Thabong Coal (Pty) Ltd v Competition Commission of South Africa (LM144Jan20; VAR197Mar23) [2023] ZACT 51 (31 March 2023)
- Citation
- [2023] ZACT 51
- Status
- Order
- Jurisdiction
- South Africa
- Court
- Competition Tribunal
- Panel
- AW Wessels, M Mazwai, S Goga
- Case number
- LM144Jan20/VAR197Mar23
More details
- Court
- Competition Tribunal
- Panel
- AW Wessels, M Mazwai, S Goga
- Case number
- LM144Jan20/VAR197Mar23
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Tribunal found that, as the application was unopposed and the transfer of shares would result in Seriti Resources Holdings (Pty) Ltd assuming the relevant interests, it was appropriate for the obligations imposed by the original merger conditions on Thabong Coal (Pty) Ltd to transfer to Seriti Resources Holdings (Pty) Ltd upon the share transfer. The order ensures that the regulatory obligations continue to bind the party with the relevant control and interest in Seriti Power (Pty) Ltd.
Court disposition
The application for variation of merger conditions is granted.
Orders
- Any obligations imposed on Thabong Coal (Pty) Ltd by the merger conditions will transfer to Seriti Resources Holdings (Pty) Ltd on the date Thabong Coal (Pty) Ltd transfers its shares in Seriti Power (Pty) Ltd to Seriti Resources Holdings (Pty) Ltd.
02
Material facts
Parties
Thabong Coal (Pty) Ltd
ApplicantSouth32 SA Coal Holdings (Pty) Ltd
ApplicantSeriti Resources Holdings (Pty) Ltd
ApplicantCompetition Commission of South Africa
Respondent03
Procedural history
Posture
Variation Application / Order on Unopposed Application for Variation of Merger Conditions
04
Questions and positions
Legal issues
Whether the obligations imposed by the original merger conditions should transfer from Thabong Coal (Pty) Ltd to Seriti Resources Holdings (Pty) Ltd upon the transfer of shares in Seriti Power (Pty) Ltd.
Party arguments
- Applicant
- The applicants submitted an unopposed application requesting that any obligations imposed on Thabong Coal (Pty) Ltd by the merger conditions should transfer to Seriti Resources Holdings (Pty) Ltd when Thabong Coal (Pty) Ltd transfers its shares in Seriti Power (Pty) Ltd to Seriti Resources Holdings (Pty) Ltd.
- Respondent
- The Competition Commission did not oppose the application for the variation of the merger conditions.
05
Court’s reasoning
Legal principles
- 01
Competition Act, 89 of 1998
Merger conditions may be varied by the Tribunal where circumstances change and the parties apply for such variation.
- 02
Competition Tribunal precedent
Obligations imposed by merger conditions may transfer to another party if the Tribunal so orders, particularly where the underlying shareholding or control changes.
06
Ratio, limits and disposition
Ratio decidendi
The Tribunal found that, as the application was unopposed and the transfer of shares would result in Seriti Resources Holdings (Pty) Ltd assuming the relevant interests, it was appropriate for the obligations imposed by the original merger conditions on Thabong Coal (Pty) Ltd to transfer to Seriti Resources Holdings (Pty) Ltd upon the share transfer. The order ensures that the regulatory obligations continue to bind the party with the relevant control and interest in Seriti Power (Pty) Ltd.
Court disposition
The application for variation of merger conditions is granted.
- Any obligations imposed on Thabong Coal (Pty) Ltd by the merger conditions will transfer to Seriti Resources Holdings (Pty) Ltd on the date Thabong Coal (Pty) Ltd transfers its shares in Seriti Power (Pty) Ltd to Seriti Resources Holdings (Pty) Ltd.
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: LM144Jan20/VAR197Mar23
In the matter between:
Thabong Coal (Pty) Ltd First
Applicant
South32 SA Coal Holdings (Pty) Ltd Second
Applicant
Seriti Resources Holdings (Pty) Ltd Third
Applicant
And
Competition Commission of South Africa Respondent
Panel: AW Wessels (Presiding Member)
M Mazwai (Tribunal Panel Member)
S Goga (Tribunal Panel Member)
Heard on: 31 March 2023
Decided on: 31 March 2023
Order
Having considered the unopposed application for the variation of the Conditions imposed by the Competition Tribunal in the merger between Thabong Coal (Pty) Ltd and South32 SA Coal Holdings (Pty) Ltd, Tribunal case number LM144Jan20, (“the Conditions”), it is ordered that:
1. To the extent that the Conditions impose any obligation on Thabong Coal (Pty) Ltd, such obligations will transfer to Seriti Resources
Holdings (Pty) Ltd on the date on which Thabong Coal (Pty) Ltd transfers the shares that it holds in Seriti Power (Pty) Ltd (formerly South32 SA Coal Holdings (Pty) Ltd) to Seriti Resources Holdings (Pty) Ltd.
Presiding Member Mr Andreas Wessels
Concurring: Ms Mondo Mazwai and Ms Shaista Goga
Date: 31 March 2023
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