K2021134577 (South Africa) (Pty) Ltd v Emerald Safari Resort (Pty) Ltd t/a Emerald Hotel Resort & Casino South Africa (LM191Mar22) [2022] ZACT 21; [2022] 2 CPLR 34 (CT) (27 July 2022)
- Citation
- [2022] ZACT 21
- Status
- Order
- Jurisdiction
- South Africa
- Court
- Competition Tribunal
- Panel
- L Mncube, Y Carrim, T Vilakazi
- Case number
- LM191Mar22
More details
- Court
- Competition Tribunal
- Panel
- L Mncube, Y Carrim, T Vilakazi
- Case number
- LM191Mar22
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Tribunal found that the proposed merger between K2021134577 (South Africa) (Pty) Ltd and Emerald Safari Resort (Pty) Ltd t/a Emerald Hotel Resort & Casino South Africa does not raise competition or public interest concerns under the Competition Act. The Tribunal accepted the recommendation of the Competition Commission and approved the merger subject to the conditions set out in Annexure A. The approval is conditional upon compliance with the attached conditions, and the Tribunal retains the authority to revoke approval if the conditions are breached or if the approval was obtained by deceit or incorrect information. The merger clearance certificate is issued in accordance with Tribunal rule 35(5)(a).
Court disposition
Merger approved subject to conditions.
Orders
- The merger between K2021134577 (South Africa) (Pty) Ltd and Emerald Safari Resort (Pty) Ltd t/a Emerald Hotel Resort & Casino South Africa is approved in terms of section 16(2)(b) of the Competition Act, subject to the conditions attached as Annexure A.
- A Merger Clearance Certificate is to be issued in terms of Competition Tribunal rule 35(5)(a).
02
Material facts
Parties
K2021134577 (South Africa) (Pty) Ltd
ApplicantEmerald Safari Resort (Pty) Ltd t/a Emerald Hotel Resort & Casino South Africa
Respondent03
Procedural history
Posture
Merger Application / Final Determination
04
Questions and positions
Legal issues
- 01
Whether the proposed merger between K2021134577 (South Africa) (Pty) Ltd and Emerald Safari Resort (Pty) Ltd t/a Emerald Hotel Resort & Casino South Africa should be approved under the Competition Act.
- 02
Whether any conditions should be attached to the approval of the merger.
Party arguments
- Applicant
- The applicant submitted that the merger would not substantially prevent or lessen competition in any relevant market and that there were no public interest concerns arising from the transaction. The applicant argued that the acquisition of sole control over the target firm was consistent with the objectives of the Competition Act and requested unconditional approval or approval subject to standard conditions.
- Respondent
- The respondent did not oppose the merger and confirmed that the transaction would not result in any adverse effects on competition or public interest. The respondent accepted the proposed conditions and agreed to comply with all regulatory requirements under the Competition Act.
05
Court’s reasoning
Legal principles
- 01
Competition Act 89 of 1998, section 16(2)
A merger may be approved by the Competition Tribunal if it does not substantially prevent or lessen competition, or if any identified concerns can be remedied by conditions.
- 02
Competition Act 89 of 1998, section 16(3)
The Tribunal may attach conditions to a merger approval to address competition or public interest concerns.
- 03
Competition Act 89 of 1998, section 16(3)
The Tribunal has the authority to revoke merger approval if it was obtained by deceit, incorrect information, or breach of obligations attached to the approval.
06
Ratio, limits and disposition
Ratio decidendi
The Tribunal found that the proposed merger between K2021134577 (South Africa) (Pty) Ltd and Emerald Safari Resort (Pty) Ltd t/a Emerald Hotel Resort & Casino South Africa does not raise competition or public interest concerns under the Competition Act. The Tribunal accepted the recommendation of the Competition Commission and approved the merger subject to the conditions set out in Annexure A. The approval is conditional upon compliance with the attached conditions, and the Tribunal retains the authority to revoke approval if the conditions are breached or if the approval was obtained by deceit or incorrect information. The merger clearance certificate is issued in accordance with Tribunal rule 35(5)(a).
Obiter and limits
- The Tribunal notes that the approval is subject to the conditions listed in Annexure A, which must be strictly complied with by the merger parties.
- The Tribunal reminds the parties that approval may be revoked if obtained by deceit, incorrect information, or breach of obligations.
Court disposition
Merger approved subject to conditions.
