The Commercial Case Law Index is a collection of judgments from African countries on topics relating to commercial legal practice. The collection aims to provide a snapshot of commercial legal practice in a country, rather than present solely traditionally "reportable" cases. The index currently covers 400 judgments from Uganda, Tanzania, Nigeria, Ghana and South Africa.
Get started on finding judgments that are relevant to you by browsing the topic list on the left of the screen. Click the arrows next to the topic names to reveal a detailed list of sub-topics. Most judgments are accompanied by a short summary written by subject-matter expert postgraduate students from the University of Cape Town.
The appellants are the only producers of andalusite in South Africa. The appellants notified the competition commission (the commission) of an intermediate merger in terms of s13A Competition Act 89 of 1998 (the act), which the commission prohibited. The competition tribunal (the tribunal) confirmed that prohibition. The appellants appealed to the competition appeal court (‘CAC’) contending that the merger should have been permitted subject to tendered conditions.
The CAC held that the tribunal ought to have relied on the s12A test where:
(i) it determined at first whether merger is likely to substantially prevent or lessen competition ;
(ii) whether the merger can or cannot be justified on substantial public interest grounds by assessing the factors set out in s12A(3) of the act; and
(iii) if the determination in (i) is ‘no’, the tribunal must determine whether the merger can or cannot be justified on substantial public interest grounds.
The CAC concluded that the merger was anti-competitive as it would give rise to a monopoly market. Additionally, the merging parties failed to portray any pro-competitive gains or public interest considerations which justified the merger. The appeal was therefore dismissed.
Competition – Unlawful Competition – Collusive Tendering – appropriate penalty