This presentation by Mpumelelo Tshabalala (Competition Tribunal of South Africa), Betty Mkhatshwa (Gilbert & Tobin) and Sonia Phalatse (Institute for Economic Justice), was made during the workshop on Gender inclusive competition policy held virtually on 25 February 2021. More papers and presentations on the topic can be found out at oe.cd/gicp.

1. Date:25 February2021
OECD Gender-inclusive competition policy workshop “Prioritisation and
Public Interest approach” Session: Part 3
Remarks by:
Betty Mkatshwa
Sonia Phalatse
Mpumelelo "Mpumi” Tshabalala
**All comments are made in our personal capacity and do not reflect the views of
the organisations that we work for.
A GENDER-INCLUSIVE COMPETITION POLICY: PRIORITISING
GENDERED PUBLIC INTEREST CONSIDERATIONS
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2. Background
• South Africa is heralded for its PI incorporation into its
competition policyandenforcement
.
• It has also used this instrument to prioritise the needsof people
who havehistoricaldisadvantage(HDPs)
.
• South Africancompetition law is an exampleof the “sponge-like”
nature of competition law: “inherently pre-disposed to a wide
range of values and considerations,and a social construct that
reflects and adapts to social,economicand historical realities of
its jurisdictions” (Ezrachi
, 2017
).
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3. Key SA Stats revealing urgency of gendered incorporation
(the need)
• Girls are more likely to complete an undergraduate degree. As a result, among young adults, women have
completed more years of schooling on average than men in SA. Yet, on average, women earn 30% less tha
with Black women earning 40% less than males combined.
• Unemployment has risen to its highest level since the start of 2008 at 29.1% in Q3 2019 (expanded definitio
38.5%). Black women have an unemployment rate of over 34.5%.
• While women’s share of total employment effectively rose from 38% in 1994 to 45% in 2015, a large part of
increase was due to women entering low
-paid precarious work, especially subsistence farming and informal se
-
employment and also domestic work. Women undertake at least twice as much unpaid care work than men
• Though there was an increase in women’s employment in the higher
-paying occupations, women make up only
22% of board directors in listed companies on the JSE and under 10% of executive directors.
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4. Key Stats revealing urgency of gendered incorporation
(the potential)
• Raised income for women increases their access to, and control over resources, and can significantly reduc
poverty: Research shows that women
-headed households have higher multiplier effects in the economy than
male-headed households (e.g.,
Duflo, 2015).
• Improving women employment opportunities could significantly boost a GDP: A Women in Work Index show
improving female participation in work across the OECD countries could boost OECD GDP by US$6 trillion,
closing the gender pay gap could boost female earnings across the OECD countries by US$2 trillion (PWC,
• There is also clear evidence of the significant contribution that women’s economic empowerment has on bu
value chains. For example, a UN Women's Economic Empowerment report notes that women make or influ
percent of buying decisions and control US$20 trillion in global spending (UN Secretary
-General, 2016).
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5. Lessons on advancing PIs and the inclusion of HDPs
• The 4 Pillars of Progressionist PIs:
⚬ Purposeful Framing of PIs
: The Act has a defined, deliberate ambit, and PIs are codified in the text
–illustrating
the power of the preamble and purpose of the Act in realising PI objectives.
⚬ Prioritisation: Sectoral prioritisation by competition authorities helps to cultivate technocratic expertise; a
prioritisation can be a means by which to infuse public interest into enforcement initiatives.
⚬ Progressive
-Implementation: the introduction of public interest norms into competition enforcement may
need to be legislated and enforced in an incremental manner.
⚬ Progressionists’ Participation
: The crafting of remedies (merger and, possibly, complaints) is as progress
the participation rights allow stakeholders to be. Legislation that aims to have its public interest sections
should cater for the stakeholders best placed to lobby for those public interest aims.
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6. Developing the Four Pillars of PIs to Gender
• Purposeful Framing of PIs
⚬ Missed Opportunity: Whilst other affirmative action policy strategies in other RSA legislative instruments
principally the RSA Constitution, gender is, anomalously not included under the Competition Act’s defini
of HDPs.
⚬ Development of an institutional strategy that identifies
￭ the key gender indices that will result in the desired outcomes; and
￭ the correct legal textual framing for its optimal incorporation into the Act.
• Prioritisation
⚬ Sectoral prioritisation of high-women impact sectors
￭ V
alue chains - i.e., manufacturing and agriculture;
￭ Care economy sectors: all social reproductive work; and
￭ Sectors in the high informal economy and reducing barriers to entry.
⚬ Missed opportunity: South Africa’s Health Sector Market Inquiry
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7. Developing the Four Pillars of PIs for Gender
• Progressive
-Implementation
⚬ Maintain a continued focus on gendered outcomes by building organisational capacity within government and competition autho
ties
for continued evaluation on key gender indices and the development of further policy and enforcement strategy.
⚬ In the context of competition decisions relating to resource allocation and recipient prioritisation, how is gender meant to
inform
and/or co-exist alongside with, the, sometimes competing demands, of race? How can an intersectional lens be developed in su
instances?
• Progressionists’ Participation
⚬ Identifying the key Progressionists
￭ Assessing the historical role of the DTICand trade unions.
￭ Which gender-championing stakeholders need to be included into the South African competition landscape?
⚬ To what extent does the policy / legislative design prioritise/mandate the incorporation of women’s perspectives and a gendered,
intersectional lens to better inform the gathering and assessment of evidence i.e., during the investigations, hearings and market
studies?
⚬ Distributive / Allocative Efficiencies
￭ During the enforcement chain, at the point at which rents are distributed, who are they distributed to?
￭ Collating data to evaluate the extent to which the current PIremedies and enforcement priorities have included women.
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8. Thank you!
“Women belong in all places whe
re decisions
are being made. It shouldn't be that women
are the exception
.”
― Ruth Bader Ginsburg
“There is no tool for development more
effective than the empowerment of women
.”
―Kofi Annan
“No country can ever truly flourish if it stifles
the potential of its women and deprives itself
of the contributions of half of its citizens
.”
―Michelle Obama
Contact details:
BMkatshwa@outlook.com
Soniafanu@gmail.com
Mpumi.Tshabalala@gmail.com
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