Does South Africa’s Competition Law Leave Black Women Behind?

The Burger King Merger: A Missed Opportunity

In June 2021, South Africa’s competition enforcers made headlines by blocking the acquisition of Burger King South Africa to an American private equity firm, not because of monopoly concerns, but because the deal would have reduced the company’s Black ownership from 68% to 0%. After public outcry and negotiations, the acquiring firm agreed to open new stores, create 1,250 jobs for historically disadvantaged persons (HDPs), improve its empowerment score, and establish an employee share-ownership plan. With these conditions, the Competition Tribunal approved the merger.

Yet something crucial was lost. Before the merger, Black women held about a 22.7% stake in Burger King’s parent company. The deal wiped out that stake, and none of the imposed conditions explicitly addressed this gendered impact. Competition authorities focused on total Black ownership while overlooking who among the disadvantaged would be most harmed. Black women, at the intersection of racial and gender inequality, stood to lose the most.

This matter raises the central question: Can South Africa’s competition law do more to account for intersectionality in pursuing its public interest goals?

Public Interest Merger Review: A Transformative Mandate

South Africa’s merger regime is unique in that section 12A of the Competition Act requires authorities to consider not only traditional competition factors, but also public interest grounds. These include effects on employment, small businesses, and the promotion of ownership by HDPs and workers. The constitutional backdrop matters here. Section 9 of the Constitution endorses affirmative measures to advance disadvantaged groups, and the broader project of transformative constitutionalism calls for undoing systemic socio-economic subordination. In this light, the public interest mandate reflects constitutional values in the marketplace. But a critical gap lies in how these goals are implemented. The law treats HDPs as a monolith, assuming that benefits flow evenly. In reality, disadvantages are not experienced uniformly. The Constitutional Court in Mahlangu v Minister of Labour reminded us that those who fall at the intersection of compounded vulnerabilities, such as Black women, merit special attention. Yet competition regulators have so far been gender-blind, focusing on race while overlooking intersecting inequalities.

Intersectionality in Law: From Feminist Theory to Competition Policy

The concept of intersectionality originates with Kimberlé Crenshaw, who showed how U.S. discrimination law erased the experiences of Black women by treating race and gender separately. Their marginalization is multidimensional and cannot be understood by looking at race or gender in isolation.Black feminist writers like Mikki Kendall, in Hood Feminism: Notes from the Women That a Movement Forgot, argue that mainstream feminism often neglects issues affecting Black women, such as poverty, healthcare, and violence. The solution: adopt intersectionality as a guiding principle and prioritize those at the intersection of multiple disadvantages.

What would this mean in competition law? It would require regulators to ask: which subgroups are most vulnerable in this market or merger? Are there overlapping factors, i.e. race and gender, that compound exclusion?

This idea is no longer purely theoretical. In 2023, the OECD, in partnership with the Canadian Government and the Canadian Competition Bureau, launched the Gender-Inclusive Competition Toolkit. The Toolkit, part of the OECD Gender-Inclusive Competition Policy project, recommends that competition authorities sometimes prioritise enforcement and compliance efforts that directly tackle barriers to women’s market participation. This may require agencies to explicitly aim policies at benefiting Black women, rather than assuming that generic empowerment initiatives will ‘trickle down’. In the South African context, ignoring intersectionality in economic policy risks reproducing the very inequalities the law is meant to remedy.

The Reality: Compounding Barriers for Black South African Women in Business

Why emphasize Black women in South Africa? Because they remain at the bottom of the economic ladder, even within HDPs. The Competition Commission’s Women in Business Study (2023) shows that about 80% of women-led SMEs are underserved by finance, largely due to lack of collateral. Only 13% of Black women aged 20-49 own land, compared with 36% of Black men, making it harder to secure loans. Women entrepreneurs are also concentrated in low-income sectors like catering, retail, and personal services, while only 2-4% are represented in higher-value sectors such as manufacturing, construction, and energy.

Broad-Based Black Economic Empowerment  (B-BBEE) ownership data confirms this persistent gap. This a policy of the South African government which aims to facilitate broader participation in the economy.  The B-BBEE Commission  in its most recent  National Status and Trends on B-BBEE Transformation Report 2022 (the Transformation Report) illustrated that in 2017 Black women’s ownership was only 9%, rising modestly to 14% in 2022. By contrast, average Black male ownership was already higher at 18% in 2017 and edged up only slightly to 19% in 2022. Over the same period, overall Black ownership achieved its highest points since 2017, thereby widening the gap between aggregate Black ownership and Black women’s share.

