In this November issue:
As this year draws to a close, we would like to thank our clients for their continued support throughout 2020. We wish you all the best for the festive season and a prosperous new year ahead and of course, stay safe!
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here on ideas for improving our newsletter in 2021.
Decision of interest: Increased abuse of dominance prosecutions possible
On 19 November 2020, the Competition Appeal Court (CAC) delivered a seminal judgment that could significantly impact the way abuse of dominance cases are prosecuted in South Africa. The CAC's finding that industrial supplier, Babelegi Workwear and Industrial Supplies CC (Babelegi), had charged excessive prices for dust masks, is the first ever finding of excessive pricing against a firm by the CAC. This was also the first case to be based on section 8(1)(a) following the introduction of amendments to the Competition Act 89 of 1998 last year.
The judgment could mean that small firms, that may not otherwise have been regarded as dominant outside of a disaster period, may be found to have market power due to their ability to raise prices.
Agribusiness, food & beverage: Rooibos agrees to alter supply arrangements
South Africa: The Competition Tribunal (Tribunal) confirmed a settlement agreement between Rooibos Ltd (Rooibos) and the Competition Commission (Commission). Rooibos was accused of pressuring rooibos tea commercial farmers not to deal with rooibos tea processors that it competes with. In terms of the agreement, Rooibos has undertaken to refrain from entering into any long-term supply agreements that restrict or prevent producers from supplying rooibos tea to its competitors, and that its long-term supply agreements with producers will not be for a duration of more than 5 years.
Healthcare: Pharmacy merger approved subject to employment conditions
South Africa: The Commission conditionally approved Arie Nel Pharmacy (Pty) Ltd's (Arie Nel) acquisition of Pharmed Pharmaceuticals (Pty) Ltd (Pharmed). Arrie Nel is a vertically integrated pharmaceutical wholesaler and retailer, and Pharmed is a wholesale distributor of pharmaceutical products. The merger was approved subject to conditions relating to the merged entity’s commitment to retain as many jobs as possible post the implementation of the merger.
Mining: Tribunal dismisses intervention application in mining merger
South Africa: The Tribunal dismissed an application brought by Zurivision (Pty) Ltd, Zokusize (Pty) Ltd, Paciflex Coal Mining (Pty) Ltd, Tantodex (Pty) Ltd, Invasion (Pty) Ltd and Asabisource (Pty) Ltd (the applicants) to intervene in the proposed large merger between Thabong Coal (Pty) Ltd and South32 SA Coal Holdings (Pty) Ltd. The applicants argued that there had been "abnormalities and irregularities" in the Commission's investigation. The Tribunal concluded that the applicants were unable to show that they had a material interest in the transaction. The Tribunal noted that, at best, the applicants demonstrated a purely commercial interest, which in the context of the merger, is not a sufficient ground for being granted the right to intervene.
Regulatory: Updates & developments
- CEMAC: The CEMAC Competition Commission published new regulations on the
Procedure for the Application of Competition Rules No. 000350 (the Regulations) dated 25 September 2020. The Regulations are aimed at formalising the processes and procedures to be followed by the CEMAC Commission and parties when dealing with competition law matters in the region. Importantly, the Regulations introduce a filing fee payable when filing a merger with the CEMAC Commission, as well as filing forms and specific information to be provided when filing a merger.
- Egypt: The Egyptian Competition Authority (ECA) announced that the Egyptian Prime Ministry has approved a draft law amending certain provisions of the Law No. 3 of 2005 on the Protection of Competition and Prohibition of Monopolistic Practices. The draft law adds a definition of "concentration", lists transactions that are exempt from the definition, offers clearer definitions of control and material influence, and mandates the notification of concentrations to the ECA.
- Malawi: The Competition and Fair Trading Commission (CFTC) launched a new project called “Technical Assistance in the Enhancement of Competition and Consumer Protection Regulation in Malawi". The Project is being financed by the European Union (EU) and is expected to enhance the CFTC's case management system. In terms of the project, the CFTC will also undertake market studies of sectoral laws to ensure consistency with competition and consumer protection laws and enhance advocacy and awareness initiatives.
- Nigeria: The Federal Competition and Consumer Protection Commission (FCCPC) has issued final
Merger Review Regulations 2020 (the Merger Regulations). The Merger Regulations, among other things, clarifies the merger review process, the FCCPC's jurisdiction and introduces merger filing fees. The FCCPC has also issued Merger Review Guidelines, merger filing forms, a notice of merger review timeframes and a guidance note on gun-jumping.
- South Africa: Judge Dennis Davis, the Judge President of the CAC, has announced his retirement after serving as a judge for 21 years. Judge Davis was involved in drafting the Competition Act and has played an integral role in developing South Africa's competition law jurisprudence.
Retail: Foschini / Jet merger approved
- Botswana: The Competition and Consumer Authority (CCA) conditionally approved the Foschini Group Ltd's (TFG) (acting through Foschini (Botswana) (Pty) Ltd) acquisition of parts of the Jet business (consisting of certain assets and identified liabilities) conducted by Edcon Ltd (Edcon). The acquisition was made through Jet Supermarkets Botswana as a going concern. The merger was approved subject to conditions relating to merger specific retrenchments and redundancies.
