Merger control in South Africa: overview

A Q&A guide to merger control in South Africa.

The Q&A gives a high level overview of merger control, regulatory framework and regulatory authorities, relevant triggering events and thresholds in South Africa. It also covers notification requirements, procedures and timetables, publicity and confidentiality, third party rights, substantive test, remedies, penalties, appeals, joint ventures and proposals for reform.

For information on restraints of trade, monopolies and abuses of market power in South Africa, visit Restraints of trade and dominance in South Africa: overview.

This Q&A is part of the global  guide to competition and cartel leniency. For a full list of jurisdictional Merger Control Q&As visit www.practicallaw.com/mergercontrol-guide. For a full list of jurisdictional Restraints of Trade and Dominance Q&As visit www.practicallaw.com/restraintsoftrade-guide.

For a full list of jurisdictional Cartel Leniency Q&As, which provide a succinct overview of leniency and immunity, the applicable procedure and the regulatory authorities in multiple jurisdictions, visit www.practicallaw.com/leniency-guide.

Heather Irvine, Norton Rose Fulbright South Africa
Contents

Heather Irvine

 

Norton Rose Fulbright South Africa

 

Regulatory framework

1. What (if any) merger control rules apply to mergers and acquisitions in your jurisdiction? What is the regulatory authority?

Regulatory framework

Mergers and acquisitions in South Africa are subject to the Competition Act 1998.

Section 12 of the Competition Act requires all transactions where a firm acquires control over the whole or part of a business of another firm to be notified to the competition authorities for approval if the transactions meet the monetary thresholds for notification (see Question 2).

Regulatory authority

The South African Competition Commission is responsible for enforcing the provisions of the Competition Act. All notifiable mergers must be submitted to the Competition Commission for review and approval. The Competition Commission sends larger mergers to the Competition Tribunal for approval. Decisions of the Competition Tribunal are appealable to the Competition Appeal Court.

 

Triggering events/thresholds

2. What are the relevant jurisdictional triggering events/thresholds?

Triggering events

A transaction must be notified when one or more firms acquire or establish direct or indirect control over the whole or part of the business of another firm, and the transaction meets the monetary thresholds for mandatory notification.

Control can be established through the purchase or lease of the shares or other interests or assets of the target firm, or through an amalgamation or other combination with the target firm.

Section 12(2) of the Competition Act provides that a firm controls another firm, if that firm:

  • Beneficially owns more than one half of the issued share capital of the firm.

  • Is entitled to a majority of the votes at a general meeting, or to appoint or veto the appointment of the majority of the directors of a firm.

  • Is a holding company and the firm is a subsidiary of that company under section 1(3)(a) of the Companies Act.

  • Controls the majority of the votes of trustees, or can appoint the majority of the trustees, or appoint or change the majority of the beneficiaries of the trust, in a firm that is a trust.

  • Owns the majority of members' interests or controls directly or has the right to control the majority of members' votes in a close corporation.

  • Has the ability to materially influence the policy of the firm in a manner comparable to a person who, in ordinary commercial practice, can exercise an element of control as above.

The Competition Tribunal has held that the list of circumstances when control can be said to exist are only examples and not an exhaustive list. Whether or not control is acquired is a factual question.

Thresholds

Mergers are categorised as small, intermediate or large, based on monetary thresholds. Currently, the merger thresholds and method of calculation are as prescribed in a notice published in the Government Gazette in 2009. This provides that:

  • A small merger is one where the combined annual turnover or asset value of the acquiring firm and the target firm (combined figure) in, into or from South Africa is below ZAR560 million, and the asset value in South Africa or turnover value in, into or from South Africa of the target firm (depending on which is the highest) is below ZAR80 million.

  • An intermediate merger is one where the combined figure is ZAR560 million or more, and the asset value in South Africa or the turnover value in, into or from South Africa of the target firm (depending on which is the highest) in the preceding financial year is ZAR80 million or more.

  • A large merger is one where the asset value in South Africa or the turnover value in, into or from South Africa of the target firm (depending on which is the highest) in the preceding financial year is ZAR190 million or more and the combined figure is ZAR6.6 billion or more.

