Nedbank Ltd v Imperial Bank Ltd (70/LM/Oct09) [2010] ZACT 2; [2009] 2 CPLR 442 (CT) (12 January 2010)

Nedbank Ltd v Imperial Bank Ltd (70/LM/Oct09) [2010] ZACT 2; [2009] 2 CPLR 442 (CT) (12 January 2010)

The Tribunal found that the proposed merger would result in the loss of approximately 464 jobs, which is substantial in absolute terms and merger-specific, as confirmed by evidence from Imperial Bank's human resource manager. The Tribunal rejected the Commission's percentage-based approach to assessing public interest impact, emphasizing that the Competition Act requires consideration of the actual number of jobs lost. The Tribunal accepted the retrenchment agreement reached between Nedbank and the trade unions but found its enforcement provisions weak. Therefore, the Tribunal imposed a condition requiring adherence to the agreement to protect public interest. The merger was approved...

Citation
[2010] ZACT 2
Parties
Applicant: Nedbank Ltd; Respondent: Imperial Bank Ltd
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
12 January 2010
Case Number
70/LM/Oct09
Procedural Posture
Merger Control / Tribunal Approval With Conditions
Outcome
Merger conditionally approved subject to adherence to the retrenchment agreement with trade unions.
Judges
N Manoim, A Wessels, Y Carrim
Legal Topics
Merger Control, Public Interest Employment, Market Share Analysis, Minority Protections, Retrenchment Agreements
Competition Law Banking and Finance Merger Control Public Interest Employment Market Share Analysis Minority Protections Retrenchment Agreements

Case Brief

Summary, issues, holding and outcome

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Parties

Nedbank Ltd

Applicant

Imperial Bank Ltd

Respondent

Procedural Posture

Merger Control / Tribunal Approval With Conditions

Legal Issues

  1. 1 Whether the proposed merger between Nedbank Ltd and Imperial Bank Ltd should be approved under the Competition Act.
  2. 2 Whether the anticipated retrenchment of employees constitutes a substantial and merger-specific public interest concern.
  3. 3 Whether the agreement between Nedbank and trade unions adequately protects affected employees.

Ratio Decidendi

The Tribunal found that the proposed merger would result in the loss of approximately 464 jobs, which is substantial in absolute terms and merger-specific, as confirmed by evidence from Imperial Bank's human resource manager. The Tribunal rejected the Commission's percentage-based approach to assessing public interest impact, emphasizing that the Competition Act requires consideration of the actual number of jobs lost. The Tribunal accepted the retrenchment agreement reached between Nedbank and the trade unions but found its enforcement provisions weak. Therefore, the Tribunal imposed a condition requiring adherence to the agreement to protect public interest. The merger was approved...

Court Disposition

Merger conditionally approved subject to adherence to the retrenchment agreement with trade unions.

Orders

  • The merger between Nedbank Ltd and Imperial Bank Ltd is approved subject to the conditions set out in Annexure A, requiring adherence to the retrenchment agreement reached with trade unions.
  • The merging parties must implement measures to ameliorate the employment consequences of the merger as committed during the hearing.