Competition Commission latest decisions: Anglo American Inyosi, Assupol Holdings etc

22 Jun 2018

PBM

South Africa’s Competition Commission has reached a number of key decisions on cases before it including the approval of the following mergers and acquisitions and also non referrals.

  • Luvon Investments and Stylestar Investments v PHG Somerset Value Mall, 
  • Beverage Company Bidco v SoftBev, 
  • New Largo Coal v New Largo Coal Business of Anglo American Inyosi, 
  • Starfruit Finco v Specialty Chemicals Business of AKZO Noble, 
  • King (Cayman) Holdings  v Financial & Risk Business of Thomson Reuters Corporation, 
  • IEP Portfolio 1 v Assupol Holdings 

And the Commission concluded that 9 cases brought to it do not contravene the Competition Act and therefore would not be referred to the Competition Tribunal. These include:

  •  Mahomed Gassam v Charles Pillay
  •  Khayalethu Madikizela v Liquid Capital and Nedbank Car Finance
  •  Mr Jan Maier British Airways (Cape Town to London route) 
  • Lulama Lobi Incorporated v Xerox or Bytes Document Solutions
  • Peter Matome Leshabane (Mighty Media) v Textile Distributors: Amrod Corporate and Barron alias Kevro
  • Embroidery Designs v Amrod Corporate and Kevro
  •  Isasalethu Construction V Republic Arms

Here follows the Commission’s full statement

 1.1  Hyundai Automotive SA and Kia Motors SA v The Kia and Hyundai motor vehicle dealerships conducted by Navigli Trading, Unemployment Insurance Fund v World Marine Energy 

 The Commission has recommended to the Tribunal that the proposed merger be approved, without conditions, whereby Motus Corporation through its subsidiaries Hyundai Automotive South Africa and Kia Motors South Africa intends to acquire the Hyundai Sandton Motor Vehicle Dealership and the Kia Sandton Motor Vehicle Dealership (target dealerships) currently controlled by Navigli Trading.

Both Hyundai SA and Kia SA are subsidiaries of Motus which is, in turn, a subsidiary of Imperial Holdings Limited (Imperial). Hyundai SA, Kia SA, Motus and Imperial are the acquiring group. In South Africa, Imperial is active in the automotive industry through Motus which imports, distributes, and retails in vehicles and automotive aftermarket parts. Motus also imports and distributes Hyundai and Kia branded vehicles.

The target dealerships sell new and used Kia branded and Hyundai branded passenger vehicles and light commercial vehicles, while also offering after-sale services.

The Commission found that the proposed transaction is unlikely to substantially prevent or lessen competition in any market. In addition, the proposed transaction does not raise any public interest concerns.

1.2  Luvon Investments and Stylestar Investments v PHG Somerset Value Mall in respect of its interest in the target properties known as North Cape Mall and Northridge Mall

 The Commission has approved, without conditions, the proposed transaction whereby East & West Investments (Pty) Ltd (East & West) intends to acquire joint control in North Cape Mall and Northridge Mall (target properties).

The primary acquiring firms are Luvon Investments (Pty) Ltd (Luvon) and Stylestar Investments (Pty) Ltd (Stylestar). Luvon and Stylestar are both controlled by East & West. Luvon and Stylestar are property investment funds, which invest in diversified portfolios of commercial and retail assets in South Africa. Luvon and Stylestar are involved in managing, letting and developing commercial and retail properties.

The North Cape Mall is a retail property in the Sol Plaatjie Municipality District, in Kimberly, in the Northern Cape. It is a shopping centre classified as a “minor regional shopping centre”. The Northridge Mall is a retail property situated in Bloemfontein, in the Free State. It is classified as a community shopping centre.

The Commission found that the proposed transaction is unlikely to substantially prevent or lessen competition in any market. In addition, the proposed transaction does not raise any public interest concerns.

1.3  The Beverage Company Bidco v SoftBev   

 The Commission has recommended to the Tribunal that the proposed merger be approved, without conditions, whereby The Beverage Company (Pty) Ltd (BevCo) intends to acquire SoftBev (Pty) Ltd (SoftBev).

BevCo through its subsidiary, Little Green Beverages, is involved in producing, packaging and distributing branded and private label non-alcoholic beverages (NABs) in Southern Africa. BevCo’s produces its own brand as well as house brands for various retailers. It also bottles, packages shrink wraps and palletises the beverage products it manufactures.

SoftBev manufactures, sells and distributes NABs which includes carbonated ‘soft’ drinks and energy drinks, throughout South Africa. It has its own brands while it also produces, markets and distributes carbonated soft drinks for third party brand owners.

