LATEST DECISIONS BY THE COMPETITION COMMISSION

Retailability (Pty) Ltd (Retailability)/ Parts of the Edgars business conducted by Edcon Ltd (Edcon) in South Africa, as a going concern, consisting of certain assets and liabilities (Edgars Business)

The Commission has recommended that the Competition Tribunal (Tribunal) approve the proposed transaction whereby Retailability intends to acquire parts of the Edgars business conducted by Edcon in South Africa (Edgars Business) with conditions.

Retailability is a retailer of clothing apparel. Retailability owns retail stores trading under the names “Beaver Canoe”, “Style” and “Legit”. In addition, Retailability also sells colour cosmetics and cellular products.

The Edgars Business comprises around a certain number of Edgars clothing stores across South Africa. The target stores also operate Edgars Home and Edgars Beauty stores as store-in-store formats. The Edgars Business also sells cellular products and insurance products.

The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. The Commission further found that the proposed transaction is save a significant number of jobs.

SACCAWU has however raised certain public interest issues which the merging parties have agreed to address in the form of merger conditions. In light of the above, the Commission recommends that the proposed transaction be approved subject to certain employment related conditions.

AFGRI AGRI Services (Pty) Ltd (AFGRI)/ Certain assets and businesses owned by Hinterland Holdings (Pty) Ltd and its subsidiaries (“Hinterland”)

The Commission has recommended that the Competition Tribunal (Tribunal) conditionally approve the proposed transaction whereby AFGRI intends to acquire back the retail agricultural requisites and fuel businesses it previously contributed to Hinterland (“AFGRI Hinterland Assets”). Hinterland is joint venture between AFGRI and Senwes Ltd (Senwes).

As consideration for AFGRI Hinterland Assets, AFGRI will transfer its 50% shareholding in the remaining Hinterland JV to Senwes. As a result of the transaction, Hinterland will become a wholly owned subsidiary of Senwes.

AFGRI is involved in the agricultural sector and its activities include storage of agricultural products, short-term and long-term insurance, financial collateral management, provision of agricultural requisites for farmers, food processing and other activities required by the farmers. 

Senwes’s main activities include amongst others, grain handling and storage, financing, grain trading, grain transport, equipment sales, agricultural retail stores, insurance, agriculture inputs, and agricultural services.

Hinterland provides retail and wholesale of agricultural requisites and conducts retail fuel business.

The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. However, the Commission found that the merger raises employment concerns. Accordingly, the Commission recommends that the Tribunal approves the merger subject to a 2-year moratorium on merger related retrenchments.

Motus Group Limited (Motus)/ Atlantis Nissan Centurion (Atlantis Motors)

The Commission has recommended that the Tribunal approve the proposed transaction whereby Motus intends to acquire the Nissan dealership business (Target Business) of Atlantis Motors (Pty) Ltd without conditions.

Motus Group is involved in vehicle importation, vehicle distribution and dealerships, vehicle rentals, after-market and vehicle related financial services

The Target Business is situated at Corner Lenchen South & Heuwel Avenue, Centurion, Gauteng Province. The Target Business is active in the sale of new vehicles, used vehicles, OEM branded parts and accessories and after-market service.

The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. The Commission further found that the proposed transaction does not raise any public interest concerns.

AFCHO Holdings (Pty) Ltd (AFCHO)/ Calgro M3 JCO Holdings (Pty) Ltd (JV CO)

The Commission has recommended that the Tribunal approve the proposed transaction whereby AFCHO intends to acquire a majority or all of the shares in JV Co.

AFCHO develops and owns residential properties in Gauteng, specifically within Johannesburg CBD, Midrand, Randfontein, Soweto, Vereeniging, South Hills, Benoni, Springs, Centurion, Pretoria and Randburg.

JV Co is involved in the development and rental of 480 residential sectional title units situated in Roodepoort, Gauteng.

The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. The Commission further found that the proposed transaction does not raise any public interest concerns.

Brambles Ltd (Brambles), through its subsidiary Braecroft Timbers (Pty) Ltd (Braecroft)/ Part of the business of Paradise Falls Timber (Pty) Ltd (the Target Firm)

The Commission has unconditionally approved the proposed merger whereby Brambles through its subsidiary Braecroft intends to acquire the Target Firm.

Brambles is a supply-chain logistics company operating in more than 50 countries, primarily through the CHEP brand. Brambles provides pooling of unit-load equipment and associated services, focusing on the outsourced management of pallets, crates and containers. In South Africa, Brambles is active through CHEP SA which operates its pooling solutions business mainly in the broader FMCG and agricultural sectors. The pooling solutions business of CHEP SA, is supported through its backward-integrated subsidiaries, Braecroft and Weatherboard.

