Sibanye Platinum Bermuda(Pty)Ltd v Aquarius Platinum Ltd (LM186Nov15) [2016] ZACT 50; [2016] 1 CPLR 237 (CT) (16 March 2016)

Sibanye Platinum Bermuda(Pty)Ltd v Aquarius Platinum Ltd (LM186Nov15) [2016] ZACT 50; [2016] 1 CPLR 237 (CT) (16 March 2016)

The Tribunal found that both mergers would not substantially prevent or lessen competition in the relevant markets, as the merged entities' market shares in gold, silver, and PGMs would remain low. The Tribunal acknowledged significant public interest concerns, particularly regarding employment and BEE procurement. It determined that the merging parties had followed a rational process in identifying potential job losses and that a 24-month moratorium on retrenchments, limited to specified categories, was appropriate. The Tribunal rejected proposals for indefinite or three-year moratoriums, finding them impractical. Regarding BEE procurement, the Tribunal held that compliance with the...

Citation
[2016] ZACT 50
Parties
Applicant: Sibanye Platinum Bermuda (Pty) Ltd; Respondent: Aquarius Platinum Ltd; Respondent: Rustenburg Mines (a division of Rustenburg Platinum Mines Ltd); Respondent: United Association of South Africa (UASA); Respondent: Solidarity; Respondent: Association of Mineworkers and Construction Union (AMCU); Respondent: National Union of Mineworkers (NUM)
Court
Competition Tribunal
Jurisdiction
South Africa
Judgment Date
16 March 2016
Case Number
LM186Nov15
Procedural Posture
Merger Control / Conditional Approval After Hearing
Outcome
Merger conditionally approved subject to employment and BEE procurement conditions.
Judges
Norman Manoim, Anton Roskam, Medi Mokuena
Legal Topics
Merger Control, Public Interest Conditions, Employment Protection, Bee Procurement, Mining Charter Compliance
Competition Law Commercial and Corporate Merger Control Public Interest Conditions Employment Protection Bee Procurement Mining Charter Compliance

Case Brief

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Parties

Sibanye Platinum Bermuda (Pty) Ltd

Applicant

Aquarius Platinum Ltd

Respondent

Rustenburg Mines (a division of Rustenburg Platinum Mines Ltd)

Respondent

United Association of South Africa (UASA)

Respondent

Solidarity

Respondent

Association of Mineworkers and Construction Union (AMCU)

Respondent

National Union of Mineworkers (NUM)

Respondent

Procedural Posture

Merger Control / Conditional Approval After Hearing

Legal Issues

  1. 1 Whether the proposed mergers are likely to substantially prevent or lessen competition in any relevant market.
  2. 2 Whether the mergers raise significant public interest concerns, specifically regarding employment and BEE procurement.
  3. 3 What employment conditions and BEE procurement obligations should be imposed as part of merger approval.

Ratio Decidendi

The Tribunal found that both mergers would not substantially prevent or lessen competition in the relevant markets, as the merged entities' market shares in gold, silver, and PGMs would remain low. The Tribunal acknowledged significant public interest concerns, particularly regarding employment and BEE procurement. It determined that the merging parties had followed a rational process in identifying potential job losses and that a 24-month moratorium on retrenchments, limited to specified categories, was appropriate. The Tribunal rejected proposals for indefinite or three-year moratoriums, finding them impractical. Regarding BEE procurement, the Tribunal held that compliance with the...

Court Disposition

Merger conditionally approved subject to employment and BEE procurement conditions.

Orders

  • The merging parties shall limit retrenchments to specified categories of employees for 24 months from the implementation date.
  • Retrenchments as a result of potential consolidation shall be limited to identified employees only.