The combined figure is the combined asset values in South Africa, or turnover values in, into or from South Africa of the acquiring firm and the target firm in their respective preceding financial years, or the assets of the one and the turnover of the other, whichever combination reaches the highest figure.

A transaction must meet both aspects of the threshold enquiry before it can be classified as either intermediate or large. For example, if the target's asset/turnover is greater than ZAR80 million, but the combined asset/turnover is less than ZAR560 million, the transaction fails to meet the thresholds of an intermediate merger and will therefore be classified as a small merger which is not automatically notifiable.

There is no time limit on when the Competition Commission can bring a complaint under the merger control provisions of the Competition Act. While there is a three-year prescription period for the restraint provisions, this is not applicable to mergers. However, if a merger is classified as a small merger, the Competition Commission can, within six months after the merger has been implemented, require the parties to notify it of the merger in the prescribed manner if it believes the merger may substantially prevent or lessen competition, or cannot be justified on public interest grounds.

 

Notification

3. What are the notification requirements for mergers?

Mandatory or voluntary

Only intermediate or large mergers are subject to mandatory notification. Notification of small mergers is voluntary, unless the Competition Commission requests the merging parties to file a small merger notification.

Under section 13(3) of the Competition Act, the Competition Commission can require the parties to a small merger to notify it of that merger within six months after implementation if it believes the merger may substantially prevent or lessen competition or cannot be justified on public interest grounds. In such cases, as with all notifiable mergers, the merging parties cannot take further steps to implement the merger until it has been approved by the Competition Commission.

The Competition Commission has also published a guideline requesting parties that are under investigation for contraventions of the Competition Act to notify the Competition Commission if they are involved in small mergers.

Timing

Notifiable mergers must be notified before the implementation of the transaction that gives rise to the merger. No specific time period is prescribed for when a merger must be notified to the Competition Commission.

Pre-notification formal/informal guidance

Informal guidance can be obtained from the Competition Commission by requesting an advisory opinion on whether a transaction should be notified. Such opinions are not binding on the Competition Commission, which charges a fee of ZAR2500 for an opinion.

Responsibility for notification

It is the joint responsibility of the merging parties to notify the Competition Commission of the merger.

Relevant authority

All merger notifications must be submitted to the Competition Commission.

Form of notification

The notifying party must submit a Form CC4(1) to the Competition Commission. Schedules 1 and 2 must be attached to the CC4(1), which describe the parties to the merger, the details for any trade union or employee representatives for each party and any effect that the merger may have on employment.

Both the acquiring and target firms must complete Form CC4(2), along with schedules 3 to 6, which describe the shareholders, subsidiaries, turnover, assets, products or services, competitors and customers of the merging parties and any existing supply relationships between the merging parties or their subsidiaries.

All merger notifications must be accompanied by further specific documents, including:

  • A competitiveness report. A competitiveness report is a detailed assessment of the competitive effects, if any, of the transaction on the relevant market and addresses all the substantive factors to be considered in determining whether a merger is likely to result in a lessening or prevention of competition.

  • The merger agreements.

  • Any documents assessing the competitive conditions or markets in which the parties operate.

  • Strategic documents such as board minutes, shareholder presentations or resolutions, and so on.

  • Annual financial statements.

  • Business plans and/or budgets.

  • Any reports submitted to the Securities or Takeover Regulations Panel.

  • If any of the above documents are not available, a statement or affidavit must be provided to confirm this, and provide reasons.

The merger forms are available online at: www.compcom.co.za/forms.

Filing fee

There are no filing fees for small mergers.

The current fee payable for an intermediate merger is ZAR100,000.

The current fee payable for large mergers is ZAR350,000.

Obligation to suspend

Merging parties cannot take further steps to implement the merger until it has been approved by the Competition Commission. This would constitute prior implementation for which a fine can be imposed. Any conduct that may involve the acquiring firm exercising any form of control over the target can constitute prior implementation.

Small mergers can be implemented without approval. However, the Competition Commission can require a small merger to be notified within six months after implementation, in which case the implementation of the merger must be suspended.

 

Procedure and timetable

4. What are the applicable procedures and timetable?

Intermediate mergers

If a merger constitutes an intermediate merger, the Competition Commission must consider the proposed merger within 20 business days of a completed notification submission and make one of the following decisions:

  • Approve the proposed merger by issuing a clearance certificate.

