On 15 October 2021 the Constitutional Court delivered a precedent setting judgement on the role of the competition authorities in promoting and protecting cornerstone socio-economic rights contained in the Constitution.

The judgement in question, Competition Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd and Another, concerning the proposed acquisition by Mediclinic of two private hospitals in the Potchefstroom/Klerksdorp region. Upon consideration of the merger, the Competition Tribunal (Tribunal) prohibited the merger in order to, amongst others, safeguard the right of access to health care for both insured and uninsured patients as, in the Tribunal’s view, the merger would have a significant effect on the healthcare costs of both the insured and uninsured patients living in the region. The basis of this argument was that the acquisition by Mediclinic of the two target hospitals would result in those hospitals following the same pricing models as other Mediclinic hospitals, this would then deprive patients of (i) the opportunity to take advantage of the lower tariffs offered by those hospitals, and (ii) the option of looking for and going to cheaper hospitals.

Mediclinic appealed to the Competition Appeal Court (CAC) which overturned the decision of the Tribunal. The Competition Commission then appealed to the Constitutional Court on the basis that the issues at hand concerned the constitutional right of access to health care.

In coming to its decision to uphold the decision of the Tribunal, the Constitutional Court examined the relationship between the Constitution, the Competition Act and the public interest being affected by the merger. It was noted that the right of access to health care is a fundamental human right as enshrined in the Constitution. It was noted further that the competition authorities must always take into account the purpose and objectives of the Competition Act and the duty on all state institutions to give effect to the Bill of Rights.

You can read more insights on the judgement here: 

https://za.andersen.com/news/insights/2021/11/competition-authorities-and-their-duty-to-the-constitution