DAMAGES ARISING FROM CONTRAVENTIONS OF COMPETITION ACT 89 OF 1998

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Common-law: Conduct giving rise to unlawful competition

The determination of when an infringement of another’s goodwill and concomitant loss will be construed as being unfair competition, and when it will merely be deemed the result of effective and consequently lawful competition, is a vexing question. Essentially, it amounts to the weighing up of interests, particularly the right to attract custom of the one firm against the right to trade of the other firm.27 Harms JA in Telematrix (Pt) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA adopted the view that, “conduct is wrongful if public policy considerations demand that in the circumstances the plaintiff has to be compensated for the loss caused by the negligent act or omission of the defendant.”28 It is accepted that the wrongful interference with the right to attract custom (being a patrimonial right)manifests itself in any of a variety of different forms and is to be evaluated and dealt with within the scope of the lex Aquilia.29
A firm believing itself to be the victim of unfair competition is required to allege and prove all the elements necessary for an Aquilian action in order to succeed with an action for damages. The broad scope of the action does afford a prejudiced party suffering an infringement of his right to attract custom legal recourse, despite the particular conduct complained of not falling within the ambit of recognised conduct giving rise to a claim for damages based on unlawful competition.30

CHAPTER 1. INTRODUCTION .
CHAPTER 2. ACTIONS BASED ON UNFAIR COMPETITION
2.1. Introduction
2.2. Assessing commercial conduct
2.3. Goodwill
2.4. Common-law: conduct giving rise to unlawful competition
2.5. Conclusion
CHAPTER 3. DAMAGES ARISING FROM CONTRAVENTIONS OF COMPETITION
ACT 89 OF 1998
3.1. Introduction
3.1.1 Justice advanced by the Competition Act 89 of 1998
3.2. Section 65 follow-on damages and the South African legal framework
3.2.1 Introduction
3.3. Children’s Resource Centre ruling – Section 65: delictual or statutory?
3.3.1 Case law
3.3.2 Section 65: delictual action for damages
3.3.3 Assessing the elements of a delict
3.3.4 Arguments favouring section 65 being statutory claim
3.3.5 Assessment of section 65 .
3.3.7 Conclusion: s 65 as a statutory or delictual action
3.4. Conclusion
CHAPTER 4. DAMAGES AND QUANTIFICATION
4.1. Introduction
4.2. Types of damages: patrimonial and non-patrimonial loss
4.3. Patrimonial loss
4.4. Forms of patrimonial loss
4.5. Patrimonial loss arising from contraventions of the Competition Act
4.6. Lost profits
4.7. Techniques: assessment of patrimonial delictual damage
4.8. Sum-formula or concrete approach?
4.9. Conclusion
CHAPTER 5. PROVING CAUSATION .
5.1. Introduction
5.2. Causation in South African law of delict .
5.3. Causation and unlawful competition
5.4. Economics and causal connection .
5.5. Conclusion
CHAPTER 6. ECONOMIC MODELS AND QUANTIFICATION OF DAMAGES
CHAPTER 7. COMPARATOR-BASED METHODS
CHAPTER 8. FINANCIAL ANALYSIS-BASED METHODS
CHAPTER 9. MARKET ANALYSIS METHOD
CHAPTER 10. ESTABLISHING A WORKABLE COUNTERFACTUAL POSITION
CHAPTER 11. PASSING-ON DEFENCE
CHAPTER 12. FINAL DAMAGES
CHAPTER 13. PRIVATE COMPETITION DAMAGES: INTERNATIONAL EXPERIENCE .
CHAPTER 14. PROPOSALS TO FACILITATE PRIVATE DAMAGES ACTIONS ARISING
FROM CONTRAVENTIONS OF COMPETITION LEGISLATION .
CHAPTER 15. DEVELOPING SOUTH AFRICAN PRIVATE COMPETITION DAMAGES
ACTIONS
CHAPTER 16. CONCLUSION AND RECOMMENDATIONS
INDEX