Johnnic Communications Ltd and New Africa Investments Ltd (54/FN/Oct03) [2003] ZACT 55 (13 October 2003)

Johnnic Communications Ltd and New Africa Investments Ltd (54/FN/Oct03) [2003] ZACT 55 (13 October 2003)

The Tribunal refused to grant the urgent interim relief sought in Part A of the application, finding that the harm apprehended by the applicants had either already occurred or was too vague and general to justify an effective order. The Tribunal noted that the Tiso consortium had already acquired a substantial portion of Nail shares, making the requested interdicts futile. Specific fears regarding expropriation under section 440K of the Companies Act were addressed by undertakings from the respondents, and the remaining harm was not sufficiently established to warrant urgent relief. The Tribunal left open the question of whether the transactions constituted a notifiable merger, directing...

Citation
[2003] ZACT 55
Parties
Applicant: Johnnic Communications Limited; Applicant: Kagiso Media Limited; Applicant: Caxton and CTP Publishers and Printers Limited; Applicant: Terence Desmond Moolman; Respondent: New Africa Investments Limited; Respondent: Investec Bank Limited; Respondent: Safika Holdings (Pty) Limited; Respondent: Capricorn Capital Partners Holding Company (Pty) Limited; Respondent: Multidirect Investments 180 (Pty) Limited; Respondent: Mineworkers Investment Company (Pty) Limited; Respondent: Phaphama Holdings (Pty) Limited; Respondent: The Competition Commission; Respondent: Shares Traded Totally Electronically Limited; Respondent: Nedbank Limited; Respondent: Standard Corporate and Merchant Bank Limited; Respondent: Firstrand Bank Limited; Respondent: ABSA Bank Limited; Respondent: Société Générale Limited; Respondent: Computershare Limited
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
13 October 2003
Case Number
54/FN/Oct03
Procedural Posture
Urgent Application / Interim Relief (part A) and Directions for Further Proceedings (part B)
Outcome
Part A of the application is dismissed. Directions are given for further proceedings under Part B, including filing of papers and setting a hearing date. Costs are reserved.
Judges
N Manoim, P Maponya, L Reyburn
Legal Topics
Merger Notification, Interdict, Acquisition of Control, Section 12 Competition Act, Section 440k Companies Act
Competition Law Commercial and Corporate Merger Notification Interdict Acquisition of Control Section 12 Competition Act Section 440k Companies Act

Case Brief

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Parties

Johnnic Communications Limited

Applicant

Kagiso Media Limited

Applicant

Caxton and CTP Publishers and Printers Limited

Applicant

Terence Desmond Moolman

Applicant

New Africa Investments Limited

Respondent

Investec Bank Limited

Respondent

Safika Holdings (Pty) Limited

Respondent

Capricorn Capital Partners Holding Company (Pty) Limited

Respondent

Multidirect Investments 180 (Pty) Limited

Respondent

Mineworkers Investment Company (Pty) Limited

Respondent

Phaphama Holdings (Pty) Limited

Respondent

The Competition Commission

Respondent

Shares Traded Totally Electronically Limited

Respondent

Nedbank Limited

Respondent

Standard Corporate and Merchant Bank Limited

Respondent

Firstrand Bank Limited

Respondent

ABSA Bank Limited

Respondent

Société Générale Limited

Respondent

Computershare Limited

Respondent

Procedural Posture

Urgent Application / Interim Relief (part A) and Directions for Further Proceedings (part B)

Legal Issues

  1. 1 Whether the transactions implemented by the Tiso consortium constitute a notifiable merger under the Competition Act.
  2. 2 Whether urgent interim relief (Part A) should be granted to interdict further implementation of the transaction.
  3. 3 Whether the Tribunal has jurisdiction to grant the relief sought.

Ratio Decidendi

The Tribunal refused to grant the urgent interim relief sought in Part A of the application, finding that the harm apprehended by the applicants had either already occurred or was too vague and general to justify an effective order. The Tribunal noted that the Tiso consortium had already acquired a substantial portion of Nail shares, making the requested interdicts futile. Specific fears regarding expropriation under section 440K of the Companies Act were addressed by undertakings from the respondents, and the remaining harm was not sufficiently established to warrant urgent relief. The Tribunal left open the question of whether the transactions constituted a notifiable merger, directing...

Court Disposition

Part A of the application is dismissed. Directions are given for further proceedings under Part B, including filing of papers and setting a hearing date. Costs are reserved.

Orders

  • Part A of the application is dismissed.
  • The Competition Commission is required to file answering papers by 15 October 2003, stating its considered view on whether the transaction constitutes a notifiable merger.