Distillers Corporation (SA) Ltd and Another v Bulmer (SA) (Pty) Ltd and Another (08/CAC/May01) [2001] ZACAC 4; [2001-2002] CPLR 36 (CAC); 2002 (2) SA 346 (CAC) (27 November 2001)

Distillers Corporation (SA) Ltd and Another v Bulmer (SA) (Pty) Ltd and Another (08/CAC/May01) [2001] ZACAC 4; [2001-2002] CPLR 36 (CAC); 2002 (2) SA 346 (CAC) (27 November 2001)

The court held that section 12(1) of the Competition Act provides a broad definition of merger, encompassing both direct and indirect acquisitions of control. Section 12(2) lists examples of control but does not limit the general definition. The appellants' argument that only changes in ultimate control trigger notification was rejected, as the Act does not exclude transactions between companies with common shareholders from the definition of merger. The facts showed that the companies operated independently, with separate boards and competitive conduct, and did not constitute a single economic entity. The acquisition by first appellant of the assets of second appellant resulted in a...

Citation
[2001] ZACAC 4
Parties
Appellant: Distillers Corporation (South Africa) Limited; Appellant: Stellenbosch Farmers' Winery Group Limited; Respondent: Bulmer (SA) (Proprietary) Limited; Respondent: Seagram Africa (Proprietary) Limited
Court
Competition Appeal Court
Jurisdiction
South Africa
Judgment Date
27 November 2001
Case Number
08/CAC/May01
Procedural Posture
Civil Appeal / Appeal From Competition Tribunal Decision
Outcome
Appeal dismissed with costs, including costs of two counsel for second respondent.
Judges
Davis, Selikowitz, Mailula
Legal Topics
Merger Notification, Definition of Control, Single Economic Entity, Competition Act Interpretation, Change of Control, Market Structure
Competition Law Commercial and Corporate Merger Notification Definition of Control Single Economic Entity Competition Act Interpretation Change of Control Market Structure

Case Brief

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Parties

Distillers Corporation (South Africa) Limited

Appellant

Stellenbosch Farmers' Winery Group Limited

Appellant

Bulmer (SA) (Proprietary) Limited

Respondent

Seagram Africa (Proprietary) Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Competition Tribunal Decision

Legal Issues

  1. 1 Whether the transaction between the appellants constituted a notifiable merger under section 12 of the Competition Act.
  2. 2 Whether a change in ultimate control is required for a transaction to be classified as a merger.
  3. 3 Whether the appellants formed a single economic entity, thereby excluding the transaction from merger notification requirements.

Ratio Decidendi

The court held that section 12(1) of the Competition Act provides a broad definition of merger, encompassing both direct and indirect acquisitions of control. Section 12(2) lists examples of control but does not limit the general definition. The appellants' argument that only changes in ultimate control trigger notification was rejected, as the Act does not exclude transactions between companies with common shareholders from the definition of merger. The facts showed that the companies operated independently, with separate boards and competitive conduct, and did not constitute a single economic entity. The acquisition by first appellant of the assets of second appellant resulted in a...

Court Disposition

Appeal dismissed with costs, including costs of two counsel for second respondent.

Orders

  • The appeal is dismissed.
  • Appellants are ordered to pay the costs of the respondents.