The Commission found that the merging parties’ activities overlap broadly with regards to the manufacture, distribution and sale of NABs, which includes carbonated soft drinks and energy drinks.  The Commission also found that the merging parties’ activities overlapped insofar as each of the narrow markets for the manufacture, distribution and sale of carbonated soft drinks (excluding energy drinks) and energy drinks.  The Commission found that the proposed transaction is unlikely to substantially prevent or lessen competition in any relevant market. In addition, the proposed transaction does not raise any public interest concerns.

1.4  Main Street 1603 v Tessara 

The Commission has recommended to the Tribunal that the proposed merger be approved, without conditions, whereby Main Street 1603 (Pty) Ltd (Main Street) intends to acquire Tessara (Pty) Ltd.

Main Street is a special purpose vehicle established for the purposes of the proposed transaction and does not have any activities. Main Street is control by Carlyle Group L.P. Carlyle Group L.P is a global alternative asset manager which manages funds that invest globally across four investment disciplines: Corporate Private Equity, Real Assets, Global Market Strategies and Solutions

Tessara is involved in manufacturing and distributing packaging materials for grapes and flowers. Tessara supplies laminated SO2 generator sheeting to protect table grapes from post-harvest decay and Botrytis (a fungal infection) during transportation and storage, particularly for export to international markets.

The Commission found that the proposed transaction is unlikely to substantially prevent or lessen competition in any market. In addition, the proposed transaction does not raise any public interest concerns.

1.5  New Largo Coal v New Largo Coal Business of Anglo American Inyosi 

 The Commission has recommended to the Tribunal that the proposed merger be approved, without conditions, whereby New Largo Coal (Pty) Ltd (New Largo Coal) intends to acquire the New Largo Business of Anglo American Inyosi Coal (Pty) Ltd (AAIC).

New Largo Coal is jointly controlled by Seriti New Largo (Pty) Ltd (Seriti New Largo) and the Industrial Development Corporation of South Africa Ltd (IDC). Seriti New Largo is a subsidiary of Seriti Resources Holdings (Pty) Ltd (Seriti Resources).

New Largo Business comprises a coal mining project under development, a closed colliery and a conveyor belt project also under development. These relate to the prospective mining of coal and supplying it to Eskom. New Largo Business is controlled by AAIC which is controlled by Anglo South Africa (Pty) Ltd.

The Commission found that the proposed transaction is unlikely to substantially prevent or lessen competition in any market. In addition, the proposed transaction does not raise any public interest concerns. 

1.6  Starfruit Finco v Specialty Chemicals Business of AKZO Noble 

 The Commission has recommended to the Tribunal that the proposed merger be approved, without conditions, whereby Starfruit Finco BV (Starfruit) intends to acquire The Specialty Chemicals Business of Akzo Nobel NV (Akzo Nobel).

Starfruit is a special purpose vehicle incorporated for the purposes of the proposed transaction and does not conduct any business activities. Akzo Nobel SC is the Specialty Chemical business of Akzo Nobel and produces and supplies a range of speciality chemicals used to produce plastics, cardboard packaging and tissues, cleaning detergents, personal care and pharmaceuticals, among others.

The Commission found that the proposed transaction is unlikely to substantially prevent or lessen competition in any market. In addition, the proposed transaction does not raise any public interest.

1.7  Unilever Holdings v Unilever NV and Unilever PLC 

The Commission has recommended to the Tribunal that the proposed merger be approved, whereby Unilever International Holdings NV (Unilever Holdings) intends to acquire Unilever NV and Unilever PLC.

Unilever Holdings is a newly established firm that has been formed for purposes of the proposed transaction and does not provide any products or services in South Africa currently. Unilever NV is a Dutch company and Unilever PLC is a UK company. They indirectly control Unilever South Africa Holdings (Pty) Ltd which controls Unilever South Africa (Pty) Ltd. The Unilever Group is involved in manufacturing food, beverages, cleaning agents and personal care products.

The Commission found that the proposed transaction is unlikely to substantially prevent or lessen competition in any market. In addition, the proposed transaction does not raise any public interest concerns.

1.8  King (Cayman) Holdings  v Financial & Risk Business of Thomson Reuters Corporation

 The Commission has approved the proposed merger, without conditions, whereby Cayman intends to acquire Financial and Risk business of Thomson Reuters.

Cayman is owned by Blackstone Group Management (Blackstone Management). Blackstone Management is a global asset manager and provider of financial advisory services. It is headquartered in the United States of America and has offices in Europe and Asia.

