Nedbank Limited and Another v DiverCity Urban Property Fund (Pty) Ltd (LM083Jun18) [2018] ZACT 81 (23 October 2018)

Nedbank Limited and Another v DiverCity Urban Property Fund (Pty) Ltd (LM083Jun18) [2018] ZACT 81 (23 October 2018)

The Tribunal found that the Competition Commission failed to demonstrate that Nedbank or RMHP control other property firms that directly compete with DiverCity. The evidence showed that the property asset classes and market segments of the acquiring firms are differentiated from those of DiverCity, making the risk of collusive information exchange implausible. The Commission conceded that its investigation did not extend to direct competition between the parties. As a result, the Tribunal concluded that there was no plausible theory of harm and that the imposition of conditions to prevent information exchange was unnecessary. Furthermore, the merger did not raise any public interest...

Citation
[2018] ZACT 81
Parties
Applicant: Nedbank Limited; Applicant: RMH Property Holdco 5 (Pty) Ltd; Respondent: DiverCity Urban Property Fund (Pty) Ltd
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
23 October 2018
Case Number
LM083Jun18
Procedural Posture
Merger Application / Final Approval Hearing
Outcome
Merger approved unconditionally.
Judges
Norman Manoim, Yasmin Carrim, Medi Mokuena
Legal Topics
Merger Control, Information Sharing, Public Interest, Joint Control
Competition Law Commercial and Corporate Merger Control Information Sharing Public Interest Joint Control

Case Brief

Summary, issues, holding and outcome

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Parties

Nedbank Limited

Applicant

RMH Property Holdco 5 (Pty) Ltd

Applicant

DiverCity Urban Property Fund (Pty) Ltd

Respondent

Procedural Posture

Merger Application / Final Approval Hearing

Legal Issues

  1. 1 Whether the proposed merger would substantially prevent or lessen competition in any relevant market.
  2. 2 Whether the merger raises concerns regarding information exchange between the acquiring firms and the target.
  3. 3 Whether any public interest concerns arise from the proposed transaction.

Ratio Decidendi

The Tribunal found that the Competition Commission failed to demonstrate that Nedbank or RMHP control other property firms that directly compete with DiverCity. The evidence showed that the property asset classes and market segments of the acquiring firms are differentiated from those of DiverCity, making the risk of collusive information exchange implausible. The Commission conceded that its investigation did not extend to direct competition between the parties. As a result, the Tribunal concluded that there was no plausible theory of harm and that the imposition of conditions to prevent information exchange was unnecessary. Furthermore, the merger did not raise any public interest...

Court Disposition

Merger approved unconditionally.

Orders

  • The proposed transaction is approved without conditions.
  • No restrictions or conditions are imposed regarding cross directorships or information exchange.