Vodacom Proprietary Limited and Another v Frogfoot Networks Proprietary Limited and Another (5 February 2024) (LM148Dec21 / CNF 119 Nov 23) [2024] ZACT 4 (5 February 2024)
- Citation
- [2024] ZACT 4
- Status
- Order
- Jurisdiction
- South Africa
- Court
- Competition Tribunal
- Panel
- Andreas Wessels, Thando Vilakazi, Anisa Kessery
- Case number
- LM148Dec21 / CNF 119 Nov 23
More details
- Court
- Competition Tribunal
- Panel
- Andreas Wessels, Thando Vilakazi, Anisa Kessery
- Case number
- LM148Dec21 / CNF 119 Nov 23
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Tribunal held that the merger parties' independent advisors are entitled to access all information claimed as confidential by Frogfoot in the Competition Commission's merger report, provided they sign confidentiality undertakings. The Tribunal established a regime whereby such information must be made available for inspection in unredacted form, with unrestricted rights of inspection and note-taking, and in locations convenient to the advisors. If Frogfoot refuses access to specific information, it must provide reasons within five business days, and the merger parties may approach the Tribunal on an urgent basis for relief. The Tribunal found that this approach balances the need for fairness in the proceedings with the protection of Frogfoot's confidential commercial interests.
Court disposition
Order granted regulating access to confidential information in merger proceedings.
Orders
- Frogfoot must provide the merger parties' independent advisors who have signed confidentiality undertakings with access to all information claimed as confidential in the Competition Commission's merger report.
- The Competition Commission is permitted to provide such advisors with access to unredacted copies of all relevant paragraphs in its merger report.
- For other confidential information, Frogfoot must make it available for inspection in unredacted form, with unrestricted rights of inspection and note-taking, in Johannesburg, Stellenbosch, and London.
- Frogfoot must respond to requests for access within five business days, stating reasons for any refusal.
- The merger parties may approach the Tribunal on an urgent basis to seek access if refused.
- No order as to costs.
02
Material facts
Parties
Vodacom Proprietary Limited
Applicant Counsel: Adv Jerome Wilson SC, Adv Duncan Turner, Adv Phumlani Ngcongo, Adv Lerato ZikalalaBusiness Venture Investments No 2213 Proprietary Limited
Applicant Counsel: Adv Jerome Wilson SC, Adv Duncan Turner, Adv Phumlani Ngcongo, Adv Lerato ZikalalaFrogfoot Networks Proprietary Limited
Respondent Counsel: Adv Shannon QuinnCompetition Commission of South Africa
Respondent Counsel: Candice Slump, Mpumi Tshabalala, Omphemetse Kgaladi, Tshegofatso Koma03
Procedural history
Posture
Competition Law Application / Order on Confidentiality and Access to Information in Merger Proceedings
04
Questions and positions
Legal issues
- 01
Whether the merger parties' independent advisors are entitled to access information claimed as confidential by Frogfoot in the Competition Commission's merger report.
- 02
What regime should govern inspection and access to confidential information in the context of merger proceedings before the Competition Tribunal.
- 03
Whether Frogfoot's refusal to provide access to certain confidential information is justified and what recourse is available to the merger parties.
Party arguments
- Applicant
- The applicants argued that their independent legal and economic advisors require access to all information claimed as confidential by Frogfoot in the Competition Commission's merger report to properly prepare for the merger proceedings. They submitted that such access is necessary for a fair hearing and that appropriate confidentiality undertakings can safeguard Frogfoot's interests. The applicants requested that the Tribunal order Frogfoot to provide unredacted information to their advisors and permit the Commission to do likewise.
- Respondent
- Frogfoot contended that certain information in the merger report is highly sensitive and confidential, and unrestricted access could prejudice its commercial interests. Frogfoot argued that inspection should be limited and subject to strict confidentiality undertakings. It further submitted that it should retain discretion to refuse access to specific information and provide reasons for such refusal, with the Tribunal available to resolve any disputes.
05
Court’s reasoning
Legal principles
- 01
Competition Act 89 of 1998
Confidential information in merger proceedings may be disclosed to independent advisors subject to appropriate confidentiality undertakings to ensure fairness while protecting commercial interests.
- 02
Competition Tribunal Rules
The Tribunal may determine the appropriate regime for inspection and access to confidential information, balancing the rights of the parties and the need for effective adjudication.
06
Ratio, limits and disposition
Ratio decidendi
The Tribunal held that the merger parties' independent advisors are entitled to access all information claimed as confidential by Frogfoot in the Competition Commission's merger report, provided they sign confidentiality undertakings. The Tribunal established a regime whereby such information must be made available for inspection in unredacted form, with unrestricted rights of inspection and note-taking, and in locations convenient to the advisors. If Frogfoot refuses access to specific information, it must provide reasons within five business days, and the merger parties may approach the Tribunal on an urgent basis for relief. The Tribunal found that this approach balances the need for fairness in the proceedings with the protection of Frogfoot's confidential commercial interests.
