Decision by top court could spark big changes in process of merger control
The Constitutional Court’s decision could encourage merging parties to sidestep the Competition Commission and go directly to the Competition Appeal Court
The Constitutional Court’s decision regarding an appeal by the Competition Commission, which was heard on Thursday, could significantly alter the process of merger control in SA. The ruling could encourage merging parties to sidestep the commission and go directly to the Competition Appeal Court (CAC) in search of favourable rulings on mergers, and could also affect the commission’s willingness to issue advisory opinions to merging parties. The commission is appealing against a 2017 judgment by the CAC relating to HCI’s proposed merger of the gaming businesses of two of its subsidiaries, Niveus and Tsogo Sun. The merger, which has been implemented, resulted in HCI increasing its stake in Tsogo Sun from 47% to more than 50%. The case ended up before the CAC in September 2017 after HCI failed to get the necessary go-ahead from the commission and the Competition Tribunal. HCI approached the CAC for an order that the deal did not require approval from the competition authorities. CAC ju...
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