  • Approve the proposed merger subject to conditions.

  • Prohibit implementation of the proposed merger.

The Competition Commission must make the reasons for its decision available to each participant in the merger proceedings and publish a notice of its decision in the Government Gazette. The Competition Commission can extend the period during which it has to consider the proposed merger by a one-off period not exceeding 40 business days.

If on the expiry of the 20 business day period, or extended period as the case may be, the Competition Commission has not made a decision, it is deemed to have approved the proposed merger. The Competition Commission must then issue a clearance certificate and publish the approval in the Government Gazette.

Large mergers

If a merger constitutes a large merger, the Competition Commission must submit a recommendation, with reasons for its recommendation, to the Competition Tribunal and Minister of Trade and Industry within 40 business days after receiving the merger notification (or longer period, where this is granted by the Competition Tribunal).

This initial period can be extended but such extension cannot exceed 15 business days at any one time and is subject to the consent of the merging parties. Within ten business days of receiving the Competition Commission's referral, the Registrar of the Competition Tribunal must schedule a date and time for a hearing. The Competition Tribunal must make its decision to approve, approve conditionally or prohibit the merger within ten business days of completion of the hearing and publish its reasons no later than 20 business days thereafter.

Under the Competition Commission's revised service standards, the following time periods apply in respect of each category of merger:

  • Phase 1 (non-complex mergers): 20 business days.

  • Phase 2 (complex mergers): 45 business days.

  • Phase 3 (very complex intermediate mergers): 60 business days.

  • Phase 3 (very complex large mergers): 120 business days.

 

Publicity and confidentiality

5. How much information is made publicly available concerning merger inquiries? Is any information made automatically confidential and is confidentiality available on request?

Publicity

All merger decisions are published in the Government Gazette, and large merger decisions and the reasons for the decisions are published on the Competition Tribunal's website once a decision has been made. The Competition Commission also publishes weekly notices of all intermediate and large mergers it has approved, prohibited or referred to the Competition Tribunal, along with a brief summary of each transaction.

Non-confidential versions of all merger notifications must be filed with the trade union or employee representative representing the employees of each of the merging parties before the notification is made to the Competition Commission. A confidential copy of the notification is also provided to the Minister of Trade and Industry by the Competition Commission when the notification is made.

Third parties wishing to participate in the proceedings can also request the Competition Commission to provide a copy of the notification once it has made its decision.

Automatic confidentiality

Information is not automatically kept confidential and parties must submit a confidentiality claim if they wish to maintain confidentiality.

Confidentiality on request

When submitting a merger filing, parties must specify the information which they wish to claim as confidential by completing a Form CC7 and submitting it with the notification. Form CC7 identifies the relevant document or information, who it belongs to and the nature of the information.

Only information that constitutes trade, business or industrial information that belongs to a firm, has a particular economic value and is not generally available or known to others can be claimed as confidential.

 

Rights of third parties

6. What rights (if any) do third parties have to make representations, access documents or be heard during the course of an investigation?

Representations

Any person can voluntarily file any document, affidavit, statement or submit other relevant information in respect of a merger. The Competition Commission also has the authority to request certain third parties to provide it with specific information that is relevant to the investigation.

Any party having a substantial interest in the merger or affected by the decision can apply to intervene in merger proceedings and gain access to the relevant documents.

Document access

Parties seeking to participate in merger proceedings can request the Competition Commission to provide them with access to the merger notification and all documents forming part of the Competition Commission's records. Information that is restricted or confidential is not released to third parties without the consent of the merging parties. Information provided for the purposes of the merger notification and during the course of the Competition Commission's investigation is restricted until it has made its decision.

Be heard

See above, Representations.

 

Substantive test

7. What is the substantive test?

The substantive criteria applied in considering mergers include both competitive and public interest considerations.

The primary concern is whether the merger is likely to substantially prevent or lessen competition. The criteria to be applied by the competition authorities in determining the answer to this question are set out in the Competition Act and include the following:

  • The level of competition from imports.

  • The nature of barriers to entry in the particular market.

