Therefore, the Tribunal`s decision does not go so far as to confirm that “exclusive leases” between retailers and shopping centres are inherently pro-competitive, but rather that parties wishing to demonstrate the anti-competitive effects of “exclusivity agreements” must do so with credible theories of harm supported by the necessary evidence. “The opening of shopping centre areas as a result of this historic agreement also provides an opportunity for new businesses to emerge in the retail environment in South Africa, which is essential to offer consumers a choice of products and other food purchasing opportunities,” said Tembinkosi Bonakele, Commissioner for Competition. The leases had ruled Shoprite Checkers for a long time, with some territories signing leases for 10 to 40 years. With respect to possible corrective action, the above behaviour could fall into one of the two main categories. The CCM could consider the agreements either as other restrictive competition agreements or as “monopoly situations” within the meaning of Sections 45 and 46 of the Act. Although the respondents made a number of exceptions to Massmart`s complaint (including the “non-citation” of the affected lenders, who are contracting parties to the respective leases), the court did not have to rule on these exceptions. The Tribunal dismissed the complaint on the basis that Massmart had not demonstrated that the exclusivity clauses contained in the leases had an anti-competitive effect on the market in question. In 2009, the Commission opened an investigation into Shoprite, Woolworths, Spar, Massmart, Metcash and Pick`n Pay, in which the Commission examined several competition issues, including buyer power, category management, information exchange and long-term exclusive leases. The Commission`s first investigation found no evidence of competition infringement, but then decided to focus its investigation on short-term long-term leasing contracts and to examine whether they could lead to an infringement of abuse of dominance and restrictive vertical practices.
- No categories