Gold Fields Limited and Harmony Gold Mining Company Limited / MMC Norilsk Nickel / Competition Commission (86/FN/Oct04) [2004] ZACT 75; [2004] 2 CPLR 358 (CT) (18 November 2004)

Gold Fields Limited and Harmony Gold Mining Company Limited / MMC Norilsk Nickel / Competition Commission (86/FN/Oct04) [2004] ZACT 75; [2004] 2 CPLR 358 (CT) (18 November 2004)

The Tribunal found that the relief sought by Gold Fields was final in nature and thus required proof on a balance of probabilities. Gold Fields failed to establish a clear right to interdictory relief, as the early settlement offer did not amount to an acquisition of control under the Competition Act. The evidence did not support the contention that Harmony, with a 34.9% shareholding, would control Gold Fields, nor that the irrevocable undertaking with Norilsk established joint control. The Tribunal accepted the respondents' version that no further agreements or understandings existed beyond the undertaking to vote against the IAMGold transaction. Consequently, the application for...

Citation
[2004] ZACT 75
Parties
Applicant: Gold Fields Limited; Respondent: Harmony Gold Mining Company Limited; Respondent: MMC Norilsk Nickel; Respondent: Competition Commission
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
18 November 2004
Case Number
86/FN/Oct04
Procedural Posture
Urgent Application / Final Determination of Application for Interdictory Relief
Outcome
Application dismissed. Costs awarded against the applicant.
Judges
N. Manoim, M. R. Madlanga, D. Lewis
Legal Topics
Merger Notification, Acquisition of Control, Interdictory Relief, Joint Control, Implementation of Merger
Competition Law Commercial and Corporate Merger Notification Acquisition of Control Interdictory Relief Joint Control Implementation of Merger

Case Brief

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Parties

Gold Fields Limited

Applicant

Harmony Gold Mining Company Limited

Respondent

MMC Norilsk Nickel

Respondent

Competition Commission

Respondent

Procedural Posture

Urgent Application / Final Determination of Application for Interdictory Relief

Legal Issues

  1. 1 Whether the early settlement offer by Harmony constitutes an unlawful implementation of a merger under the Competition Act prior to regulatory approval.
  2. 2 Whether the acquisition of up to 34.9% of Gold Fields shares by Harmony amounts to control as defined in section 12 of the Competition Act.
  3. 3 Whether the irrevocable undertaking between Harmony and Norilsk establishes joint control over Gold Fields.

Ratio Decidendi

The Tribunal found that the relief sought by Gold Fields was final in nature and thus required proof on a balance of probabilities. Gold Fields failed to establish a clear right to interdictory relief, as the early settlement offer did not amount to an acquisition of control under the Competition Act. The evidence did not support the contention that Harmony, with a 34.9% shareholding, would control Gold Fields, nor that the irrevocable undertaking with Norilsk established joint control. The Tribunal accepted the respondents' version that no further agreements or understandings existed beyond the undertaking to vote against the IAMGold transaction. Consequently, the application for...

Court Disposition

Application dismissed. Costs awarded against the applicant.

Orders

  • The application for interdictory relief is dismissed.
  • The applicant is to pay the first and second respondents' party and party costs, including the costs occasioned by the employment of attorney and two counsel.