  • The level and history of collusion in the relevant market.

  • The degree of countervailing power enjoyed by other parties in the relevant market.

  • Whether the merged firm would have market power in the relevant market.

  • The extent of vertical integration in the relevant market.

  • Whether either of the parties to the merger can be said to be failing.

  • Whether the merger would lead to the removal of an effective competitor.

If the enquiry finds that the merger will substantially prevent or lessen competition, the authorities must determine whether the merger will result in technological, efficiency or other pro-competitive gains that will be greater than and offset the loss of competition.

The public interest considerations that must be taken into account include:

  • The effect of the merger on a particular industrial sector or region.

  • The effect that the merger will have on employment.

  • The effect of the merger on the ability of small businesses or firms controlled by black persons to become competitive.

  • The effect of the merger on the ability of national industries to compete in international markets.

 
8. What, if any, arguments can be used to counter competition issues (efficiencies, customer benefits)?

Merging parties can raise efficiency, technological or other pro-competitive advantages to counter any lessening or prevention of competition. If the anti-competitive effects are not offset by other efficiency or pro-competitive gains, an otherwise problematic merger can be rescued, or conversely an otherwise acceptable merger can be sunk, by the effect of the merger on the public interest.

 
9. Is it possible for the merging parties to raise a failing/exiting firm defence?

Parties to a merger can raise a failing firm defence. The failing firm defence is provided for in the Competition Act under the list of factors to be considered in determining whether a merger is likely to result in a substantial lessening of competition, rather than as a defence that is invoked only once a determination on the potential lessening of competition has been made.

 

Remedies, penalties and appeal

10. What remedies (commitments or undertakings) can be imposed as conditions of clearance to address competition concerns? At what stage of the procedure can they be offered and accepted?

The merging parties can make certain undertakings or offer certain conditions for the approval of a merger if it raises competition concerns. If the merger raises competition concerns the Competition Commission can require a merging party to divest a part of its business before implementation of the merger, or require the merging parties to maintain existing supply arrangements if the merger raises concerns from the perspective of customers or suppliers of the merging parties.

If the merger has a negative effect on employment, such as possible staff lay-offs in the target firm, the Competition Commission can impose certain conditions to mitigate or prevent these effects. These conditions include requiring the merged entity to:

  • Avoid any merger-related lay-offs for a certain period after the merger is implemented (typically 12 to 24 months).

  • Employ all or part of the employees of the target firm.

  • Where lay-offs are unavoidable, train affected employees and give them first preference for vacancies.

 
11. What are the penalties for failing to comply with the merger control rules?

Failure to notify correctly

Knowingly providing false or misleading information to the Competition Commission in respect of merger or other proceedings is a criminal offence which is punishable by a fine of up to ZAR2000 or imprisonment for up to six months.

Approval granted on the basis of false or misleading information can be revoked by the Competition Commission or the Competition Tribunal.

If a merger is submitted but does not contain all the required information, the merger notification is classified as incomplete and the Competition Commission issues a notice of incomplete filing. The time period for investigation does not commence until all the requirements have been complied with, which will delay the approval of the merger.

Implementation before approval or after prohibition

The Competition Act stipulates that the maximum penalty for implementing a transaction before receiving approval is 10% of a firm's annual turnover in, and exports from, South Africa in the preceding financial year. Parties can also be requested to unwind the transaction.

The Competition Tribunal has imposed substantial fines in cases where transactions have been implemented without the required approval first being obtained.

Failure to observe

Failure to observe any conditions or undertakings in respect of the merger approval granted by the Competition Commission or the Competition Tribunal attracts the maximum fine of 10% of a firm's annual turnover in, and exports from, South Africa in the preceding financial year.

 
12. Is there a right of appeal against the regulator's decision and what is the applicable procedure? Are rights of appeal available to third parties or only the parties to the decision?

Rights of appeal

The merging parties, trade unions or employees affected by a merger can appeal against the decision of the Competition Commission or the Competition Tribunal, provided they were party to the relevant proceedings.