Obiter and limits
- The Tribunal emphasised that confidentiality undertakings are a sufficient safeguard for the protection of sensitive information in merger proceedings.
- The Tribunal noted that the ability to approach the Tribunal on an urgent basis provides an effective remedy for disputes over access to confidential information.
Court disposition
Order granted regulating access to confidential information in merger proceedings.
- Frogfoot must provide the merger parties' independent advisors who have signed confidentiality undertakings with access to all information claimed as confidential in the Competition Commission's merger report.
- The Competition Commission is permitted to provide such advisors with access to unredacted copies of all relevant paragraphs in its merger report.
- For other confidential information, Frogfoot must make it available for inspection in unredacted form, with unrestricted rights of inspection and note-taking, in Johannesburg, Stellenbosch, and London.
- Frogfoot must respond to requests for access within five business days, stating reasons for any refusal.
- The merger parties may approach the Tribunal on an urgent basis to seek access if refused.
- No order as to costs.
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.: LM148Dec21 / CNF 119 Nov 23
In the matter between:
VODACOM
PROPRIETARY LIMITED First Applicant
BUSINESS
VENTURE INVESTMENTS NO 2213
PROPRIETARY LIMITED Second Applicant And
FROGFOOT
NETWORKS PROPRIETARY LIMITED First Respondent
THE
COMPETITION COMMISSION OF SOUTH AFRICA Second Respondent In re the large merger between:
VODACOM
PROPRIETARY LIMITED Primary Acquiring Firm And
BUSINESS
VENTURE INVESTMENTS NO 2213
PROPRIETARY LIMITED Primary Target Firm
ORDER
Having heard counsel for the merging parties and the first respondent, Frogfoot Networks Proprietary Limited (“Frogfoot”), the Competition Tribunal orders as follows:
1. “Access”, for purposes of this order, means the provision of copies of Frogfoot's data and documents, and of the relevant paragraphs of the Competition Commission’s referral, to the merger parties' external legal representatives and independent economic experts (“independent advisors”) for use at their own offices and at the Competition Tribunal. Copies of any Excel documents must be provided in open-file electronic format.
2. Frogfoot is ordered to provide the merger parties' independent advisors who have signed confidentiality undertakings in the form attached to the application (ALG3) with access to all the information contained in, referred to, or relied upon in the Competition Commission’s merger report that is claimed as confidential by Frogfoot; and to permit the Competition Commission to provide such independent advisors with access to unredacted copies of all paragraphs in its merger report containing such information.
3. In respect of all information claimed as confidential by Frogfoot that does not fall within 2 above, the following regime will apply:
3.1. Subject to the provision of confidentiality undertakings, Frogfoot will make available for inspection to the merger parties’ independent advisors, all such information.
3.2. The information referred to in paragraph 3.1 above shall be:
3.2.1 in unredacted form, with the merger parties’ independent advisors having unrestricted rights of inspection and the right to take notes;
3.2.2 available for inspection for a sufficient period of time to enable the merger parties’ independent advisors to engage meaningfully with the information and to determine its relevance to the merger proceedings;
3.2.3 available in hard copy or in soft copy, as required by the merger parties’ independent advisors; and
3.2.4 made available by Frogfoot for inspection in Johannesburg, Stellenbosch and in London.
3.3. Following the exercise by the merger parties’ independent advisors of the unrestricted inspection rights referred to above, such advisors shall identify the information (if any) to which they require access (as defined above) and state why access is required.
3.4. Frogfoot undertakes to consider any such request in good faith and shall indicate within five business days upon receipt of any such request whether or not it is willing to provide the merger parties’ independent advisors with access to the information in question.
3.5. Insofar as Frogfoot is willing to provide the merger parties’ independent advisors with access to all or any of the information in
question, they shall immediately permit the Competition Commission to provide such advisors with access to the relevant information.
3.6. Insofar as Frogfoot is not willing to provide the merger parties’ independent advisors with access to all or any of the information in question, Frogfoot shall provide the reasons for its refusal within five business days upon receipt of any such request for access from the merger parties.
3.7. The merger parties shall be entitled to approach the Competition Tribunal on an urgent basis in order to seek such access.
4. There is no order as to costs.
Presiding Member
5 February 2024
Mr Andreas Wessels
Date
Concurring: Prof Thando Vilakazi and Ms Anisa Kessery
Tribunal case managers: Theodora Michaletos and Sinethemba Mbeki For the First and Second Applicants: Adv Jerome Wilson SC assisted by Adv Duncan Turner, Adv Phumlani Ngcongo, and Adv Lerato Zikalala instructed by Andries Le Grange of Cliffe Dekker Hofmeyr Inc and Janine Simpson of DLA Piper For the First Respondent: Adv Shannon Quinn instructed by Michael-James Currie of Primerio International For the Commission: Candice Slump, Mpumi Tshabalala, Omphemetse Kgaladi and Tshegofatso Koma
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