MTO Forestry (Pty) Ltd and Others v Competition Commission and Others (10/AM/Feb11) [2012] ZACT 4; [2012] 1 CPLR 201 (CT) (17 January 2012)

MTO Forestry (Pty) Ltd and Others v Competition Commission and Others (10/AM/Feb11) [2012] ZACT 4; [2012] 1 CPLR 201 (CT) (17 January 2012)

The Tribunal held that it lacks jurisdiction to suspend the operation of conditions imposed by the Competition Commission in an intermediate merger approval. The Competition Act does not provide the Tribunal with express or implied powers to grant such interim relief, and the legislative scheme deliberately excludes the Tribunal from this function, reserving it for the Competition Appeal Court. The Tribunal found that allowing suspension of merger conditions would undermine the Commission's enforcement powers and risk anticompetitive harm. The application for suspension was dismissed on the point in limine. Costs were awarded to the respondents due to the unnecessary expense incurred in...

Citation
[2012] ZACT 4
Parties
Applicant: MTO Forestry (Proprietary) Limited; Applicant: Boskor Sawmill (Proprietary) Limited; Applicant: Boskor Ripplant (Proprietary) Limited; Respondent: Competition Commission; Respondent: A.C. Whitcher (Proprietary) Limited; Respondent: PG Bison Limited; Respondent: Steinhoff Southern Cape (Proprietary) Limited; Respondent: Thesen Sawmill (Proprietary) Limited; Respondent: Steinhoff Doors & Building Materials (Proprietary) Limited
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
17 January 2012
Case Number
10/AM/Feb11
Procedural Posture
Interim Application / Application for Temporary Suspension of Merger Conditions Imposed by the Competition Commission
Outcome
Application for temporary suspension of merger conditions dismissed; costs awarded to respondents.
Judges
Lawrence Reyburn, Andreas Wessels, Andiswa Ndoni
Legal Topics
Intermediate Merger Control, Suspension of Merger Conditions, Tribunal Jurisdiction, Administrative Powers, Costs Award
Competition Law Commercial and Corporate Intermediate Merger Control Suspension of Merger Conditions Tribunal Jurisdiction Administrative Powers Costs Award

Case Brief

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Parties

MTO Forestry (Proprietary) Limited

Applicant

Boskor Sawmill (Proprietary) Limited

Applicant

Boskor Ripplant (Proprietary) Limited

Applicant

Competition Commission

Respondent

A.C. Whitcher (Proprietary) Limited

Respondent

PG Bison Limited

Respondent

Steinhoff Southern Cape (Proprietary) Limited

Respondent

Thesen Sawmill (Proprietary) Limited

Respondent

Steinhoff Doors & Building Materials (Proprietary) Limited

Respondent

Procedural Posture

Interim Application / Application for Temporary Suspension of Merger Conditions Imposed by the Competition Commission

Legal Issues

  1. 1 Does the Competition Tribunal have jurisdiction to suspend the operation of conditions imposed by the Competition Commission in an intermediate merger approval?
  2. 2 Are the merging parties entitled to interim relief pending the Tribunal's consideration of the Commission's conditional approval?
  3. 3 Should costs be awarded to the respondents in the suspension application?

Ratio Decidendi

The Tribunal held that it lacks jurisdiction to suspend the operation of conditions imposed by the Competition Commission in an intermediate merger approval. The Competition Act does not provide the Tribunal with express or implied powers to grant such interim relief, and the legislative scheme deliberately excludes the Tribunal from this function, reserving it for the Competition Appeal Court. The Tribunal found that allowing suspension of merger conditions would undermine the Commission's enforcement powers and risk anticompetitive harm. The application for suspension was dismissed on the point in limine. Costs were awarded to the respondents due to the unnecessary expense incurred in...

Court Disposition

Application for temporary suspension of merger conditions dismissed; costs awarded to respondents.

Orders

  • The application for temporary suspension of the conditions imposed by the Competition Commission's second decision is dismissed.
  • The merging parties are ordered to pay the costs of Whitcher and the Steinhoff objectors, including the costs of two counsel.