South African Case Law
- CC and Caprichem (Pty) Ltd (CR032May20)
- Babelegi and CC (186/CAC/Jun20)
- CC and Cilliers and Heunis CC t/a Centrum Pharmacy (CR005Apr20)
- CC and Main Hardware (Pty) Ltd (CO007Apr20)
- CC and Evergreens Fresh Market (CO009Apr20)
- CC and Matus (CO012Apr20)
- CC and Van Heerden Pharmacy Group (CO014Apr20)
- CC and Mandini Pharmacy (CO013Apr20)
- CC and Domoney Brothers Bloem (CO022May20)
- CC and Retrospective Trading 200 t/a Seaside Pharmacy (CO020May20)
- CC and Retrospective Trading 1999 t/a Merlot Pharmacy (CO018May20)
- CC and C Sauna t/a Naturally Yours Weleda Pharmacy (CO017May20)
- CC and Sicuro Safety and Hennox 638 (CO024May20)
- CC and Sunset Pharmacy (CO016May20)
- CC and Manhattan Cosmetics (CO019May20)
- CC and Cedar Pharmaceuticals t/a Bel-Kem (CO015May20)
- CC and Auction and Salvage Net (CO034May20)
- CC and N Bhabikan t/a T.N.T Basic Trading (CO033May20)
- CC and Vasilis Supermarket t/a Vasilis Cleaning Supplies (CO048Jun20)
- CC and Sanitech a Division of WACO Africa (Pty) Ltd (CO047Jun20)
- CC and West Coast Hardware (Pty) Ltd (CO044Jun20)
- CC and Eldoram Dienste CC t/a Eldopark Pharmacy (CO053Jun20)
- CC and Green Hygiene (CO054Jun20)
- CC and Mica Barberton (CO052Jun20)
- CC and Steelmate (CO062Jul20)
- CC and Stelkor Pharmacy (CO057Jul20)
- CC and D | Fraser CC t/a Umhlanga Medisport Pharmacy (CO056Jul20)
- CC and Rand Safety Equipment (CO076Jul20)
- CC and Oil and More General Trading (CO085Aug20)
- CC and Levtrade Industrial (COVCR074Jul20)
- CC and Sentra Kem Pharmacy (CO106Aug20)
- CC and Crest Chemical (CO176Dec20)
- CC and Oak Medial Laboratory Supplies CC (CO186Jan21)
- CC and Supra Healthcare Cape Town (Pty) Ltd (CO204Mar21)
Earlier South African Cases
- Mittal Steel South Africa and others v Harmony Gold Mining Company and Others (Tribunal Judgment & CAC Judgment)
- Sasol Chemical Industries Limited v Competition Commission
- Foskor (Pty) Ltd v Competition Commission and Others
Literature on the Economics of Excessive Pricing
Frank, L. (2020) ‘Prohibiting Monopolistic Excessive Pricing During the Time of Covid-19’, European Competition Law Review, 7.
Ratshisusu, H & Mncube, L. (2020) ‘Addressing excessive pricing concerns in the time of the COVID-19 pandemic – a view from South Africa’, Journal of Antitrust Enforcement, 8(2):256-259.
Oxenham, J. Currie, M.J & van der Merwe, C. (2020) ‘COVID-19 Price Gouging Cases in South Africa: Short-term Market Dynamics with Long-term Implications for Excessive Pricing Cases’, Journal of European Competition Law & Practice.
Fung, S & Roberts, S. (2021) ‘The economics of potential price gouging during Covid-19 and the application to complaints received by the CMA’. CCP Working Paper 21-02.
Previous South African Literature Relevant to Excessive Pricing
Das Nair, R. (2008) ‘Measuring Excessive Pricing as an Abuse of Dominance – an Assessment of the Criteria Used in the Harmony Gold / Mittal Steel Complaint.’ South African Journal of Economic and Management Sciences, 11(3). pp. 279-291.
Das Nair, R. and Mondliwa, P. (2017) ‘Excessive Pricing under the spotlight: What is a competitive price?’, in Klaaren, J., Roberts, S., and Valodia, I. (eds) Competition Law and Economic Regulation. 1st edn. Johannesburg: Wits University Press, pp. 97–119.
Mncube, L. and Ngobese, M. (2018) ‘Working Out the Standards for Excessive Pricing in South Africa’, in Frederic, J. and Katsoulacos, Y. (eds) Excessive Pricing and Competition Law Enforcement. Springer, pp. 159–172.
Murgatroyd, R., Baker, S. (2011) ‘Does Import Parity Pricing Constitute Evidence of Excessive Pricing and What are the Consequences of Attempting to Remedy It?’ Journal of Economic and Financial Sciences. 4(3). pp. 167-182.
Murgatroyd, R., Yu, Y. and Baker, S. (2011). ‘Excessive Pricing Regulation in China, South Africa, and Other BRICS Member States.’ in Competition Policy for the New Era: Insights from the BRICS countries. Bonakele, T., Fox, E. and Mncube, L (eds). Oxford University Press, Oxford. pp. 229-242.
Roberts, S. (2008) ‘Assessing Excessive Pricing: The Case of Flat Steel in South Africa’, Journal of Competition Law & Economics, 4(3), pp. 871–891.
