ARM Bokoni Mining Consortium (Pty) Ltd v Bokoni Platinum Mines (Pty) Ltd (LM187Mar22) [2022] ZACT 57; [2022] 2 CPLR 30 (CT) (11 August 2022)

ARM Bokoni Mining Consortium (Pty) Ltd v Bokoni Platinum Mines (Pty) Ltd (LM187Mar22) [2022] ZACT 57; [2022] 2 CPLR 30 (CT) (11 August 2022)

The Tribunal found that the proposed merger between ARM Bokoni Mining Consortium (Pty) Ltd and Bokoni Platinum Mines (Pty) Ltd is unlikely to substantially prevent or lessen competition in any market in South Africa. The Tribunal accepted the Competition Commission's recommendation that the merger be approved, subject to conditions addressing public interest concerns. These conditions include the establishment of three SPVs to promote broad-based black economic empowerment and a greater spread of ownership, as well as preferential employment for care and maintenance employees retrenched in 2017. The Tribunal determined that the conditions are reasonable, enforceable, and adequately...

Citation
[2022] ZACT 57
Parties
Applicant: ARM Bokoni Mining Consortium (Pty) Ltd; Respondent: Bokoni Platinum Mines (Pty) Ltd
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
11 August 2022
Case Number
LM187Mar22
Procedural Posture
Merger Application / Final Determination
Outcome
Merger approved subject to public interest conditions.
Judges
I Valodia, T Vilakazi, E Daniels
Legal Topics
Large Merger, Public Interest Conditions, Broad Based Black Economic Empowerment, Employee Share Ownership, Preferential Employment, Merger Clearance
Competition Law Commercial and Corporate Large Merger Public Interest Conditions Broad Based Black Economic Empowerment Employee Share Ownership Preferential Employment Merger Clearance

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Parties

ARM Bokoni Mining Consortium (Pty) Ltd

Applicant

Bokoni Platinum Mines (Pty) Ltd

Respondent

Procedural Posture

Merger Application / Final Determination

Legal Issues

  1. 1 Whether the proposed merger is likely to substantially prevent or lessen competition in any market in South Africa.
  2. 2 Whether the merger satisfies public interest requirements under the Competition Act, including employment and broad-based black economic empowerment.
  3. 3 Whether the conditions proposed by the Competition Commission adequately address public interest concerns.

Ratio Decidendi

The Tribunal found that the proposed merger between ARM Bokoni Mining Consortium (Pty) Ltd and Bokoni Platinum Mines (Pty) Ltd is unlikely to substantially prevent or lessen competition in any market in South Africa. The Tribunal accepted the Competition Commission's recommendation that the merger be approved, subject to conditions addressing public interest concerns. These conditions include the establishment of three SPVs to promote broad-based black economic empowerment and a greater spread of ownership, as well as preferential employment for care and maintenance employees retrenched in 2017. The Tribunal determined that the conditions are reasonable, enforceable, and adequately...

Court Disposition

Merger approved subject to public interest conditions.

Orders

  • The merger between ARM Bokoni Mining Consortium (Pty) Ltd and Bokoni Platinum Mines (Pty) Ltd is approved in terms of section 16(2)(b) of the Competition Act, subject to the conditions set out in Annexure A.
  • A Merger Clearance Certificate is to be issued in terms of Competition Tribunal rule 35(5)(a).