Page 7 - KZN Business Sense - Hantie Plomp

COMPETITION FILING NOTIFICATION FOR

HOSTILE TRANSACTIONS

Michael Jackson, Senior In the recent judgement of Guidelines) that it would follow in required to provide information parties and share all issued
Partner, Cox Yeats the Competition Tribunal (the the determination as to whether to the Commission if the directions with them. This is so as
Attorneys Tribunal) of Caxton and CTP or not it would permit a separate investigation commences; to enable the filing to be brought
Publishers & Printers Limited vs merger notification and its 4. The implications for third to completion.
he The Competition Commission approach to timelines applicable parties who may be required Where there is non-compliance
Competition of South Africa and Mpact to the merger filing process. to provide information to the with the Commission’s stated
TAct (the Limited, the Tribunal stated that These Guidelines, issued under Commission if the timelines for filing of the merger
Act) provides the Commission should provide Section 79 of the Act, indicate investigation commences notification documents, the
that mergers guidance to parties on what the policy approach which the 5. The implications for the Commission is to issue a notice of
above a defined types of transactions it would Commission will follow. Commission and its incomplete filing. Where a primary
threshold consider appropriate for a Rule 28 resources if the investigation firm fails to submit its filing in
must be application. The first issue which the commences; the period specified, the other
notified to the The Chairman of Caxton Commission is required to 6. Whether merger control primary firm can only advance the
Competition Commission (the had met with the Chairman of determine is whether a merger will be effective, for instance, filing process by making further
Commission) and may not be Mpact and had discussed the is in existence or whether, like if undertakings are to be application to the Commission
the Caxton case, it is simply
implemented until a merger desire of Caxton to increase its proposed. There needs to be a sought from the acquiring allowing it to file on behalf of the
approval has been granted. Most shareholding in Mpact. Caxton firm or indicative offer on the firm in respect of competition recalcitrant filing firm.
merger notifications are made asked Mpact to co-operate with part of the acquiring firm and or public interest issues Finally, the Commission states
in a single filing which contains it in the submission of a joint the offer must contain the price and the acquiring firm is not in its Guidelines that they are not
information about the acquiring filing to the Commission for and terms and conditions of the a willing party to the filing; exhaustive and will not effect the
and target firm. This assumes that merger approval. proposed merger including an 7. Any other factors that may discretion of the Commission and/
the acquiring and target firm are Mpact expressed its opposition indication of the proposed date of be deemed relevant by the or Tribunal and Courts to consider
co-operating with each other and to this proposal because no implementation. Commission. separate merger notification issues
support the merger process. firm offer had been made to its Once the Commission is The Commission must then on a case by case basis, taking into
Rule 28 to the Rules of the shareholders containing price, satisfied that there exists a provide reasons for its decision account the criteria or information
Commission provides for the terms and conditions and it was merger or a proposed merger, whether to permit a separate filing placed before the Commission at
Commission to allow, in certain unclear whether Caxton had the the Commission proceeds to the or not. the time the decision is made.
necessary finances in place.
circumstances, separate merger second enquiry which is whether The second issue on which the Although the Guidelines provide
notification. The purpose of the Although Caxton supplied it is reasonable and just to allow Commission provided guidance is some clarification to the process
Rule is to provide for situations certain information to the a separate filing. The Guideline the timelines applicable to separate followed in a hostile merger, the
where there is a hostile take-over Commission, it was of the view states that the Commission merger notifications. process is still very cumbersome
and can be abused by a target firm
that the Commission did not need
exercises its discretion and what
and the acquiring firm is not co- The period within which the
operating with the target firm. to know the exact nature of the constitutes a reasonable decision which is not prepared to cooperate
transaction before determining will depend on the circumstances Commission determines whether with the acquiring firm.
Rule 28 is subject to abuse. An whether a separate filing was to of each case. This will involve or not to permit a separate merger The Rules of the Commission
application has to be made to the be permitted. It stated that the a weighing in exercise and the notification is not determined by should be amplified to deal
Commission to allow separate acquisition would occur through factors which the Commission the Regulations. The Commission expressly with this issue. 
filings and the Commission either a mandatory offer under will take into account include: must communicate its decision to
may grant the application if Section 123 of the Companies 1. Any prejudice to the target the parties and during this period,
it is reasonable and just to do Act or through a general offer by firm that may be occasioned the Commission must engage the Should you require advice or assistance,
please contact Michael Jackson on
so. Once the Commission has Caxton to Mpact shareholders, by separate filing; primary firms in order to satisfy T: +27 (0)31 536 8512
allowed a separate filing in terms under Section 121 of the 2. The ability of each primary itself of the requirements of the E: mjackson@coxyeats.co.za
of Rule 28, then there is further Companies Act. firm to submit a meaningful two-stage enquiry. W: www.coxyeats.co.za
uncertainty as to the timelines to Following the judgement, the separate filing; Once the Commission allows a
be followed and the target firm Commission issued, on 5 January 3. The implications for the separate filing, the Commission
can abuse the process. 2024, draft guidelines (the primary firms who may be must issue directives to both

UNVEILING OF NEW BUSINESS LOUNGE

he Durban International offering an exclusive environment contemporary furnishings, The launch event marked the to 21:00, welcoming guests
Convention Centre (Durban for relaxation, private meetings, and state-of-the-art facilities, beginning of an exciting new to indulge in a world-class
TICC) proudly announces and networking. all tailored to meet the needs chapter for the Durban ICC, experience in the heart of the
the grand opening of its newest With its high-end amenities and of modern business travellers as it continues to innovate and city.
venture, the Durban ICC Business personalised service, the lounge and executives. Guests had elevate the hospitality experience
Lounge. This upscale space, provides a sanctuary for discerning the opportunity to experience in Durban. The Durban ICC For more information call
designed to cater to the needs of guests seeking a premium first-hand the luxury and Business Lounge is now open Tel: +27 31 360 1000 or
business executives and leisure experience in the bustling Central convenience of the lounge, which Monday to Saturday from 12:00 visit www.icc.co.za
travellers alike, is the latest offering Business District of Durban. boasts private meeting spaces,
from the iconic centre always high-speed internet access, and
striving to meet the needs of its “We are thrilled to introduce the a curated selection of culinary
clientele. Durban ICC Business Lounge, offerings.
which represents our commitment
The launch event, held on 8 April, to enhancing the hospitality In addition to providing a
was attended by esteemed guests, offerings in Durban,” said Lindiwe premium space for business
including the full board of directors Rakharebe, Durban ICC chief activities, the Durban ICC
of the Durban ICC, along with executive officer. “This new venture is committed to supporting
eThekwini Mayor Mxolisi Kaunda reflects our dedication to providing local suppliers and promoting
and city manager, Musa Mbhele, exceptional experiences for our sustainability. The lounge’s
underscoring the significance of guests while contributing to the culinary offerings feature a menu
this milestone for the city. economic growth and revitalisation crafted from sustainably sourced
ingredients, with an emphasis
The Durban ICC Business of the city.” on showcasing the rich culinary
Lounge sets a new standard for The launch event showcased heritage of Durban and its
sophistication and comfort, the lounge’s elegant design, surrounding region. Speaking at the ribbon cutting ceremony, eThekwini Mayor Mxolisi Kaunda
congratulated the Durban ICC for the sterling work it is doing.

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