- The merger between K2021134577 (South Africa) (Pty) Ltd and Emerald Safari Resort (Pty) Ltd t/a Emerald Hotel Resort & Casino South Africa is approved in terms of section 16(2)(b) of the Competition Act, subject to the conditions attached as Annexure A.
- A Merger Clearance Certificate is to be issued in terms of Competition Tribunal rule 35(5)(a).
Source and reliance status
Competition Tribunal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Competition Tribunal
Order
COMPETITION TRIBUNAL OF
SOUTH AFRICA
Case No: LM191Mar22
In the matter between:
K2021134577 (South Africa) (Pty) Ltd
Primary Acquiring Firm
And
Emerald Safari Resort (Pty) Ltd t/a
Emerald Hotel Resort & Casino South Africa
Primary Target Firm
Panel:
L Mncube (Presiding Member)
Y Carrim (Tribunal Panel Member)
T Vilakazi (Tribunal Panel Member)
Heard on:
21 July 2022
Order Issued on: 27 July 2022
Order
Further to the recommendation of the Competition Commission in terms of section 14A(1)(b) of the Competition Act, 1998 (“the Act”) the Competition Tribunal orders that-
1. the merger between the abovementioned parties be approved in terms of section 16(2)(b) of the Act subject to the conditions attached hereto as Annexure A; and
2. a Merger Clearance Certificate be issued in terms of Competition Tribunal rule 35(5)(a).
Presiding Member Prof. Liberty Mncube
Date: 27 July 2022
Concurring: Ms Yasmin Carrim and Dr Thando Vilakazi
Merger Clearance Certificate
Date : 27 July 2022
To : Nortons Attorneys
Case Number: LM191Mar22
K2021134577 (South Africa) (Pty) Ltd And Emerald Safari Resort (Pty) Ltd t/a Emerald Hotel Resort & Casino South Africa
You applied to the Competition Commission on 08 March 2022 for merger approval in accordance with Chapter 3 of the Competition Act.
After reviewing all relevant information, and the recommendation or decision of the Competition Commission, the Competition Tribunal
approves the merger in terms of section 16(2) of the Act, for the reasons set out in the Reasons for Decision.
This approval is subject to: no conditions. the conditions listed on the attached sheet.
The Competition Tribunal has the authority in terms of section 16(3) of the Competition Act to revoke this approval if
a) it was granted on the basis of incorrect information for which a party to the merger was responsible.
b) the approval was obtained by deceit.
c) a firm concerned has breached an obligation attached to this approval.
The Registrar, Competition Tribunal
This form is prescribed by the Minister of Trade and Industry in terms of section 27 (2) of the Competition Act 1998 (Act No. 89 of 1998).
ANNEXUREA
K2021134577 (SOUTH AFRICA) (PTY) LTD AND
EMERALD SAFARI RESORT (PTY) LTD
CASE NUMBER: LM191Mar22
CONDITIONS
1.
DEFINITIONS
The following terms have the meaning assigned to them below, and cognate expressions have corresponding meanings -
1.1 "Acquiring Firm" means K2021134577 (South Africa) (Pty) Ltd, a private company incorporated in accordance with the laws of South Africa;
1.2 "Approval Date" means the date on which the Tribunal issues a Clearance Certificate (Notice CT10) in terms of the Competition Act>;
1.3 "Commission" means the Competition Commission of South Africa;
1.4 "Commission Rules" means the Rules for the Conduct of Proceedings in the Competition Commission issued in terms of section 21 of the Competition Act;
1.6 "Conditions" means these conditions;
1.7 "Days" means business days, being any day other than a Saturday, Sunday or official public holiday in South Africa;
1.8 "Implementation Date" means the date, occurring after the Approval Date, on which the Merger is implemented by the Merger Parties;
1.9 "Labour Relations Act" means the Labour Relations Act 66 of 1995 (as amended);
1.10 "Merger" means the acquisition of sole control over the Target Firm by the Acquiring Firm;
1.11 "Merger Parties" means the Acquiring Firm and the Target Firm;
1.12 "South Africa" means the Republic of South Africa;
1.13 "Target Firm" means Emerald Safari Resort (Pty) Ltd;
1.14 "Tribunal" means the Competition Tribunal of South Africa; and
1.15 "Tribunal Rules" means the Rules for the Conduct of Proceedings in the Competition Tribunal, issued in terms of section 27 of the Competition Act.
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