The intersectional blind spot in public-interest merger control: ECP Africa Fund IV LLC v Burger King (South Africa) RF (Pty) Ltd revisited
Location:
Online via Microsoft Teams
Date/time
Wed 30 September 2026
14:00-15:00
Speaker
Dr Yolani Ndamase, who is a senior lecturer in Competition and Corporate Law at North-West University, South Africa. She holds a PhD in Commercial Law from the University of Cape Town, and here research centres on public-interest objectives in South African competition law and the regulation of digital platforms.
About the Event
This session is part of a research presentation series hosted by Edinburgh Commercial Law PGR Reading Group (CLRG). CLRG organises and hosts research presentations by and for group members, academic staff, visiting scholars, and guest speakers working in the broad field of commercial law.
Each session features a 30-minute presentation, followed by open discussion and a Q&A session. The series provides a supportive and informal environment for researchers, including postgraduate researchers, as well as academic staff, visiting scholars, and practitioners to develop their research and presentation skills, share ideas and experiences, receive constructive feedback, and engage with others working in the field.
The group also provides opportunities to build academic and professional networks and broaden knowledge of current developments in commercial law.
Abstract
South Africa's Competition Act 89 of 1998 requires merger authorities to weigh public-interest objectives, including the ability of historically disadvantaged persons (HDPs) to participate in the market and the spread of ownership among them. The paper uses the Burger King merger; the first South African transaction recommended for prohibition on public-interest grounds alone; to expose a blind spot in how that mandate is applied. Roughly 22.7 per cent of the seller's equity was held by black women; the transaction extinguished it, and none of the Tribunal's remedial conditions required the replacement equity to reach that group. Because HDP status is defined in racial terms alone, the intersectional dimension of the harm went unperceived and therefore unremedied. Drawing on Crenshaw's intersectionality framework, the Constitutional Court's reasoning in Mahlangu v Minister of Labour, and B-BBEE ownership data, I argue this is a constitutional shortfall under section 9(2) rather than a policy gap and propose reforms achievable without statutory amendment - gender-disaggregated ownership disclosure at filing stage, subgroup-specific conditions, and participatory mechanisms - situated against the OECD Gender Inclusive Competition Toolkit.
Image credit: Magnific