose limitations still apply, and for electronic direct marketing consent is often mandatory.

Some people believe there is a general right to be forgotten. South African law allows you to require deletion in specific circumstances, such as when information is unlawful, excessive or no longer needed, but it does not give a universal right to erase accurate, lawful public records.

Conclusion

The central message for Privacy Day is simple. Publicly available does not mean unprotected.

Under POPIA, personal information remains subject to minimum standards even when it appears in a public record or has been deliberately made public by the person concerned. Those standards are practical and balanced. They allow legitimate uses while curbing exploitation and giving people meaningful rights.

The law also recognises that personal and household activities, essential public functions, journalism, and some public‑interest uses warrant tailored treatment.

Individuals can take straightforward steps to reduce risk and enforce their rights. Be deliberate about what you make public.

For organisations, the lesson is clear. Treat public information with the same discipline you apply to private data. Have a lawful basis, define and respect your purposes, minimise what you process, secure it appropriately, and honour people’s rights.

That is what South African privacy law expects, and it applies whether personal information is locked in a file, posted on a wall, or visible to the world.

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[1] “Kevin Systrom Quotes.” BrainyQuote.com. BrainyMedia Inc, 2026. 16 January 2026. https://www.brainyquote.com/quotes/kevin_systrom_752135

[2] It also encompasses information about juristic persons such as companies, which is a notable feature of South African law.

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On 27 January 2026, Minister of Trade, Industry and Competition, Mr Parks Tau, published a draft amendment to the merger thresholds prescribed under section 11 of the Competition Act, 1998. The proposed changes, published for public consultation, represent a significant recalibration of the financial thresholds that determine when mergers and acquisitions require regulatory notification and approval. Stakeholders have been invited to submit written comments within 30 business days of publication.

Financial thresholds are one of the triggers for mandatory merger notification.

The draft amendment proposes substantial increases to both the lower and higher thresholds that govern merger categorisation in South Africa. Under the current framework, the lower threshold for combined annual turnover or assets is R600 million, whilst the transferred firm threshold is R100 million. The proposed amendment seeks to raise the combined turnover or assets threshold to R1 billion, representing an increase of approximately 67%. Concurrently, the transferred firm threshold would rise from R100 million to R175 million, a 75% increase.

For higher thresholds, which distinguish between intermediate and large mergers, the draft proposes increasing the combined turnover or assets requirement from R6.6 billion to R9.5 billion. The transferred firm threshold for large mergers would also increase from R190 million to R280 million. These adjustments broadly reflect inflationary changes since the thresholds were last amended in 2017. Notably, the calculation method remains unchanged.

By raising the lower thresholds, more transactions will fall into the small merger category, meaning they will not require mandatory notification to competition authorities. Small mergers do not require prior approval, thereby reducing compliance costs, shortening transaction timelines, and eliminating regulatory uncertainty for a significant cohort of corporate transactions.

Similarly, raising thresholds means that transactions previously classified as large mergers requiring Competition Tribunal approval may now qualify as intermediate mergers, which are adjudicated solely by the Competition Commission. This reclassification can substantially expedite approval processes and reduce the procedural burden on merging parties.

These amendments can be seen to reflect the government’s commitment to creating a more business-friendly regulatory environment. By reducing the number of transactions subject to mandatory notification, regulatory resources can be concentrated on mergers with genuine potential to harm competition, whilst lower-risk transactions proceed unimpeded. This approach recognises that proportionate regulation is essential to fostering investment confidence and encouraging entrepreneurial activity.

For foreign investors considering South African market entry through acquisition, clearer and more accommodating thresholds signal regulatory maturity and a commitment to facilitating legitimate commercial activity.

Notwithstanding these benefits, the proposed amendments present certain considerations. Regulators must ensure that raising thresholds does not inadvertently permit anti-competitive consolidation in sectors where smaller transactions may nonetheless produce significant market effects. Additionally, stakeholders should note that merger filing fees are also proposed to increase, rising from R165,000 to R220,000 for intermediate mergers and from R550,000 to R735,000 for large mergers.

The draft amendment represents a pragmatic response to economic realities, recalibrating thresholds that had remained static since 2017. If implemented, these changes should meaningfully reduce regulatory friction and support South Africa’s broader economic development objectives.

The deadline for comment is 10 March 2026.

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In this article, we lay out the main regulatory and legal developments in 2025 that impacted the financial services sector and South Africa’s anti-money-laundering regime, as well as what we can expect in 2026.

What happened in 2025?

