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South Africa Order

Competition Tribunal

Capital Propfund (Pty) Ltd v Diggers Development (Pty) Ltd and Others (LM166Dec22) [2023] ZACT 6 (31 January 2023)

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Source document

01

Holding and result

The Tribunal found that the proposed merger between Capital Propfund (Pty) Ltd and Diggers Development (Pty) Ltd did not raise any substantial competition concerns and that there were no public interest grounds to prohibit the transaction. The Competition Commission recommended approval, and the Tribunal concurred, finding that the requirements of section 16(2)(a) of the Competition Act were satisfied. The merger was approved without conditions, and a Merger Clearance Certificate was issued in accordance with Tribunal Rule 35(5)(a).

Court disposition

Merger approved without conditions.

Orders

  • The merger between Capital Propfund (Pty) Ltd and Diggers Development (Pty) Ltd is approved in terms of section 16(2)(a) of the Competition Act.
  • A Merger Clearance Certificate is issued in terms of Competition Tribunal Rule 35(5)(a).

02

Material facts

Parties

Capital Propfund (Pty) Ltd

Applicant

Diggers Development (Pty) Ltd

Respondent

03

Procedural history

  1. Posture

    Merger Application / Final Determination

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant sought approval for the merger, submitting that the transaction complied with the requirements of the Competition Act and did not raise substantial competition concerns. The applicant argued that the merger would not substantially prevent or lessen competition in any relevant market and that there were no public interest grounds to prohibit the transaction.
Respondent
The respondent did not oppose the merger and provided all necessary information to the Competition Commission. No objections or concerns were raised regarding the competitive effects or public interest implications of the transaction.

05

Court’s reasoning

  1. 01

    Competition Act 89 of 1998, section 16(2)

    A merger may be approved if it does not substantially prevent or lessen competition, or if any such effect can be justified on public interest grounds.

  2. 02

    Competition Act 89 of 1998, section 16(3)

    The Competition Tribunal may revoke merger approval if it was obtained by deceit, incorrect information, or breach of attached obligations.

06

Ratio, limits and disposition

Ratio decidendi

The Tribunal found that the proposed merger between Capital Propfund (Pty) Ltd and Diggers Development (Pty) Ltd did not raise any substantial competition concerns and that there were no public interest grounds to prohibit the transaction. The Competition Commission recommended approval, and the Tribunal concurred, finding that the requirements of section 16(2)(a) of the Competition Act were satisfied. The merger was approved without conditions, and a Merger Clearance Certificate was issued in accordance with Tribunal Rule 35(5)(a).

Obiter and limits

  • The Tribunal notes its authority to revoke merger approval under section 16(3) of the Competition Act if the approval was obtained by deceit, incorrect information, or breach of obligations.

Court disposition

Merger approved without conditions.

  • The merger between Capital Propfund (Pty) Ltd and Diggers Development (Pty) Ltd is approved in terms of section 16(2)(a) of the Competition Act.
  • A Merger Clearance Certificate is issued in terms of Competition Tribunal Rule 35(5)(a).

Source and reliance status

Competition Tribunal

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Judgment text

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Source document

Competition Tribunal

Order

[2023] ZACT 6

COMPETITION

TRIBUNAL OF SOUTH AFRICA

Case No.: LM166Dec22

In the matter between:

Capital Propfund (Pty) Ltd Primary Acquiring Firm

And

Diggers Development (Pty) Ltd on behalf of the Immovable Property

Known as Flamwood Walk, Flamwood Value Centre and

Certain Vacant Land Primary Target Firm

Panel: I Valodia (Presiding Member) A Ndoni (Tribunal Member) S Goga (Tribunal Member)

Heard on: 31 January 2023

Order Issued on: 31 January 2023

ORDER

Further to the recommendation of the Competition Commission in terms of section 14A(1)(b) of the Competition Act, 1998 (“the Act”) the Competition Tribunal orders that -

1. the merger between the above mentioned parties be approved in terms of section 16(2)(a) of the Act; and

2. a Merger Clearance Certificate be issued in terms of Competition Tribunal Rule 35(5)(a).

Date: 31 January 2023

Presiding Member Professor Imraan Valodia

Concurring: Ms Andiswa Ndoni and Ms Sha’ista Goga

Merger Clearance Certificate

Date: 31 January 2023

To: CDH Legal

You applied to the Competition Commission on 13 December 2022 for merger approval in accordance with Chapter 3 of the Competition Act.

After reviewing all relevant information, and the recommendation or decision of the Competition Commission, the Competition Tribunal

approves the merger in terms of section 16(2) of the Act, for the reasons set out in the Reasons for Decision.

This approval is subject to: no conditions. the conditions listed on the attached sheet.

The Competition Tribunal has the authority in terms of section 16(3) of the Competition Act to revoke this approval if

a) it was granted on the basis of incorrect information for which a party to the merger was responsible.

b) the approval was obtained by deceit.

c) a firm concerned has breached an obligation attached to this approval.

The Registrar, Competition Tribunal

This form is prescribed by the Minister of Trade and Industry in terms of section 27 (2) of the Competition Act 1998 (Act No. 89 of 1998).

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Competition Act 89 of 1998

Legislation

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