Braecroft owns 10 pine (softwood) farms covering an area in South Western Kwa-Zulu Natal of approximately 5700 ha of which approximately 3300 ha contain standing pine plantations. Weatherboard operates a sawmill, a timber processing plant and a pallet assembly plant in Kwa-Zulu Natal. The pine saw logs harvested by Braecroft are all utilized internally by Weatherboard to produce reusable wooden pallets for CHEP SA.

The target firm is part of the business of Paradise Falls.  The Target Firm comprises of 8 timber farms near Underberg totalling 3286 ha of pine and 808 ha of eucalyptus.

The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. However, with regards to public interest, the Commission was concerned that the merger might negatively affect the SMME suppliers and HDIs located in the Midlands and Southern Kwa-Zulu Natal region who require the softwood sawlogs as inputs in their respective markets. The Commission engaged the merging parties on the concern. In this regard, the merging parties undertook to “make available to SMEs and HDPs located in KwaZulu Natal 12 000 tons of softwood sawlogs (thinnings or 8cm to 15cm diameter sawlogs) annually for a period of 6 years”. The Commission is satisfied that the proposed undertaking addresses the concern.

Hensoldt Optronics (Pty) Ltd (HOSA)/ the air traffic management (ATM) business and the defence (Defence) and security business of Tellumat (Pty) Ltd (Tellumat)

The Commission has conditionally approved the proposed merger whereby HOSA intends to acquire ATM, Defence and Tellumat.

The Hensoldt Group manufactures and sells sensor systems, including military radar, military communications, electronic warfare and optronics. Radar, identification and data products include high performance active electronically scanned array ("AESA") radars, identification friend or foe ("IFF") systems and airborne data links. In addition, it develops new products for data management, robotics and cyber security. Its workforce conducts business activities in the following areas: Space; Air; Land; Sea; Security; Cyber and Information Space.

Tellumat operates its ATM division in the aerospace market and mostly contracts with the South African National Defence Force and many of South Africa's airports. ATM provides a full-service offering ranging from project management, systems engineering, product upgrades, software development and installation to integration, commissioning and logistic and maintenance support. Tellumat’s Defence division provides development, supply and support of systems and solutions for systems integrators and end users across the international aerospace and defence markets. It provides integrated secure IFF system products for land, sea or air defence radar and weapon systems; and perimeter security and management solutions which provide early warning systems of threats and intrusions in respect of linear assets such as railways, pipelines, utilities and communications infrastructure, critical infrastructure security perimeters (power stations, airports, military bases, mines and national borders), and power lines.

The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. The proposed transaction does not raise any other public interest concern.

The Commission’s investigation found that 9 employees are likely to be retrenched as a result of the proposed transaction. The merging parties have committed that the Hensoldt Group will give first preference to the affected employees should suitable positions become available within HOSA or any of the subsidiaries within the Hensoldt Group in South Africa over the course of the 12 months following the implementation date. 

ECP Africa Fund IV LLC (Fund IV) and ECP Africa Fund IV A LLC (Fund IV A)/ Remitix Holdings (Mauritius) Limited (Remitix) 

The Commission has unconditionally approved the proposed merger whereby Fund IV and Fund IV A (collectively “Funds IV”) intend to acquire Remitix. 

Funds IV are private equity funds registered in Mauritius. Funds IV were established to make investments directly or indirectly in Africa. In South Africa, Funds IV control the Transport Forex business, which operates a technology platform that enables payments for fuel-related products and services, border crossings, tolls and cash disbursement services for cross-border road transportation customers. These services are currently offered in Angola, Burundi, Botswana, the DRC, Kenya, Mauritius, Malawi, Mozambique, Namibia, Rwanda, South Africa, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe. 

Remitix, holds the business known as the "Mukuru" business. Mukuru is a cash remittance technology platform that allows users to send or to receive money in a cost-effective manner across various countries in Sub-Saharan Africa. In addition to remittance services, Mukuru also provides secondary financial services, namely funeral insurance policies and prepaid (debit) card services ("Mukuru Card"). Remittance services allow users to send single money transfers to friends and family, whether over the phone, through a mobile application, online, via bank transfer or through a branch. The receiving parties would then collect the money from specific collection points in their own country which includes various retailers and banks as well as Mukuru collection points. The Mukuru Card is a reloadable prepaid card available for use by registered users of the Mukuru service in South Africa. Mukuru Card is issued by Standard Bank. Mukuru's funeral policy offering allows customers to purchase single member or family funeral insurance cover up to a certain maximum amount as well as repatriation services.

