DCD-Dorbyl (Pty) Ltd and Another v Competition Commission (53/AM/May12) [2012] ZACT 77; [2012] 2 CPLR 386 (CT) (29 August 2012)

DCD-Dorbyl (Pty) Ltd and Another v Competition Commission (53/AM/May12) [2012] ZACT 77; [2012] 2 CPLR 386 (CT) (29 August 2012)

The Tribunal found that the merger would result in the merged entity controlling significant ship repair infrastructure in the regional market, particularly in Cape Town, which could lessen competition. However, the Tribunal accepted that revised conditions, including a ten-year prohibition on acquiring or controlling the EBH ship repair facility in Cape Town and advocacy by the Commission with TNPA, would adequately address these concerns. The Tribunal also noted the presence of other competitors and the enforceability of the conditions. No public interest concerns, such as retrenchments, were identified. The merger was approved subject to the imposed conditions.

Citation
[2012] ZACT 77
Parties
Applicant: DCD-Dorbyl (Pty) Ltd; Applicant: Elgin Brown and Hamer Group Holdings (Pty) Ltd; Respondent: Competition Commission
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
29 August 2012
Case Number
53/AM/May12
Procedural Posture
Merger Application / Conditional Approval After Reconsideration
Outcome
Merger conditionally approved subject to specified conditions.
Judges
Yasmin Carrim, Andreas Wessels, Andiswa Ndoni
Legal Topics
Merger Control, Market Definition, Remedies and Conditions, Public Interest, Dominance, Access to Infrastructure
Competition Law Commercial and Corporate Merger Control Market Definition Remedies and Conditions Public Interest Dominance Access to Infrastructure

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

DCD-Dorbyl (Pty) Ltd

Applicant

Elgin Brown and Hamer Group Holdings (Pty) Ltd

Applicant

Competition Commission

Respondent

Procedural Posture

Merger Application / Conditional Approval After Reconsideration

Legal Issues

  1. 1 Whether the proposed merger between DCD-Dorbyl (Pty) Ltd and Elgin Brown and Hamer Group Holdings (Pty) Ltd would substantially prevent or lessen competition in any relevant market.
  2. 2 Whether the merger raises public interest concerns, including retrenchments or access to ship repair facilities.
  3. 3 Whether the conditions imposed by the Competition Commission and revised after TNPA submissions adequately address competition concerns.

Ratio Decidendi

The Tribunal found that the merger would result in the merged entity controlling significant ship repair infrastructure in the regional market, particularly in Cape Town, which could lessen competition. However, the Tribunal accepted that revised conditions, including a ten-year prohibition on acquiring or controlling the EBH ship repair facility in Cape Town and advocacy by the Commission with TNPA, would adequately address these concerns. The Tribunal also noted the presence of other competitors and the enforceability of the conditions. No public interest concerns, such as retrenchments, were identified. The merger was approved subject to the imposed conditions.

Court Disposition

Merger conditionally approved subject to specified conditions.

Orders

  • The merging parties may not acquire or establish control, directly or indirectly, over the EBH ship repair facility in Cape Town for ten years after the lease expiry on 28 February 2013.
  • The merging parties must notify the Commission of any acquisition or establishment of control over the EBH ship repair facility after the ten-year period.