Procedure

Under section 16 of the Competition Act, a party to a small or intermediate merger, or a registered trade union or employees affected by the merger, can request that the Competition Tribunal consider the Competition Commission's decision. Parties wishing to appeal such a decision must submit a request for consideration of a small or intermediate merger to the Competition Tribunal and Competition Commission. The request must be filed within ten days of the Competition Commission's decision. A trade union or employee can only request the Competition Tribunal to consider a merger decision if they have participated in the proceedings of the Competition Commission.

A pre-hearing conference for the main hearing must be scheduled within ten days of receiving the request. The hearing must be conducted as a formal oral hearing or on the basis of written arguments.

Under section 17 of the Competition Act, a party to a merger, a trade union or an employee that has participated in the Competition Tribunal proceedings can, within 15 business days of the Competition Tribunal's decision, make an appeal to the Competition Appeal Court. A notice of appeal must be filed within 15 business days of the Competition Tribunal's decision being published. This notice must be served on any person who was a party to the Competition Tribunal proceedings and must set out:

  • Which part of the decision is the subject of the appeal.

  • The facts or ruling of law that are the subject of the appeal.

  • The grounds on which the appeal is founded.

  • The relief sought.

Within 40 business days after filing the notice of appeal, the appellant must file the appeal record containing a record of the proceedings before the Competition Tribunal. The Competition Appeal Court sets a date for the hearing of the appeal and, once a date is set, the appellant must file heads of argument within 15 business days before the hearing, and the respondent ten business days before the hearing.

There is no prescribed time period within which the Competition Appeal Court must make its decision in respect of an appeal. It can take anything from one month to six months for a decision to be made. However, the appeal proceedings do not suspend the Competition Tribunal's decision unless parties specifically request the Competition Appeal Court to order such suspension.

Third party rights of appeal

Third parties can make representations to the Competition Commission during the course of its investigation. Only third parties who were parties to the initial proceedings have the right to appeal decisions.

 

Automatic clearance of restrictive provisions

13. If a merger is cleared, are any restrictive provisions in the agreements automatically cleared? If they are not automatically cleared, how are they regulated?

If any party requires the authorities to consider other restrictive provisions when a merger is notified, such arrangements must be brought to the attention of the Competition Commission during its investigation and form part of the competitive assessment of the merger. If the Competition Commission does not raise any concerns, it is likely that it does not consider such arrangements to be problematic. However, there is no automatic clearance of restrictive provisions in South Africa and the Competition Commission can still prosecute parties for such arrangements if it considers them to be a contravention of the Competition Act, even if it did not raise the issue in the context of a merger.

 

Regulation of specific industries

14. What industries (if any) are specifically regulated?

All industries are subject to the same merger controls, except the banking industry which is exempt from notification in certain circumstances (see Question 15).

 
15. Has the regulatory authority in your jurisdiction issued guidelines or policy on its approach in analysing mergers in a specific industry?

Under the Competition Commission's Practitioner Update 4, registered banking institutions that acquire control over the business assets or the business of a debtor on default by the debtor of its obligations under a finance agreement are not required to notify the acquisition to the Competition Commission under the merger notification provisions of the Competition Act, provided that the bank disposes of the assets or its interest in the business of the debtor within a period of 24 months from the date of the acquisition.

This exemption has recently been extended to cover risk-mitigation financial transactions entered into by state-owned finance institutions authorised to provide finance in the ordinary course of business.

 

Joint ventures

16. How are joint ventures analysed under competition law?

There is no legal definition of a joint venture and no special treatment of joint ventures. If a joint venture involves the acquisition of control by one entity over the business or part of the business or assets of another entity, that joint venture is subject to the jurisdiction of the Competition Commission and is analysed as any other merger if it meets the monetary thresholds.

 

Inter-agency co-operation

17. Does the regulatory authority in your jurisdiction co-operate with regulatory authorities in other jurisdictions in relation to merger investigations? If so, what is the legal basis for and extent of co-operation (in particular, in relation to the exchange of information, remedies/settlements)?

The Competition Commission co-operates with regulatory authorities in other jurisdictions, particularly where global mergers are notified to the Competition Commission. The extent of the co-operation is unknown. However, it likely involves the provision of information that is relevant to the assessment of a merger, particularly if the merger raises competition concerns in other jurisdictions.