Financial and Risk Business of Thomson Reuters, is a global business which provides news, information, financial analytics, trading and investment information. At a global level, the Financial and Risk Business provides a broad range of financial information products to financial market professionals that includes real time and non-real time pricing, valuation and reference data.

The Commission found that the proposed merger is unlikely to result in substantial lessening or prevention of competition. In addition, the proposed merger is unlikely to have a negative effect on public interest.

1.9  SerEli Holdings v Freestate Petroleum Distributors and Metabis Properties

 The Commission has approved the proposed merger, with conditions, whereby SerEli intends to acquire FPD and Metabis.

SerEli is a newly incorporated private company and does not conduct any business activity. FPD is a Caltex Branded Marketer, which holds a wholesale licence in terms of the Petroleum Act. FPD supplies fuel products including petrol, diesel and lubricant products to 33 Caltex service stations across the Free State province. Metabis is a property holding company.  One of the ultimate controllers of SerEli (i.e., the Acquiring Firm), controls 5 (five) firms that in turn control the petrol service stations in Gauteng Province. In other words, the ultimate controller of Serli holds a retail licence for the operation of the petrol service stations.

Having regard to the legal framework governing the petroleum sector, the Commission found that the proposed transaction results in vertical integration, which is proscribed by the Petroleum Act. This is because one of the ultimate controllers of SerEli holds a retail licence. The Commission found that section 2A(5)(a) of the Petroleum Act restricts manufacturers and wholesalers from holding a retail licence except for training purposes. Vertical integration in the petroleum industry is thus restricted because licensed wholesalers cannot hold retail licences. The Department of Energy also made submissions to the Commission to the effect that allowing one of the ultimate controllers of SerEli to continue with the proposed transaction would amount to double dipping, a conduct not allowed by the Petroleum Act, because the Acquiring Group  may receive petroleum margins twice, firstly as a retailer and secondly, as a petroleum wholesaler.

In order to address the aforesaid vertical integration concerns emanating from the proposed transaction, the Commission approved the proposed transaction subject to the condition that the ultimate controller of the Acquiring Firm should dispose of his interests in the five companies holding retail licences. The merging parties agreed to this condition.

Further, the Commission found that the proposed transaction is unlikely to result in any negative impact on public interest. In particular, the merging parties submitted that no employees will be retrenched as a result of the proposed transaction. 

1.10               Weir Group  v ESCO Corporation 

The Commission has approved the proposed merger, without conditions, whereby Weir intends to acquire ESCO Corporation (ESCO).

Weir is a global group that produces machinery and equipment for various industries such as mining, oil and gas, power generation and industrial sectors. In South Africa, the Group’s activities include the manufacturing and supply of mill circuit equipment and spares, pump equipment and spares, hose and automotive products. Weir also imports and supplies comminution (or crushing) equipment and comminution (or crushing) spares including crusher wear parts. Weir’s comminution equipment include a range of cone, impact and jaw crushers that are used in the different levels of the mineral production process.

ESCO is primarily involved in the manufacturing and supply of mining ground engaging tools systems, dragline chain and rigging, mining buckets, crushing liners (crusher wear parts), miscellaneous cast wear solutions, blades products and construction attachments. ESCO also manufactures and supplies non-branded or aftermarket crusher wear parts for over 150 different brands, including Weir crushers. However, ESCO has never supplied parts for use in Weir crushers in South Africa.

The Commission found that the proposed transaction is unlikely to result in substantial lessening or prevention of competition in any market. In addition, the proposed transaction is to raise any public interest issues.

The Commission found that the proposed transaction is unlikely to result in substantial lessening or prevention of competition in any consideration of the relevant market. In addition, the proposed transaction is unlikely to result in retrenchments or any negative effects on current employment conditions. The transaction is also unlikely to raise any public interest issues. 

1.11               Unemployment Insurance Fund v World Marine Energy 

The Commission has recommended to the Tribunal that the proposed merger be approved, with conditions, whereby UIF intends to acquire World Marine.

The Public Investment Corporation SOC Limited (PIC) owns UIF and a number of firms across various industries nationwide. This includes SacOil Holdings Ltd (SacOil) and Afric Oil (Pty) Ltd (Afric Oil). In South Africa, SacOil operates through Afric Oil. Afric Oil is involved in the marketing and wholesale distribution of petrol, diesel, illuminating paraffin and lubricants to a client base that comprises of local and national governments, parastatals, the mining industry, the construction industry, the transport sector, the manufacturing sector, resellers and agricultural industries.

