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The Tribunal has conditionally approved the large merger whereby DH Brothers Industries (Pty) Ltd (“DH Brothers”) and Seaboard Corporation (“Seaboard”) seek to acquire RussellStone Protein (Pty) Ltd (“RSP”).
 
Post-merger, Willowton and Seaboard will be joint venture partners in RSP but will continue to compete with each other in the soybean meal market in South Africa.
 
Merger parties
 
DH Brothers is wholly owned and controlled by Willowton Group. Willowton (DH Brothers, its controllers and all firms under its control) is active in sunflower seed and soybean crushing and oil refinery operations, with interests in the manufacturing and sale of edible oils, cleaning and packaging of rice, maize milling and in the fast-moving consumer goods market.
 
Seaboard, a company incorporated in the USA and listed on the New York Stock Exchange, has interests in various companies in South Africa. It is part of a global agribusiness and logistics company which is locally active in the trading of agricultural commodities such as soybeans, soybean meal, soybean hulls, crude soybean oil, sunflower seeds, sunflower meal, sorghum, wheat and maize. Seaboard mainly imports the products but also sources locally.
 
RSP owns a soybean crushing plant which is active only in soybean crushing. RSPs main product offering is soybean meal, which is used in the animal feed industry, mainly for poultry and pigs. RSP toll crushes soybeans for Seaboard in terms of a toll crushing agreement.
 
Background
 
The Competition Commission (“the Commission”), which assesses large mergers before referring such to the Tribunal for a decision, recommended that the transaction be prohibited. It was of the view that the merger would likely result in a substantial lessening of competition through the creation of the structural link between competitors – Willowton and Seaboard – likely leading to coordinated effects that would have a negative impact on the South African soybean meal market. The Commission and merger parties could not agree on merger conditions.
 
In July and August 2021, the Tribunal heard submissions from the Commission and the merger parties, as well as factual and expert witness evidence, in relation to the proposed large merger. After considering all the submissions and evidence, the Tribunal approved the merger with conditions.
 
Merger conditions
 
The merger conditions, which will be made available on the Tribunal’s website at https://www.comptrib.co.za/case-detail/19213, will remain in force for as long as Willowton and Seaboard remain shareholders in RSP. These include, inter alia, that:
 

the merger parties must adhere to confidentiality obligations that seek to prevent the sharing or exchange of sales information and competitively sensitive information between the competing businesses;

Willowton and Seaboard are obliged to keep the business sites of their respective competing businesses and that of RSP separate; and all persons involved in the sales and operational activities of the competing businesses will not be allowed access to RSP’s information technology systems;

the merger parties must commit to competition law compliance through developing and implementing a competition law compliance programme. In addition, all sales, marketing, management and executive employees, as well as Directors of the respective merger parties will undergo competition law training;

the merger parties must ensure that, within five days of the merger implementation date, persons involved in the businesses are given a copy of the merger conditions, with particular attention being drawn to the confidentiality obligations. The conditions must also be provided to newly appointed employees in the competing businesses as well as RSP; and

to ensure compliance with the merger conditions, the merger parties must develop, adopt and implement a policy containing procedures for the implementation and on-going monitoring of the conditions.

Issued by The Competition Tribunal