The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. The Commission further found that the proposed transaction does not raise any public interest concerns.

Apex Partners Holdings (Pty) Ltd (Apex)/ ELB Group Ltd (ELB)

The Commission has unconditionally approved the proposed merger whereby Apex intends to acquire ELB.

Apex has interests in various companies and its portfolio is comprised of an advisory business and various investments primarily in the industrial sector. Relevant to this transaction is the Acquiring Firm’s investment in Tractor & Grader Supplies (“TGS”) which supplies and distributes aftermarket spare parts and ground engaging tools for earthmoving and mining machinery.

ELB and all the firms directly and indirectly controlled by it are collectively referred to as the Target Group or ELB Group. The ELB Group primarily supplies a diverse range of construction, earthmoving and mining & quarrying equipment. In addition, the Target Group offers construction solutions to customers in the mining and manufacturing industries including erection, refurbishment and maintenance of equipment; project supervision and site management; and shutdowns.

The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. The Commission further found that the proposed transaction does not raise any public interest concerns.

International Flavors & Fragrances Inc. (IFF) / Nutrition & Biosciences, Inc. (N&B)  

The Commission has unconditionally approved the proposed merger whereby IFF intends to acquire N&B. 

IFF is active worldwide in the development, creation, and sale of flavours and fragrances that are used in consumer goods industries (such as food and beverages, personal care, or home care products industries). In South Africa, IFF supplies flavours, savoury solutions, beverage bases, ingredients for flavours and fragrances (including aroma chemicals), cosmetic ingredients, essential oils, resins and resionoids, food colours, Systems, fruit-based food inclusions, health supplements, meat products and starter cultures for meat.

The N&B  business is active worldwide in the development, production, and marketing of food science, and texture applications, and biotechnology products that are used in various industries, including food and beverage, dietary supplements, home and personal care, animal nutrition, and pharmaceutical excipients. In South Africa, the N&B Business’ main activities are the marketing of food science, taste, and texture applications, and biotechnology products that are used in various industries. These activities include, amongst others, the supply of (i) antioxidants; (ii) cosmetic Ingredients, and (iii) systems for the food and beverage sector.

The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. The Commission further found that the proposed transaction does not raise any public interest concerns.

Jacana Capital (Pty) Ltd (Jacana)/ Mpumalanga Risk Acceptances (Pty) Ltd (MRA) 

The Commission has unconditionally approved the proposed merger whereby Jacana intends to acquire MRA.

Jacana is ultimately controlled by two historically disadvantaged individuals (“HDIs”) Nhlanganiso Mkwanazi (“Mr Mkwanazi”) and Ernest January (“Mr January”). Mr Mkwanazi and Mr January are involved  in private equity investments, including in the short-term insurance broking sector. 

MRA is a short-term brokerage firm which specialises in broking short-term insurance for SMMEs and individuals in the agricultural and hospitality sectors in Nelspruit, Mpumalanga. MRA only conducts it short term insurance broking activities in Mpumalanga. 

The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. The Commission further found that the proposed transaction does not raise any public interest concerns.

Eastvaal Isuzu (Pty) Ltd (Eastvaal Isuzu)/ Kohlers Garage (Pty) Ltd in respect of sale of trading assets (trading as Kohler Auto)

The Commission has unconditionally approved the proposed merger whereby Eastvaal Isuzu intends to acquire the trading assets of of Kohlers Garage (Pty) Ltd, trading as Kohler Auto.

Eastvaal Group is active in the retail of new and pre-owned passenger and light commercial vehicles. In addition, Eastvaal Group provides maintenance and warranty plans for vehicles, as well as aftermarket parts and accessories. Eastvaal operates motor dealerships in Mpumalanga, specifically in Witbank, Middelburg, Secunda and Bethal, as well as in Potchefstroom in the North West Province.

Kohler Auto operates an Isuzu /Opel motor vehicle dealership which is located at 3 Corridor Crescent, Route N4, Business Park, Emalahleni (Witbank), Mpumalanga Province. 

The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. The Commission further found that the proposed transaction does not raise any public interest concerns.

African Pioneer Marine (Pty) Ltd (APM)/ Glenryck South Africa (Pty) Ltd (Glenryck)

The Commission has unconditionally approved the proposed merger whereby APM intends to acquire Glenryck.