World Marine is a wholesale distributor of petrol, diesel, illuminating paraffin, jet fuel and lubricants to customers located in Western Cape and Northern Cape.

The Commission was concerned that the merger creates structural links between the merging parties and some of its competitors and may facilitate collusion between competitors in the wholesale distribution of petroleum products. In order to safeguard against potential collusion between the merged entity and some of its competitors, the Commission recommended to the Tribunal that the merger be approved subject to the conditions that will address information sharing between the merging parties and its competitors.

1.12               IEP Portfolio 1 v Assupol Holdings  

The Commission has recommended to the Tribunal that the proposed merger be approved, without conditions, whereby IEP intends to acquire Assupol.

The IEP Group is an investment vehicle that holds investments in industrial and chemical, financial, infrastructure and building materials firms. Assupol is an authorised financial services provider offering funeral, life, savings and retirement annuity products. Assupol’s product offering focuses on, Life Cover, Funeral Cover, Dread-disease benefits, Physical disability cover.

The Commission found proposed transaction is unlikely to substantially prevent or lessen competition. In addition, the proposed transaction does not raise public interest concerns. 

1.13               Via Sperandio 2 Proprietary Ltd (Via 2) v Rigasize (Pty) Ltd trading as Price Chain Fruit & Veg (Fruit & Veg), Best Ever Trading 524 Close Corporation trading as Price Chain Hyper (Price Chain Hyper), Shelfline 139 (Pty) Ltd (Shelfline), Agnonox Close Corporation (Agnonox), and Agnonite  Close Corporation (Agnonite) 

The Commission has approved the proposed merger, without conditions, whereby Via 2 intends to acquire Fruit & Veg, Price Chain Hyper, Shelfline, Agnonox; and Agnonite.

Via 2 is owned by Consolidated Store Holdings (Pty) Ltd (CSH). CSH is an investment holding company with controlling interests in retail, wholesale, hybrid grocery and liquor stores situated in Gauteng, North West, Free State, Eastern Cape and Western Cape. The grocery stores offer a full range of edible and non-edible grocery products including perishable and non-perishable food, household cleaning products, toiletries, catering supplies and tobacco products.

Fruit & Veg, Price Chain Hyper, Shelfline, Agnonox; and Agnonite are grocery, liquor and general merchandise stores that offer a full range of edible and non-edible grocery products situated in Rustenburg, Vryburg, Kuruman, Springbok and Cape Town.

The Commission found proposed transaction is unlikely to substantially prevent or lessen competition. In addition, the proposed transaction does not raise public interest concerns.

1.14       Sanlam Life Ltd v Ingenuity Property Investments (Pty) Ltd 

 The Commission has recommended to the Tribunal that the proposed merger be approved, without conditions, whereby Sanlam Life Insurance Limited (Sanlam Life) intends to acquire properties from Ingenuity Property Investments Limited (Ingenuity).

The Sanlam Group is a financial service group which also holds a property portfolio.

Ingenuity is selling the following properties: Aurecon East, Aurecon West, The Gateway, Mazars House and Virgin Active. It is a property investment company which acquires and develops properties. Ingenuity’s portfolio consists of office space, retail space, industrial space, parking and development property.

The Commission found that the proposed transaction is unlikely to substantially prevent or lessen competition in any market. In addition, the proposed transaction does not raise any public interest concerns. 

1.15               Hail Creek Coal Holdings (Pty) Ltd (Hail Creek Coal Holdings) v Hail Creek Joint Venture Hail Creek Marketing (Pty) Ltd (Hail Creek JV), and Hail Creek Coal (Pty) Ltd (Hail Creek Coal).

 The Commission has recommended to the Tribunal that the proposed merger be approved, without conditions, whereby Hail Creek Coal Holdings intends to acquire Hail Creek JV and Hail Creek Coal.

Hail Creek Coal Holdings is owned by Glencore Coal (Pty) Ltd (Glencore Coal). Glencore operates globally as a supplier of commodities and raw materials to industrial consumers. Of relevance to the proposed transaction are Glencore’s activities in relation to the supply of thermal and metallurgical (or coking) coal.

The Hail Creek JV owns the Hail Creek Mine, an open cast mine located in the Bowen Basin in Australia. The Hail Creek Mine produces thermal and coking coal which it supplies into international markets. Hail Creek Marketing’s activity involves marketing and supplying the coal produced by the Hail Creek JV to various consumers. Hail Creek Coal manages the Hail Creek JV.

