Capital Propfund (Pty) Ltd v Diggers Development (Pty) Ltd and Others (LM166Dec22) [2023] ZACT 6 (31 January 2023)
- Citation
- [2023] ZACT 6
- Status
- Order
- Jurisdiction
- South Africa
- Court
- Competition Tribunal
- Panel
- I Valodia, A Ndoni, S Goga
- Case number
- LM166Dec22
More details
- Court
- Competition Tribunal
- Panel
- I Valodia, A Ndoni, S Goga
- Case number
- LM166Dec22
On this page
Professional case brief
Research organized from the available case record
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
ApplicantDiggers Development (Pty) Ltd
Respondent03
Procedural history
Posture
Merger Application / Final Determination
04
Questions and positions
Legal issues
- 01
Whether the proposed merger between Capital Propfund (Pty) Ltd and Diggers Development (Pty) Ltd should be approved under section 16(2)(a) of the Competition Act.
- 02
Whether any conditions should be attached to the approval of the merger.
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
Legal principles
- 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.
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Competition Tribunal
Order
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).
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