• South Africa was removed from the FATF’s grey list

2025 represented a ramp-up in South Africa’s efforts to strengthen financial supervision and anti-money-laundering (AML) controls. After having been grey listed in February 2023, South Africa’s regulators — especially the Financial Sector Conduct Authority (FSCA), the Financial Intelligence Centre (FIC) and National Treasury — have been working to fix weaknesses flagged by international watchdog, the Financial Action Task Force on Money Laundering (FATF) and to bring local rules and practices in line with international standards. The wish to be removed from the FATF’s grey list drove legislation adopted in 2024 aimed at tightening AML controls, including mandated Risk Management Compliance Programmes (RMCP) for accountable institutions, improving beneficial ownership transparency and strengthening conduct supervision.

The FSCA is responsible for supervising financial services providers (FSPs) and enforces compliance by FSPs with AML legislation, in particular, the Financial Intelligence Centre Act (FICA). 2025 saw a flurry of regulatory inspections by the FSCA assessing compliance with FICA and, then, resultant administrative penalties on non-compliant FSPs, many of which were related to non-compliant RMCPs or FSP’s being unable to demonstrate that RMCPs had been effectively implemented.

On 24 October 2025, South Africa was officially removed from the FATF’s grey list with immediate effect.

• Increased focus on Beneficial Ownership

The FIC and FSCA as well as associated agencies, such as the Companies and Intellectual Property Commission (CIPC) and the Master (which supervises trusts), have been focused on beneficial ownership reporting. 2025 saw regulatory activity and increased pressure on accountable institutions to collect, verify and file beneficial ownership information.

• CASPs “Travel Rule”

Crypto Asset Service Providers (CASPs) have been required to register with the FIC as accountable institutions since December 2022 and since December 2023, CASPs providing financial services have also needed to be licensed by the FSCA.

In November 2024, the FIC issued Directive 9, the so called “Travel Rule”, regulating accountable institutions that engage in crypto asset transfers. Directive 9 came into effect on 30 April 2025. The Travel Rule relates to the transfer and/or receipt of crypto assets by accountable institutions for or on behalf of their customers, the information that must be provided alongside these transactions, and the related records that must be kept. This information, held by the ordering and beneficiary CASP, must be made available to appropriate authorities upon request. The primary purpose for implementing the Travel Rule is to help ensure that the transfer or receipt of crypto assets via CASPs is not used for money laundering, terrorist financing and proliferation financing purposes.

What to expect in 2026?

• Finalisation of COFI

One of the biggest developments on the horizon is the Conduct of Financial Institutions (COFI) Bill — a major new law to replace many existing sector-specific conduct rules with a single, streamlined framework covering all financial institutions.

COFI forms a key component of South Africa’s Twin Peaks regulatory reform and will primarily focus on strengthening market conduct regulation across the entire financial services sector. COFI will, amongst others, consolidate various industry-specific conduct laws, affecting the regulation of financial services, collective investment schemes, insurance and pension funds.

Although timelines are not fixed, this work on COFI will continue through 2026. Following two rounds of public commentary, COFI is expected to be introduced in Cabinet in 2026, with a transitional period of approximately three years to follow.

COFI is a National Treasury led bill, but the FSCA is instrumental to its finalisation and implementation. To this end, the FSCA has already started shifting its operations to comply with COFI.

Once enacted, the COFI framework will change how financial firms are authorised, supervised, and how they are expected to treat customers.

• FSCA investigates the use of AI

The FSCA has already conducted a survey of product providers to understand how AI was being used by FSPs. It received about 2,500 responses. The findings showed that banks are leading in AI investment and usage, focusing mainly on data analysis, internal process optimisation, sales, and marketing, while generative AI is starting to drive new sales and distribution channels.

Although there is no specific AI law, we can expect that 2026 will yield further investigation, collaboration with other agencies (e.g. the Information Regulator) and commentary by the FSCA on the use of AI by FSPs. The FSCA’s 2025–2028 Regulation Plan sets the blueprint for regulatory actions through 2026, including regulatory frameworks for emerging technology and risks — including open finance, AI governance and cloud technologies. As such, we may have sight of FSCA guidance notes on AI use.

• Embedding the “Twin Peaks” model

Key prudential oversight functions for pension funds, collective investment schemes and friendly societies are expected to transition from the FSCA to the Prudential Authority by 31 March 2026. This shift is part of a phased implementation of the Financial Sector Regulation Act to align with the Twin Peaks model, where the Prudential Authority oversees prudential regulation (systemic stability) and the FSCA oversees market conduct (consumer protection).

