Foschini Retail Group (Pty) Ltd v BMT StreetFever (Pty) Ltd (LM173Jan23) [2023] ZACT 48; [2023] 3 CPLR 40 (CT) (19 May 2023)

Foschini Retail Group (Pty) Ltd v BMT StreetFever (Pty) Ltd (LM173Jan23) [2023] ZACT 48; [2023] 3 CPLR 40 (CT) (19 May 2023)

The Tribunal found that the proposed merger between Foschini Retail Group and the Street Fever business would not result in a substantial prevention or lessening of competition in any relevant market. The market share accretion was below 2% in all affected markets, and sufficient competition would remain from other retailers, including those operating online. Although the merger would reduce the number of competitors in certain local areas, the merged entity would continue to face competitive constraints. The Tribunal also considered public interest concerns, including employment and HDP share dilution. It accepted the imposition of a three-year employment moratorium and commitments...

Citation
[2023] ZACT 48
Parties
Applicant: Foschini Retail Group (Pty) Ltd; Respondent: BMT StreetFever (Pty) Ltd
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
19 May 2023
Case Number
LM173Jan23
Procedural Posture
Large Merger / Approval and Reasons
Outcome
Merger approved subject to public interest conditions.
Judges
G Budlender, F Tregenna, T Vilakazi
Legal Topics
Horizontal Merger Assessment, Vertical Merger Assessment, Public Interest Conditions, Market Share Analysis, Employment Moratorium, Import Substitution Commitment
Competition Law Commercial and Corporate Horizontal Merger Assessment Vertical Merger Assessment Public Interest Conditions Market Share Analysis Employment Moratorium Import Substitution Commitment

Case Brief

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Parties

Foschini Retail Group (Pty) Ltd

Applicant

BMT StreetFever (Pty) Ltd

Respondent

Procedural Posture

Large Merger / Approval and Reasons

Legal Issues

  1. 1 Whether the proposed merger is likely to substantially prevent or lessen competition in any relevant market.
  2. 2 Whether the merger raises public interest concerns, including employment and HDP share dilution.
  3. 3 Whether conditions should be imposed to address employment and local procurement concerns.

Ratio Decidendi

The Tribunal found that the proposed merger between Foschini Retail Group and the Street Fever business would not result in a substantial prevention or lessening of competition in any relevant market. The market share accretion was below 2% in all affected markets, and sufficient competition would remain from other retailers, including those operating online. Although the merger would reduce the number of competitors in certain local areas, the merged entity would continue to face competitive constraints. The Tribunal also considered public interest concerns, including employment and HDP share dilution. It accepted the imposition of a three-year employment moratorium and commitments...

Court Disposition

Merger approved subject to public interest conditions.

Orders

  • The merger is approved unconditionally, subject to the public interest conditions annexed as 'Annexure A'.
  • A three-year employment moratorium is imposed as a condition for approval.