 

Recent mergers

18. What notable recent mergers or proposed mergers have been reviewed by the regulatory authority in your jurisdiction and why is it notable?

The Competition Commission recently recommended to the Competition Tribunal the prohibition of a transaction whereby Mobile Telephone Networks (Pty) Ltd (MTN), South Africa's second largest mobile network operator, intended to acquire certain radio access network (RAN) assets of Telkom SA SOC Limited (Telkom), South Africa's largest fixed line operator. Under the transaction MTN and Telkom would conclude a network management services agreement and reciprocal roaming agreements, in which:

  • MTN would take over financial and operational responsibility for the rollout and operation of Telkom's RAN.

  • Each party would be able to roam on the other party's mobile network

Effectively, MTN would be able to access additional spectrum capacity from Telkom to rollout a long term evolution (LTE) network. Several third parties objected to the merger. In the Competition Commission's view:

  • The transaction was likely to entrench a duopolistic market structure dominated by Vodacom and MTN (South African's two largest mobile network operators).

  • The merger was likely to have a significant impact on the structure of the South African mobile markets and future competitive dynamics, which was even more problematic considering that South Africa experiences higher mobile prices than other comparable countries in the world.

The Competition Commission invited the parties to propose conditions for the approval of the merger to alleviate the concerns. However, no workable remedies were identified that could address the competitive harm. This transaction is notable as the Competition Commission recently recommended to the Competition Tribunal the approval of a similar merger between Vodacom Proprietary Limited and Neotel Proprietary Limited, South Africa's largest mobile operator and South Africa second largest fixed line operator respectively, subject to certain conditions offered by the parties relating to the deferred use of spectrum and certain employment conditions.

The Competition Tribunal also recently conditionally approved a merger under which Telkom would acquire control of Business Connexion Group Limited (BCX), a value added network service provider. This transaction is notable as it is the second time it has been notified to the competition authorities after it was prohibited in 2007. The merger raises foreclosure concerns since Telkom is the dominant supplier of wholesale leased lines to value added network operators downstream, which is the market in which both Telkom and BCX currently operates. The Competition Tribunal approved the merger subject to Telkom agreeing to conditions that ensure that it will apply a non-discriminatory pricing strategy and ensure that its competitors are offered the same quality of fixed network products as supplied to its own downstream division. Telkom also agreed not to raise the prices of the affected products above their levels when the merger was approved until 31 December 2020. The Competition Tribunal also imposed conditions that prevent Telkom from bundling products in a manner that will lead to the foreclosure of its downstream competitors.

 

Proposals for reform

19. Are there any proposals for reform concerning merger control?

In January 2015 the Competition Commission recently published Guidelines on the Assessment of Public Interest Provisions in Merger Regulation for public comment.

The Guidelines explain the Competition Commission's approach to public interest issues in merger proceedings by looking in particular at the following factors:

  • The effect of the merger on a particular industry, sector or region.

  • The effect on employment.

  • The ability of small businesses controlled by historically disadvantaged person to become competitive.

  • The ability of national industries to compete in the international market.

The Guidelines were issued because the Competition Commission's view, parties to merger proceedings do not provide sufficient information in relation to public interest factors. The Guidelines are intended to provide guidance on the Competition Commission's approach and the information it will require from the merging parties in this regard. However, the Guidelines will not be binding on the Competition Commission and it will therefore have discretion to consider public interest issues as it considers appropriate.

The Guidelines are shortly due to come into force . However, the Competition Commission is already applying the principles set out in the Guidelines and relying on it in merger proceedings.

 

Online resources

Southern African Legal Information Institute (SAFLII)

W www.saflii.org/za/legis/consol_act/

Description. SAFLII is an online repository of legal information from South Africa where the full text of the Competition Act can be found. SAFLII aims to promote the rule of law and judicial accountability by publishing legal material for open access. SAFLII was previously a project of the South African Constitutional Court Trust and is currently operated by the Democratic Governance and Rights Unit at the University of Cape Town. It is the largest online free-access collection of journals, judgments and legislation from South Africa.