• Consolidation and strengthening of AML laws

The next FATF Mutual Evaluation (2026–2027) will assess how well South Africa’s reforms are working in practice. We expect regulators to continue strengthening enforcement, due diligence, and reporting frameworks in order to perform well in that evaluation.

In 2026, we can expect progress on the AML/CTF Amendment Bill that circulated in 2024–2025. This could tighten reporting obligations, governance requirements, AML powers and beneficial-ownership disclosure rules. The FIC already updated Guidance Note 7A in 2025, aligning AML practices with legislative changes and further guidance and compliance guide fine-tuning can be expected in 2026. Finally, we can expect continuing operational supervision expansion.

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When evaluating a merger, the Competition Act 89 of 1998 (“the Act“) mandates that the competition authorities apply a two-pronged test. The first leg of this test involves an inquiry into whether the merger can or cannot be justified on competition grounds. The second leg involves an inquiry into whether the merger can or cannot be justified on substantial public interest grounds.

The Act therefore incorporates traditional competition law considerations alongside public interest considerations. Based on a textual analysis of the Act, it is clear that competition concerns and public interest concerns are of equal status, notwithstanding that the competition inquiry ordinarily precedes the public interest inquiry. However, in practice, this parity has not always been maintained.

Background

Recently, the Competition Appeal Court (“CAC“), in Vodacom (Proprietary) Limited and Others v Competition Commission of South Africa (260/CAC/Nov2024; 261/CAC/Nov2024) [2025] ZACAC 2 (14 August 2025) (“Vodacom“), provided authoritative guidance on the correct approach to assessing mergers under Section 12A of the Act. Before the judgment can be discussed, it is important to provide some background on the case.

In November 2021, Vodacom Proprietary Limited announced its intention to acquire a 30% stake in Maziv Proprietary Limited. Following an extensive investigation, the Competition Commission in August 2023 recommended to the Competition Tribunal that the merger be prohibited. On 28 March 2025 the Tribunal issued its ruling , agreed with the recommendation of the Commission and prohibited the merger, despite the merging parties proposing conditions in an attempt to address the Commission’s concerns.

The Tribunal, in summary, found that the competition risks arising from the merger were long term and dynamic, involving complex commercial strategies that would be difficult to monitor. The Tribunal also found that the anti-competitive effects of the merger could not be outweighed by the public interest commitments proposed by the merging parties as conditions to the merger. Aggrieved by the prohibition of the merger, the merging parties and the Minister of Trade, Industry and Competition (“Minister“) appealed the Tribunal’s decision.

Subsequently, the merging parties and the Commission agreed on revised conditions following extensive negotiations, resulting in the Commission abandoning its opposition to the appeal.

The Competition Appeal Court’s Determination

On appeal, the CAC was tasked with considering whether these revised conditions carried sufficient weight to remedy any adverse competition and public interest findings made by the Tribunal in its prohibition of the merger. The approach of the Court is discussed below.

Proper application of Section 12A of the Competition Act

The Court affirmed the structure of the statutory inquiry envisaged by Section 12A of the Act as follows:

• Step 1 (SLC Test): The first step is to determine whether the proposed merger would result in a substantial lessening of competition (SLC) using the factors which are set out in subsection 12A(2) of the Competition Act.
• Step 2 (Pro-competitive gains offset): If the SLC test is met, the Tribunal is then required to weigh the adverse SLC effects against any possible merger-specific technological, efficiency or other pro-competitive gains that could not otherwise be achieved in the absence of the merger. It must also consider whether such gains are greater than, and offset, the SLC effects.
• Step 3 (Public Interest Test): Thereafter, the Tribunal must engage with the public interest test. Crucially, this test must be conducted independently of the competition assessment, and strictly within the confines of the five enumerated factors listed in Section 12A(3)(a) to (e) of the Competition Act (“public interest factors“).
• Step 4 ( Weighing Up Exercise): Finally, the conclusion reached in respect of the SLC Test must be weighed up against the conclusion reached in respect of the public interest factors, to arrive at the final decision.

Importantly, these tests must be carried out through the prism of the normative framework of the Constitution. The Court quoted the Constitutional Court’s decision in Competition Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd and Another 2022 (4) SA 323 (CC) which held as follows:

“In interpreting section 12A of the Act, the Competition Appeal Court majority was required to have had regard to the provisions of s 39(2) of the Constitution which provides instructive guidance in construing any provision, including s 12A, the Preamble and purpose of the Act. This should have been done also with due regard to the State’s constitutional obligation to give effect to the rights in the Bill of Rights.”