Transport: Updates & developments
- South Africa: The CAC dismissed an appeal by the Commission against the Tribunal's decision that although several furniture removal firms agreed to fix prices, they could not be held liable for cartel conduct because the agreement was concluded more than three years prior to the initiation of the complaint. The CAC adopted a different approach and did not base its dismissal of the appeal on prescription. Instead, it held that the Tribunal erred in its finding of what constitutes an agreement in terms of the Competition Act and its finding that the furniture removal firms agreed to fix prices.
- South Africa: The Tribunal conditionally approved Alstom Société Anonyme's (Alstom) acquisition of the entire shareholding of Bombardier Transportation (Investment) UK Ltd (Bombardier Transportation). The merger was approved subject to conditions relating to security of supply of particular locomotive signalling systems and related spare parts.
European Union: Updates & developments
- The European Commission (EC) opened a second formal antitrust investigation into the possible preferential treatment of Amazon's own retail offers and those of marketplace sellers that use Amazon's logistics and delivery services. The EC sent a statement of objections to Amazon informing the firm of its preliminary view that Amazon has breached EU antitrust rules by distorting competition in online retail markets.
- The EC has published a call for contributions on how competition rules and sustainability policies work together. The EC has requested input from all stakeholders including from industry, environmental groups, consumer organisations and competition experts.
India: Authority launches investigation into Google Pay
The Competition Commission of India (CCI) announced that it has opened an investigation into Google. The CCI is investigating whether Google has abused its dominance by promoting its own payment application, Google Pay, over other apps. The CCI has ordered that the Director General complete its investigation within 60 days.
United Kingdom : Updates & developments
- The United Kingdom (UK) government announced that it will set up a dedicated Digital Markets Unit (the Unit) within the Competition and Markets Authority (CMA) in 2021/22. The Unit will work closely with regulators including Ofcom and the Information Commissioner’s Office to introduce and enforce a new code to govern the behaviour of platforms such as Google and Facebook, to ensure that consumers and small businesses aren’t disadvantaged.
- The National Security and Investment Bill (the Bill) has been introduced in the UK. The Bill aims to modernise government's power to investigate and intervene in potentially hostile foreign direct investment that threatens the UK's national security. In terms of the Bill, the government will be able to scrutinise, impose conditions on or block a deal in any sector where there is an unacceptable risk to national security.
Our recent work
Kagiso Capital / EMSS Consulting
The Tribunal unconditionally approved Kagiso Capital (RF) (Pty) Ltd's (Kagiso Capital) acquisition of EMSS Consulting (Pty) Ltd t/a Alphawave Holdings (EMSS).
Andriza Liebenberg and
Lebohang Makhubedu acted for the merger parties.
Kagiso Capital, an investment company, controls several firms in the education, healthcare, financial services and logistics sectors. EMSS, through its subsidiaries, provides a wide range of products and services in the technology, software and electronics industries. The EMSS group also invests in unlisted firms in the technology, electronics and software sectors.
The Tribunal found that the merger is unlikely to substantially lessen or prevent competition and does not raise any public interest concerns. The Tribunal found that the merger is unlikely to substantially lessen or prevent competition and does not raise any public interest concerns.
Macsteel / Robor Assets
The Commission conditionally approved Macsteel Service Centres SA (Pty) Ltd's (MSCSA) acquisition of certain assets of Robor (Pty) Ltd (in liquidation) (the Robor Assets).
Burton Phillips and
Nadia Dhorat acted for MSCSA.
MSCSA produces and distributes a broad range of steel products including carbon steel, stainless steel, specialty steels and aluminum products. The Robor Assets are primarily the assets which form part of Robor’s tube and pipe operations.
The merger was approved subject to a range of employment related conditions.
Main Street / Octotel
The Tribunal unconditionally approved Main Street 1788 (Pty) Ltd's (Main Street) acquisition of Octotel (Pty) Ltd (Octotel).
Burton Phillips and
Busisiwe Masango acted for the merger parties.
Main Street, a special purpose company, is ultimately controlled by Actis LLP. The Actis Group is a global private equity investment group which invests in emerging markets. Its investment focus is primarily on the consumer, healthcare, financial services, industrial, energy, education and real estate sectors. Octotel operates an open access fibre network – its activities in this regard include the building, owning, maintaining and leasing of fibre networks.
The Tribunal found that the merger is unlikely to substantially lessen or prevent competition and does not raise any public interest concerns.
- We recently published insights on the Commission's 14th Annual Conference. The theme of this year's conference was
"Competition in a Crisis: Competition policy, regulation and enforcement in unprecedented times". Read more
here and watch Burton Phillips, Clare-Alice Vertue and Andriza Liebenberg sharing their insights on some of the key topics.
In this video, Burton Phillips discusses the convergence between consumer protection and competition laws.
In this video, Andriza Liebenberg discusses competition policy and prioritisation in a post-Covid world.
In this video, Clare-Alice Vertue discusses an appropriate digital market response for a developing economy.