News / Legal Brief

Data privacy meets competition law: A new dawn for the regulators

Feb 2,2022

Practice for Regulators

It is a well-established practice for Regulators across various jurisdictions to establish memoranda of understanding (“MOUs“) or memoranda of agreement (“MOAs“) with each other. Such agreements generally aim to establish a mutual approach in dealing with matters giving rise to an overlap of the Regulators’ respective regulatory responsibilities.

That is what the MOA between the Competition Commission of South Africa (“the Commission“) and the Information Regulator of South Africa (“the Information Regulator“) seeks to achieve.

The MOA was published in the Government Gazette on 17 December 2021.[1] It will govern the information exchange between the two Regulators as well as facilitate further interactions and cooperation between them in matters which give rise to overlaps in competition law, data privacy and access to information. This allows both Regulators to, inter alia –

  • effectively coordinate the exercise of jurisdictional powers when taking decisions;
  • apply a consistent interpretation and application of the principles of competition law and privacy law when exercising their powers and functions in terms of their respective enabling legislation;
  • promote co-operation, including in respect of setting standards or conditions that affect matters of common interest, any joint investigations, market inquiries and/or research studies that the Regulators may agree to undertake; and
  • consult and timeously provide each other with necessary information in respect of the investigation of anti-competitive practices, regulation of mergers and acquisitions, as well as investigation of non‑compliance with the provisions of the Protection of Personal Information Act, 4 of 2013 (“POPIA“) and Promotion of Access to Information Act, 2 of 2000 (“PAIA“).

The MOA does not, however, seek to compel either Regulator to obtain approval from the other to carry out its statutory powers and functions even if those powers and functions overlap with those of the other. Moreover, neither Regulator can exercise powers or perform functions under the other’s governing legislation.

However, to ensure a more aligned system of regulation as well as limit regulatory uncertainty facing businesses especially with new and developing legislation such as POPIA, the MOA deems it essential that the Information Regulator and the Commission co‑operate with and consult one another on a regular basis in the exercise of their powers in matters that affect the mandate and functions of the other.

Extent of influence of the Information Regulator

What is interesting to note is the extent of influence that the Information Regulator may have in competition matters as a result of the MOA. Although the MOA states that the Commission and the Information Regulator shall make independent determinations on the basis of the criteria and mandates of their respective legislative and regulatory frameworks, it also states that in arriving at their determinations they may consult each other in as far as competition matters are concerned.

Although the extent of this influence is yet to be seen, it will be interesting to see how the Commission approaches competition matters such as merger reviews where personal information may be significantly impacted.

The MOA also creates a duty for each Regulator to notify the other in instances where a complaint is lodged regarding a practice or conduct over which both Regulators may have concurrent jurisdiction. This enables consultations to take place between the two and may extend as far as having members from the one Regulator participate in the processes of the other through, inter alia, attending meetings and providing inputs or making representations on the investigation and determination of a matter.

A Joint Working Committee (“the Committee“) constituted by representatives of both Regulators is to be established pursuant to the MOA and shall function on an ongoing basis. The Committee will facilitate and manage co-operation and consultation in respect of matters dealt with by each Regulator in terms of the MOA. It will also propose, when necessary, any amendment or supplementation to the MOA. The Committee will also have the important role of advising the management of both Regulators on issues relating to competition law, data privacy and access to information. In that regard, the Committee will make recommendations on –

  • the types of conduct or transactions affected by the abovementioned areas of law in which concurrent jurisdiction is to be exercised by the two Regulators;
  • international approaches to issues of overlap concerning jurisdiction between a Competition Authority and the Information Regulator;
  • amendments to the relevant statutes; and
  • any other related matter.

Consequently, the Committee serves as the link between the Information Regulator and the Commission making it a very important body for the effective implementation of this collaboration arrangement.

Notwithstanding the above, the Regulator remains the custodian of POPIA. It is the subject matter expert on privacy law and sits in pole position to bring its focused knowledge and experience to guide the Commission on the proper application of privacy principles.

The MOA reflects a global trend in jurisdictions that have both competition and privacy Regulators working hand‑in‑hand to coordinate efforts in regulating competition and privacy issues. It is the first of its kind in South Africa between the Commission and the Information Regulator and reinforces the relevance of privacy issues in competition matters. This will in no doubt lead to an increased demand on the Regulator’s resources given the number of competition matters which give rise to privacy concerns.


[1] Notice Number 1624 in Gazette 45649. The MOA was signed by representatives from both regulators on 21 October 2021.

by Ahmore Burger-Smidt, Director and Head of Data Privacy and Cybercrime Practice and member of the Competition Law Practice and Nyiko Mathebula, Candidate Attorney