Previous International Literature Relevant to Excessive Pricing
Akman, P. and Garrod, L. (2011) ‘When Are Excessive Prices Unfair?’, Journal of Competition Law & Economics, 7(2), pp. 403–426.
Calcagno, C. and Walker, M. (2010) ‘Excessive Pricing: Towards Clarity and Economic Coherence’, Journal of Competition Law & Economics, 6(4), pp. 891–910.
Gilo, D. (2018) ‘A Coherent Approach to the Antitrust Prohibition of Excessive Pricing by Dominant Firms’, in Katsoulacos, Y. and Frederic, J. (eds) Excessive Pricing and Competition Law Enforcement. Springer.
Gilo, D. and Spiegel, Y. (2018) ‘The Antitrust Prohibition of Excessive Pricing’, International Journal of Industrial Organisation, 61, pp. 503–541.
Fréderic, J. (2018) ‘Abuse of Dominance by Firms Charging Excessive or Unfair Prices: An Assessment.’ in Excessive Pricing and Competition Law Enforcement. Fréderic, J. and Katsoulacos, Y. (eds). Springer.
Montgomery, W. D., Baron, R. A. and Weisskopf, M. K. (2007) ‘Potential Effects of Proposed Price Gouging legislation on the Cost and Severity of Gasoline Supply Interruptions’, Journal of Competition Law & Economics, 3(3), pp. 357–397.
Motta, M. and de Streel, A. (2007) ‘Excessive Pricing in Competition Law: Never Say Never’, in The Pros and Cons of High Prices. Swedish Competition Authority, pp. 14–46.
Wilson, D. (2014) ‘Price Gouging, Construction Cartels or Repair Monopolies? Competition Law Issues following Natural Disasters’, Canterbury Law Review, 20, pp. 53–90.
Popular Press Material on Excessive Pricing
A case for price gouging policy versus price control by Willem Boshoff
Price Regulation in Times of Crisis Can be Tricky by Massimo Motta
3M Sues Mask-Seller for Alleged Gouging, Trademark Infringement by Austen Hufford
3M, Under Attack from White House, Pushes Back by Austen Hufford and Joe Palazzolo
Operation Masks and the Battle against Coronavirus Price Gouging by Andrew Edgecliffe-Johnson
Watchdog seeks Emergency Powers to Tackle Coronavirus Profiteering by Kate Beioley and Jim Packard
International Policy on Covid-19 Excessive Pricing
The Administrative Council for Economic Defence (CADE) has released a temporary information note for the collaboration between firms during Covid-19. This note serves as an attempt to provide transparency and legal certainty for market players to preserve competition in affected sectors. The CADE has also released a case study which analyses competition in the supplementary health market.
The European Competition Network (ECN) is a body allowing for cooperation between the European Commission and national competition authorities within the EU. The ECN has released a joint statement on the application of competition law during the Covid-19 pandemic. This statement highlighted the need to ensure essential goods to protect consumer’s health remain available at a competitive price and that firms do not engage in excessive pricing.
Below are several countries within the ECN which have provided statements regarding excessive pricing on products related to Covid-19.
The Indonesian Competition Commission (‘ICC’) has released a joint statement by ASEAN experts group on Competition is response to Covid-19. The ICC has initiated a study to investigate pricing violations of rapid test services to diagnose Covid-19 in hospitals. The ICC further encourages any individuals to report alleged violation of Article 15 paragraph (2) of Law No. 5/1999, whereby a party is forced into purchasing additional goods and services to what they require from the supplying party.
The Competition Authority of Kenya (‘CAK’) released a note highlighting that a contravention of their Competition Act through illegal price increases or hoarding will lead to a penalty of up to 10% of the respective firms’ turnover.
On 16 March 2020 a remedial order was was made against a firm that had exploited consumers with excessively priced hand sanitisers. The firm was ordered to refund each consumer that had purchased the product in question. The CAK further ordered on 26 March 2020 for the removal of exclusivity clauses in agreements for the distribution of certain food products and some hygiene supplies related to Covid-19.
The South African government has developed the Consumer and Customer Protection and National Disaster Management Regulations to govern goods and services classified as essential in line with the Disaster Management Act during the Covid-19 pandemic. The Competition Commission considers these legislations with the market power a firm exhibits and the increase in price or revenue generated by the firm to determine whether the firm exhibited anticompetitive behaviour in order to impose a fine on the firm should the case remain uncontested. The Competition Commission has released a statement to inform the public on how excessive pricing will be prosecuted specifically in the markets of essential goods and services related to Covid-19, such as foodstuff and medical supplies.
The Turkish Competition Authority has been following price increases of firms in cases where it appears these prices are opportunistic due to the Covid-19 pandemic. An announcement on 23 March 2020 to the public declared imposition of high fines if firms engage in such anticompetitive practices.
On 07 May 2020 an investigation was initiated against 29 firms. This investigation highlights the expedient manner in which the competition authority is investigating cases.
The Competition & Markets Authority in the United Kingdom released an open letter to the pharmaceutical and food and drink industries. Alongside this, a letter from both the Competition & Markets Authority and the General Pharmaceutical Council has been released regarding the pricing of essential goods during the Covid-19 pandemic. It details which rules are to be followed when pricing items and how one may lay a complaint against a firm believed to be following unfair practices. On 3 July 2020, the Competition & Markets Authority released a joint statement against price gouging.