The APM Group is a 100% black owned and controlled intermediate investment holding company whose subsidiaries are active in the procurement, catching, processing and marketing of pelagic fish (pilchards and anchovy), hake, squid, horse mackerel, sole, tuna and south coast lobster. In addition, APM Group holds controlling interests in entities active in the food and beverages, leisure and gaming, and energy sectors. The APM Group operates, through its numerous subsidiaries, in the fishing and allied services sector. It engages in the catching, processing, marketing, and procurement of marine species including pilchard, horse mackerel, anchovy, rock lobster, squid, sole, hake and other deep-sea species sold through international and local marketing channels. Of relevance for purposes of the proposed transaction are APM’s pilchard operations which involve the harvesting, importation and processing of pilchards into canned products at the Oranjevis Joint Venture and marketing thereof under the “Sea Pride” brand (sold to wholesalers and institutional and school feeding programmes) as well as supply of canned pilchards to retailers and wholesalers under “private label” or “house brands”.

Glenryck is a sales and marketing company owned by Bidvest Namibia Limited ("Bidnam"), a wholly owned subsidiary of the Bidvest Group. Glenryck does not have any fishing rights in South Africa or in Namibia. Neither Glenryck, nor its parent or sister companies have their own canning facilities. It is accordingly not a vertically integrated player. Glenryck operates only in the downstream market for the marketing and sale of canned pilchards. 

The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. The Commission further found that the proposed transaction does not raise any public interest concerns.

Boxer Superstores (Pty) Ltd (Boxer) / Roxisat (Pty) Ltd t/a Pick n Pay Baden Mafikeng (the Target Firm)

The Commission has unconditionally approved the proposed merger whereby Boxer intends to acquire the Target Firm.

Boxer conducts its business as a retailer of groceries, liquor, and hardware goods. It serves middle to low (1-5) Living Standard Measures consumers. Boxer’s supermarkets are mainly located near taxi and bus ranks, in rural areas, townships and CBD transport nodes. 

The Target Firm does not control any firms. The Target Firm conducts its business as a franchisee of Pick n Pay.

The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. The Commission further found that the proposed transaction does not raise any public interest concerns.

Boxer Superstores (Pty) Ltd (Boxer) / Lenthap Trading (Pty) Ltd (Lenthap) t/a Pick n Pay Station Square Pretoria Central (Target Firm)

The Commission has unconditionally approved the proposed merger whereby Boxer intends to acquire the entire business of the Target Firm from Lenthap.

Boxer conducts business as a supermarket, liquor and hardware retailer in South Africa and Swaziland. 

The Target Firm conducts its business as a franchisee of Pick n Pay.

The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. The Commission further found that the proposed transaction does not raise any public interest concerns.

Clintopix (Pty) Ltd (Cintopix) / Avacare Shared Services CMA (Pty) Ltd (ASSCMA)

The Commission has unconditionally approved the proposed merger whereby Cintopix intends to acquire ASSCMA.

Cintopix and its parent company, Lengau, operate as holding companies and thus have no activities. 

ASSCMA offers centralised services to entities within the Avacare Group. ASSCMA’s activities include internal design and branding, communications, marketing, finance and legal services.

The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. The Commission further found that the proposed transaction does not raise any public interest concerns.

FPG Holdings (Pty) Ltd (FPG Holdings) Fairvest Property Holdings Limited (Fairvest) in respect of rental enterprise known as Tokai Junction (Target Property)

The Commission has unconditionally approved the proposed merger whereby FPG Holdings intends to acquire the Target Property from Fairvest.

The FPG Group property portfolio consists of office, retail, and industrial properties which are situated in the Western Cape Province, Northern Cape Province, Gauteng Province and North West provinces. 

The target firm is Fairvest in respect of the rental enterprise known as Tokai Junction. 

The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant market. The Commission further found that the proposed transaction does not raise any public interest concerns.

IHOCO B.V (IHOCO) / IHMS Hotels (SA) (Pty) Ltd (IHMS)

The Commission has unconditionally approved the proposed merger whereby IHOCO intends to acquire IHMS.

IHOCO is a holding company that does not sell any products or provide any services. For completeness, however, IHOCO has interests in several Taj-branded hotels worldwide. 

IHMS is a holding company which controls Good Hope Palace Hotels (Pty) Ltd which in turn, owns the Taj Hotel. The Taj Hotel is a five-star, 159 room hotel situated in central Cape Town.

The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. The Commission further found that the proposed transaction does not raise any public interest concerns.

Alto Wine Estate (Pty) Ltd (AWE) / The Alto Farming Enterprise (The Target Business)

The Commission has unconditionally approved the proposed merger whereby AWE intends to acquire the Target Business from Nederburg Wine Farms Limited

The Target Business is a wine producing firm. 

The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. The Commission further found that the proposed transaction does not raise any public interest concerns.

