ECP Africa Fund IV LLC and Others v Competition Commission Of South Africa (IM053Aug21) [2021] ZACT 99 (29 September 2021)

ECP Africa Fund IV LLC and Others v Competition Commission Of South Africa (IM053Aug21) [2021] ZACT 99 (29 September 2021)

The Tribunal found that the revised merger conditions, including the establishment of an Employee Share Ownership Program for a 5% effective interest in Burger King, divestiture of the Grand Foods Meat Plant to HDPs, and firm expansion and employment commitments, sufficiently addressed the public interest concerns raised by the Commission and dtic. The Tribunal noted that the conditions were materially enhanced from those initially tendered and were agreed to by all parties. The Tribunal also condoned the late filing of the reconsideration application, accepting that the delay resulted from good faith negotiations that led to significant public interest commitments. Accordingly, the...

Citation
[2021] ZACT 99
Parties
Applicant: ECP Africa Fund IV LLC; Applicant: ECP Africa Fund IV A LLC; Applicant: Burger King (South Africa) RF Proprietary Limited; Applicant: Grand Foods Meat Plant Proprietary Limited; Respondent: Competition Commission Of South Africa
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
29 September 2021
Case Number
IM053Aug21
Procedural Posture
Review Application / Reconsideration of Merger Prohibition
Outcome
Merger approved subject to enhanced public interest conditions.
Judges
Mondo Mazwai, Yasmin Carrim, Fiona Tregenna
Legal Topics
Merger Control, Public Interest Conditions, Broad Based Black Economic Empowerment, Employee Share Ownership Program, Divestiture, Employment Protection
Competition Law Commercial and Corporate Merger Control Public Interest Conditions Broad Based Black Economic Empowerment Employee Share Ownership Program Divestiture Employment Protection

Case Brief

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Parties

ECP Africa Fund IV LLC

Applicant

ECP Africa Fund IV A LLC

Applicant

Burger King (South Africa) RF Proprietary Limited

Applicant

Grand Foods Meat Plant Proprietary Limited

Applicant

Competition Commission Of South Africa

Respondent

Procedural Posture

Review Application / Reconsideration of Merger Prohibition

Legal Issues

  1. 1 Whether the proposed merger should be approved in light of public interest concerns, specifically the reduction of historically disadvantaged persons' ownership.
  2. 2 Whether the revised merger conditions adequately address the Competition Commission's concerns regarding empowerment and employment.
  3. 3 Whether the late filing of the reconsideration application should be condoned.

Ratio Decidendi

The Tribunal found that the revised merger conditions, including the establishment of an Employee Share Ownership Program for a 5% effective interest in Burger King, divestiture of the Grand Foods Meat Plant to HDPs, and firm expansion and employment commitments, sufficiently addressed the public interest concerns raised by the Commission and dtic. The Tribunal noted that the conditions were materially enhanced from those initially tendered and were agreed to by all parties. The Tribunal also condoned the late filing of the reconsideration application, accepting that the delay resulted from good faith negotiations that led to significant public interest commitments. Accordingly, the...

Court Disposition

Merger approved subject to enhanced public interest conditions.

Orders

  • The merger between ECP Africa Funds and Burger King (South Africa) RF Proprietary Limited and Grand Foods Meat Plant Proprietary Limited is approved subject to the revised and enhanced conditions.
  • The merging parties must establish an Employee Share Ownership Program for a 5% effective interest in Burger King.