Sectoral analysis in the Transformation Report, further shows that while tourism consistently reports the highest levels of Black women ownership, its small contribution to overall submissions (2% in 2022) limits its influence.

These figures illustrate that while there has been some growth in Black women’s ownership, it remains disproportionately low compared to both overall Black ownership and Black male’s ownership. Progress is slow, uneven across sectors, and not sufficient to close the structural gap.

Re-examining Burger King Through an Intersectional Lens

Viewed intersectionally, the Burger King deal shows why nuance matters. Within the 68% Black shareholding that was lost, Black women held about one-third. Authorities did not probe this composition or require remedies that addressed gendered exclusion.

They could have required a Black woman co-investor, equity allocations to Black women, or supplier development for Black women franchisees. Instead, the remedies were generic. This missed opportunity highlights the need for a case-by-case, intersectional analysis of merger impacts.

Recommendations: Toward an Intersectional Framework

Competition authorities should begin by adopting a case-by-case intersectional analysis in public interest assessments. This means that when a merger is evaluated, regulators should not only consider the overall effect on HDPs but also break down ownership and participation by both race and gender. Asking which specific subgroups are most affected. For example, whether a transaction disproportionately reduces the stake of Black women; would ensure that remedies are more accurately targeted.

The principle of targeted universalism should guide the design of merger remedies. The universal goal of an inclusive economy can only be achieved if regulators use targeted measures to address the needs of those most disadvantaged within the broad HDP category. For instance, instead of imposing generic conditions on Black ownership, authorities could require that equity allocations or franchise opportunities specifically be directed to Black women, thereby ensuring that empowerment measures reach those least represented.

Updated guidelines and data requirements would also play a crucial role. The Competition Commission may revise its public interest guidelines to explicitly incorporate intersectionality and oblige merging parties to submit disaggregated data on ownership and control broken down by race and gender. Clear guidance on what kinds of intersectional remedies may be imposed, such as equity stakes for Black women or support for women-led suppliers, would create both predictability for firms and stronger tools for regulators.

Finally, public interest evaluations should become more participatory by engaging a broader range of stakeholders. Just as unions and ministries are routinely consulted in merger hearings, women’s business networks and associations of Black women professionals should also have a voice in these proceedings. Including such perspectives would help identify the real-world impacts of transactions on marginalized groups and strengthen the legitimacy of competition law decisions.

This approach would also align South Africa with emerging global best practice. The OECD Gender-Inclusive Competition Toolkit recommends that authorities prioritise enforcement resources in sectors where women face structural barriers to entry and participation. It further stresses the need for ex-post evaluation, urging regulators to assess whether past interventions produced differential impacts by gender and to apply those lessons in future cases. These recommendations resonate directly with South Africa’s context, where ownership figures may improve on paper while Black women remain excluded from profitable sectors. Adopting such measures would make the public interest mandate not only more coherent but also more responsive to intersectional realities.

Conclusion: Intersectionality and Democratic Transformation

South Africa’s competition law sits at the crossroads of efficiency and equity. By infusing an intersectional lens into public interest review, it can sharpen its focus and ensure the benefits of transformation reach those most marginalized.

The Burger King merger was a wake-up call. Next time, competition authorities should ask not just whether HDPs are empowered, but which HDPs. By doing so, competition law can better fulfil its constitutional mandate: not merely preventing harm, but actively remaking the economy to be more equitable and inclusive.

Importantly, South Africa would not be alone in this shift. Other jurisdictions are beginning to recognize the value of a gender lens in competition policy, for example, Canada has started considering gender and diversity impacts in its economic and competition policy frameworks. The development that signals a growing global trend toward more inclusive competition enforcement.

If South Africa embraces this approach, its competition law can serve as a model of how economic regulation can advance constitutional values of equality and dignity, ensuring that democratic transformation extends to those who have long been left at the margins of the economy – Black South African women.

The views expressed in this blog are the author’s own and are offered in her academic capacity. They do not necessarily reflect the views of Rhodes University or any other institution. The author has not advised or acted for any parties in the matters discussed.