The Competition Commission (Commission) has filed an application to appeal the Competition Appeal Court's (CAC) judgment in the Pannar Seed (Proprietary) Limited (Pannar Seed) and Pioneer Hi-Bred International Incorporated (Pioneer) merger with the Supreme Court of Appeal (SCA). The Commission is challenging the CAC's judgment on two grounds, namely the approval of the merger and the costs order awarded against the Commission.

As discussed in our newsletter of 7 June 2012, in May 2011 the CAC overturned the Commission's prohibition of the merger between Pannar Seed and Pioneer. The CAC held that the proposed transaction would benefit competition in the industry by preventing the inevitable demise of Pannar Seed.

A spokesperson for the Commission indicated that the organisation is seeking clarity from the SCA as to when the "failing firm" defence may be used in merger transactions. The spokesperson also stated that an order for the Commission to pay legal costs, incurred in the Competition Tribunal (Tribunal) and SCA reviews, undermines its investigatory powers.