By Sikhosonke Mayekiso

Does South African competition law actually speak the same language as its European and British counterparts when a tech merger crosses borders, or does it merely borrow the vocabulary while pursuing an entirely different conversation? The question matters more than it once did. Digital platforms now dominate the deal pipeline, and every jurisdiction with a functioning competition authority has had to decide how much of its sovereignty it is willing to lend to a shared analytical project.

On paper, the resemblance between the three regimes is striking. The Competition Act 89 of 1998 asks whether a merger is likely to substantially prevent or lessen competition, a formulation that sits comfortably beside the European Union’s significant impediment test and the United Kingdom’s substantial lessening of competition standard. All three systems evaluate market definition, concentration, entry barriers and efficiencies through broadly compatible economic reasoning. A merger lawyer trained in London could read a Competition Tribunal judgment and follow the logic without much translation.

Yet the accent diverges sharply once public interest enters the room. South Africa’s Act compels the Commission and Tribunal to weigh employment, ownership by historically disadvantaged persons, and the ability of small and medium enterprises to compete, alongside the conventional substantial lessening of competition inquiry. Neither Brussels nor London carries an equivalent statutory mandate of that breadth. The European Commission’s assessment stays close to consumer welfare and market structure, and the Competition and Markets Authority, despite its own recent political recalibration toward growth and investment friendliness, has no comparable transformation clause written into its founding statute.

Nowhere has that divergence been clearer than in the long saga of Vodacom’s acquisition of a stake in Maziv, the holding company behind Vumatel and Dark Fibre Africa. The Commission and the Tribunal initially prohibited the transaction on horizontal fibre concerns, and the matter might have ended there had the Minister of Trade, Industry and Competition not taken the unusual step of appealing the prohibition himself, a move that revealed just how much weight infrastructure and connectivity now carry in South African merger policy. When the Competition Appeal Court finally ruled in 2025, it approved the deal only after attaching an extensive package of commitments, among them large scale fibre rollout in townships and rural areas, subsidised connectivity for low income households, and a multibillion rand investment tied to network expansion. No European or British merger authority operates with that kind of remedial imagination. A UK or EU regulator would ask whether the deal harms competition and, satisfied that it does not, would clear it without demanding a national development programme as the price of approval.

The Canal+ acquisition of MultiChoice tells a related story from a different angle. Conditional approval came only after the Commission recommended a package addressing employment protection, transformation and the promotion of local content, and the Tribunal endorsed that package in full. Foreign acquirers eyeing South African targets increasingly need to budget for public interest negotiation as its own workstream, not a formality trailing behind the competition analysis.

It would be wrong, though, to overstate the gap. Structurally, the three systems are converging on a shared anxiety about digital gatekeepers, even where their tools differ. The European Union’s Digital Markets Act has moved from institutional setup into tangible enforcement, and the Commission’s most recent annual report recorded fines totalling roughly seven hundred million euros against two designated gatekeepers, alongside binding specification decisions meant to force structural compliance rather than mere behavioural promises. The United Kingdom answered with its own Digital Markets, Competition and Consumers Act, introducing a strategic market status designation and a parallel mandatory reporting track for firms so designated, layered atop the ordinary voluntary merger regime.

South Africa has been building its own version of that instinct through the Media and Digital Platforms Market Inquiry, and its findings landed with considerable force. The Commission concluded that a major search platform holds an entrenched dominant position, extracting hundreds of millions of rands annually in unremunerated value from local news content through reduced referral traffic and algorithmic prioritisation of foreign material, while social media platforms have similarly constrained the reach of domestic publishers. Proposed remedies stretch from mandatory compensation schemes to a possible digital advertising levy, an instinct that would sit comfortably beside the European Commission’s own recent willingness to impose a fine approaching three billion euros on a major platform for favouring its own advertising services over rivals. The vocabulary of dominance, self-preferencing and platform accountability travels remarkably well across these three jurisdictions, even where the remedial architecture built on top of it does not.

A second axis of comparison concerns how eagerly each regulator reaches beyond its own borders. The European Union’s Foreign Subsidies Regulation has quietly become routine business, with the Commission issuing its first significant commitment decision and then, months later, conditionally clearing a further transaction after examining distortions attributable to state support originating outside the bloc. That regulation lets Brussels scrutinise the state backed war chests of acquirers with no European domicile at all, an extraterritorial reach that has no direct South African equivalent.

South Africa’s jurisdictional posture, by contrast, has recently been tested and narrowed rather than expanded. In a transaction concerning the kidney care segment of a multinational healthcare group, the Tribunal confronted a genuinely foreign to foreign deal, one involving Luxembourg and United States based parties with no South African subsidiaries, branches or production activity, and only a tangential local sales link through a third party distributor. The Tribunal’s cautious handling of that case suggests a regulator conscious of the limits of its own reach, standing in contrast to the European appetite for pulling ever more below threshold and structurally distant transactions into its net.

The honest conclusion sits somewhere between convergence and false friendship. The substantive economic test travels well, and increasingly so does the underlying suspicion of platform power, since all three regulators are now openly worried about search dominance, self-preferencing and the erosion of local content industries. What does not travel is the remedial imagination. A merger cleared unconditionally in Brussels or London on pure competition grounds can still arrive in South Africa and be met with a demand for transformation commitments, local content quotas and infrastructure investment obligations that have little to do with market concentration as conventionally measured. A recent Constitutional Court judgment restating the test for third party intervention in large merger proceedings, arising from a long running dispute in the retail sector, further signals that South African merger hearings are becoming more procedurally open, inviting a wider circle of participants than European or British practice typically allows.

For any acquirer contemplating a cross border technology transaction touching South Africa, the lesson is not that the frameworks are incompatible but that they are unevenly weighted. Competition analysis alone will usually clear the Brussels or London hurdle. In South Africa, it merely opens the negotiation.

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Disclaimer: This piece offers a general comparative overview grounded in recent case developments and should not be read as legal advice on any specific transaction.