Abstract:
This article considers the suitability of the remedy of divestiture in non-merger cases,
particularly in markets where high concentration levels may embolden incumbents to
engage in abusive conduct. The article observes that the prevailing practice in
competition-law enforcement is that, while divestiture is an acceptable remedy in
merger cases, it is generally eschewed in non-merger cases. The article argues that
economic conditions in South Africa provide justification for the use of the divestiture
remedy in non-merger cases, particularly in cases of abuse of dominance in
concentrated markets. The article observes that there is sufficient legal authority and
history supporting the use of the remedy in non-merger cases.