The Commission found that the proposed transaction is unlikely to have a negative effect on employment. Further, the Commission found that the proposed transaction is unlikely to raise public interest concerns. 

1.16       Bidvest Properties (Pty) Ltd v 50% undivided interest in Unit 2 of the property known as Runway Park, which is currently owned by Metboard Properties Ltd  

 The Commission has approved the proposed merger, without conditions, whereby Bidvest Properties (Pty) Ltd (Bidvest Properties) intends to acquire Metboard Properties Limited (Metboard).

Bidvest Properties is a property investment company, which develops, owns and manages the property portfolio of the Bidvest Group. Most of the properties owned by Bidvest Properties are occupied by businesses owned by Bidvest Group as its office space.

The primary target firm is a 50% undivided share in Unit 2 of the property known as Runway Park, and comprises rentable light industrial space in Durban.

The Commission found that the proposed merger is unlikely to substantially prevent or lessen competition in any market. In addition, the proposed transaction does not raise any public interest concerns.

1.17               Noble Spectatus Fund 5 (Pty) Ltd v The Letting Enterprises known as Dainfern Square, Waterstone Village and The Sanctuary Owned by The Abacus Group  

The Commission has approved the proposed merger, without conditions, whereby Noble Spectatus Fund 5 (Pty) Ltd intends to acquire the letting enterprises known as Dainfern Square, Waterstone Village and The Sanctuary (Target Properties) owned by The Abacus Group.

The Noble group is a property investment company which invests in commercial property. The Noble group also provides property management services.

The Noble group intends to acquire the Target Properties from the Abacus Group. Dainfern Square has a lettable area comprising rentable retail and office space in Dainfern, Fourways. Waterstone Village and The Sanctuary also have rentable retail and office space in Somerset West.

The Commission found that the proposed transaction is unlikely to substantially prevent or lessen competition in any market. In addition, the proposed transaction does not raise any public interest concerns.

1.18       Maneli Foods (Pty) Ltd v Perdigon (Pty) Ltd

 The Commission has approved the proposed merger, without conditions, whereby Maneli Foods (Pty) Ltd (Maneli Foods) intends to acquire Perdigon (Pty) Ltd (Perdigon).

Maneli Foods is controlled by Maneli Group (Pty) Ltd (Maneli). Both Maneli and Maneli Foods are investment holding companies and do not manufacture or sell any products and/or render any services. Maneli Pets (Pty) Ltd is a specialist manufacturer of premium quality foods and treats for the global pet market. Maneli Commodities (Pty) Ltd operates an agricultural commodities trading business focusing on grain, including maize, wheat, soya and other grains and oilseeds.

Perdigon operates an agricultural commodities trading business focusing on grain, including maize, wheat, soya and other grains and oilseeds.

The Commission found that the proposed transaction is unlikely to substantially prevent or lessen competition in any market. In addition, the proposed transaction does not raise any public interest concerns.

  1. Non Referrals: The Commission has taken a decision to non-refer (not to prosecute) the following cases:

 

2.1       Mahomed Gassam v Charles Pillay

The Commission is of the view that the conduct complained of does not contravene the Competition Act.

           

2.2       Khayalethu Madikizela v Liquid Capital and Nedbank Car Finance

The Commission is of the view that the conduct complained of does not contravene the Competition Act.

 

2.3       Mr Jan Maier British Airways (Cape Town to London route)

The Commission is of the view that the conduct complained of does not contravene the Competition Act.

           

2.4       Lulama Lobi Incorporated v Xerox or Bytes Document Solutions

The Commission is of the view that the conduct complained of does not contravene the Competition Act.

2.5       Peter Matome Leshabane (Mighty Media) v Textile Distributors: Amrod Corporate and Barron alias Kevro (Kevro Pty (Ltd)

The Commission is of the view that the conduct complained of does not contravene the Competition Act.

2.6       Embroidery Designs CC v Amrod Corporate (Pty) Ltd and Kevro (Pty) Ltd

The Commission is of the view that the conduct complained of does not contravene the Competition Act.

2.7       Isasalethu Construction CC V Republic Arms (Pty) Ltd

The Commission is of the view that the conduct complained of does not contravene the Competition Act.

2.8       Maris It Development V Cape Peninsula University of Technology

The Commission is of the view that the conduct complained of does not contravene the Competition Act.

2.9       Luthando Richard Mpondo v National Pride Trading T/A Afrigas Proprietary Limited v Automotive Industry Components and AFROX

The Commission is of the view that the conduct complained of does not contravene the Competition Act.

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