Zakhele Mthembu BA Law LLB (Wits) is a legal researcher at the Free Market Foundation
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This article was first published on Bbrief.co.za on 8 March 2022
Industrial cartels should be welcomed when voluntary
The Competition Commission has recently referred WesBank, the car finance division of First Rand Bank, and Toyota Financial Services South Africa (TSA) to the Competition Tribunal, to be fined 10% of their turnover for the alleged violation of the Competition Act. The companies have been found by the Commission to have allocated suppliers/customers in the vehicle finance market in contravention of the Competition Act.
First Rand has an equity stake in TSA. As part of a shareholder agreement, First Rand, through Wesbank, had agreed not to offer car finance to any vehicle purchased at a Toyota dealership, except McCarthy Toyota dealerships.
These companies are accused of collusion by the Commission. They were found to have been cooperating, by dividing customers among themselves, when they ought to have competing in the car finance market. The shareholder agreement barring Wesbank from competing with TSA at Toyota dealerships was found to be in violation of section 4(1)(b)(ii) of the Competition Act.
South Africans ought to ask: What harm was caused by this agreement? Firstly, there is nothing prohibiting any customer of any good or service, from simply not making that purchase. This voluntariness of transactions must be kept in mind in all analyses of competition law. Except for state inhibitions, like onerous regulatory compliance or legislatively protected markets (such as the energy market), all commercial enterprises are always exposed to competition from potential new entrants.
The customers who bought cars under this agreement were not coerced into doing so. They did so willingly. Yet, the companies, which provided value for them (the proof of this value being provided is in the instance of any purchase made using car finance) are punished for doing their jobs.
In an environment of a relatively free market, that has no legislative barriers to entry (that is, can an alternative firm enter the market and compete?), agreements like that between Wesbank and TSA are perfectly appropriate. At the very least, the law should not take notice of such agreements except to enforce them. In fact, when customers benefit, this coordination ought to be praised! Legal action ought to arise only when there is coercion which prevents a potential new entrant from competing in the market of the colluding cartel.
In the case of Wesbank and TSA, there are other ways to finance one’s car. This includes saving money to make the purchase rather than acquiring credit. There are other banks aside from First Rand Bank which can offer car finance services. Customers, who are said to be divided like they are automatons with no agency to choose alternatives, are voluntary participants in car finance agreements.
Wesbank’s and TSA’s agreement does not violate the rights of any individual involved in their respective markets. The only reason that these companies are foul of the law is because of an arbitrary and politically expedient edict that says that they are. Collusion does not lead to artificially fewer market choices for consumers.
To those who would say that participants in a market ought to “naturally” compete, and where cartels arise surely there must be a grand conspiracy, a research paper by Tiago Peixoto and Stefan Bornholdt shows how in an environment of low trust among market participants (and therefore no conscious effort/plan of coordination occurring) cartels still arise. The main conclusion of their research is that cartel formation occurs spontaneously in a market. This makes cartels part of economic reality, rather than an aberration.
This is the case with Wesbank and TSA as well.
When allowed to exist in a market freely contestable by new competitors, cartels, or coordination as is the case in the present matter are perfectly appropriate, and research shows they can even be efficient. This is the theory advanced by economist Murray Rothbard in his cartel theory.
Instead of punishing Wesbank and TSA, rather let other banks compete in their field and offer car finance services. If this is a possibility – it is – then we ought to reconsider the enforcement of section 4(1)(b)(ii) of the Competition Act. Even though the Competition Tribunal will most likely follow the recommendations of the Commission and fine the companies, as a country we ought to interrogate whether our competition law is founded on sound economic and legal reasoning. I do not believe that it is.