SLC Test

As pointed out above, the first leg of the inquiry is to determine whether the proposed merger would result in an SLC. The Tribunal is required to assess all the available evidence against the factors set out in s 12A(2) of the Act as they apply to the particular transaction. By way of example, this includes an assessment of whether the merger would result in a removal of an effective competitor, the presence of barriers to entry, foreclosure concerns and the likelihood of coordinated conduct. As the Court correctly pointed out, these factors do not constitute a closed list.

Public Interest Test

The Court found that section 12A(1A) of the Competition Act requires that, regardless of the outcome of the SLC test, the Commission and the Tribunal are statutorily required to make a determination on whether the merger can or cannot be justified on public interest grounds.

The Court referred to the case of in Epiroc Holdings SA v K2022596519 (South Africa) (Pty) Ltd and Polka Dots Properties 117 (Pty) Ltd [2023] 2 CPLR 20 (CT), where the Tribunal commented on the approach to be followed when assessing the public interest factors. In this regard, the Tribunal stated:

“As regards the public interest analysis under s 12A(3) of the Act, the Tribunal has previously explained that it is holistic one, in terms of which the different public interest grounds listed in section 12A(3) must be separately assessed and then, if necessary, weighed against each other in order to arrive at a net conclusion on the public interest effects of the merger.”

In other words, each of the five enumerated public interest factors, as well as any public interest commitments made by the merging parties relating thereto, must be evaluated one-by-one. Thereafter, the public interest effects must be considered cumulatively. The Court indicated that while an individual commitment may be modest on its own terms, a cumulative assessment could conclude that the overall public interest effect on the merger in terms of all the Section 12A(3) factors (or as many as may be relevant to the merger under scrutiny) can dictate a particular positive or negative conclusion in respect of the merger.

Importantly, it is not all public interest effects that must be considered:

• Firstly, only merger-specific effects are taken into account, that is, only those that would have happened if the merger had not taken place (the so-called ‘“pre-merger counterfactual”) provided they are “sufficiently closely related” to the merger.
• Secondly, Section 12A(3) only provides for five specific public interest grounds[1]. It is a closed list and anything that falls outside of these factors must be located within the context of the SLC test.

Weighing up exercise

The Court went on further to state that after the public interest assessment has been conducted, the Tribunal is required to weigh the conclusion reached in respect of the SLC test against the conclusion reached in respect of the public interest factors, to arrive at the final outcome. The Court noted that in many cases the two conclusions may point in the same direction, in which case a balancing exercise is unnecessary. But where it does not, a proper weighing exercise must be conducted. Admittedly this is not an easy task as the balancing is not susceptible to a mathematical evaluation. However, the weighing up must “at least be the basis of a rational explanation for whatever conclusion is finally adopted in respect of the merger.”

Finding

The Court found that the Tribunal erred in two ways in applying Section 12A.

First, the Tribunal found that the commitments of the merging parties were not merger-specific. However, this finding was based on a misreading of certain strategy documents of the merging parties. The Court said that there can be little doubt that, but for the conditional approval of the merger, the various public interest commitments (such as, roll-out of fibre lines and broadband connectivity to underserviced communities, schools and police stations) may not have been realised. In this context it again cited Mediclinic:

“Maintaining or increasing the scope for choice of essential and much-needed services with particular regard to the plight of the financially under-resourced or the vulnerable, should always be at the back of the decision-makers’ minds when dealing with mergers.”

Second, the Court found that the Tribunal erroneously conflated the SLC test with specific public interest factors. The Tribunal attempted to find the consumer benefitting conditions in the five specific public interest grounds whereas it should have located them in the context of the SLC test.

The Court ultimately set aside the Tribunal order prohibiting the merger, and replaced this with an order approving the merger subject to a revised set of conditions agreed upon between the Commission, the Minister and the merging parties.

Conclusion

The Vodacom decision provides a useful and authoritative methodology for applying Section 12A. Parties applying for merger approval from the Commission or Tribunal should take this essential guidance from the Court into account when preparing their merger filings.

[1]         Namely, a consideration of the effect that the merger will have on ‑

(a) a particular industrial sector or region;

(b) employment;

(c) the ability of small and medium businesses, or firms controlled or owned by historically disadvantaged persons, to effectively enter into, participate in or expand within the market;

(d) the ability of national industries to compete in international markets; and

(e) the promotion of a greater spread of ownership, in particular to increase the levels of ownership by historically disadvantaged persons and workers in firms in the market.

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Choosing the “best” mobile network depends on multiple factors. In practice, it is rarely defined by a single metric. It has been suggested that for consumers, “best” ought to be a network that most closely matches their needs – in coverage, speed, reliability, customer service and cost – rather than the one with the fastest headline speed or fanciest advertisements.