The Energy Company (Pty) Ltd (TEC) / Thebe Unico (Pty) Ltd (Thebe Unico)

The Commission has unconditionally approved the proposed merger whereby TEC intends to acquire Thebe Unico.

TEC is a manufacturer, marketer and distributor of industrial heating fuels and mining solvents to customers in South Africa and the rest of Africa. 

Thebe Unico controls Unico Manufacturing Company (Pty) Ltd (Unico Manufacturing) and Veetech Oil (Pty) Ltd (Veetech). Thebe Unico and all the firms it controls are referred to as the “Target Group”. The Target Group produces two products: engine coolants and brake fluids. In producing engine coolants, the Target Group imports raw materials and blends them in order to produce engine coolants in accordance with customers’ specifications. 

The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. The Commission further found that the proposed transaction does not raise any public interest concerns.

Firefly Investments 342 (Pty) Ltd (Firefly Investments) / The business of manufacturing, selling and distributing mine support systems and the provision of related services carried on by Mine Support Products (Pty) Ltd (MSP)

The Commission has unconditionally approved the proposed merger whereby Firefly Investments intends to acquire MSP.

Firefly Investments and the firms controlling it are involved in private equity and hold investments in a variety of sectors including branded apparel,  pump drives and accessories, maize products, industrial packaging, forklifts and accessories, security solutions, paint, FMCG wholesaling, hair products and logistics. 

MSP is active in the manufacture, sale, and distribution of support systems for the mining industry, including roof-support and roof-control systems, and provides services in respect thereof. MSP provides support systems which absorb dynamic energy for soft and hard-rock mining environments and its main customers operate in deep level gold, platinum, and coal mining.

The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. The Commission further found that the proposed transaction does not raise any public interest concerns.

Digital Ecosystems (Pty) Ltd, formerly known as Blue Label Mobile Group (Pty) Ltd (BLM) / Hyve Mobile (Pty) Ltd (Hyve Mobile)

The Commission has unconditionally approved the proposed merger whereby BLM intends to acquire Hyve Mobile.

BLM is a holding company and does not conduct any business operations. The entities controlled by BLM offer services in the telecommunications industry including inter alia,  the provision of wireless application services (“WAS”); provision of bulk messaging services to Mobile Network Operators (“MNO’s”) and Wireless Application Service using Short Message Services (“SMS”), Unstructured Supplementary Services data (“USSD”) to businesses; sourcing and distributing a range of mobile content such as entertainment, information, news and similar interactive and communication services; airtime advance, data or mobile money to subscribers. 

Hyve Mobile is a Wireless Application Service Provider (WASP) that provides enterprise grade Service Delivery Platform services ("SDP") to MNOs in South Africa. Like other WASPs, Hyve Mobile sources (i.e. licenses) mobile content from third parties which mobile content it provides over its SDP.

The Commission found that the proposed transaction is unlikely to result in a substantial prevention or lessening of competition in any relevant markets. The Commission further found that the proposed transaction does not raise any public interest concerns.

Non-Referrals: The Commission has taken a decision to non-refer (not to prosecute) the following cases:

2.1   Natalie Bhabikan v Donovan Naicker

The Commission is of the view that the conduct complained of does not contravene the Competition Act.

2.2   Xolekhaya (Pty) Ltd v Mobile Telephone Networks (Pty) Ltd 

The Commission is of the view that the conduct complained of does not contravene the Competition Act.

2.3   Sipho Mngomezulu v Ekurhuleni Municipality, Tembisa 

The Commission is of the view that the conduct complained of does not contravene the Competition Act.

2.4   Rendani Isaac Mulaudzi v Fairie Glen Takealot Branch

The Commission is of the view that the conduct complained of does not contravene the Competition Act.

2.5   Herman Smit v Some liquor stores in the Vaal Triangle area   such as Spar Tops, Pick ‘n Pay, Checkers, Liquor Legends, Ultra Liquor, etc.

The Commission is of the view that the conduct complained of does not contravene the Competition Act.

2.6   Department of Correctional Services v FE Industrial Supplies and Shosho Industrial Supplies 

The Commission is of the view that the conduct complained of does not contravene the Competition Act.

Anonymous v Teleflex 

The Commission is of the view that the conduct complained of does not contravene the Competition Act.

2.8   Guillaume Cillie v iStore, Takealot and Incredible Connection

The Commission is of the view that the conduct complained of does not contravene the Competition Act.

Wandile Gxabuza v The Department of Basic Education - Free State

The Commission is of the view that the conduct complained of does not contravene the Competition Act.

Issued by The Competition Commission of South Africa