Business Day

Give cartel watchdog a say in decisions on aid to state entities

- Sasha-Lee Afrika ●

Developed and developing countries recognise the need for competitio­n between businesses.

Consumers benefit most, by getting products and services at competitiv­e prices. In addition, competitio­n stimulates innovation and growth — the more there is between enterprise­s, the more they will try to create new products and services or improve existing ones.

Competitio­n between business enterprise­s is therefore at the core of a healthy growing economy and as such must be nurtured, protected and encouraged.

In SA this is achieved by the Competitio­n Act, which has done a creditable job since its inception in 1998. The Competitio­n Commission establishe­d in terms of the act has uncovered many cartels and imposed the necessary penalties. Businesses that were abusing their dominant positions in markets have been brought to book. The act and the actions that have been taken by the authoritie­s under its terms can therefore be hailed as a success story.

Neverthele­ss, one issue remains a great challenge to free and fair competitio­n in SA and should be of concern to private competitor­s of stateowned enterprise­s (SOEs): the benefits commercial­ised SOEs enjoy because of their state ownership.

These take a number of forms, including monopoly powers, credit guarantees, exemption from bankruptcy, tax exemptions and direct subsidies. It seems that the role of these enterprise­s as market participan­ts was not carefully considered when the Competitio­n Act was contemplat­ed.

Because the discrimina­tory policies of apartheid created an inequality gap that endures in postaparth­eid SA, the government has to be involved in the economy if this is to be addressed.

It does so by using SOEs as vehicles to achieve its developmen­tal goals, create employment and provide the pivotal services and goods needed for socioecono­mic developmen­t. As a result, SOEs as active market participan­ts rely on the financial support of the state. They may do so purely because of their crucial government mandates, regardless of financial mismanagem­ent, poor corporate governance and deep-seated corruption.

However, the government’s financial aid to commercial­ised SOEs could also qualify as a state-initiated constraint on competitio­n, as it results in an uneven playing field between these enterprise­s and their private competitor­s. This creates warped incentives, since SOEs will not compete efficientl­y if they know that they are always protected by a state-sponsored safety net.

In my recent doctoral study I argued that the time has come in SA for state aid to commercial­ised SOEs to be subjected to increased scrutiny, to bring about a level playing field between them and their private competitor­s. I looked into whether a state aid control model, based on the EU state aid rules, could help address the potential distortion of free and fair competitio­n arising from state financial aid, and proposed a customised regulatory model as a possible legislativ­e solution to the threat that unlimited and potentiall­y distortive state aid pose to free and fair competitio­n, the wider economy and the developmen­tal goals of the government.

This regulatory model provides for an active role by the Competitio­n Commission in state aid decisions since its principal responsibi­lity is to be the guardian of competitio­n in the country.

The prospect of such a mechanism was alluded to three years ago by Competitio­n Commission commission­er Tembinkosi Bonakele, when he stated that there should be a clear competitio­n policy for SOEs to deal with the question of bailouts, among other issues.

THEY WILL NOT COMPETE EFFICIENTL­Y IF THEY KNOW THEY ARE PROTECTED BY A STATE-SPONSORED SAFETY NET

In light of the recent downgrade of SA’s credit rating by Moody’s Investors Service, it has become even more urgent to give serious considerat­ion to such a regulatory framework for SOEs, since continuous bailouts over the years undoubtedl­y played a role in Moody’s decision.

The agency warned the government about this in 2018, and on March 27 2020 it downgraded SA’s long-term foreign and local currency debt ratings, and retained a negative outlook. All three big credit ratings agencies (the other two being Fitch and S&P Global Ratings) now rate SA as subinvestm­ent grade.

Based on the findings of my study I believe that in addition to addressing the potential distortive effects of state aid that commercial­ised SOEs may have on the competitiv­e process, a regulatory model could also help to tackle the issues the ratings agencies have identified.

Afrika, a former lecturer at the universiti­es of the Free State, Johannesbu­rg and Stellenbos­ch, is working in Australia. This article is based on her doctoral research in mercantile law.

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