How “Best” is measured

Industry analysts and regulators use a variety of metrics to assess network quality.

Independent firms like Opensignal and local research platforms use crowd-sourced data on download/upload speeds, latency, signal availability, and consistency tests to rank networks[1].

However, these objective benchmarks tell only part of the story. Consumer surveys and satisfaction indices emphasise qualitative factors.  For example, one South African index found that “softer” elements (like perceived value-for-money and quality of customer relationships) were key drivers of satisfaction, even as raw network performance became a “hygiene factor”.

Key factors shaping perception

 Coverage and Signal Availability

 A network’s geographic reach and signal strength are fundamental. Operators now publicly track “coverage experience”.  For example, Vodacom earned an overall coverage score of 8.0 out of 10 (the country’s best) and won the 5G coverage award in 2025. Likewise, Telkom’s network achieved a 99.1% “signal availability” rate (time with at least 3G/4G), far higher than competitors.

Network Speed & Performance

Speed remains a headline factor, especially as media streaming, gaming and large uploads become routine. Recent data show South African mobile “average download speeds of ~67 Mbps”, with MTN (~82 Mbps) and Vodacom (~77 Mbps) leading the pack.  Importantly, 5G networks drive much higher top speeds.  Is this important? The answer is yes: these differences can matter. A heavy streamer or gamer will notice 200+ Mbps vs 30 Mbps.

It is, however, essential to note that peak speeds depend on location (urban vs rural), network congestion, and device capability.

Reliability and Consistency

 A network that is fast only occasionally, or drops calls during storms or power outages, will not feel “best” to users. Reliability covers call drop rates, latency stability and uptime.  South Africa’s electricity shortages have made this especially salient.  For example, MTN invested over R10 billion in its network (including advanced batteries and generators) to ensure “continuous service during load-shedding” In performance awards, Vodacom recently won the “Consistent Quality” category (highest share of tests meeting demanding app thresholds) for multiple reporting periods.  In practical terms, consumers view reliability through experience: Does the network drop calls in your home? Is video streaming glitchy?  In short, high average speed means little if your service is patchy.

Emerging trends shaping the future of “Best”

 The mobile landscape is evolving rapidly, so what counts as “best” today may shift in the next few years.  Key trends to watch include:

5G Expansion (and Beyond).  Consumers with 5G-capable phones now see speeds in the hundreds of Mbps. In the near future, networks will continue upgrading spectrum and infrastructure. As 5G devices become ubiquitous, “latency”, “IoT connectivity”, and “new applications” (AR/VR, cloud gaming) may become key differentiators.  Choosing the “best” network may increasingly depend on 5G availability and on whether an operator can deliver on next-gen use cases (e.g. supporting smart factories or self-driving cars).

Satellite and Multi-Orbit Networks.  Traditionally, mobile coverage has been terrestrial. That’s changing as satellite connectivity blends in.  For example, Vodacom announced a partnership to integrate SpaceX Starlink’s low-Earth-orbit (LEO) satellites into its network. This hybrid approach means remote areas (or ships at sea) might get a cell signal routed via satellite when ground towers are unreachable.  In practice, this could make the “best” network one with true national (or even pan-continental) reach via both cellular and satellite networks.  Over time, when satellites deliver low-latency 4G/5G directly to handsets, even standard mobile plans may cover far-flung bushveld roads.

Network Innovation (AI, Open RAN, Virtualisation).  Networks themselves are undergoing technological transformation. Operators are adopting AI-driven optimisation (self-healing networks, predictive maintenance) and virtualised RAN architectures.   In South Africa, while large operators still build traditional 3G/4G/5G networks, it should be expected that these back-end improvements will improve service without apparent customer effort – for example, faster recovery from faults.  For tech-centric consumers, a “best” network might one day be judged by cutting-edge features like network slicing or guaranteed enterprise SLAs.

Conclusion 

 In an era where mobile connectivity has become as essential as electricity, the quest for the “best mobile network” consumes countless consumer hours and generates endless marketing claims. Yet this seemingly straightforward pursuit masks a fundamental truth: there is no universally “best” mobile network—only the network that best serves a consumer’s individual needs, usage patterns, and priorities.

Happy holidays surfing the web, streaming content, gaming, and making holiday calls on your best network!

Note that the author relied heavily on MyBroadband articles reports written during 2024 and 2025 in the preparation of the article. In the interest of brevity, all MyBroadband articles have not been footnoted

[1] Opensignal’s recent national study illustrates MTN is dominating the leaderboard, winning 11 of 15 experience awards (including all overall experience categories.

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