Harmony Gold Mining Company Ltd and Others v The remaining gold mining South African operations of AgloGold Ashanti Ltd (LM171Mar20) [2020] ZACT 22 (27 May 2020)

Harmony Gold Mining Company Ltd and Others v The remaining gold mining South African operations of AgloGold Ashanti Ltd (LM171Mar20) [2020] ZACT 22 (27 May 2020)

The Tribunal found that the proposed merger would not substantially lessen or prevent competition in the international markets for gold and silver, as the merged entity's market share would remain low and the markets are highly fragmented. No participant's market share exceeded 10%, and competitive constraints would persist post-merger. The Tribunal also found that public interest concerns regarding employment, ownership by historically disadvantaged persons, and supplier contracts were adequately addressed by the merging parties' undertakings and the protections afforded by the Labour Relations Act. The merger would result in a greater spread of ownership and increased B-BBEE...

Citation
[2020] ZACT 22
Parties
Applicant: Harmony Gold Mining Company Ltd; Applicant: Harmony Moab Khotsong Operations (Pty) Ltd; Applicant: Golden Core Trade & Invest (Pty) Ltd; Respondent: The remaining gold mining South African operations of AngloGold Ashanti Ltd
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
27 May 2020
Case Number
LM171Mar20
Procedural Posture
Large Merger / Approval
Outcome
Merger approved unconditionally.
Judges
Y Carrim, A Ndoni, F Tregenna
Legal Topics
Large Merger Review, Horizontal Overlap, Public Interest, B Bbee Shareholding, Retrenchment Moratorium
Competition Law Commercial and Corporate Large Merger Review Horizontal Overlap Public Interest B Bbee Shareholding Retrenchment Moratorium

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Parties

Harmony Gold Mining Company Ltd

Applicant

Harmony Moab Khotsong Operations (Pty) Ltd

Applicant

Golden Core Trade & Invest (Pty) Ltd

Applicant

The remaining gold mining South African operations of AngloGold Ashanti Ltd

Respondent

Procedural Posture

Large Merger / Approval

Legal Issues

  1. 1 Whether the proposed merger would substantially lessen or prevent competition in the relevant markets.
  2. 2 Whether the merger raises any public interest concerns, including employment and ownership by historically disadvantaged persons.
  3. 3 Whether the merger should be approved with or without conditions.

Ratio Decidendi

The Tribunal found that the proposed merger would not substantially lessen or prevent competition in the international markets for gold and silver, as the merged entity's market share would remain low and the markets are highly fragmented. No participant's market share exceeded 10%, and competitive constraints would persist post-merger. The Tribunal also found that public interest concerns regarding employment, ownership by historically disadvantaged persons, and supplier contracts were adequately addressed by the merging parties' undertakings and the protections afforded by the Labour Relations Act. The merger would result in a greater spread of ownership and increased B-BBEE...

Court Disposition

Merger approved unconditionally.

Orders

  • The large merger between Harmony Gold Mining Company Ltd, Harmony Moab Khotsong Operations (Pty) Ltd, Golden Core Trade & Invest (Pty) Ltd and the remaining gold mining South African operations of AngloGold Ashanti Ltd is approved without conditions.