Hyprop Investment Ltd and Another v Attfund Retail Ltd and Another (05/LM/Jan11) [2011] ZACT 25 (4 May 2011)

Hyprop Investment Ltd and Another v Attfund Retail Ltd and Another (05/LM/Jan11) [2011] ZACT 25 (4 May 2011)

The Tribunal found that the relevant markets for rentable retail and office space are highly fragmented, with more than five active competitors. Tenants possess countervailing power due to the availability of alternative centres. The vertical overlap relating to marketing services does not raise foreclosure concerns, as the merged entity's market shares are low and the markets remain competitive. No public interest issues arise from the transaction. Accordingly, the Tribunal concluded that the merger is unlikely to substantially prevent or lessen competition and approved the transaction unconditionally.

Citation
[2011] ZACT 25
Parties
Applicant: Hyprop Investment Limited; Applicant: Atterbury Investment Holdings; Respondent: Attfund Retail Limited; Respondent: Mentrablox (Pty) Limited
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
4 May 2011
Case Number
05/LM/Jan11
Procedural Posture
Merger Application / Approval
Outcome
Merger approved unconditionally.
Judges
Norman Manoim, Andreas Wessels, Yasmin Carrim
Legal Topics
Merger Control, Horizontal Overlap, Vertical Overlap, Market Fragmentation, Public Interest
Competition Law Merger Control Horizontal Overlap Vertical Overlap Market Fragmentation Public Interest

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Parties

Hyprop Investment Limited

Applicant

Atterbury Investment Holdings

Applicant

Attfund Retail Limited

Respondent

Mentrablox (Pty) Limited

Respondent

Procedural Posture

Merger Application / Approval

Legal Issues

  1. 1 Whether the proposed merger would substantially prevent or lessen competition in the relevant market.
  2. 2 Whether any public interest concerns arise from the transaction.

Ratio Decidendi

The Tribunal found that the relevant markets for rentable retail and office space are highly fragmented, with more than five active competitors. Tenants possess countervailing power due to the availability of alternative centres. The vertical overlap relating to marketing services does not raise foreclosure concerns, as the merged entity's market shares are low and the markets remain competitive. No public interest issues arise from the transaction. Accordingly, the Tribunal concluded that the merger is unlikely to substantially prevent or lessen competition and approved the transaction unconditionally.

Court Disposition

Merger approved unconditionally.

Orders

  • The proposed transaction is approved unconditionally.