South African Airways (Pty) Limited v Comair Limited and Another

South African Airways (SAA), a dominant domestic airline, entered into override incentive agreements and trust payment arrangements with travel agents between 1 June 2001 and 31 March 2005. These arrangements rewarded agents for meeting sales targets favouring SAA. Comair and Nationwide, rival airlines, complained that these schemes induced travel agents not to deal with competitors, thereby foreclosing the market. The Competition Tribunal found the conduct to be a prohibited practice under s 8(d)(i) of the Competition Act 89 of 1998. SAA appealed to the Competition Appeal Court, arguing that the complaints were barred by s 67(2) (double jeopardy) due to earlier proceedings, and that the Tribunal erred in finding an abuse of dominance.

The appeal was dismissed. The Tribunal’s declaration that SAA’s override incentive agreements and trust payments from 1 June 2001 to 31 March 2005 contravened s 8(d)(i) of the Competition Act was upheld, as was the costs order in favour of Comair and Nationwide.

The case clarifies the scope of s 67(2) of the Competition Act, confirming that it provides protection only against double jeopardy for the same conduct in the same time period. It also reinforces South African competition law principles on exclusionary abuses of dominance, particularly loyalty-inducing incentives, and confirms that proof of actual consumer harm is not always required where substantial foreclosure is established.