Bachique 746 (Pty) Ltd v Afrikelp (Pty) Ltd and Others (LM274Mar19) [2019] ZACT 47 (28 August 2019)
The Tribunal found that the proposed transaction would not substantially prevent or lessen competition in any relevant market. The Commission's concerns regarding potential collusion and information exchange between RMBV and BoE were not supported by the evidence, as both entities are small players in the private equity market, operate in different industries, and face significant competition from other market participants. Furthermore, the transaction would not negatively affect employment or raise other public interest concerns. Accordingly, the Tribunal approved the merger unconditionally.
- Citation
- [2019] ZACT 47
- Parties
- Applicant: Bachique 746 (Pty) Ltd; Respondent: Afrikelp (Pty) Ltd; Respondent: Afrikelp Holdings (Pty) Ltd; Respondent: Afrikelp Investments (Pty) Ltd; Respondent: Akusa, Inc.; Respondent: Taurus Chemicals Namibia (Pty) Ltd; Respondent: Taurus Chemicals Cape Kelp (Pty) Ltd; Respondent: Rotaq LOderitz (Pty) Ltd; Respondent: Efekto Care (Pty) Ltd; Respondent: Efekto Zambia Ltd; Respondent: Agro-Serve (Pty) Ltd; Respondent: Agro-Serve (Pty) Ltd (Namibia); Respondent: Marltons Pets and Products (Pty) Ltd
- Court
- Competition Tribunal
- Jurisdiction
- South Africa
- Judgment Date
- 28 August 2019
- Case Number
- LM274Mar19
- Procedural Posture
- Merger Review / Approval
- Outcome
- The proposed transaction was approved unconditionally.
- Judges
- Yasmin Carrim, Andreas Wessels, Fiona Tregenna
- Legal Topics
- Merger Control, Horizontal and Vertical Overlap, Information Exchange, Collusion Theory, Public Interest Employment
Case Brief
Summary, issues, holding and outcome
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Parties
Bachique 746 (Pty) Ltd
Applicant
Afrikelp (Pty) Ltd
Respondent
Afrikelp Holdings (Pty) Ltd
Respondent
Afrikelp Investments (Pty) Ltd
Respondent
Akusa, Inc.
Respondent
Taurus Chemicals Namibia (Pty) Ltd
Respondent
Taurus Chemicals Cape Kelp (Pty) Ltd
Respondent
Rotaq LOderitz (Pty) Ltd
Respondent
Efekto Care (Pty) Ltd
Respondent
Efekto Zambia Ltd
Respondent
Agro-Serve (Pty) Ltd
Respondent
Agro-Serve (Pty) Ltd (Namibia)
Respondent
Marltons Pets and Products (Pty) Ltd
Respondent
Procedural Posture
Merger Review / Approval
Legal Issues
- 1 Whether the proposed merger would substantially prevent or lessen competition in any relevant market.
- 2 Whether the joint shareholding of RMBV and BoE in Bidco could facilitate collusion or information exchange between competitors.
- 3 Whether the transaction raises any public interest concerns, particularly regarding employment.
Ratio Decidendi
The Tribunal found that the proposed transaction would not substantially prevent or lessen competition in any relevant market. The Commission's concerns regarding potential collusion and information exchange between RMBV and BoE were not supported by the evidence, as both entities are small players in the private equity market, operate in different industries, and face significant competition from other market participants. Furthermore, the transaction would not negatively affect employment or raise other public interest concerns. Accordingly, the Tribunal approved the merger unconditionally.
Court Disposition
The proposed transaction was approved unconditionally.
Orders
- The merger between Bachique 746 (Pty) Ltd and the target businesses is approved without conditions.
Full Case Text
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