Harmony Gold Mining Company Limited v Gold Fields Limited and Others (43/CAC/Nov04) [2005] ZACAC 4; [2005] 1 CPLR 97 (CAC) (10 May 2005)

Harmony Gold Mining Company Limited v Gold Fields Limited and Others (43/CAC/Nov04) [2005] ZACAC 4; [2005] 1 CPLR 97 (CAC) (10 May 2005)

The Court found that the original order of 26 November 2004 did not accurately reflect its true intention, which was to prevent the implementation of the merger until the competition authorities had made a final determination. The order was granted under significant time pressure and was later clarified in written reasons. The Court held that, once corrected, the dispute between the parties became moot because the merger proceedings were now properly before the Tribunal and subject to statutory prohibition on implementation. There were no reasonable prospects that another court would reach a different conclusion, and leave to appeal was therefore refused.

Citation
[2005] ZACAC 4
Parties
Applicant: Harmony Gold Mining Company Limited; Respondent: Gold Fields Limited; Respondent: The Competition Commission; Respondent: The Minister of Trade and Industry; Respondent: The Competition Tribunal
Court
Competition Appeal Court
Jurisdiction
South Africa
Judgment Date
10 May 2005
Case Number
43/CAC/Nov04
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal Against the Order of the Competition Appeal Court Dated 26 November 2004.
Outcome
Application for leave to appeal dismissed with costs, including costs of two counsel. The order of 26 November 2004 is corrected to reflect the true intention of the Court.
Judges
Davis, Jali, Hussain
Legal Topics
Merger Control, Interdict, Variation of Order, Mootness, Implementation of Merger
Competition Law Civil Procedure Merger Control Interdict Variation of Order Mootness Implementation of Merger

Case Brief

Summary, issues, holding and outcome

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Parties

Harmony Gold Mining Company Limited

Applicant

Gold Fields Limited

Respondent

The Competition Commission

Respondent

The Minister of Trade and Industry

Respondent

The Competition Tribunal

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Supreme Court of Appeal Against the Order of the Competition Appeal Court Dated 26 November 2004.

Legal Issues

  1. 1 Whether the dispute between the applicant and first respondent is moot following developments after the original order.
  2. 2 Whether the order of 26 November 2004 should be corrected to reflect the true intention of the Court.
  3. 3 Whether leave to appeal should be granted in light of the corrected order and mootness.

Ratio Decidendi

The Court found that the original order of 26 November 2004 did not accurately reflect its true intention, which was to prevent the implementation of the merger until the competition authorities had made a final determination. The order was granted under significant time pressure and was later clarified in written reasons. The Court held that, once corrected, the dispute between the parties became moot because the merger proceedings were now properly before the Tribunal and subject to statutory prohibition on implementation. There were no reasonable prospects that another court would reach a different conclusion, and leave to appeal was therefore refused.

Court Disposition

Application for leave to appeal dismissed with costs, including costs of two counsel. The order of 26 November 2004 is corrected to reflect the true intention of the Court.

Orders

  • The order of 26 November 2004 is corrected to prevent implementation of the merger until final determination by the competition authorities.
  • First respondent is interdicted and restrained from voting its shares in the share capital of the applicant acquired in the early settlement offer or otherwise, which would constitute an attempt to implement the merger as set out in the SENS announcement of 15 October 2004 prior to final determination by the...