Legislative amendments

• Of relevance in the competition law space, Tebogo and Bonang made written and oral submissions before the Parliamentary Portfolio Committee on Economic Development at the public hearings held in Parliament on 28 and 29 August 2018 on the Competition Amendment Bill.

• We subsequently assisted the Economic Development Department (now the Department of Trade, Industry and Competition (“the dtic”) in relation to the institutional requirements for implementing the Competition Amendment Act, 2018. The Minister of Economic Development, Honourable Ebrahim Patel MP, appointed our Mr Tebogo Malatji to lead an expert panel on the requirements of the Competition Authorities to get them to a state of readiness to implement the Amendment Act. In this process we have been involved in the extensive review of the Competition Commission and Competition Tribunal’s requirements on its resources; funding; systems etc. This work included conducting a benchmark exercise with the competition authorities of foreign jurisdictions such as the UK; Canada; the USA; Australia; Chile and Italy. The work resulted in a report to the Department.

Merger Control: Advising the Minister of Trade, Industry and Competition on public interest grounds

• Tebogo, Bonang and Ally assisted the Minister of Economic Development and the Department (now the dtic) as interested parties on a dispute involving Mondi PLC (UK) and Mondi Limited (South Africa) regarding the Commission’s decision that the intended simplification of the dual listed structure by the two entities amounts to a merger as defined in the Competition Act. The Mondi group disputed that the transaction is a notifiable merger and challenge the Commission’s jurisdiction. The Ministry was concerned about the adverse public interest considerations that will ensue should the merger be implemented.

• We assisted the dtic with public interest considerations in a merger transaction between DP World Logistics FZE and Imperial Logistics. The merging parties disputed that there were any public interest issues arising from the transaction. In this regard, we assisted the Minister to prepare submissions and filed them with the Tribunal. The submissions were based on ownership concerns relating to black shareholding in the target firm; and investment concerns pertaining to the impact of the proposed transaction on the target firm’s ongoing investment in the South African logistics sector. We attended the hearing before the Competition Tribunal and advanced submissions on behalf of the Department.

• Tebogo and Bonang assisted the Department with the three iterations of the Chevron South Africa transaction with SOIHL Hong Kong Holding Limited between 2017 and 2018; then the second transaction with Off the Shelf Investments 56 (RF) Pty Ltd; and later with Glencore SA Oil Investments (Pty) Limited.

The Department raised several public interest concerns to all three parties during the three iterations of the transaction. These discussions culminated in the conclusion of framework agreements between the merging parties and the Department. The concerns raised range from employment, refinery capacity, local procurement and broad-based black economic empowerment. Other outcomes facilitated by the Department included preservation of jobs, upliftment of small businesses etc. In this regard, we were involved in the negotiations of the public interest considerations as regulated under the Competition Act.