The regulatory authorities

The Competition Commission

T +27 12 394 3200
F +27 12 394 0166
E ccsa@compcom.co.za
W www.compcom.co.za

Outline structure. The Competition Commissioner is the head of the authority and is appointed by the Minister of Trade and Industry. The Competition Commission has two deputy commissioners and an executive committee. Its divisions include:

  • Mergers and Acquisitions.

  • Enforcement and Exemptions.

  • Cartels.

  • Legal Services.

  • Policy and Research.

  • Communication and Stakeholder Relations.

  • Corporate Services.

  • Finance.

Responsibilities. The Competition Commission is responsible for administering and enforcing the Competition Act. This includes investigating and prosecuting complaints of prohibited practices, as well as investigating and approving, conditionally approving or prohibiting notifiable mergers, and referring such mergers to the Competition Tribunal for adjudication.

Procedure for obtaining documents. Once the Competition Commission has instituted proceedings before the Competition Tribunal, it issues a media release describing the transaction or the conduct being referred to the Competition Tribunal and the order being sought. The order and reasons for the decisions are publicly available, subject to claims for confidentiality. Parties can also write to the Competition Commission to request access to specific documentation.

The Competition Tribunal

T +27 12 394 3300
F +27 12 394 0169
E ctsa@comptrib.co.za
W www.comptrib.co.za

Outline structure. The Competition Tribunal consists of a Chairperson, three full-time members and five part-time members.

Responsibilities. The Competition Tribunal is responsible for adjudicating matters referred to it under the Competition Act. It is an independent body and must act impartially and perform its functions without fear, favour or prejudice. The Competition Tribunal must adjudicate complaints regarding prohibited practices, referral of settlement agreements, large mergers, remedies, exemption applications and appeals from decisions made by the Competition Commission.

Procedure for obtaining documents. Once the Competition Commission has instituted proceedings before the Competition Tribunal, it issues a media release describing the transaction or the conduct being referred to the Competition Tribunal and the order being sought. The order and reasons for the decisions are publicly available, subject to claims for confidentiality. Parties can also write to the Competition Commission or the Competition Tribunal to request access to specific documentation.

The Competition Appeal Court

T +27 12 394 3355
F +27 12 394 0169
E ctsa@comptrib.co.za
W www.comptrib.co.za/links/appeal-court/

Outline structure. The Competition Appeal Court consists of eight High Court judges. However, not all eight judges sit at each hearing and this is determined on a case-by-case basis.

Responsibilities. The Competition Appeal Court is responsible for hearing appeals from the Competition Tribunal in respect of prohibited practices or merger decisions.

Procedure for obtaining documents. Once the Competition Commission has instituted proceedings before the Competition Tribunal, it issues a media release describing the transaction or the conduct being referred to the Competition Tribunal and the order being sought. The order and reasons for the decisions are publicly available, subject to claims for confidentiality. Parties can also write to the Competition Commission or the Competition Tribunal to request access to specific documentation.


Contributor profiles

Heather Irvine, Director

Norton Rose Fulbright South Africa

T +27 11 685 8829
E heather.irvine@nortonrosefulbright.com
W www.nortonrosefulbright.com

Professional qualifications. Attorney, South Africa.

Areas of practice. Competition, anti-trust and regulatory

Non-professional qualifications. LLB, magna cum laude, University of Cape Town; Honours in English literature, University of Cape Town; BA English literature, magna cum laude, University of the Witwatersrand.

Recent transactions

  • Involved in some of the most high-profile competition law cases in South Africa since the Competition Act came into effect, including two applications to the Constitutional Court.

  • Currently advising on a dawn raid conducted by the Zambian Competition Authority.

  • Advises on regulatory issues in the telecommunications and energy sector, including recent High Court review applications dealing with ICASA's regulation of wholesale mobile call termination rates and NERSA's recent determination on the maximum charges for piped gas by Sasol Gas.

  • Extensive experience with complex large mergers in Namibia, Botswana, Zambia, Tanzania, Kenya and the COMESA states.

Professional associations/memberships. Co-Chair of the International Bar Association's Young Lawyers Committee.

Publications. Has contributed articles on competition law and related issues to legal journals, including the American Bar Association’s Year in Review for South Africa, South African Mercantile Law Journal and Competition Policy International’s Antitrust Chronicle.


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